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There is no dispute that the parties had got married on 28.06.2005, as per Hindu rites and customs at Kalyan Vihar, Delhi and were blessed with two children, a son and a daughter.The respondent/husband has alleged in his petition that since the MAT.APP.(F.C.)200/2019 Page 1 of 8 marriage, the behaviour of the appellant/wife was not good, she was very abusive to his sister and parents, did not help in the household work and quarrelled with the respondent/husband and his other family members over trivial issues.This behaviour was aggravated with the birth of the son of the parties.She also demanded that the property in the name of the father of the respondent/husband be transferred in her name and when the respondent/husband expressed his inability to do so, she threatened to implicate him and his family members in false criminal cases.MAT.APP.(F.C.)200/2019 Page 1 of 8The respondent/husband further alleged that on 20.01.2007, the appellant/wife and their son went to her parental home when she took away her jewellery items and on 02.02.2007, lodged a false complaint with the Crime Against Women Cell implicating the respondent/husband and his family members.It was falsely alleged in that complaint that the father of the appellant/wife had given the respondent/husband a plot of 100 sq.yards and cash amount in dowry.The parties agreed to live together and the respondent/husband brought back the appellant/wife to the matrimonial home.It was further alleged by the respondent/husband that the appellant/wife again started harassing him and demanded transfer of properties in her name a few days after the settlement was effected.MAT.APP.(F.C.)200/2019 Page 2 of 8On 07.12.2009, when the respondent/husband did not hand over his salary to the appellant/wife as demanded by him, she quarrelled with him, went to the police chowki and filed a complaint against him.The respondent/husband, in order to save his married life, agreed before the police officials that he would give his salary to the appellant/wife, who would then give him Rs.50/- every day.According to the respondent/husband, on the occasion of the birthday of his son on 07.02.2010, the appellant/wife quarrelled with his sister who had come to see him, poured kerosene oil on herself and filed a complaint against him and his family members that they had tried to kill her.Again, the matter was compromised on the condition that the parents of the respondent/husband would leave their house at Khora Colony.In May, 2010, the respondent/husband brought his parents back to their own house.The respondent/husband also alleged that in June, 2010, the appellant/wife had refused to take care of his brother, who had undergone a surgery and once again started demanding transfer of properties in her name.The further allegation is that on 24.08.2010, when the respondent/husband had sought some time to arrange money to fulfil the demand of the appellant/wife for new ornaments, she had gone to the police post and filed a complaint against him and his family members.The appellant/wife also file a case under the Protection of Women from Domestic Violence Act, 2005 against him.The respondent/husband claimed that in an attempt to settle all issues, he shifted alongwith the appellant/wife to a rented accommodation despite which, she kept on filing complaints against him and his family members.MAT.APP.(F.C.)200/2019 Page 3 of 8Thus according to him, the appellant/wife had ruined his life because of her desire to own his father's properties.The contents of the written statement filed by appellant/wife have been referred to in the impugned judgment where it is noted that she has in turn alleged that it was the respondent/husband and his family members who had inflicted cruelties on her.She claimed that despite the fact that at the time of her marriage, her parents had given dowry articles worth Rs.2,50,000/- and a plot measuring 100 sq. Yards at Bhalaswa, Delhi to the respondent/husband, his mother and sister had taunted and ill treated her on the ground that her parents had not given a motorcycle or an amount for carrying out construction on the plot for which a specific demand of Rs.2 Lakhs was raised by them and her health started to deteriorate.She alleged that the respondent/husband and his family members had even tried to kill her when their demands were not fulfilled.The appellant/wife claimed that it was the father of the respondent/husband, who had left her at her parental home on 25.12.2006 on the assurance that after the marriage of his daughter, they would call her back to the matrimonial home.However on 18.01.2007, the respondent/husband had come to her parental home and had beaten up her father.She claimed that for safety, she filed a complaint at Police Station Kalyanpuri, Delhi on 20.01.2007 but later on, withdrew the same under the pressure of the parents of the respondent/husband.No reconciliation took place despite the efforts of the parents of the appellant/wife.MAT.APP.(F.C.)200/2019 Page 4 of 8The appellant/wife admitted that a petition for restitution of conjugal rights had been filed by the respondent/husband but she claimed that it was withdrawn as a maintenance order was passed in the said petition.The maintenance was also in arrears as a result of which she filed an execution petition.After a month, the parties with their children shifted to J.J. Colony at Chitra Vihar, Delhi where according to the appellant/wife, the respondent/husband again started harassing and humiliating her by coming late at night and abusing her.She alleged that she was kept as a maid to do all household work and was never provided proper food.Her ornaments and dowry articles were not returned despite the agreement to this effect at the Mediation Centre.This made the appellant/wife file a complaint at Police Station Indirapuram, Ghaziabad that she was not provided maintenance and proper food.Pursuant to the said complaint, the respondent/husband agreed to give his full salary to her except for a sum of Rs.50 per day but he never actually gave her the salary and did not comply with the terms of the mediated settlement.She stated that she and her mother filed a complaint at Police Station Indirapuram, Ghaziabad when the mother of the respondent/husband threatened to burn herself by pouring kerosene oil on herself if she did not withdraw her cases.The appellant/wife alleged that in December, 2010, the MAT.APP.(F.C.)200/2019 Page 5 of 8 respondent/husband and his family had sent her to her parental home for the treatment of her child and in her absence, her articles were stolen by him and his family members.The facts as borne out from the impugned judgment are that the respondent/husband had filed a petition for divorce under Section 13(i)(ia) of the Hindu Marriage Act, 1955 (in short, 'HMA') on the grounds of cruelty.She also filed an application under the RTI Act, which led to the registration of FIR No. 479/11 at Police Station Indirapuram, Ghaziabad.MAT.APP.(F.C.)200/2019 Page 5 of 8The Family Court considered all the above allegations and counter allegations and tested them on the anvil of the evidence that was led by the parties and concluded that the respondent/husband who had examined himself as PW1 was able to substantiate all his allegations.His mother, Smt. Munni Devi who was examined as PW2 and his neighbour, Sh.Hari Ram Gupta who was examined as PW3, also supported the version of the respondent/husband that the conduct of the appellant/wife left much to be desired and was not good.The appellant/wife examined herself as RW1 and brought on record, copies of several complaints that she had made against the respondent/husband.The Family Court concluded that the conduct of the appellant/wife amounted to cruelty in view of the following facts : -(a) That despite the Settlement dated 28.04.2009 and the parties having started residing together in the matrimonial home the appellant/wife had continuously lodged complaints against the respondent/husband and his family members with the police including FIRs No. 373/07 u/s 489A/406, IPC, PS Kalyanpuri and FIR No. 479/11 u/s 406, IPC, PS Indirapuram, Ghaziabad, UP.(b) That the respondent/husband and his parents had remained in judicial custody for 28 days while other MAT.APP.(F.C.)200/2019 Page 6 of 8 family members including his brother and unmarried sister remained in custody for 7 days before they were released on bail.(c) That in FIR 373/07 u/s 489A/406, IPC, all the accused being the respondent/husband, his parents and his sister were finally acquitted after trial.(e) That the plot at Bhalaswa, Delhi had remained all through in the name and possession of the mother of the appellant/wife and unsubstantiated allegations had been levelled by her against the respondent/husband and his family.(f) That the parties have been disputing for the last over 12 years and living separately for 8 years, without any attempt at reconciliation.It has been argued before us that the police complaints made by the appellant/wife were on account of continuous harassment at the hands of the respondent/husband.The admissions made before the Family Court in the written statement filed by the appellant/wife with regard to the constant filing of criminal complaints against the respondent/husband and his family members, the fact that she had forced the MAT.APP.(F.C.)200/2019 Page 7 of 8 respondent/husband to hand over all his salary to her except for a sum of Rs.50 per day, the fact that the respondent/husband and his family members were ultimately acquitted in the case of dowry harassment filed by her clearly establish that the respondent/husband had constantly remained under stress and fear for the welfare of his parents and himself as the appellant/wife had placed the sword of Damocles over his head in order to keep him under her thumb.She did succeed in doing so from 28.06.2005, when the parties had got married, till December, 2010 when according to the appellant/wife, she had returned to her parental home.
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['Section 498A in The Indian Penal Code']
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Analyze the legal case and identify the corresponding section it comes under.
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36,323,134 |
This is first bail application under Section 438 of Cr. P. C. for grant of anticipatory bail to the applicant, as he is under apprehension of his arrest in connection of Crime No.11/2017, registered at Police Station Chowki Maneri, Bijadandi district Mandla for commission of offences punishable under Sections 420, 467 & 409/34of IPC.It is directed that at the event of arrest of the applicant in respect of the aforesaid crime, on furnishing personal bond of Rs.50,000/- (Rs. Fifty thousand) by the applicant along with one solvent surety in the like amount to the satisfaction of the Arresting/Investigating officer, applicant Maniram Jhariya be released on anticipatory bail.The applicant is directed to cooperate with the investigating agency.He will further abide by the conditions enumerated in sub-Section 2 of Section 438 of Cr. P. C.C. C. as per rules.(S.K. GANGELE) JUDGE vj
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['Section 420 in The Indian Penal Code', 'Section 467 in The Indian Penal Code', 'Section 409 in The Indian Penal Code']
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Analyze the legal case and identify the corresponding section it comes under.
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363,371 |
J U D G M E N TWITHCRIMINAL APPEAL NO. 129 OF 2005 State of Gujarat AppellantVersusAbdulvahad Abdulmajid Shaikh & Ors.RespondentsCRIMINAL APPEAL NO.130 OF 2005State of Gujarat AppellantVersusYasin Ganibhai Haveliwala & Ors.14 accused were tried for the offences punishable under Sections 395, 365, 365A, 212, 465, 471 read with Section 120-B IPC and also under Sections 3 and 5 of the TADA Act read with Section 120B IPC.They were also charged under Sections 25(1)(b)(a) and 27 of TADA Act read with Section 120B IPC.Out of the 14 accused, accused A-1, A-2, A-3, A-7, A-8, A-11, A-12 & A-14 were found guilty of offences punishable under Sections 120 B, 342, 365 and 384 IPC and were acquitted of other offences.The prosecution case was that the accused persons hatched a criminal conspiracy to kidnap PW 7 Vedprakash Devkinandan Chidipal and extort a ransom of Rs. 1 crore from him.One Sherjada (now deceased) called the assistance of A-12 Musakhan @ Babakhan Ismailkhan, A-11 Jahangir Mahammadanwar Saiyed and A-1 Abdulvahab and together they planned to kidnap PW 7 Chidipal.The other accused namely, A-2, A-3, A-8 and A-14 were also present.In pursuance of their common object, on 22.2.1994 they all went to Pirana Road in a Maruti car, a Maruti Van and a Yamaha motorcycle.PW 7 Chidipal was found going in a Maruti 1000 car and his vehicle was driven by one Sangramsinh.The Maruti car wherein some of the accused-appellants were travelling overtook the Maruti 1000 car driven by Sangramsinh and made that car to stop.One of the accused opened the door of the Maruti 1000 car near the driver's seat, pushed the driver from his seat and took control of the vehicle.Two other accused entered the car and sat on either side of PW 7 Chidipal.The car was driven to Octroi-Naka and after sometime, driver Sangramsinh was pushed out of the car.PW 7 Chidipal was then moved to a White Maruti van and his eyes were bandaged with cotton.He was taken to a room and confined there for two days.The accused took the telephone numbers of the brothers of PW 7 Chidipal.PW 11 Jaiprakash, brother of Chidipal was contacted and told that he shall not inform the police and a sum of Rs. 1 crore was demanded from him.Nobody came forward to give money to the accused.On 24.2.1994, PW 11 Jaiprakash was contacted again and told to reach the house of PW 9 Sattar.PW 11 Jaiprakash and one Shivbhagwan went to the house of PW 9 Sattar in a white Maruti car with four bags.Again, PW 11 Jaipakash was told to go to Anjuman High School at Astodia and was directed to leave his Maruti car behind a rickshaw.They left the Maruti car behind the rickshaw and came back to the house of PW 9 Sattar Bhai.At about 10.00 p.m. on that day, PW 7 Chidipal came back to his house.Sangramsinh the driver of PW 7 Chidipal went to Vatva Police Station.He gave a First Information statement to the Police Inspector and investigation started pursuant to his statement.The Maruti 1000 car owned by PW 7 Chidipal was found parked by the side of the road.". Before one month of the murder of Sherjada, on Piplaj-road, outside Pirana Octroi Check-Post, he had abducted one industrialist.The tip was brought by Vijaybapu residing at Maninagar.Sherjada called me and Atik at the house of Vahab, situated in Devi-Park during 2 to 2.30 P.M. When we reached there, Shejada, Vahab, Salim Chipa, Najir Vora, Sattar Ghanti, Salim Tola, Aehmad Behro were present, and told that Chidipal is a big industrialist and he comes in his 1000 vehicle always.Vijaybapu had given me and Atik one revolver Point-38 of Vahab.Sherjada and Vahab also had with them their revolvers.Najir Vora was sent to keep watch towards the road leading to Vishala Hotel.We all also went.Aehmad Behra was seated in the Fronti of Vahab and Vahab was driving it.After sometime, 1000 of that industrialist came.Vahab drover Fronti ahead of said 1000 and Tolo drove the van behind it.Driving the vehicle upto some distance, Vahab stopped his vehicle and therefore, 1000 also stopped.Sherjada opened the gate of driver's side of the said 1000 and gave him push and removed him from the seat and he himself sat on steering.Vijaybapu took seat on the left-side of the driver.The industrialist was seated on the back-seat and around him, I and Atik sat.There are trees and there was no movement of anyone.Hence, the Vehicles were stopped and the industrialist was taken into the van.1000 was given to Vijaybapu and he was told to leave it anywhere and come to Devipark.When he went away, we all came to Devipark taking with us said industrialist.Vahab took away revolvers from everybody except Sherjada.There, Sherjada and Vahab also made a plan to extort money by taking telephone numbers of friends and relatives of industrialist Chidipal Vedprakash Vahab and Sherjada went out for doing telephone.After sometime, they returned and told that the work does not complete.Subsequently, for doing telephone, they took Chidipal to Kankaria, and after getting talk with Chidipal from his friends and relatives, they brought him back to Devipark and detained him.After 3 days, Vahab and Sherjada told me and Atik to go in rickshaw at the corner of the street opposite Anjuman High School.There while Maruti Fronti would come and tell to the driver of the said Maruti Fronti Code-Word pen and he would give you the key.I and Atik went in rickshaw to Gol-Limda and Vahab and Sherjada came there on motorcycle.Maruti Fronti had come there.Saying code-word Pen to its driver, he gave key to Atik.Taking the said Fronti, he went to old Muni quarters situated at Gita Mandir and Vahab and Sherjada were driving their Motorcycle behind the said Fronti.The other accused A-4, A-5, A-6,A-9 and A-10 were not found guilty.Accused A-13 died during the pendency of the trial.Criminal Appeal No. 1228/2004 has been filed by the accused who have been convicted by the Special Judge.Criminal Appeal No. 129/2005 has been filed by the State alleging that the acquittal of the accused-appellants in Criminal Appeal No. 1228/2004 for certain other offences for which they were charged was not justified.Criminal Appeal No. 130/2005 is filed against the acquittal of accused A-4, A-5, A-6, A-9 & A-10 of all the offences charged against them.It was recovered under Exh. 182-B Panchnama.PW 24 Police Inspector searched the house of A-7 Salim Noormahammad Haveliwala and recovered a diary which contained the telephone number of Chidipal Textile Mill.A-9 Prakash Shobhnath was arrested on 2.6.1994 and a sum of Rs. 50,000/- was recovered in the course of investigation and the accused A-1 Abdulvahab, A-3 Najirmahammad Vora, A-5 Salauddin Haveliwala, A-6 Mahammadrafik and A-8 Abdulsattar were arrested.The Yamaha motorcycle allegedly used by the accused was also recovered.The first appellant produced Rs. 1,50,000/- before the Investigating Officer.On 11.8.1994, the Investigating Officer requested the State to invoke the provisions of the TADA Act against the accused and a report was sent to the DCP.PW 27 Shri B.R. Patil was entrusted with the task of investigation.A-12 Musakhan @ Babakhan Ismailkhan was arrested by PW 27 Shri B.R. Patil and produced before PW 1 Shri Suroliya, DCP, Ahmedabad as the accused expressed his willingness to make a confessional statement.At the instance of PW 1 Shri Suroliya DCP, A-12 Musakhan @ Babakhan gave a detailed confessional statement.The rest of the accused were also arrested and finally the charge sheet was prepared by the police.This being the first appeal filed under the provisions of the TADA Act, we have carefully considered the entire case adduced by the prosecution before the Spl.Judge and heard the arguments of the learned Counsel for the accused-appellants as well as the learned Counsel for the respondent State.The learned Counsel for the appellant also contended that the Magistrate was very much available to record the statement of A-12 Musakhan @ Babakhan under Section 164 Cr. PC, but the same was not done and PW 1 Shri Suroliya, DCP recorded the confession and the confession was extracted from him by using extreme pressure tactics.The learned Counsel further urged that the fact that the confession was retracted on the very next day is indicative that it was not voluntarily made.The industrialist and driver were shown revolvers and by giving threats, they were made silent.Tolo was driving the van.We parked the Fronti there.I and Atik were sent back in rickshaw and we were told to come to Devi-park.When we reached to Devi-park, at that time, Vahab told Salim Tola to drop the industrialist Chidipal on Isanpur Highway.Tola put the cotton on the eyes of Chidipal and affixed bandage of medicine on it and put Black coloured spacts on that bandage.On the Yamaha Motorcycle of Najir Vora, Atik and Tola dropped Chidipal at Isanpur.Subsequently, Atik told me that for the release of Chidipal, Rs. 1 crore is received.Vahab told us that Latif has big share in money.Sherjada was given Rs. 17 lacs.Atik was given Rs. 4,00,000/-.I was given Rs. 2.5 lacs, Salim Tola and Vijaybapu each got Rs. 2 lacs, while sattar Ghanti and Najir Vora were given Rs. 1 lac each and Aehmad Behra was given Rs. 50,000/-.Vahab told that the said matter is given by Latif from Dubai and he has large share.Rs. 60 lacs are sent to Latif by adjustment and deducting Rs. 1 lac towards expenditure, Vahab told that he had received only Rs. 9 lacs."The confession made by A-12 Musakhan @ Babakhan gives an account of the kidnapping of PW 7 Chidipal.He mentions about the participation of other accused in the commission of the crime.He also mentions that an amount of Rs. 1 crore was demanded and received and while Latif had received a big share in the money and Sherjada was given Rs. 17 lakhs, he himself received Rs. 2.5 lakhs.In the confession, it is also mentioned as to how the money was transferred to the accused and the places where these incidents happened.From other items of evidence, ample corroboration is found of what A-12 Musakhan @ Babakhan had stated in the confession.The learned Counsel for the accused-appellants contended that the confession of a co-accused is not a substantive evidence as against the other accused and even though it is admissible under Section 15 of the TADA Act, it cannot be used for fixing criminal liability of other accused.It was submitted that such confession could only be used as a corroborative piece of evidence and unless there is a primary evidence to prove the guilt of the accused, the confession cannot be used against them.In State through Superintendent of Police, CBI/SIT Vs.Nalini and Others (1999) 5 SCC 253, this Court held that the confession recorded under Section 15 of the TADA Act is a substantive piece of evidence, but as a 'Rule of Prudence', it could be accepted only when there is corroboration.It was pointed out that though a Magistrate was readily available to record the confession, A-12 Musakhan @ Babakhan was not produced before the Magistrate and PW-1 DCP Shri Suroliya recorded the confession without following the procedure.We have perused the records and observed that PW 1 DCP Shri Suroliya has followed all procedural formalities before recording the confession.Merely because the confession was retracted later, when A-12 Musakhan @ Babakhan was produced before the Magistrate, that does not mean that the confession was not voluntary in nature.Whether the accused was willing to give a confession voluntarily or not is to be determined from his mental state at the time when he gave the confession.There is nothing on record to show that A-12 Musakhan @ Babakhan was under pressure to give any confession.When he was produced before the Magistrate, he had no case that he was put under pressure or third-degree methods had been used against him to extract the confession.When he was questioned under Section 313 Cr. PC, he had only stated that he had not given any confession as recorded by PW-1 DCP Shri Suroliya.These facts would indicate that the confession was voluntary and was recorded by PW-1 after apprising him that he was not bound to give a confession and in case he gave the confession, it would be used against him.Therefore, we do not find any force in the contention advanced by the learned counsel for accused-appellants regarding the inadmissibility of the confession.As stated earlier, there is ample evidence to show that the confession given by A-12 Musakhan @ Babakhan was truthful and gained support from other items of evidence.PW-7 Chidipal the victim had given evidence that on 22.2.1994, he went to his factory at about 10.00 a.m. in a Maruti 1000 car and later when he came back, he got down at Mithakhali at the residence of his relative and from there, he started at 5 o' clock and when the car reached near Toll Naka, one vehicle overtook his car and stopped in front of his car.PW-7 Chidipal further deposed that 4-5 persons got down from that car and one of them got into his car from the driver's side while another one got into the car from the left front door.Yet another person got into the car and the car was driven towards Octroi Post.His eyes were shut with a cotton bandage and he was kept in confinement.On the next day, he was asked to give the telephone numbers of his relatives and he talked to his brother.But this witness deposed that he did not know the identity of the kidnappers.The evidence of PW-11 Jaiprakash, the brother of PW-7 Chidipal gives further details as to how the kidnappers were paid money.He deposed that on 22.2.1994 he got a call from the kidnappers and they asked him whether the money was ready.He further deposed that the kidnappers demanded Rs. 1 crore.This witness also did not support the prosecution but he admitted that four bags were taken in a car and that car was parked behind a rickshaw whereafter they left the place.This witness would deny having given the bags of money, but his entire evidence would show that kidnappers were paid money.In the cross-examination, he admitted that he told the kidnappers that Rs. 1 crore was ready when they asked him for money over telephone.From the evidence of PW-11 Jaiprakash, it is clear that Rs. 1 crore was paid as ransom to the kidnappers.PW-12 Jyoti Prakash is another brother of PW-7 Chidipal who also gave evidence as to how the brothers assembled at his residence and discussed the issue of raising Rs. 1 crore.He contacted his friends and relatives to make arrangements of Rs. 1 crore, but this witness also did not fully support the prosecution and declined to give evidence regarding the actual payment of money.The evidence of PW-9 Satarbhai Abdul Rehman is also very important.He deposed that the victim Chidipal was known to him and this witness used to do some designing work for him.He deposed about the kidnapping of PW-7 Chidipal and about his active participation in the payment of money to kidnappers.From the evidence of these witnesses, it is clear that PW-7 Chidipal was kidnapped and the kidnappers were paid ransom amount for his release.The details of the kidnapping, the manner in which it was done and the extortion of money are all spoken of by the witnesses.In the confession statement, A-12 Musakhan @ Babakhan has given all these details and these details are in perfect consonance with the evidence given by the witnesses.But it seems that all these witnesses were afraid of giving the identity of the accused.A-12 in his confession has given the details of participation of all the accused persons and has also stated that the money was indeed received and shared by them.Taking all these factors into consideration, we do not find any difficulty in accepting the confession made by A-12 Musakhan @ Babakhan.The confession given by him cannot be said to be a figment of his imagination, but appears to be a true account of the events of kidnapping and extortion of money.Therefore, we do not find any illegality in the conviction as recorded against these accused-appellants.The Criminal Appeal No. 1228/2004 filed by the accused is without any merits and is liable to be dismissed.Criminal Appeal No. 129/2005 and Criminal Appeal No. 130/2005 are filed by the State against the acquittal of some of the accused and also against the acquittal of some accused for certain other offences for which they were charged.The accused have been convicted only for the offences where there was satisfactory evidence against them.As regards acquittal of other accused, we find no merit in the contentions raised by the State.
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['Section 120B in The Indian Penal Code']
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Analyze the legal case and identify the corresponding section it comes under.
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36,337,792 |
(02/01/2018) Appellant has filed this appeal against the judgment dated 21.08.2006 passed by Additional Sessions Judge, Khurai, District Sagar in Sessions Trial No.184/2006 whereby the trial Court held the appellant guilty for commission of offence punishable under Section 302 of Indian Penal Code and awarded sentence of life imprisonment with fine of Rs.1000/-.Prosecution case in brief is that in the night intervening 15 th and 16th of February, 2006, the appellant had beaten his wife Kusum Bai due to which she died.The dead body of Kusum Bai was recovered in the morning.Thereafter, a report of the incident was lodged.On the memorandum of appellant weapon of offence i.e. 2 axe was seized from his possession.Police conducted investigation and filed charge-sheet.The appellant abjured his guilt during trial.There are three eye witnesses of the incident.Ruppa (PW-1) deposed that "at round 11 in the night, I was singing Bhajan at the residence of Deshraj, the appellant has been beating his wife.We were 15-20 persons including Preetam, Gulab, Lakhan and Mahendra.We prevented the appellant from being beaten his wife.Appellant had taken his wife to his house.In the morning, I noticed that the house of the appellant was locked.I informed the Chaukidar.Thereafter, Chaukidar came and he had broken the lock of the house wherein the deceased was found.At that time the appellant was not present."Another eyewitness to the incident namely Preetam (PW-2) deposed that "I was singing Bhajan at the house of my elder brother at round 11.00 in the night.I had seen that the appellant 3 had been beating his wife by Danda.I request the appellant not to beat his wife.Thereafter, I came to know that the wife of the appellant was dead.Gulab (PW-6) is an other eyewitness to the incident.He deposed that "the appellant had been beating his wife with the handle of axe.I prevented the appellant not beat to his wife.Thereafter, the appellant had taken his wife to his house in the next morning.When the lock was broken, I noticed that the dead body of the deceased was laying in the house.I lodged a report Ex. P/4 and signed the same.Police prepared the spot map Ex.P/5 and I signed the same."Kusum Bai (PW-3) deposed that I was sleeping at my house and I heard the cry and seen that the appellant has been beating his wife from the blunt side of the axe.There were other persons who prevented the appellant from beating.Thereafter, the appellant had gone to his house along with his wife.Asharam, the Kotwar (PW-5) stated that at around 12 O'clock, the Villagers Gulab, Preetam and other persons came to my house and told me that the appellant had beaten his wife.I went to the house of the appellant.Thereafter, in the next morning lock of the house was 4 opened, the dead body of the deceased was found.The appellant was not there.Dr. Ajay Singh Parihar (PW-7) performed autopsy of the deceased.He deposed that on 16.02.2006, he was posted as Medical Officer at Government Hospital, Bina and on the aforesaid day, he performed postmortem of the deceased.He specifically deposed that he did not notice any injury on the person of the body of the deceased.However, after internal examination, spleen of deceased was ruptured and the deceased had died due to rupture of here spleen.Prashant Kumar Mishra (PW-8), the Investigating Officer, investigated the matter.He deposed that he prepared the spot map Ex.P/5 and seized bangles and sabbal vide seizure memo Ex.However, the trial Court found the appellant guilt and awarded sentence as mentioned above.The appellant has already undergone the jail sentence for the said offence awarded to him.P/2 and signed the same.On the memorandum of the appellant (Ex.P/7), an axe was seized from his house vide seizure memo Exh.The appellant was arrested on the same date.The dead body was sent for medical examination.S.L. Aaroliya (PW-9) was posted as Assistant Sub Inspector.He deposed that FIR was lodged which is Exh.In the FIR, it is mentioned that the appellant had beaten the deceased and in the next morning when the lock was opened, dead body of the deceased was found.The deceased was the wife of the appellant.PW-1, PW-2, PW-3 and PW-6 deposed that they had seen the appellant beating his wife.Thereafter, the incident was narrated to the village Kotwar.PW-5 Dilip Kotwar verified the fact that Gulab, Preetam and other 5-6 villagers came to his house in the night and they had informed him that the appellant had beaten his wife and on the next date, in the morning when he went to the house of the appellant, it was locked from outside.Thereafter, the lock was broken and the dead body of the deceased was found at that time.The appellant was not present in the house.Dr. Ajay Singh Parihar (PW-7) who conducted the autopsy of the deceased opined that the spleen of the deceased was ruptured due to which she died.From the aforesaid evidence, in our opinion, this fact has been proved that the appellant had killed his wife.The spleen of the deceased was ruptured due to which she died.Consequently, the appeal filed by the appellant is partly allowed.His conviction under Section 302 IPC and the consequent sentences awarded by the trial Court are hereby set aside.
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['Section 300 in The Indian Penal Code', 'Section 304 in The Indian Penal Code', 'Section 302 in The Indian Penal Code']
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Analyze the legal case and identify the corresponding section it comes under.
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36,338,104 |
The prosecution story in brief is that on the date of incident, there was a verbal altercation in regard to construction of a wall in Angan between Mamta Bai and-2- Cr.A.No.569/1995 Keshar Bai.Thereafter, Mamta Bai started abusing Keshar Bai.Keshar Bai objected to it and asked to whom she was abusing.Mamta Bai told her that she was abusing to her.Thereafter she caught hold of Keshar Bai.In that event Dulichand, husband of Mamta Bai, inflicted two blows of spade.The report of the incident was lodged at the police station.Police conducted investigation and filed the chargesheet against the appellant before the trial court.The appellant abjured his guilt and pleaded innocence.The trial court, after completion of trial, held the appellant guilty for commission of offence punishable under section 302 of IPC and sentenced, as aforesaid.The learned counsel appearing on behalf of the appellant has contended that if the evidence adduced by the prosecution is accepted as it is, then too the offence alleged to be committed by the appellant would made out under section 304 Part-I of IPC.Hence, the appeal filed by the appellant may be partly allowed.Heard arguments.Perused the record.He deposed that on 18.10.1992 my mother was cooking food inside the house.I was standing outside the house in Varandah (Parchhi).There was a quarrel between Dulichand and neighbour Khawas Dada.Wife of Dulichand came out of her house and started abusing my mother.My mother also came out of house and asked Mamta Bai to whom she was abusing.Then Mamta Bai told her that I am abusing her and I will abuse.Thereafter Mamta Bai caught hold of my mother.At that event Dulichand had taken a spade, which was lying-3- Cr.A.No.569/1995 nearby and inflicted blows on the head of my mother.Thereafter they went inside their house.I called Munnalal.Munnalal and I along with my mother went to the police station, where my mother herself lodged the report.On 19.10.1992 my mother was died.7. Dorilal (P.W.2) also deposed that Keshar Bai lodged the report.Thereafter, she was referred to Medical College.8. Dhannulal (P.W.3) deposed the same fact that there was a quarrel between Mamta Bai and Keshar Bai.Mamta Bai had caught hold of the hands of Keshar Bai and thereafter Dulichand had inflicted two blows on the head of Keshar Bai.Same facts have been deposed by Chhoti Bai (P.W.4).Jamna Bai (P.W.5) turned hostile.Dr. D.K.Sakalle (P.W.7) deposed that I performed the autopsy of the deceased and noticed following injuries on the person of the body of deceased:-One incised wound on the middle of the head of size 3"x 2.25".Due to the aforesaid injury, there was a fracture of frontal bone.2.One incised wound at the back side of the head of size 2"x1/2".It is not necessary to consider other evidence.-4- Cr.From the evidence of eyewitnesses Sanjay (P.W.1), Dorilal (P.W.2), Dhannulal (P.W.3) and Jamna Bai (P.W.5) this fact has been established that there was quarrel between Mamta Bai and Keshar Bai.In that event, the present appellant, who is the husband of Mamta Bai, had inflicted two blows of spade.He was not armed with any weapon.-6- Cr.A.No.569/1995 advantage" or acted in a cruel manner.There was a quarrel between the wife of appellant and deceased.There was no pre-meditation.The appellant was not armed with any deadly weapon.He had taken out the spade from nearby place and inflicted two blows.Consequently, the appeal filed by the appellant is partly allowed.The conviction and sentence of the appellant, as awarded by the trial court, under section 302 of the IPC is hereby set aside.The appellant is convicted for commission of offence punishable under section 304-I of the IPC and sentenced to R.I. for 10 years.He has completed the jail sentence of more than 10 years including remission.Hence, He has undergone the jail sentence awarded to him.
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['Section 300 in The Indian Penal Code', 'Section 302 in The Indian Penal Code', 'Section 304 in The Indian Penal Code']
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Analyze the legal case and identify the corresponding section it comes under.
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36,343 |
Petitioner and respondent 1 are brothers having four more brothers, named Manmohandas, Navinchandra, Jaindas and Rasiklal.The business of the family was to trade in cloth.They were doing business under different names in which they and/or their sons and daughters were and are partners.The offices of all the firms were at 34, Navi Galli, Mulji, Jehta Market and 439/3, Kalbadevi Road, Bombay.In the latter half of 1986 disputes arose between the brothers and in September 1986, the brothers came to a settlement.This was that the Bank accounts of the six firms would be operated for the purpose of control of funds only by cheques drawn jointly by the petitioner-hereinafter referred to as 'the accused' and a family friend Natwarlal M. Shah.The sales and collections of all the firms were to be looked after only by the accused.JUDGMENT S.M. Daud, J.On 10 June, 1987, respondent 1 submitted a petition to a Metropolitan Magistrate seeking therein a direction to the General Crime Branch C.I.D. Bombay under section 156(3) of the Cri.P.C. The genesis of this sought for direction was explained thus :---At the end of September 1986 a total sum of Rs. 46,43,000/- representing the collections and dues from different customers of the six firms had been effected.Most of the payments had comes vide drafts and cheques.They were collected by the accused.Enquiries with the Dena Bank revealed that a little prior to the institution of the petition, the credits in the accounts of the firms had gone down considerably.The Enquiries made by the complainant and Rasiklal showed that the customers of the firms had been making payments in due course.This was however, not reflected in the credits with the Bank.For this reason the complainant believed that---"The accused being entrusted with the collection of dues has been dishonestly converting the same to his own use in violation of the terms of entrustment viz., to deposit the same in the respective Bank accounts.For that purpose the accused may be encashing the cheques and drafts by opening fictitious bank accounts or illegal discounting.If, therefore, charge the accused for the offence of Criminal Breach of Trust.Though the accused is a partner he was specifically entrusted with the work of collection and deposit in bank and would be liable under section 406 I.P.C."The order passed by the Magistrate reads as follows :---"Perused the complaint.Heard the advocate.The disputes between the parties was essentially of a civil nature involving partners.Learned Counsel representing the accused and the complainant have been heard.
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['Section 190 in The Indian Penal Code', 'Section 406 in The Indian Penal Code', 'Section 156 in The Indian Penal Code', 'Section 200 in The Indian Penal Code']
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Analyze the legal case and identify the corresponding section it comes under.
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363,503 |
Bhanu Pratap and his family members were prosecuted.During trial, petitioner became hostile to the prosecution.ORDER Brij Mohan Gupta, J.This petition is for quashing the complaint registered at Criminal Case No. 1141/03 pending in the Court of CJM, Bhind, under Sections 193 and 195 of IPC against the petitioner.The facts in brief, are that, deceased Mamta, the daughter of the petitioner was married with one Bhanu Pratap Singh Kushwah.Within two and a half years of her marriage, she died.Merg was reported, enquiry was made.One typed report dated 30th January, 2002 (Annexure P-1) was submitted by the petitioner to City Inspector, City Kotwali, Bhind, putting allegations against Bhanu Pratap Singh and his family members with regard to subjecting the deceased with cruelty on demand of dowry.Crime was registered.He did not support the allegation lodged by him against the accused persons in that case.He admitted his signatures on his report which was admitted in the evidence as Exh. P-2, but denied the facts alleged against accused therein.He explained that this typed report was brought to him by the police officers and on their persuasion, he simply put his signatures as his mental status was not in order.Vide judgment dated 13th September, 2002 in S.T. No. 130/02 passed by 5th Additional Sessions Judge, Bhind, Bhanu Pratap Singh and his family members, who were the accused in that case for the offence punishable under Section 304B/34 of IPC, have been acquitted.Vide Para 16, the learned Judge has observed that the report Annexure P-1 (Exh. P-2 in Sessions trial) was submitted by the petitioner after deliberations and the statement given by the petitioner in the Court is false.In the same para, it is directed that the prosecution of the petitioner be initiated for the offence punishable under Section 195 of IPC.This complaint dated 28th July, 2003, has been filed under Sections 193 and 195 of IPC by 5th Additional Sessions Judge in the Court of Chief Judicial Magistrate, Bhind.On this complaint, Criminal Case No. 1141/03 has been registered against the petitioner.Feeling aggrieved with this prosecution, petitioner has preferred this petition.Shri Anil Mishra for the petitioner has assailed this prosecution on the following grounds:Without issuing a notice on the application to the petitioner, evidence was recorded behind his back and complaint was filed against the petitioner for the offence punishable under Section 466, 467, 468 and 471 of IPC.
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['Section 193 in The Indian Penal Code', 'Section 341 in The Indian Penal Code', 'Section 471 in The Indian Penal Code', 'Section 467 in The Indian Penal Code', 'Section 304B in The Indian Penal Code', 'Section 468 in The Indian Penal Code', 'Section 34 in The Indian Penal Code']
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Analyze the legal case and identify the corresponding section it comes under.
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36,360,061 |
Notice has been served.This appeal has been filed under Section 14-A of S.C./S.T. (Prevention of Atrocities) Act, 1989 for grant of bail, being aggrieved by the order dated 19.01.2021, passed by Special Judge (Atrocities Act) Narsinghpur (MP), by which, bail application under Section 439 of Cr.P.C. filed on behalf of appellants has been dismissed.T he appellants are in custody since 11.01.2021 in connection with Crime No.08/2021, registered at Police Station-Cheechli, District- Narsinghpur (MP) for the offences punishable under Sections 307, 294, 323, R/W 34 of IPC & Section 3(1)(r), 3(1)(s), 3(2)(v) & 3(2)(va) of (Prevention of Atrocities) of SC/ST Act.As per prosecution case, in short, is that, on 09.01.2021, the cow of appellant/accused No. 2/Mukesh entered in the field of complainant/Abhishek when complainant/Abhishek objected then appellants/accused inflicted injury by stick to them.Some dispute arose between both the parties due to trivial matter.Charge-sheet has been filed.SAN Verified Digitally signed by ROSHNI SINGH PATEL Date: 2021.02.26 17:28:07 IST 2 CRA-585-2021 Appellants/accused are bread earner of their family, if they will be kept in custody for unlimited period then their family future will be spoiled.So conclusion of trial will take time for final disposal.There is no probability of their absconding or tampering with the evidence of prosecution witness.On these grounds, learned counsel for the appellants prays for grant of bail to the appellants.Learned P.L. for the respondent/State opposes the bail application to appellants.Learned counsel for the objector submits that appellants/accused inflicted injury to the complainant party which is dangerous to life.Appellants/accused are habitual offender, therefore, they are not entitled for grant of bail.charge sheet has been filed, so conclusion of trial will take time for final disposal.appellants/accused are bread earner of their family, there is no probability of their absconding or tampering with the evidence of prosecution witness, therefore, considering the above said circumstances but without commenting on merits of the case, this appeal under Section 14-A of S.C./S.T. (Prevention of Atrocities) Act, 1989 for grant of bail is hereby allowed.It is directed that the appellants- Bablu @ Sunil, Mukesh, Akshay, Angad @ Anuj & Tanu @ Rahul shall be released on bail on their furnishing a bail bond in the sum of Rs. 50,000/- (Rupees Fifty Thousand Only) each with one solvent surety of Rs. 50,000/- (Rs. Fifty Thousand Only) each to the satisfaction of the concerned trial Court for their appearance before it on the dates given by the concerned Court.The Jail Authority shall ensure the medical examination of the appellants by the jail doctor before their release.The appellants shall not be released if they are suffering from 'Corona Virus disease'.For this purpose appropriate tests will be carried out.If it is found that the appellants are suffering from 'Corona Virus disease', necessary steps will be taken by the concerned authority by placing them in appropriate quarantine facility.Certified copy as per rules.
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['Section 307 in The Indian Penal Code']
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Analyze the legal case and identify the corresponding section it comes under.
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36,363,603 |
Hon'ble Ali Zamin,J.Heard Syed Wajid Ali and Sri Santosh Kumar Singh, learned counsel for the petitioner and the learned A.G.A. for the State.The present writ petition has been filed by the petitioner seeking quashing of the FIR dated 13.02.2020 registered as Case Crime No. 0058 of 2020, under Sections 452, 354, 354-D, 506 IPC and Section 7/8 POCSO Act, Police Station Cantt., District Bareilly with a further prayer not to arrest the petitioner in pursuance of the first information report.The allegation in the impugned F.I.R. lodged by the respondent no.4, is that on 09.02.2020 at about 12.30 pm.the petitioner entered into the house of the complainant and caught hold of her minor daughter Kavita Singh, aged about 16 years, and touched her inappropriately and misbehaved with her and when the informant raised a hue and cry her nephew Anil and brother-in-law, Updesh came there and tried to catch hold of the petitioner but he ran away threatening to kill them.The submission of the learned counsel for the petitioner is that the impugned first information report has been lodged by way of counter blast since he himself has been assaulted by the said Anil and others on 09.02.2020 at about 11.30 am.The petitioner will have sufficient opportunity to rebut the allegations.Bhajan Lal, AIR 1992 SC 604 that there can be no interference with the investigation or order staying arrest unless cognizable offence is not ex-facie discernible from the allegations contained in the FIR or there is any statutory restriction operating on the power of the police to investigate a case.From the perusal of the FIR, prima facie it cannot be said that no cognizable offence is made out.Hence no ground exists for quashing of the FIR or staying the arrest of the petitioner.
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['Section 452 in The Indian Penal Code', 'Section 354 in The Indian Penal Code', 'Section 506 in The Indian Penal Code']
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Analyze the legal case and identify the corresponding section it comes under.
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36,367,956 |
On the intervening night of 21/22nd August, 1992, Subhash Chander (PW2), his father Bhagwan Ram, his brother Sunder Ram, his grand-mother Chando Devi, his sister Raj Kumari and his maternal uncle Chandu Ram were sleeping in the courtyard of the house when at about 1 (SIC) Clock in the night the aforesaid four accused along with Brij Lal (A9), Dhokal (A10), Bhagirath (A11) and Het Ram (A12) intruded into the house and started indiscriminate firing on the sleeping family members of Bhagwan Ram.Krishan Lal A1 exhorted others to spare no family member of Bhagwan Ram, deceased.He fired gun shots from his pistol which hit the bone of the right side hip and abdomen of Subhash Chander.When he (PW2) ran from the place of occurrence to save his life, another shot was fired at him.His father, brother, grand-mother and sister also suffered gun shot injuries.During the spree of gun shots, the accused persons were calling each other by their names.When the accused were standing in the courtyard of the house of the deceased persons, PW2 had came out of his room with torch and flashed it on them which confirmed the identification of the accused.When everybody belonging to the family of Bhagwan Ram fell after receiving gun-shot injuries, A1 declared that the work is over, whereafter the accused persons left the place.PW2 came out of the room and saw that due to sustaining of various injuries, the condition of his grand-mother was serious, whereas his father and brother had died.After the accused fled away, PW2 along with his sister Raj Kumari (PW3) went to the house of Mani Ram who is his father-in-law and narrated him the whole story.Mani Ram and his son took PW2 and his sister(PW3), in their jeep and got them admitted in the hospital.On the basis of the statement of PW2 FIR No.279/92 was registered at Police Station Pili Banga and investigation commenced.During the investigation PWs2 and 3 were got medically examined.Empty cartridges of copper, empty shells of 12 bore dot-gatte, rubber, live cartridges, pellets, lathi, gandasi, blood smeared earth and plain earth were recovered and sealed by the investigating agency.Inquest report and Panchayatnama of the dead bodies of Bhagwan Ram, Chando Devi and Sunder ram were prepared.Post mortem was got conducted on the dead bodies.Blood stained clothes of Subhash Chander (PW2) and Raj Kumari (PW3) were also seized.On 7.2.1992 A1 voluntarily appeared in the police station and was arrested.JUDGMENT Sethi, J.Legends reveal and the people believe that in the ancient Indian society Bhagwan Krishna took birth to reprieve the suffering humanity from the terror let loose by the demon named Kansa.The birth of Lord Krishna, Janmasthami, is celebrated every year to commemorate the birth of truth for elimination of repression and atrocities.Ironically, thousands of years thereafter, on the day of Janmasthami in the year 1992, the accused, unfortunately named Krishan, along with others, became a devil and like vultures pounced upon the family of Bhagwan Ram, the deceased.After committing a ghastly crime, the accused persons left the scene of occurrence, satisfied with their design of killing the whole of the family.The deceased included Bhagwan Ram, his son Sunder Ran, and Chando Devi, his mother.Spree of killing was resorted to, for eliminating the prosecution witnesses against some of the accused persons who earlier, on 25th June, 1987, had committed the crime of murder of Om Prakash, another son of Bhagwan Ram.Apparently with the police connivance, the charge-sheet was filed against accused Krishan Lal and four others, namely, Bikar Singh, Mangu Singh, Major Singh and Om Prakash, the later four being not even named in the FIR or in the statements of PWs 2, and 3, recorded under Section 161 of the Criminal Procedure Code.It was only on the judicial intervention that ultimately charge-sheet was filed against 12 persons including the convicted appellants.The trial court concluded that offence under Sections 302, 307, 148, 450 read with Sections 149, 120B and Section 307 read with Sections 149 and 120B IPC had been proved against the accused persons, namely, Krishan Lal(A1), Mangu Singh(A2), Bikar Singh(A3), Major Singh(A4), Vishu(A6), Banwari(A7), Prithvi(A8), Bri Jal(A9), Dhokal(A10), Bhagirath(A11) and Het Ram(A12).One of the accused persons, namely, Om Prakash(A5) was, however, acquitted.Upon conviction, the trial court awarded death sentence to all the accused persons who were convicted under Section 302 read with Sections 149 and 120B of the Indian Penal Code and fine of Rs.25,000/- each.All the convicted persons were also sentenced to life imprisonment and fine of Rs.2000/- each for the commission of the offence under Section 307 read with Sections 149 and 120B IPC, seven years rigorous imprisonment with a fine of Rs.2000/- each for the offences punishable under Section 450 of the IPC.They were further sentenced to three years rigorous imprisonment and a fine of Rs.2000/- each for the offence punishable under Section 148 and a 6 month rigorous imprisonment and a fine of Rs.1000/- each for the offence under Section 27 of the Indian Arms Act. It was further directed that after recovery of tine, the full amount be paid as compensation to injured Subash Chander (PW2).Reference was made to the High Court for confirmation of the capital sentence awarded to the accused persons.Feeling aggrieved all the convicted persons filed appeals in the High Court.The State did not file any appeal against the acquittal of Om Prakash, accused.All the four appeals filed by the convicted persons and the reference arising out of the judgment of the trial court were disposed of by a common judgment now impugned in these appeals.The High Court upheld the conviction of convicts, namely, Krishan Lal(A1), Vishnu(A6), Bhanwari(A7) and Prithvi(A8) but commuted the death sentence to the imprisonment for life.Their appalls against the sentences in relation to other offences were rejected.Not satisfied with the judgment of the High Court, Subash Chander, (PW2) has filed two sets of appeals bearing Nos.812-814 of 1999 and 815-816 of 1999 praying for setting aside the order of acquittal and awarding of death sentence to the convicted persons as was done by the trial court.The four convicted accused have filed two sets of appeals bearing Criminal Appeal Nos.817-818 of 1999 and 819-820 of 1999 praying for their acquittal by setting aside the conviction and sentence awarded to them by the trial court and the High Court.Criminal Appeal Nos.821-822 of 1999, 1017 of 1999, 98 of 1999 and 290 of 2001 have been filed by the State of Rajasthan seeking quashing of the order of acquittal and for award of death sentence to the convicted persons.It may be noticed, at this stage, that Subhash Chander in his appeals has not challenged the acquittal of the accused persons, namely, Bikar Singh(A2), Mangu Singh(A3), Major Singh(A4) and Om Prakash(A5).The State of Rajasthan has, however, prayed for setting aside the order of acquittal relating to Bikar Singh, Mangu Singh and Major Singh, as well.We have heard the learned counsel for the parties appearing in the case at length and propose to dispose of all these appeals by this common judgment.The facts of the case, as unfolded during the trial, are that the families of Bhagwan Ram, deceased and Krishan Lal, accused ("A1") had an old enmity.Om Prakash, son of Bhagwan Ram was murdered on 25th June, 1987 by A1 along with Vishnu (A6), Bhanwari (A7), Prithvi (A8) and one Gopi Ram.Bhagwan Ram, his sons Sunder Ram and Subhash Chander (PW2) had been cited as eye-witnesses in that case.During the pendency of the trial A1, A6, A7 and A8 had been released on bail.He produced a pistol and two cartridges of 315 bore which were taken into police custody as evidence.On completion of investigation (SIC) challan was produced against Krishan Lal (A1), Bikar Singh (A2), Mangu Singh (A3), Major Singh (A4) and Om Prakash (A5).Even though the accused, apparently with the con(SIC) of the police, attempted to mislead the court by filing a case against A2 to A5, yet their attempt was foiled by the court, who after hearing the arguments on protest petition filed by Subhash Chander (PW2) took cognizance against all the remaining 7 suspect persons and summoned them as accused in the case.After committal, the accused persons were charged for the various offences under the Indian Penal Code and the Indian Arms Act. The accused persons denied the charges and claimed trial.In his statement recorded under Section 313 of the Cr.P.C., Het Ram (A12) submitted that he was innocent and that he along with Om Prakash, Sheshkaran and Kashi Ram had gone to Sardarpura at 8.00 a.m. on the day of the occurrence and returned home at 12.30 in the night after leaving Kashi Ram in his village, Bhagirath (A11), Dhokal (A10) and Brij Lal (A9) pleaded alibi.Banwari Lal (A7) stated that on the fateful night he was in the Dhani of Lado Ram at Chak (SIC) LKS as Lado Ram had died.Vishnu (A6) submitted that on the day of Janmasthami he had gone to Ganganagar and for the night he stayed there in the house of Krishan son of (SIC)Bhola Ram.Other accused persons pleaded innocence and took a plea of total denial.The trial court convicted all the accused persons and sentenced them to death whereas the High Court convicted only four appellants vide the judgment impugned in these appeals, as noticed earlier.After going through the statements of witnesses and the record produced in the case we have come to the conclusion that there did not exist any evidence against A2 to A5 of whom A5 was rightly acquitted by the trial court and A2 to A4 by the High Court.We have noticed with pain that the aforesaid four accused persons were impleaded not only to mislead the court but also to provide protection to the real culprits being sure that ultimately no court could convict and sentence any of the aforesaid four accused persons.Ranjit Kumar, learned Senior Counsel appearing on behalf of Subhash Chander, appellant has been fair to concede that there is no evidence against the aforesaid accused persons warranting their conviction and sentence.Out of the Accused Nos.9 to 12, Dhokal (A10) is stated to have died during the pendency of these appeals.The trial court had convicted and sentenced A9 to A12 on the basis of the statements of PW2 Subhash Chander.Finding that his version of occurrence, in so far as those accused persons are concerned, was not supported by Raj Kumari (PW3), High Court acquitted them.It is true that the names of A9 to A12 are mentioned in the FIR lodged by PW2 and reiterated by him in his deposition in the trial court but Raj Kumari (PW3) categorically stated that after receiving the gun shot injuries she, along with Subhash Chander (PW2) had hidden themselves in the room and when Subhash Chander came out of the room with torch, gun shots were again fired at him which forced him to return back.At that time "Krishan, Vishnu, Banwari, and Prithvi were calling each other by their names and said that work is over, let us go.The fact of going was said by Krishan".At the trial, the court observed that "while identifying correctly to the accused persons namely Krishan, Banwari, Vishnu and Prithvi the witnesses stated that these are the 4 accused persons who fired gun shots".PW3 has been categoric in the stating that only four accused, namely, A1, A6, A7 and A8 were the persons who had come on the spot and fired gun shots.She has neither named any other person nor identified the rest of the accused persons in the court.She has not even stated that the aforesaid four accused persons were accompanied by any other person also.By referring to the statements of PWs2 and 3 the Division Bench of the High Court observed:"A critical examination of the testimony of two eye-witnesses PW2 Subhash Chandra and PW3 Raj Kumari shows that as regards the four accused persons, namely, Krishan, Vishnu, Banwari and Prithvi, there is no variance in the testimony of these two eye-witnesses.The testimony of PW3 Raj kumari has not been shaken in the cross-examination and, therefore, on the basis of the testimony of Raj Kumari corroborated by PW2 Subhash Chandra these 4 accused persons can be held to be present at the scene of occurrence and it can be safely held that they have used gun shots as alleged by this witness and as corroborated by PWe Subhash Chandra.In relation to the other four accused persons, namely, Dhokal, Brij Lal, Het Ram and Bhagirath a doubt is created as to whether they were in fact present or not because had they been present Raj Kumari would have definitely named them.May be that they were present and Raj Kumari had missed their presence but if an injured witness misses to name the four accused persons then such absence goes in favour of the accused persons and, therefore, notwithstanding the testimony of PW2 Subhash Chandra the presence of these four accused persons is held to be doubtful.May be that they were not present on the scene of occurrence at the time of the incident.In this background of doubt, it can be said that the presence of the four accused Krishan, Vishnu Banwari and Prithvi is held proved.Presence of four accused Dhokal, Brij Lal, Het Ram and Bhagirath is held doubtful."We also agree with the conclusions arrived at by the High Court regarding the role played by A9 to A12 and find no reason to interfere with the judgment of acquittal passed in their favour by giving them the benefit of doubt.The appeals filed by Subhash Chander and the State in so far as A9 to A12 are concerned, are dimissed.Both the trial court as well as the High Court have, upon appreciation of evidence, concurrently found accused Krishan Lal (A1), Vishnu (A6), Bhanwari (A7), Prithvi (A8) guilty of the offences with which they were charged.Involvement of the aforesaid accused persons is fully established by the testimony of Subhash Chander (PW2) and Raj Kumari (PW3).Subhash Chander (PW2) has stated that on the day of occurrence he, along with other members of the family, was sleeping in the courtyard of his house.On hearing the sounds of gun-shot firing, he woke up along with others and saw A1, A6, A7 and A8 along with others firing with their weapons.A1 fired pistol shots which hit the witness.A1 exhorted others that nobody from the family of Bhagwan Ram should escape.When the witness tried to escape by running towards his room, he was again fired at.Raj Kumari (PW3) also sustained bullet injuries.He saw the accused persons in the torch light and also recognised them as they were calling each other by their names.In consequence of the gun shot injuries Bhagwan Ram, Sunder Ram and Chando Devi died.The crime is stated to have been committed on account of the enmity, with the object to eliminate the prosecution witnesses cited against the accused in the murder case pertaining to the death of the brother of the witness, namely, Om Prakash.To the same effect is the statement of Raj Kumari.The High Court has accepted the testimony of both the witnesses so far as A1, A6, A7 and A8 are concerned.Learned Senior Counsel appearing for the aforesaid accused persons could not point out any material infirmity in the depositions of the aforesaid witnesses which could persuade us to take a different view.Upon analysis of the evidence and the other relevant record produced in the case, we have no doubt in our mind regarding the involvement of the aforesaid accused persons for the offences with which they were charged, convicted and sentenced.Ranjit Kumar, Senior Counsel who appeared for Subhash Chander, (PW2) vehemently argued that the trial court was not justified in commuting the death sentence and awarding the life imprisonment to the aforesaid accused persons.He has submitted that the present case was one which could be termed as rarest of the rare case warranting the extreme penalty imposable upon them under law.It is contended that mere fact that some of the accused persons were acquitted could not be made a ground for converting the death sentence into the life imprisonment.
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['Section 149 in The Indian Penal Code', 'Section 120B in The Indian Penal Code', 'Section 302 in The Indian Penal Code', 'Section 307 in The Indian Penal Code', 'Section 450 in The Indian Penal Code', 'Section 148 in The Indian Penal Code']
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Analyze the legal case and identify the corresponding section it comes under.
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36,375,799 |
(MOHD.FAHIM ANWAR) JUDGE manju Digitally signed by MANJU CHOUKSEY Date: 24/04/2019 02:06:50Case diary perused.This is first application filed under Section 438 of Cr.P. C. for grant of bail to the applicant, as he is under apprehension of his arrest in connection with crime No.49/2019, registered at P. S. Orchha Distrixt Niwadi for commission of offence punishable under Sections 294, 323, 506 (2), 452 & 34 of IPC.As per prosecution story, on 26.2.2019 at about 4.15 O'clock when the complainant was standing in front of his house situated at Ward No.09, Orchha under the jurisdiction of P. S. Orchha the applicant and other coaccused persons came there and abused in filthy language, on which the complainant went inside of his house, the applicant and other co-accused persons following him reached in his house and beaten him by fists and kicks and also by wooden stick, by which he sustained injury on his face, cheek and little finger of left hand.On that basis above mentioned crime has been registered against the applicant and other co-accused persons.Learned counsel for the applicant has submitted that the applicant is innocent, he has not committed any offence.He has been falsely implicated in the case because of old animosity.On going through the case diary, it appears that there is allegation against the applicant and other co-accused persons that they have entered in the house of the complainant and beaten him but there is no specific allegation for attributing overt act by the present applicant.Looking to the aforesaid facts and circumstances of the case, I am of the considered view that it is a fit case for grant of anticipatory bail to the applicant.Hence, without expressing any opinion on merits of the matter, application is allowed.It is directed that in the event of arrest of the applicant, he shall be released on anticipatory bail on his furnishing a personal bond in the sum of Rs.30,000/- (Rs. Thirty Thousand only) with one solvent surety in the like amount to the satisfaction of the Arresting Officer.The applicant shall abide by the conditions as enumerated under Section 438 (2) of Cr. P. C. The applicant shall remain present before the Investigation Officer as and when he is directed and so also appear before the trial Court.Accordingly, the M.Cr.C stands allowed and disposed of.C. C. as per rules.
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['Section 438 in The Indian Penal Code']
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Analyze the legal case and identify the corresponding section it comes under.
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363,789 |
48 + 1 = 49Dumka Appearance183 Crores171 + 69 = 240DorandaAppearancePatComplaint received from State45,96,048/-Bhagalpur & BankaAppearancePatSource Information97 Lakhs34 + 4 = 38DeogharChargeWhat persons may be charged jointly.- The following persons may be charged and tried together, namely:-JUDGMENTWITH(Arising out of SLP (Crl.) No. 5512 of 2002)(Arising out of SLP (Crl.) No. 4810 of 2002)(Arising out of SLP (Crl.) No. 5646 of 2002S. N. Variava, J.Leave granted.Heard parties.All these Appeals can be disposed of by this common Order even though the prayer made in Dr Jagannath Mishra's case is only for transfer whilst in the other Appeals the prayer is for amalgamation of trials.Briefly stated the facts are as follows:Dr Jagannath Mishra and Laloo Prasad Yadav are Ex Chief Ministers of the State of Bihar.They and the other Appellants have been accused of charges under the Prevention of Corruption Act and of the offence of conspiracy to defraud the Government exchequer of large sums of money.A large number of complaints have been filed and the cases are being prosecuted by CBI before various Special Courts both in the State of Jharkhand as well as the State of Bihar.We are concerned with 6 such cases which are pending before Special Courts in the State of Jharkhand.It must be mentioned that earlier the cases were before the Special Judge at Patna.When two of these cases namely RC. 20 (A)/96 and RC. 64 (A)/96 were pending before the Special Judge at Patna, an application was made for joint trial of these cases.This was rejected by the Special Judge.The High Court rejected the Criminal Appeal which was filed against the order of rejection.This Judgment is reported in 2000 (3) Patna Law Journal Reports 357.Thereafter Writ Petitions (Criminal) and a Criminal Misc.Petition were filed before the High Court of Jharkhand at Ranchi for amalgamation of 5 cases.Dr Jagannath Mishra, by his Transfer Petition applied for transfer of 5 cases to one Court.The other Writ Petitions and Crl.Hence these Appeals.Before us all are applying for amalgamation of 6 cases.It was submitted, on behalf of the Appellants, that even though the Appeals were dismissed by Patna High Court it has been held that there was a single conspiracy.It was submitted that the application for amalgamation was filed pursuant to the liberty granted by the Patna High Court while dismissing the Appeals.It was submitted that, according to the prosecution, there was a large conspiracy involving the then Chief Ministers and other officers of the Animal Husbandry Department.It was submitted that according to the prosecution the object of the conspiracy was to withdraw/siphon out government monies from various Treasuries which were earlier in the State of Bihar and now fall in the State of Jharkhand.It was submitted that the overt acts are alleged to have been committed in pursuance of this large conspiracy.It was submitted that in the overt acts there would be local people who are not part of the larger conspiracy.It was submitted that offences committed in pursuance of one conspiracy are offences committed in the course of the same transaction.It was submitted that the main accused namely the Appellants have been charged only on the basis of the large conspiracy.It was submitted that the prosecution had admitted, in paragraphs 10 to 12 of the affidavit in reply filed before the Special Judge, that there was a single conspiracy and that the above-mentioned witnesses and documents were common.It was submitted that if these witnesses have to depose separately in all the 6 cases, there was a strong possibility of their evidence being different and of their being conflict of decisions.It was submitted that the Appellants would have to hear the evidence of the same witnesses in 6 trials.There can be no dispute with the proposition of law.It is however to be seen whether the proposition has any application to this case.At this stage it is necessary to set out details and particulars of the 6 cases sought to be amalgamated.These are as follows:Sl.Case No. RCsP.S.Case No.of accused personsTreasuryStageThe High Court has also rejected the Appeal.Paragraphs 28 to 32 read as follows:This court made observations during the course of investigation while deciding the question of remand only.
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['Section 411 in The Indian Penal Code']
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Analyze the legal case and identify the corresponding section it comes under.
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36,379,866 |
Heard finally.This is the first application filed by applicant under Section 439 of the Cr.P.C for grant of bail.Applicant has been arrested on 23/02/2014 in connection with Crime No. 76/2014 registered at P.S. Kotwali Shahdol, District Shahdol for the offence punishable under sections 146, 147, 307/34, 120-B, 294, 506-B, 109, 212, 387 of IPC, sections 25/27 of Arms Act and section 3/5 of the Explosive SubstanceLearned counsel for the applicant submits that applicant has been falsely implicated in the case.As per prosecution, main allegation is against the co-accused Pushpraj Dubey, Abid Khan and others that they extorted money from complainant and thereafter, some accused persons exploded bomb at the house of complainant.None of the witness has stated his name.Police has involved this applicant on the basis of memorandum statement of co- accused persons recorded u/s 27 of Evidence Act which is not admissible in evidence.Charge sheet has already been filed and trial would take considerable time to be disposed of finally therefore, he prays for grant of bail to the applicant.Learned counsel for the Objector as well as State oppose the application.On due consideration of the facts and contention raised on behalf of the parties alongwith the nature of allegation made made against the applicant, I am of the considered view that it is a fit case to release him on bail.Therefore, without commenting on the merits of the case, this application is allowed and it is directed that applicant shall be released on bail on his furnishing a personal bond in a sum of Rs. 35,000/- (Rupees Thirty Five Thousand only) with one surety in the like amount to the satisfaction of committal Court/trial Court for securing his presence before the said Court on all the dates of hearing fixed in this regard during trial.Certified copy as per rules.(G.S. Solanki) Judge navin
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['Section 147 in The Indian Penal Code', 'Section 34 in The Indian Penal Code', 'Section 307 in The Indian Penal Code', 'Section 109 in The Indian Penal Code', 'Section 120B in The Indian Penal Code', 'Section 294 in The Indian Penal Code']
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Analyze the legal case and identify the corresponding section it comes under.
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36,386,991 |
Appeal No.132/1999 (( 2 )) Sessions Case No.3/1998, wherein the respondents were acquitted of the offences punishable under Sections 302 and 449 read with Section 34 of the Indian Penal Code (hereinafter referred as I.P.C.).Respondents No.1 to 5 are original accused No.1 to 5 respectively.Shorn of necessary details :-The case of the appellant in brief is that, the deceased Miss Aarti Madhukar Sapkale, aged 17 years and accused No.1 to 5 are the residents of Yawal city, District Jalgaon.Respondent No.1 and 4 were was the neighbours of deceased.Respondent No.2, 3 and 5 used to tease the deceased and when she protested, they abused and threatened her.On 1/10/1997, at about 4.15 p.m., when deceased was alone in her house, at that time, accused No.1,3 4 and 5 went inside the house of deceased and held her.Thereafter, respondent No.2 poured kerosene on the body of deceased and set her ablaze.Hearing shouts of the deceased, neighbour Raju Gajre (P.W.9) and his wife Ranjana rushed on the spot and they extinguished fire with the help of quilt lying in the house of deceased.At that time, uncle of the deceased namely Ravindra (P.W.2) had reached on the spot.On enquiry, the deceased disclosed them the occurred incident.Initially, deceased was shifted to Rural Hospital, Yawal where::: Uploaded on - 18/07/2017 ::: Downloaded on - 28/08/2017 09:48:59 ::: Cri.Appeal No.132/1999 (( 3 )) doctor Talyarkhan Tadavi (P.W.7) recorded the history of kerosene burn and informed Yawal Police Station.Immediately the Head Constable Shri Ashok More (P.W.13) was deputed to Yawal Rural Hospital.Head Constable Ashok More (P.W.13), in presence of Dr. Talyarkhan Tadavi (P.W.7) recorded the statement of deceased, wherein she again disclosed the occurred incident to them.During the course of investigation, all the accused persons were arrested and spot panchanama was drawn on the spot of occurrence by A.P.I. Shri Rajendra Raising (P.W.11).He attached one plastic can of kerosene, one match box and ash of burnt clothes from the spot of occurrence.Three photographs (Articles A to C) and their negatives were seized from the photographer Shri Barjighe under panchanama.After death of deceased, local police had drawn inquest panchanama and the dead body was referred for post mortem examination.Dr. Kulkarni (P.W.12) performed autopsy.Madhukar Sapkale (P.W.8) is the father of the deceased, who claims that, when he visited Rural Hospital, Yawal on 1/10/1997 and met the deceased, at that time the deceased named all the accused No.1 to 5 as her assailants.This witness has also identified the joint photograph of deceased and accused No.2 i.e. Article "C".However, from his cross-examination, it emerges that, at the time of occurrence, he was working in Yawal town at a far distance.So, he naturally could not meet the deceased immediately after the occurrence.He admits in his cross-examination that, he alone went to the hospital, but could not tell how many persons were present in the Ward in which the deceased was kept.According to his statement, nobody was inside the hospital where the deceased was kept.This appeal is directed by State of Maharashtra against the judgment and order of Sessions Judge, Jalgaon in::: Uploaded on - 18/07/2017 ::: Downloaded on - 28/08/2017 09:48:59 ::: Cri.Respondent No.2 died during pendency of the appeal.::: Uploaded on - 18/07/2017 ::: Downloaded on - 28/08/2017 09:48:59 :::As deceased had sustained 80% burn injuries, she was referred to Civil Hospital, Jalgaon, where she succumbed to her injuries on next day at 6.00 a.m.::: Uploaded on - 18/07/2017 ::: Downloaded on - 28/08/2017 09:48:59 :::On the basis of statement given by deceased, crime was registered at Police Station Yawal.After completion of investigation, charge sheet was submitted in the Court.::: Uploaded on - 18/07/2017 ::: Downloaded on - 28/08/2017 09:48:59 :::::: Uploaded on - 18/07/2017 ::: Downloaded on - 28/08/2017 09:48:59 :::Appeal No.132/1999 (( 4 ))4. Charge (Exh.8) was framed against accused No.1 to 5 for commission of the offences punishable under Sections 302 and 449 read with Section 34 of the Indian Penal Code.Respondents pleaded not guilty and claimed trial.Defence of the respondents was that, deceased had love affairs with respondent No.2 and because family members of deceased opposed that relationship and arranged marriage of deceased with her parental aunt's son, the deceased committed suicide by setting herself ablaze.In the alternate, accused Nos.2, 3 and 5 had also taken defence of alibi and examined defence witnesses in support of their defence.After considering the oral and documentary evidence placed on record, learned trial Court acquitted respondents No.1 to 5 of the offence punishable under Sections 302 and 449 read with Section 34 of the I.P.C. Therefore, this appeal arises.Learned A.P.P. for the appellant argued at length, and submitted that, the appellant is relying on one written dying declaration and three oral dying declarations of the deceased.His contention is that, when these three dying declarations are free from doubt, conviction can be based only on the basis of truthful dying declaration, even in absence of direct evidence.::: Uploaded on - 18/07/2017 ::: Downloaded on - 28/08/2017 09:48:59 :::::: Uploaded on - 18/07/2017 ::: Downloaded on - 28/08/2017 09:48:59 :::Appeal No.132/1999 (( 5 ))On the other hand, learned defence Advocate submitted that, from the cross-examination of prosecution witnesses, it emerges that, the terms in between respondents and family members of the deceased were cordial and the respondents had no reason to commit murder of the deceased.In other words, according to defence, no evidence regarding motive is available.Learned defence counsel assailed the dying declaration on the ground that the oral dying declarations are not reliable and even the written dying declaration is a prepared document.According to defence counsel, no clinching evidence is available on record to show that the written dying declaration, alleged to be recorded by Head Constable Ashok More (P.W.13) was recorded when the deceased was in the fit state of mind to give statement.After scrutiny of evidence placed on record, it is clear that, no direct evidence is available in the form of eye witness who had seen the respondents while setting ablaze the deceased.Even no witness is available who had seen the respondents while running away from the spot or even nearby the spot at the relevant time of the occurrence i.e. at about 4.15 p.m. Therefore, the total prosecution case is based on only four dying declarations of the deceased.Three dying declarations are oral and only one is written, which is obtained by Head Constable More (P.W.13), in presence of Medical Officer, Rural Hospital,::: Uploaded on - 18/07/2017 ::: Downloaded on - 28/08/2017 09:48:59 ::: Cri.Appeal No.132/1999 (( 6 )) Yawal Dr. Talyarkhan Tadavi (P.W.7).The first oral dying declaration is in presence of Ravindra Sapkale (P.W.2), who is uncle of the deceased, who reached on the spot immediately after the occurrence of the incident.Second oral dying declaration is in presence of Smt. Shashikalabai (P.W.3), who is mother of deceased and third oral dying declaration is in presence of Madhukar Sapkale (P.W.8), who is father of the deceased.::: Uploaded on - 18/07/2017 ::: Downloaded on - 28/08/2017 09:48:59 :::Before proceeding to examine the reliability of these four dying declarations, we must make it clear that, even only on the basis of dying declaration conviction can be based without corroboration by other evidence, provided that the dying declaration is free from every infirmity.The entire law regarding dying declaration is disclosed in K. Ramchandra Reddy Vs.(1) The Court will have to be on guard against the statement of the deceased being a result of either of tutoring, prompting or a product of his imagination,::: Uploaded on - 18/07/2017 ::: Downloaded on - 28/08/2017 09:48:59 ::: Cri.Appeal No.132/1999 (( 7 )) (2) The Court must be satisfied that the deceased was in a fit state of mind to make statement.(3) The deceased had clear opportunity to observe and identify his assailant and that he was making the statement without influence of rancour.::: Uploaded on - 18/07/2017 ::: Downloaded on - 28/08/2017 09:48:59 :::In the facts of the case of K. Ramchandra Reddy (supra), the Supreme Court has held that the omission by the Magistrate in not putting a direct question to the deceased regarding the mental condition of the injured when he was satisfied that the injured was suffering from severe pain and was not able to speak normally, so also the conduct of the deceased in not making disclosure regarding the occurrence on three previous occasions when he had opportunity to name his assailant, were sufficient factors to give benefit of doubt to the accused.In the case at hand, as per prosecution case itself accused did not have inimical terms with the deceased or her family members.On the other hand, from the cross-examination of::: Uploaded on - 18/07/2017 ::: Downloaded on - 28/08/2017 09:48:59 ::: Cri.Appeal No.132/1999 (( 8 )) Ravindra Sapkale (P.W.2), Shashikalabai (P.W.3) and Madhukar (P.W.8), it emerges that, prior to the occurrence, the family members of the deceased had cordial relations with the accused persons.However, even in absence of motive, prosecution can establish guilt of the accused provided that the above discussed four dying declarations are free from every infirmity.::: Uploaded on - 18/07/2017 ::: Downloaded on - 28/08/2017 09:48:59 :::Raju Gajare (P.W.9) is the first witness who reached on the spot after hearing shouts of the deceased.However, when Raju Gajare (P.W.9) entered the witness box, he deposed that, on the date of occurrence at about 4.00 p.m., he heard shouts from the house of Madhukar Sapkale "Save me, Save me" and, therefore, he went to that house and saw the deceased on fire.With the help of quilt, this witness extinguished the fire.But, according to this witness, deceased disclosed before him that she set herself on fire because she had love affair with Anil Koli (accused No.2).Therefore, this witness was declared hostile and he was confronted with his statement recorded by police.However, nothing could be elicited in his cross-examination which is helpful to the prosecution.On the other hand, this witness has brought on record probability of commission of suicide by deceased, due to her love affair with accused No.2, provided that the above statement of this hostile witness is corroborated by some other circumstances on record.::: Uploaded on - 18/07/2017 ::: Downloaded on - 28/08/2017 09:48:59 :::::: Uploaded on - 18/07/2017 ::: Downloaded on - 28/08/2017 09:48:59 :::Appeal No.132/1999 (( 9 ))No doubt Ravindra Sapkale (P.W.2) deposed before the Court that on the date of occurrence i.e. on 1/10/1997 at about 4.30 p.m. when he was sitting in the house of his father, he heard commotion that a girl was set on fire, so he ran towards his house and saw that Raju Gajare (P.W.9) and his wife Ranjana were extinguishing fire set on deceased.According to this witness, he asked the deceased as to who had set her on fire and she named accused No.1, 3, 4 and 5, who held her.Deceased also named accused No.2 Anil @ Guddya as the same culprit who set her on fire.However, from his cross-examination, it emerges that, at the time of occurrence, he was sitting 5 to 6 houses away from his own house where he used to reside along with deceased and her parents.Therefore, question arises, after hearing the commotion, why he rushed to his own house when he was not aware that there was some mishap in his house.The second doubtful conduct of this witness is that, he did not enquire with the deceased as to what happened, but he enquired in the words "who set you on fire".When Ravindra Sapkale (P.W.2) was not aware as to what exactly happened with the deceased, then how can he ask the deceased as to who set her on fire.From his cross-examination, it also emerges that, though he accompanied the deceased to Rural Hospital, Yawal and though he met to Head Constable More (P.W.13) who recorded dying declaration of the deceased, this witness did not inform Head Constable More about the disclosure statement of the deceased.Ravindra Sapkale::: Uploaded on - 18/07/2017 ::: Downloaded on - 28/08/2017 09:48:59 ::: Cri.Appeal No.132/1999 (( 10 )) (P.W.2) also admits that he did not tell the incident even to the doctor or to anybody until police recorded his statement on the next day of the incident.Thus, obviously possibility cannot be ruled out that this witness is a prepared witness to support the theory of murder of the deceased.::: Uploaded on - 18/07/2017 ::: Downloaded on - 28/08/2017 09:48:59 :::According to Shashikalabai Madhukar Sapkale (P.W.3), on the date of occurrence, she was away from her house in Yawal Market and from the third person she came to know that her daughter was burnt and, therefore, she rushed to her house.From her evidence, it emerges that when she enquired with the deceased about the occurrence, deceased told that accused No.1 and 4 held her and accused No.2 poured kerosene and set her on fire.Later on, she has improved that, according to deceased, all accused had done this work.But this improvement was made when learned A.P.P. repeated her previous statement.The cat has come out of the bag, when this witness was subjected to cross-examination.In her cross-examination, Shashikalabai (P.W.3) admitted that when she reached to her house, by that time, Aarti was kept in the bullock cart and many persons were present near that cart including Raju Gajare and Ranjanabai.According to this witness, her brother-in-law Ravindra Sapkale (P.W.2) was not present there because she admitted that, on the date of incident she did not meet Ravindra Sapkale (P.W.2).On the other hand, according to Ravindra Sapkale (P.W.2), after the::: Uploaded on - 18/07/2017 ::: Downloaded on - 28/08/2017 09:48:59 ::: Cri.Appeal No.132/1999 (( 11 )) occurrence, he accompanied the deceased up to Rural Hospital, Yawal.Thus, rat is smelling somewhere.From the further cross- examination of Shashikalabai (P.W.3), it emerges that she had talked with deceased Aarti when she was in bullock cart and thereafter the bullock cart went ahead.According to this witness, her husband's sister namely Latabai was sitting in the bullock cart.From her cross-examination, it emerges that, on the date of incident, this witness was taken by police to Police Station.It is highly doubtful circumstance, that when she had gone to Police Station, Yawal, why she did not inform police about disclosure statement of deceased and why she did not lodge report to Police Station, Yawal against the accused persons.::: Uploaded on - 18/07/2017 ::: Downloaded on - 28/08/2017 09:48:59 :::If the testimony of Ravindra Sapkale (P.W.2) and Shashikalabai (P.W.3) is compared, then it emerges that, Shashikalabai (P.W.3) was trying to suppress that she had knowledge regarding the joint photograph of accused No.2 and deceased.Thus, considering the overall conduct of Shashikalabai (P.W.3), I find that, even her oral testimony regarding dying declaration of deceased is totally doubtful as she tried to suppress material facts and truth from the Court.Thus, on the::: Uploaded on - 18/07/2017 ::: Downloaded on - 28/08/2017 09:48:59 ::: Cri.Appeal No.132/1999 (( 12 )) testimony of such dubious witness conviction of the accused cannot be based.Learned trial Court has rightly discarded the evidence of this witness.::: Uploaded on - 18/07/2017 ::: Downloaded on - 28/08/2017 09:48:59 :::He admits that, when he talked with the deceased for a period of 15 minutes, at that time, even doctor and police were not present near the deceased.However, version of this witness is totally doubtful for the reason that, the incident occurred at about 4.00 p.m. and after about half an hour the deceased was taken to Rural Hospital, Yawal.From there, at about 5.30 p.m., the deceased was shifted to Hospital at Jalgaon as her condition was serious.In between this period, dying declaration of deceased was recorded::: Uploaded on - 18/07/2017 ::: Downloaded on - 28/08/2017 09:48:59 ::: Cri.Appeal No.132/1999 (( 13 )) by Head Constable More.Considering this short time gap in between admission of the deceased in Rural Hospital and her discharge from the Rural Hospital at about 5.30 p.m., as specified in medical case record of Rural Hospital, Yawal (Exh.32).Absolutely no time was available with Madhukar (P.W.8) to have a discussion with the deceased about occurrence of the incident.So also, though he claims that without meeting the doctor he sought permission from the police to see the deceased, from the cross-examination of P.W.2 Ravindra Sapkale and P.W.3 Shashikalabai, it emerges that, in the hospital nobody was allowed to go near the deceased as it was exclusively Ladies Ward.Therefore, the version of Madhukar (P.W.8) is highly improbable that with the permission of police he went to the Ward where deceased was kept at Rural Hospital, Yawal and had meeting with the deceased where she disclosed the occurrence of incident to him in all details.From the cross-examination of this witness, it further emerges that, though on the date of incident along with his wife he had been to Police Station, Yawal, his statement was recorded by police on third day of the incident.Thus, obviously this witness appears to be a prepared witness.Considering the total improbable version of this witness, the learned trial Court rightly discarded his testimony.::: Uploaded on - 18/07/2017 ::: Downloaded on - 28/08/2017 09:48:59 :::The fourth dying declaration, recorded by Head Constable More (P.W.13) in presence of Dr. Tadavi (P.W.7) at::: Uploaded on - 18/07/2017 ::: Downloaded on - 28/08/2017 09:49:00 ::: Cri.Appeal No.132/1999 (( 14 )) Rural Hospital, Yawal is the most important piece of the evidence relied by prosecution.According to A.P.P., this dying declaration was recorded when the deceased was in fit condition of mind to give statement and there was no possibility of tutoring the deceased as after occurrence, at the earliest she was shifted to Rural Hospital, Yawal.On the other hand, learned defence counsel assailed this dying declaration mainly on the ground that prosecution cannot establish that at the time of recording this dying declaration the deceased was in proper condition to give the statement.::: Uploaded on - 18/07/2017 ::: Downloaded on - 28/08/2017 09:49:00 :::At the outset, we must observe that, as after the occurrence of incident immediately neighbours and other nearby residents gathered on the spot and because within short time from the occurrence the deceased was shifted to Rural Hospital, Yawal at about 4.15 p.m., there was short time for tutoring the deceased.It must be noted that, even father of deceased did not reach to his house before shifting of the deceased to Rural Hospital, Yawal.Even, when the mother of the deceased reached on the spot by that time, deceased was kept outside the house in bullock cart and immediately she was shifted to the hospital.Thus, the parents had no time to tutor their daughter.So also, as observed above, the relations between accused and family of the deceased were cordial before the occurrence of the incident.Therefore, tutoring the deceased to implicate the accused in such::: Uploaded on - 18/07/2017 ::: Downloaded on - 28/08/2017 09:49:00 ::: Cri.Appeal No.132/1999 (( 15 )) serious offence is out of question.However, we must examine whether dying declaration was recorded by Head Constable More when the deceased was in fit state of mind i.e. in condition to give statement.::: Uploaded on - 18/07/2017 ::: Downloaded on - 28/08/2017 09:49:00 :::Dr. Tadavi (P.W.7) deposed on oath that, on 1/10/1997 the injured was brought to the Rural Hospital, Yawal at about 4.15 p.m. where he used to work as Medical Officer.From the evidence of this witness, it emerges that the deceased sustained 82% burn injuries on her body.However, she was conscious and well oriented.From the examination-in-chief of Dr. Tadavi (P.W.7), it emerges that, at about 5.30 p.m. i.e. after recording of the dying declaration by Head Constable More, the deceased was shifted to Civil Hospital, Jalgaon as the condition of that patient was deteriorating.However, from the cross- examination of this witness, it emerges that, before arrival of police when he enquired with the deceased as to what had happened, that time she informed that she was injured due to keorsene.Thus, it becomes clear that, at the first opportunity, when the deceased met to independent Government servant, that time she did not disclose that she was set on fire by the accused persons.From the statement of Dr. Tadavi (P.W.7), it emerges that, when he informed Police Station, Yawal and on enquiry this::: Uploaded on - 18/07/2017 ::: Downloaded on - 28/08/2017 09:49:00 ::: Cri.Appeal No.132/1999 (( 16 )) Medical Officer informed police that the deceased was in condition to give statement.It is to be noted that, before recording dying declaration of the deceased by police, Dr. Tadavi did not examine the deceased or he did not ask any preliminary questions to the deceased to ascertain whether she was in fit condition of mind to give the statement.Head Constable More (P.W.13) nowhere deposed that before recording the dying declaration he asked some introductory questions to ascertain whether the deceased was in proper condition to give the statement.Dr. Tadavi merely deposed that the patient was conscious when her statement was recorded.However, from the cross-examination of Dr. Tadavi (P.W.7), it emerges that, he could not record the blood pressure of the deceased because, due to burns, wrapping belt for measurement of the blood pressure was not possible.He also admits that, at that time, the pulse rate of deceased was 120 per minute and in normal condition, the pulse rate is 70 per minute.From his further cross-examination, it emerges that, such high pulse rate of 120 per minute is accompanied by temperature and may be of indication of entry into delayed shock.This Medical Officer has made it clear that, due to delayed shock, mental disorder is developed and even hallucination and delirium are resulted due to delayed shock.According to such expert witness, such patient may imagine that her near or dear had attacked her or after her life.Whenever there is mental disorder, suggestions given to that patient are::: Uploaded on - 18/07/2017 ::: Downloaded on - 28/08/2017 09:49:00 ::: Cri.Appeal No.132/1999 (( 17 )) easily picked up by her.Thus, the extreme high pulse rate of the deceased creates a possibility that at the time of recording dying declaration, the deceased might be under delayed shock, and due to hallucination and delirium or due to mental disorder, she imagined that she was attacked by the accused persons, who were her neighbours.::: Uploaded on - 18/07/2017 ::: Downloaded on - 28/08/2017 09:49:00 :::::: Uploaded on - 18/07/2017 ::: Downloaded on - 28/08/2017 09:49:00 :::Even Dr. Kulkarni, who performed autopsy examination, deposed before the Court that the cause of death of the deceased was shock due to toxemia following 80% burns.He admits that, in burn cases, pulse rate rises if person is under shock, and if pulse rate crosses 120 to 140, the person becomes unconscious.He also admits that, if carbon monoxide is present, and it is inhaled by patient, chances of his becoming unconscious are more, and in cases of burning, carbon monoxide and carbon- dioxide are present.This Medical Officer opined that, if a person does not become unconscious due to inhaling of carbon monoxide and carbon-dioxide, it may result in hallucination and delirium.In some cases, it is possible that person may feel that his near or dear are attacking him and doing harm to him.Dr. Tadavi (P.W.7) has also made it clear that, in case of kerosene burns, it produces carbon-dioxide and carbon monoxide and the percentage of carbon monoxide is high.From his cross- examination, it becomes clear that, in case of inhalation of large scale carbon monoxide, the internal organs of the body become::: Uploaded on - 18/07/2017 ::: Downloaded on - 28/08/2017 09:49:00 ::: Cri.Appeal No.132/1999 (( 18 )) congested and it affects central nerves system, resulting into deterioration of patient.From the examination-in-chief of Dr. Tadavi, it becomes clear that, at about 5.30 p.m., the deceased was shifted to Civil Hospital, Jalgaon as her condition was deteriorating.Thus, in view of such condition of the deceased at the relevant time of recording dying declaration, probability cannot be ruled that under delayed shock deceased had given imaginary statement due to mental disorder or under hallucination.Even Dr. Tadavi has brought on record this probability because he has admitted in his cross-examination that before beginning of recording of statement by police when Police asked the deceased as to what happened, that time the deceased replied that she was residing with her parents at above said address.This indicates the possibility of mental disturbed condition of deceased at the time of recording her dying declaration.::: Uploaded on - 18/07/2017 ::: Downloaded on - 28/08/2017 09:49:00 :::Thus, from the cross-examination of these two expert witnesses, it emerges that, possibility of recording of dying declaration of deceased by police when she was not in fit state of mind, is most probable.Even Head Constable Ashok More (P.W.13) nowhere deposed that before recording statement of the deceased he ascertained and satisfied that deceased was in state of mind to give the statement.Only the version of this witness that deceased could talk is not sufficient to hold that she was in::: Uploaded on - 18/07/2017 ::: Downloaded on - 28/08/2017 09:49:00 ::: Cri.Appeal No.132/1999 (( 19 )) fit state of mind.Therefore, taking into consideration all these probabilities, on the basis of evidence placed on record, the learned trial Court has rightly held that the prosecution failed to prove that, at the time of recording these four dying declarations of deceased, she was in fit condition to give statement.Thus, this last dying declaration of the deceased is not free from infirmities to base the conviction of the accused.::: Uploaded on - 18/07/2017 ::: Downloaded on - 28/08/2017 09:49:00 :::Accordingly, from the careful analysis of the evidence on record, we are fully satisfied that before the occurrence of the incident, the relations in between accused and the family members of the deceased were cordial and accused had no motive to kill the deceased by setting her on fire after pouring kerosene inside her own house.No witness has seen the accused persons even nearby the spot of occurrence at the relevant time of the incident.In view of seizure of joint photograph of deceased and accused (Article "C"), and prior discussion in respect of this photograph by the family members of deceased and hasty settlement of her marriage, as admitted by P.W.2 Ravindra Sapkale, probability of suicidal death of deceased due to her love affair with accused No.2 cannot be ruled out.This circumstance supports the version of Raju Gajare (P.W.9) that the deceased told him that she set herself ablaze because, against her love with accused No.2, her parents had arranged her marriage with some third person.As observed above, all the::: Uploaded on - 18/07/2017 ::: Downloaded on - 28/08/2017 09:49:00 ::: Cri.Appeal No.132/1999 (( 20 )) dying declarations relied by prosecution are not free from doubt to base the conviction.Thus, accused persons deserve benefit of doubt.::: Uploaded on - 18/07/2017 ::: Downloaded on - 28/08/2017 09:49:00 :::After going through the judgment passed by the trial Court we are fully satisfied that the judgment of acquittal is based on sound reasons, and impossible view is not taken by the trial Court.In the result, this appeal deserves to be dismissed.Accordingly, we pass the following order :ORDER The Criminal Appeal is dismissed.::: Uploaded on - 18/07/2017 ::: Downloaded on - 28/08/2017 09:49:00 :::
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['Section 34 in The Indian Penal Code', 'Section 302 in The Indian Penal Code']
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Analyze the legal case and identify the corresponding section it comes under.
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36,387,978 |
Heard on I.A. No.7797/2015, an application for suspension of remaining jail sentence and grant of bail to the appellant.The appellant has been convicted under Section 376 (2) (J) (L) read with Section 511, IPC and sentenced to undergo rigorous imprisonment for seven years & fine of Rs.1,000/-, with default stipulation.It is also submitted that the appellant was on bail during trial and has never misused the liberty granted to him.There is no likelihood of coming up of this appeal for final hearing in near future.In view of the aforesaid, the appellant prays that the remaining sentence of the appellant may be suspended and he may be released on bail.List this case for final hearing in due course.C.C. as per rules.(SUBHASH KAKADE)
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['Section 376 in The Indian Penal Code', 'Section 511 in The Indian Penal Code']
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Analyze the legal case and identify the corresponding section it comes under.
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15,480,551 |
That SI Mahender Pratap was posted as SI in PS Sultan Puri.That after receiving DD No.5 B on 18.03.2013 SI Mahender Pratap reached at the spot along with SI Mukesh Kumar and HC Dara singh.That SI Mahender Pratap found one dead body on the bedding in a room situated on the first floor/spot.That injury marks were on the chin, right jaw, left cheek, ligature mark on the front of the neck and dark ligature mark on the back side of the neck.757/2018 & 955/2018 Page 3 of 47That Crime Team was called at the spot and the spot was photographed and inspected.That on 18.03.2013 post-mortem on the dead body of deceased was conducted after which the dead body was cremated.The cause of death was verbally opined by the Doctor to be strangulation and smothering.On suspecting the said fact, the IO prepared a rukka and got the FIR registered.That on inquiry from public persons IO Insp.Puran Chand got suspicion about the involvement of the wife of deceased and after interrogation accused Seema @ Prabha confessed regarding her involvement in the present case with accused Kishore Kumar.That on the disclosure statement of accused Seema Chunni of pink colour and one Pillow were recovered, with the help of which they had strangulated the neck and smothered the nose and mouth of deceased.That as per the subsequent opinion of the medical evidence the injury mentioned in post-mortem report is possible by material i.e. Pillow, Belt and Chunni or the similar ones cannot be ruled out.That the mobile phone Make Huawei recovered from accused Kishore Kumar.That the mobile no.9213869863 was found in the name of accused Seema @ Prabha.That the mobile phone with No.9211570636 recovered at the instance of accused Kishore was registered in the name of his mother.Even there was a possibility of appearance of anybody else at the spot in the night.When she was having mobile phone, instead of making call to the Police at 100 number or to her parents she went to the house of her parents to inform them that the deceased Saurabh not wake up.It is also not expected from a lady who was having two minor kids upto a maximum age of seven years that she left them at the spot Crl.757/2018 & 955/2018 Page 6 of 47 and went to her parents home to inform their parents regarding the incident.Police is also reached there at the spot which is established by the document Ex.PW1/A proved by PW1 i.e PCR Form No.1 wherein the time of information is mentioned as 03:10:56 AM.Informant is Sanjay vide Mobile No.9289796962 regarding the address 6/99, Friends Enclave, West Sultan Puri, Delhi.PW15/A and Ex.PW15/B. It is also established that on 17.03.2013 since early morning onwards she was in constant touch with the accused till midnight 18.03.2018, 01:40 AM.The location of both the mobile at the time of incidence has been shown from the same tower.Learned APP for the State refers to the CDR record to contend that there were daily calls between both the appellant-accused for long period of time.He points out that the appellant-accused Seema @ Prabha had primarily used her mobile phone to make calls to the co-accused Kishore Kumar and that around the time of incident i.e. from 12:13 AM till 01:36 Crl.757/2018 & 955/2018 Page 17 of 47 AM on 18th March, 2013 the location of appellant-accused Kishore Kumar is in the area of incident.Also cell tower in respect to co-accused Seema @ Prabha is the same i.e. her location is in the same area under same tower.A chart, handed over by the learned APP, showing the call detail record as well as the location of the co-accused Kishore Kumar between 17th March, 2013 at 8 p.m. and 18th March, 2013 at 1.40 a.m. is reproduced hereinbelow:-757/2018 & 955/2018 Page 17 of 47757/2018 & 955/2018 Page 18 of 47757/2018 & 955/2018 Page 19 of 4720. Learned APP states that there is no delay in lodging the FIR as it was only after the post-mortem that it was confirmed that the death of deceased Saurabh was a homicide.He points out that in the Rukka itself, the Investigating Officer had explained the circumstances under which the delay had occurred.Learned APP also contends that there is nothing on record to suggest as to why the recoveries made by the Police were not admissible in law.In support of his contention, he relies upon the disclosure statement made by the appellant-accused as well as the seizure memos.The seizure memos of pillow, chunni and black coloured leather belt are reproduced hereinbelow:-FIR No.212/13, dated 18.03.13 u/s 302/120B/34 IPC PS Sultan Puri Delhi Seizure Memo of Peacock coloured Pillow In the presence of the witnesses mentioned hereinafter, Seema @ Prabha W/o Sh.Saurav D/o Sh.Kishan Kumar R/o House No.6/39, Friends Enclave, Sultanpuri, Delhi under the custody of W/HC Chand Kiran, No.548/OD voluntarily walked ahead and pointed out Crl.757/2018 & 955/2018 Page 22 of 47 towards the pillow lying over the bed kept on the right side of the door just after entering the room on the first floor of House No.6/39, Friends Enclave, Sultanpuri, Delhi and stated that was the same pillow from which the mouth of Saurav was pressed.I, the Inspector, picked up the recovered pillow of lined peacock colour having white coloured zip thereon and placed the same into a white polythene and kept the white polythene on a white cloth and sealed it with my seal of PP' and took the sealed parcel into the police possession through this memo as a piece of evidence.The seizure memo of the pillow got prepared.757/2018 & 955/2018 Page 22 of 47Sd/- SI Mahender Pratap (In English) SI Mahender Pratap NO. D-1388 P.S.Sultanpuri Sd/- (Illegible) Ct.Yashpal, No.1200/OD P.S.Sultanpuri, Delhi Sd/- (Illegible) Insp.Puran Pant SHO/P.S. Sultanpuri Dt. 18.03.13 (emphasis supplied) B) Seizure memo of the Chunni:-757/2018 & 955/2018 Page 23 of 47The Seizure Memo has been prepared.Sd/ Seema (In Hindi) (emphasis supplied) C) Seizure memo of the black coloured leather belt:-FIR No.212/13, dated 18.03.13 u/s 302/120B/34 IPC PS Sultan Puri Delhi Seizure Memo of Black Coloured Leather Belt In the presence of the witnesses mentioned hereinafter, accused Keshav Kumar S/o Lakhmi Saini, R/o Y-468, Y Block, Janta Market, Camp No.01, Nangloi, Delhi under the Police custody voluntarily walked ahead and identified the black coloured leather belt lying over the diwan kept adjacent to the wall on the right side inside the room constructed on the first floor of House No.6/39, Friends Enclave, Sultanpuri, Delhi and stated that he had strangulated Saurav from the same belt by way of making it a noose around his neck.I, the Inspector picked up the belt lying upon the bed which was having a white aluminium type element buckle whereon NIKE was inscribed in English and (N) mark was dug thereon and even on the opposite side of the buckle NIKE and mark of NIKE was inscribed....In the intervening night of 17/18-03-2013 at about 01.00 am, my sister Seema @ Prabha came to my resident and she told me that her husband i.e. my brother-in-law namely Saurabh had come home at about 11.30 pm after taking a walk and thereafter, he slept and when my sister woke up and she tried to awake Saurabh but Saurabh did not wake up and there were injury marks on the face of Saurabh.757/2018 & 955/2018 Page 29 of 47In cross-examination by Addl.PP, PW7 stated as under:-It is correct that my sister Seema @ Prabha told me that deceased Saurabh had come to his house at about 11.30 pm after roaming and when she woke up in the night and tried to awake Saurabh, he did not wake up.She further told me that there were injury marks on the face of Saurabh.... (emphasis supplied)The appellant-accused Seema @ Prabha in her statement under Section 313 Cr.P.C. failed to give any explanation in respect of the incident in question and/or as to what transpired between 17 th March, 2013 at 11/11:30 p.m. when the deceased Saurabh slept and the time he was murdered.Though it is disputed by appellants-accused as to whether the deceased had suffered injuries before he returned home on 17th March, 2013 at 11/11:30 p.m. or later, yet the fact that appellant-accused Seema @ Prabha was present with the deceased Saurabh between 17th March, 2013 at 11:30 p.m. and the time he was murdered, is an admitted fact.On 18th March, 2013 at 03.10 a.m. a call was made by PW7 (Sanjay), brother of appellant-accused Seema @ Prabha, regarding a Crl.757/2018 & 955/2018 Page 30 of 47 quarrel.The PCR Form recording the complaint of quarrel as well as the fact that the deceased Saurabh had come back home around 11 p.m. and slept and later on was found dead with injuries on neck and face with blood oozing out is reproduced hereinbelow:-757/2018 & 955/2018 Page 30 of 47...-2013 3:10:56Dispatch 18-May-2013 3:12:28 CR.D.D. No.18 Mar 131550060Extn No.155 Informant's @ NameSANJA 'A' Van Selected Time Msg At (Male) transmitted to Van No.i) Phone No.9289796967 Time When Van Van Report Van Free Time reached spot Timeii) Address 6/23/2 FRIENDS ENCLAVE SECTOR-6 WEST SULTAN PURI NEW Status DELHI-110086 Comments Contact Name _______________________ 18-Mar-20133:23:17 LBR-07 18-Mar-20133:23:18 Complaint QUARREL 18-Mar-20133:29:23 LBR-09 18-Mar-20133:29:25 Accident Addr.There is nothing on record to suggest that the children of the deceased were present at the scene of crime.In any event, the children of the deceased are also the children of appellant-accused Seema @ Prabha Crl.757/2018 & 955/2018 Page 31 of 47 and if she wanted, she could have produced the children as defence witnesses.Consequently, non-production of the children by the State has not prejudicially affected the appellant-accused.757/2018 & 955/2018 Page 31 of 47IMMEDIATELY UPON ORAL CONFIRMATION THAT THE POST- MORTEM REPORT HAD CONCLUDED THE DEATH OF SAURABH WAS A HOMICIDE, AN FIR WAS REGISTERED.He gave none.Between 17th March, 2013 at 8:00 p.m. and 18th March, 2013 at 1:40 a.m., appellant-accused Seema @ Prabha spoke repeatedly to appellant-accused Kishore Kumar.The call data record, including the location of the mobile towers, show that appellant-accused Kishore Kumar on the date of the crime, i.e., late hours on 17th March, 2013 and early hours on 18th March, 2013 was present in and around the place of occurrence of murder and location of mobile phone of Seema @ Prabha also shows her presence at the place of occurrence.Since the deceased Saurabh has been found murdered under unnatural and suspicious circumstances, the appellant-accused Kishore Kumar who was speaking to co-accused repeatedly till late hours and was present in and around the scene of crime and the appellant-accused Seema @ Prabha being in the same room as the deceased Saurabh at the time of murder and being awake as she was on the mobile phone, had to offer an explanation as to what transpired between 17th March, 2013 11/11.30 p.m. and the time of murder of deceased Saurabh.The said facts being in the special knowledge of the appellants-accused were required under Section 106 of the Indian Evidence Act to be explained by them.A) Appellant-accused Seema @ Prabha and deceased Saurabh were residing in a single room on First Floor at 6/39, Friends Enclave, Sultanpuri, Delhi.B) On 18th March, 2013, after receiving DD No. 5B, SI Mahender Pratap found dead body of Saurabh at around 03:30 a.m. in the aforesaid room.C) There were injury marks on the deceased Saurabh's chin, right jaw, left cheek, ligature mark on the front of the neck and dark ligature mark on the back side of the neck.757/2018 & 955/2018 Page 45 of 47757/2018 & 955/2018 Page 47 of 47757/2018 & 955/2018 Page 47 of 47While Crl.A. 757/2018 has been filed by appellant-accused Kishore Kumar challenging the judgment dated 22nd December, 2017 convicting them under Section 302 read with Section 120B IPC as also the order on sentence dated 08th January, 2018 by which both the appellant-accused have been directed to undergo rigorous imprisonment for life along with a fine of Rs.10,000/- each.The case of the prosecution is that in the intervening night of 17/18th March, 2013, on the First Floor of House No. 6/39, Friends Enclave, Sultanpuri, Delhi within the jurisdiction of Police Station Sultanpuri, both the appellant-accused in pursuance to a criminal conspiracy committed murder of Saurabh, S/o.That the said Chunni and Pillow were seized.That the accused Seema @ Prabha led the Police to the address of accused Kishore Kumar at Y-468, Janta Market, Camp No.1, Nangloi, Delhi and accused Kishore Kumar was arrested.That pursuant to the disclosure statement accused Kishore Kumar got recovered one leather belt of black colour.That the medical evidence on record establishes that the cause of death is asphyxia as a result of combined effect of strangulation and smothering which were fresh and ante mortem at the time of death.That there was a regular call between the mobile phone of accused Seema @ Prabha and the mobile phone used by kishore from 06:00 PM onwards till 01:40 PMThe prosecution to establish the factum of death has examined Dr. Manoj Dhingra as PW 12 who deposed to the effect that on 18.03.2013, he along with Dr. Vivek Rawa conducted the post-mortem of deceased Saurabh with the alleged history of found dead in his house on 18.03.2013 at about 03:30 AM.The detailed PM report is exhibited as Ex.PW12/A bearing their signatures at point A and B. The cause of death was opined as asphyxia as a result of combined effect of strangulation and smothering which were fresh and ante mortem at the time of death.He further deposed to the effect that he received an application vide Ex.PW10/A along with three pullandas for subsequent opinion.757/2018 & 955/2018 Page 6 of 47The call details so produced by the prosecution with CDR and CAF records, the mobile phone bearing No.9213869863 was registered in her name.CAF record has been proved as Ex.PW15/E. While the other mobile phone used by accused Kishore was found registered in the name of his mother.The call details has been filed by the prosecution w.e.f. 01.03.2013 to 02.04.2013 and from the call details it is apparently clear that accused Seema @ Prabha was using the same only to call the accused Kishore and she had hardly made any call on other number during the period for which the call details has been given.She went to inform her parents in the night at around after 02:00 AM in the morning and her brother accompanied her to the place of incident i.e. her house.They also seen the deceased Saurabh in injured condition.Thereafter, the Police was informed by PW 7 Sanjay who is brother of accused Seema @ Prabha.Further in continuation of the chain of circumstances as till the deceased removed to Hospital there was no linkage between the accused Seema @ Prabha and accused Kishore has been established by the investigating agency.However, as the Doctors opined verbally is a case of homicide then on suspicion the IO interrogated the accused Seema @ Prabha who is the wife of deceased and where she admitted the commission of murder of her husband deceased Saurabh while forming a criminal conspiracy with the help of accused Kishore as she was in friendship with the accused Kishore.The rest of the part has been played by first IO SI Mahender Pratap and second IO Insp.It is also established on record that the mobile No.9213869863 was registered in the name of accused Seema @ Prabha and the mobile 9211570636 was belonging to the accused Kishor while the same was registered in the name of his mother.It is also apparently clear that accused Seema @ Prabha was using Crl.757/2018 & 955/2018 Page 8 of 47 the mobile to have talks with the accused only.She hardly made any call to any other person which is apparent from the call detail vide Ex.PW15/C which has been duly authenticated by the certificate under Section 65 B vide Ex.Both the accused have not denied the phone calls with each other, neither any explanation has been put forward by both of them or making calls in the odd hours particularly on the day of incident.757/2018 & 955/2018 Page 8 of 47In view of the above discussion and taking into consideration the facts and circumstances and the arguments addressed at length by defence counsel and the Ld. Addl.PP for the State, I am of the considered opinion that the prosecution has been able to establish its case beyond reasonable doubt by adducing evidence documentary and scientific as well as oral testimony of the witnesses, except the accused Seema @ Prabha and accused Kishore none else has committed the murder of deceased Saurabh by strangulation as well as by smothering and causing injury no.2, 3, 4, 5 and 6, which were sufficient in the ordinary course of nature to cause death.Accordingly, I hold the accused Seema @ Prabha and accused Kishor Kumar guilty for the offence punishable under Section 120 B IPC for forming criminal conspiracy to commit murder.The accused persons are also held guilty for the offence punishable under Section 302 r/w Section 120B IPC.ARGUMENTS ON BEHALF OF APPELLANT-ACCUSED SEEMA @ PRABHAMr. Ajay Verma, learned counsel for appellant-accused Seema @ Prabha contends that there is no eyewitness and/or any direct incriminating evidence on record to prove that she is guilty of any offence.757/2018 & 955/2018 Page 9 of 47He emphasises that the landlord PW6 (Jamna Prasad) had deposed that he had not seen appellant-accused Kishore Kumar entering or leaving the house of Seema @ Prabha at odd hours.He submits that since the prosecution story is based on circumstantial evidence, the entire chain of events had to be proved in a manner to arrive at a just conclusion of guilt of the accused without any hypothesis of guilt-which has not happened in the present case.He contends that the investigation was defective in the present case as neither any chance print was taken nor the children of the deceased, who were present at the scene of crime, were examined.We have noticed as to how, perfunctorily, the investigation had been carried on.Even in a case of this nature proper charges had also not been framed.The documents had also not been properly brought on record.Indisputably, only Xerox of the seizure memo was sought to be brought on record invoking Section 294 of the Code of Criminal Procedure, which had no application.Shri Rathod, however, was examined who proved his report.Learned counsel for appellant-accused Seema @ Prabha lastly submits that on the basis of non-explanation under Section 106 of Indian Evidence Act, 1872, the accused cannot be convicted in a case based on circumstantial evidence especially when there is no evidence to corroborate the prosecution story.Learned counsel for appellant-accused Kishore Kumar also states that the prosecution had failed to prove the motive as he had no relationship with the co-accused Seema @ Prabha.He submits that the alleged recoveries are inadmissible in law as they were recovered after the arrest of the appellant-accused from the place of occurrence itself.He emphasises that the alleged recovery of leather belt from the scene of crime is doubtful because as per deposition of PW18 (Insp.Puran Pant) no blood was found on the leather belt, but as per FSL report, blood was present on the belt.Memo regarding seizure of phone Black HUAWEI In the presence of the witnesses mentioned hereinafter Kishore S/o Sh.Lakhmi Saini R/o Y-468, Y Block, Janta Market, Camp No.01, Nangloi, Delhi, under police custody voluntarily led towards a room of House No.Y/468 and produced to me, the Inspector, a black colored mobile phone kept on the table of the aforesaid room.He disclosed that today on 18.03.2013 at about 1 AM in the night Seema alias Prabha had made a call on my this mobile No.9211570636 from her mobile No.9213869863 and called me at her home as per the plan.I, the Inspector, took into police possession the recovered body of the phone having IMEI No.A00000331650C2 along with SIM and Battery as a piece of evidence by means of this memo.The Seizure Memo has been prepared.Witnessed by:Sd/- SI Mahender Pratap (In English) SI Mahender Pratap NO. D-1388 P.S.Sultanpuri Crl.757/2018 & 955/2018 Page 15 of 47 Sd/- (Illegible) Ct.Yashpal, No.1200/OD P.S.Sultanpuri, Delhi Sd/- (Illegible) Insp.Puran Pant SHO/P.S. Sultanpuri Dt. 18.03.13757/2018 & 955/2018 Page 15 of 47He states that after investigation, it was found that the aforesaid number 9211570636 was obtained in the name of the mother of the co-accused Kishore Kumar.The letter dated 4th April, 2013 written by Nodal Officer of Tata Telly Services Limited is reproduced hereinbelow:-April 04, 2013 Mr. Ram Kishore, Inspector, P.S. Sultanpuri, Delhi.Sub : Submission of CDR, CAF of Telephone Nos.9211570636, 9213869863 & Evidence Act Certificate.: Your Letter Dated 02.04.2013 Case FIR No.212/13 U/S 302/120-B/34 IPC, P.S. Sultanpuri, Delhi.Sir, With reference to your above mentioned letter, we wish to submit as under :757/2018 & 955/2018 Page 16 of 47Mobile No. 9211570636:Ownership Details: Mr. OMVATI SAINI, Y-497, J.J. COLONY-3, BLOCK-Y, NANGLOI, DELHI Certified copy of CAF and supporting documents is also enclosed herewith.Call detail Records for the period of 01.03.2013 to 02.04.2013 enclosed herewith of above mobile no. (8 pages)Mobile No.9213869863:Ownership Details : Ms. PRABHA, 6/23/2, FRIEND ENCLAVE, SEC-6, SULTAN PURI, NEW DELHI.Certified copy of CAF and supporting documents is also enclosed herewith.Call detail Records for the period of 01.03.2013 to 02.04.2013 enclosed herewith of above mobile no. (6 pages) The above documents are computer generated and as per official record.Certificate U/s 65B (4) (C) of the Evidence Act 1872 is also enclosed herewith.Thanking you, Yours faithfully, For TATA Teleservices Ltd.-s/d-NODAL OFFICER - DELHI CIRCLE Encl.: As above.Witnessed by:Memo regarding seizure of pink colored headcloth (Chunni) In the presence of the witnesses mentioned hereinafter Seema alias Prabha W/o Sh.Saurav D/o Sh.Chand Kiran, No.548/OD voluntarily led towards a room at First Floor of House No.6/39, Friends Enclave, Sultanpuri, Delhi and produced to me, the Inspector, a pink colored headcloth (Chunni) from a stack of clothes lying beside sewing machine kepton the floor near the wall in front of the door.While producing the same she disclosed that this is the very headcloth (Chunni) with which she strangulated her husband Crl.757/2018 & 955/2018 Page 23 of 47 Saurav while making a noose.I, the Inspector, measured the recovered pink colored headcloth (Chunni) and found it to be 81.5 inch long and 35 inch wide.The headcloth (Chunni) has been converted into a parcel after keeping the same in a white polythene and then in a white cloth.The parcel has been sealed with my seal of PP' and taken into possession as a piece of evidence by means of this memo.And I placed it into a white polythene, kept the white polythene upon a white clothe and converted it into a parcel and sealed the same with my seal of PP' and took the sealed parcel into Police possession through this memo as a piece of evidence.The seizure memo of the pillow got prepared.757/2018 & 955/2018 Page 24 of 47Witnessed by:Sd/- SI Mahender Pratap (In English) SI Mahender Pratap NO. D-1388 P.S.Sultanpuri Sd/- (Illegible) Ct.Yashpal, No.1200/OD P.S.Sultanpuri, Delhi Sd/- (Illegible) Insp.Puran Pant SHO/P.S. Sultanpuri Dt. 18.03.13Learned APP admits that the seizure memo of the belt does not record that there were any blood stains on it.He emphasises that with the naked eye, the police officials could not find the presence of blood on the belt.In support of his statement, he relies upon the testimony of PW18 (Insp.Puran Pant) wherein during the cross-examination, he has stated as under:-"....I along with staff reached at the spot at about 5:00 pm.The chunni and pillow were recovered at the instance of accused Seema which were lying on the bed in the said room.The belt was also recovered which was lying on the said bed, at the instance of accused Kishore.No blood was there on the said belt.He also points out that the Crime Branch tried to take chance prints from the scene of crime, but found none.In support of his statement, he Crl.PW13 in cross-examination deposed that the finger print proficient had made efforts to lift the chance print but in vain.The relevant portion of the Crime Team report is reproduced hereinbelow:-757/2018 & 955/2018 Page 25 of 47Articles examined and chance prints Developed S.N. Name of the Nomenclature No. of chance Powder Article of chance Prints used prints Developed Developed 1 2 3 ____ ____ ____ ____ 4 5757/2018 & 955/2018 Page 26 of 47 rickshaw was any circumstance which went against the case of the prosecution.He is not a material witness and was given up as not being traceable.It was open to the defence to have taken steps to get him examined if the appellant really thought that he was a material witness and could throw some light on the case.In the absence of any such steps having been taken by the defence nothing could be made out by simply contending why he was not examined by the prosecution.After hearing this, I along with my brother Sanjay and other family members reached at the room of Seema.Saurabh was lying on the ground and there were injury marks on his face.We found him dead..."(emphasis supplied)It is apparent from the record that the learned counsel for appellant-PW7 Mr. Sanjay, another brother of appellant-accused Seema @ Prabha has deposed that his sister came to him on 18th March, 2013 at about 2.30/3.00 p.m. and informed him that the deceased had come to the house with some injury marks on his neck and was not waking up from his sleep.The relevant portion of the testimony of PW7 Mr. Sanjay is reproduced hereinbelow:-...In the intervening night of 17/18.3.2013, my sister Seema @ Prabha, present in the court today (correctly identified by the Crl.757/2018 & 955/2018 Page 29 of 47 witness) who used to reside in the house of Jamna Prasad as a tenant came to my above said house at about 2.30/3.00 am and she informed us that her husband namely Saurabh who had come to the house having some injury marks on his neck and was not waking up from the sleep.Thereafter, I along with my brother Vijay and other persons reached at the tenanted room of Seema and Saurabh.There, we saw that Saurabh was lying on the ground.We called a Doctor known as Bengali and he after examination told that Saurabh had expired.Thereafter, I made a call at number 100.....6/99 FRIENDS ENCLAVE 18-Mar-20134:08:25 18-Mar- 18-Mar-20134:15:16 SECTOR-6 WEST SULTAN 2013 PURI NEW DELHI-110086 4.08.25 Accident Info.JHAGRA 'B' DCR No. Received 308 Report Received from VAN 18/03/2013 04-OB-39 SAURBH S/O JAGDISH AGE 92/94 YRS JO RAAT KO 11 BAJE KE KAREEB GHAR AAKR SOYA THA JO DEAD MILA HAI JISKI GARDAN AUR MUH PAR CHOT KE NISHAN HAI KHOON NIKAL REHA HAIN IP 18/03/2013 15:56 SHO SAHAB WITH STAFF MOKA PER....DCR No. Received 308EVEN OTHERWISE THE APPELLANT-ACCUSED HAVE FAILED TO SHOW ANY PREJUDICE ON ACCOUNT OF DELAY, IF ANY, IN LODGING OF THE FIRThe body of the deceased was sent for post-mortem on the same day.The relevant portion of the post-mortem report dated 18th March, 2013 reads as under:-EXTERNAL EXAMINATION (Injuries etc.)Reddish colored bruise 3 x 2 cm seen in front of left ear lobe.Reddish colored bruising of whole upper & lower lips seen over their inner aspectReddish colored bruise 4.5 x 3 cm over left cheek prominence.Reddish colored bruise 4.5 cm x 1 cm surrounded by abraded margin seen over mid front of right jaw.Laceration 2 x 0.5 x 0.5 cm over mid front of chin.Reddish brown pressure abrasion mark seen completely encircling the neck, with circumference of 33 cm & width 3.7 cm, passing 7 cm below right mastoid process, then cross to the left side of neck just above the thyroid prominence in two layers lying at 6cm & 7.5 cm below Crl.757/2018 & 955/2018 Page 32 of 47 chin, & then passing 5.5cm below left mastoid process & then over the whole nape of neck.The mark was lying semi obliquely over the neck.Both margins were deeply ecchymosed, the mark was dry, parchmentised.Cut section shows extravasation of blood in superficial & deep muscles of neck under the mark, more prominent in suprahyoid area.Inward fracture seen to both greater cornu of hyoid with extravasation of blood in surrounding tissue.Thyroid & cricoids cartilage are intact.757/2018 & 955/2018 Page 32 of 47xxx xxx xxx OPINION:The cause of death is due to Asphyxia as a result of combined effect of strangulation & smothering under injury no. 2, 3, 4, 5 & 6 which are fresh & antemortem at the time of death & is sufficient to cause death in ordinary course of nature in their combined effect.(emphasis supplied)On 18th March, 2013 at 4.35 p.m., FIR No.212/2013 was registered with the Police Station Sultanpuri.ATTESTING WITNESSES OF THE RECOVERIES HAVE DULY SUPPORTED THE RECOVERIES IN COURT AND NOTHING HAS COME IN THEIR TESTIMONY TO SUGGEST THAT THE RECOVERIES WERE PLANTEDOn the same date at about 5.45 p.m., the appellant-accused Seema @ Prabha was arrested.In her disclosure-cum-confessional statement to the Police, she stated that she could get the chunni/head cloth as well as Crl.757/2018 & 955/2018 Page 33 of 47 pillow recovered, which had been used to kill the deceased.The part of the disclosure-cum-confessional statement that led to seizure of the pillow and chunni/head cloth is reproduced hereinbelow:-757/2018 & 955/2018 Page 33 of 47I can point out the place of occurrence and can get the head cloth recovered which was used in the incident.I can also get recover the pillow.(emphasis supplied)In pursuance to the disclosure-cum-confessional statement of appellant-accused Seema @ Prabha, not only pillow and chunni were recovered, but the co-accused Kishore Kumar was arrested on 18th March, 2013 at 7.30At the instance of Kishore Kumar, a mobile phone bearing No.9211570636 was seized.In pursuance to the disclosure-cum- confessional statement made by Kishore Kumar, a black coloured leather belt was also seized from the scene of the crime.In fact, the attesting witnesses of the recoveries have duly supported the recoveries in Court and nothing has come in their testimony to suggest that the recoveries were planted.DISCOVERY OF BLOOD ON THE SAID ITEMS BY FSL FORTIFIES THE FACT THAT THE SAID ITEMS HAD BEEN USED IN THE PRESENT CRIME.THE RECOVERY OF CHUNNI, PILLOW AND LEATHER BELT AFTER THE DEAD BODY HAD BEEN SENT FOR POST-MORTEM PROVES THAT NO POLICE OFFICIAL COULD HAVE PUT BLOOD ON THE SAID ITEMS.Forensic Science Laboratory (hereinafter referred to as 'FSL') to whom the chunni, pillow and black coloured leather belt were sent for Crl.757/2018 & 955/2018 Page 34 of 47 examination opined that human blood was present on all the aforesaid three items.But they could not point out the blood group as according to them, the Group Specific Antigens had degenerated.The FSL Report dated 12th July, 2013 is reproduced hereinbelow:-757/2018 & 955/2018 Page 34 of 47FORM NO.FSL/DELHI/03/33(07)/24.12.2007 Forensic Science Laboratory Govt. of NCT of Delhi Sector 14, Rohini, Delhi-110085 Tel: 011-27555811, Fax: 011-27555890 Accredited by the National Accreditation Board for Testing and Calibration Laboratories (NABL) BIOLOGY DIVISION Report No.FSL-2013/B-2704 Bio No.343/13 Dated 12/7/2013 Case FIR No.212/13 Dated: 18.03.13 U/s 302 IPC Police Station: Sultan Puri Forwarding Authority: The SHO PS: Sultan Puri, Delhi Portion of exhibits as detailed in the main Biology Report have been examined using various serological techniques.The results obtained have been analyzed as given below:-** Group Specific antigens degenerated.(MS. SUNITA GUPTA) Senior Scientific Officer (Biology) Forensic Science Laboratory Cum-Ex.Officio Chemical Examiner to the Govt. of National Capital Territory of Delhi.This report is per se admissible u/s 293 Cr.p.c.However, the scientific expert (witness) shall be available for cross-examination, if required.(emphasis supplied) Crl.757/2018 & 955/2018 Page 35 of 47757/2018 & 955/2018 Page 35 of 47This is apart from the fact that this weapon was sent to the forensic science laboratory (FSL) and it has been found stained with human blood.Though the blood group could not be Crl.757/2018 & 955/2018 Page 36 of 47 ascertained, as the results were inconclusive, the accused had to give some explanation as to how the human blood came on this weapon.I also received an application already Ex.PW10/A along with three pulandas sealed with the seal of PP for subsequent opinion.On opening, pulanda no.1, it contained a cream color pillow covered with green cover of size 54 x 37 cm, pulanda no.2 contained black belt with metallic buckle at 99x3.5 cm, pulanda no.3 was found containing one pink colour chunni of synthetic material.After going through the pm report, the exhibits produced before me and application for subsequent opinion, I opined that the injury mentioned in PM report is possible by such materials or the similar ones cannot be ruled out... (emphasis supplied) THE DISCREPANCY, IF ANY, IN THE CUSTOMER APPLICATION FORM (CAF) IS IRRELEVANT AS THE INVESTIGATING OFFICER HAD SEIZED THE SAID MOBILE PHONE AT THE INSTANCE OF THE APPELLANT-ACCUSED KISHORE KUMAR AND NO CROSS EXAMINATION OF THE SAID WITNESS HAD BEEN DONE WITH REGARD TO SEIZURE OF THE PHONE.It has been argued that there is a discrepancy in the residential address of the mother of the appellant-accused Kishore Kumar as mentioned in the Customer Application Form (CAF).We have perused the CAF of mobile connection No. 9211570636 and find that the said mobile connection had been issued on the basis of Election Identity Card of the mother of the appellant-accused Kishore Kumar and on the photocopy of said Election ID, customer's local address i.e., Y-468, J.J. Colony-3, Nangloi, Delhi, is mentioned.PW15 Mr. Rajeev Ranjan, Nodal Officer, Tata Tele Services Ltd. has deposed in this Crl.757/2018 & 955/2018 Page 38 of 47 regard and the relevant portion of his testimony is reproduced hereinbelow:-757/2018 & 955/2018 Page 38 of 47.....As per CAF of mobile no. 9211570636 the address of Omwati was Y-497, JJ Colony-3, Block-Y, Nangloi, but on the photocopy of ID proof of Omwati her address is mentioned as Y-468, JJ Colony-3, Nangloi, Delhi-41 (emphasis supplied)In any event, the discrepancy, if any, is irrelevant as the Investigating Officer had seized the said mobile phone at the instance of the appellant-accused Kishore Kumar and no cross examination of the said witness had been done with regard to the seizure of the phone.SINCE THE DECEASED SAURABH HAS BEEN FOUND MURDERED UNDER UNNATURAL AND SUSPICIOUS CIRCUMSTANCES AND THE APPELLANT-ACCUSED SEEMA @ PRABHA BEING IN THE SAME ROOM AS THE DECEASED SAURABH AT THE TIME OF MURDER AND BEING AWAKE AS SHE WAS ON THE MOBILE PHONE AND THE APPELLANT-ACCUSED KISHORE KUMAR WHO WAS PRESENT IN AND AROUND THE SCENE OF CRIME HAD TO OFFER AN EXPLANATION AS TO WHAT TRANSPIRED BETWEEN 17th MARCH, 2013 11/11.30 P.M. AND THE TIME OF MURDER OF DECEASED SAURABH.SECTION 106 OF THE INDIAN EVIDENCE ACT, 1872 IS ATTRACTED TO THE PRESENT CASE.THE APPELLANT-ACCUSED HAVE FAILED TO DISCHARGE THE BURDEN OF PROVING THE FACTS ESPECIALLY WITHIN THEIR KNOWLEDGE.Duly exhibited call records prove that the appellant-accused Seema @ Prabha was in constant touch with the appellant-accused Kishore Kumar over the mobile phone inasmuch as not only on a daily basis a number of calls were exchanged between the two co-accused, but the calls were of long duration, at times going upto thirty minutes.In fact, she Crl.D) On 18th March, 2013, a post-mortem was conducted in which the cause of death was opined to be strangulation and smothering.E) On the disclosure statement of appellant-accused Seema @ Prabha, one pink colour chunni and one pillow were recovered.F) The appellant-accused Seema @ Prabha led the police to the address of appellant-accused Kishore Kumar, from where he was arrested.G) Pursuant to the disclosure statement of appellant-accused Kishore Kumar, a mobile phone bearing No. 9211570636 and one leather belt of black colour was recovered from the scene of crime.H) As per the subsequent medical opinion, the injuries mentioned in post-mortem report were possible by pillow, belt and chunni or similar materials.Human blood was found on the pillow, chunni and black leather belt seized from the appellant-accused.J) There were regular calls between the mobile phone of appellant-accused Kishore Kumar from 17th March, 2013 at 06:00 p.m. till 18th March, 2013 at 01:40 a.m. K) On the date of the murder, the location of the mobile phone of appellant-accused Kishore Kumar at the time of the incident was in and around the scene of crime.Also location of mobile phone of co-accused Seema @ Prabha was under the same tower as that of appellant-accused Kishore Kumar.757/2018 & 955/2018 Page 46 of 47L) From the time the deceased Saurabh returned home in and around 11/11:30 p.m. on 17th March, 2013 till he was murdered on 18th March, 2013, appellant-accused Seema @ Prabha was not only present in the same room with the deceased (as apparent from the testimony of PW3 and PW7) but was also awake as is apparent from her mobile call record.This Court is of the view that the aforesaid circumstances, specially the mobile record, the recoveries and medical evidence which are of conclusive nature, read with Section 106 of the Indian Evidence Act, 1872 fully establish the guilt of both the appellant-accused.In fact, the chain of evidence is so complete as not to leave any reasonable ground for a conclusion consistent with the innocence of both the appellant-accused.The aforesaid circumstances show that the act of murder had been done by both the appellant-accused.Consequently, present appeals being bereft of merit, are dismissed.Copy of judgment be sent to appellants-accused through Jail Superintendent.MANMOHAN, J SANGITA DHINGRA SEHGAL, J MAY 24, 2019 KA/js/rn Crl.
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['Section 120B in The Indian Penal Code', 'Section 302 in The Indian Penal Code', 'Section 120 in The Indian Penal Code']
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Analyze the legal case and identify the corresponding section it comes under.
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154,805,605 |
And In Re:- Sri Deepak Kumar @ Deepak Kumar Sah ... Petitioner Mr. Tirthankar Ghosh, Mr. Rudradipta Nandy, Mr. Ratan Banik, Mr. Mirza Firoj Ahmed Begg, Mr. Souvik Datta ... for the petitioner.Mr. Saswata Gopal Mukherjee, Mr. Madhu Sudan Sur, Mr. Dipankar Pramanick ...for the State.MNS CRM No. 4757 of 2018 In Re:- An application for anticipatory bail under section 438 of the Code of Criminal Procedure filed on June 27, 2018 in connection with Phansidewa Police Station Case No. 36 of 2018 dated February 17, 2018 under Sections 302/120B/34 of the Indian Penal Code.Mr. Sabir Ahmed, Mr. Hillol Saha Poddar ...for the defacto complainant.The Additional Superintendent of Police, Kurseong, District- Darjeeling, being the head of the Special Investigation Team, has filed report.Copies of such report of September 5, 2018 be retained with the papers.The report covers both aspects: the investigation into the circumstances leading to the death of Ajeet Kumar Singh and the conduct of Sub-Inspector Sanjay Pradhan.1 2 Considering the preliminary findings, there does not appear to be any need for the present petitioner to be taken into custody at the moment.The prayer for anticipatory bail is allowed subject to the conditions as indicated above.A certified copy of this order be immediately made available to the petitioner subject to compliance with all requisite formalities.(Abhijit Gangopadhyay, J.) (Sanjib Banerjee, J. ) 2
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['Section 302 in The Indian Penal Code', 'Section 120B in The Indian Penal Code', 'Section 438 in The Indian Penal Code', 'Section 34 in The Indian Penal Code']
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Analyze the legal case and identify the corresponding section it comes under.
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154,811,495 |
The State produces the case diary and says that the allegation against the petitioner is that the wife was administered phenyl and required admission in a hospital to pump such stuff out.There is no issue, but the wife is now at her paternal place.1 0.2018 76 KB CRM No. 8091 of 2018 In Re:- An application for anticipatory bail under section 438 of the Code of Criminal Procedure filed on 14th September, 2018 in connection with General Register Case No. 78 of 2018 English Bazar Police Station Case No. 02 of 2018 dated 05.01.2018 under Sections 498A/307 of the Indian Penal Code.And In Re:- Mukul Halder ... Petitioner Mr. Arnab Saha ... for the petitioner Mr. Imran Ali, Ms. Seema Biswas ...for the State The petitioner seeks anticipatory bail in connection with General Register Case No. 78 of 2018 English Bazar Police Station Case No. 02 of 2018 dated 05.01.2018 under Sections 498A/307 of the Indian Penal Code.1 2 Considering the material, there is no impediment to the petitioner being granted anticipatory bail as long as the petitioner provides for the maintenance for his wife.The petitioner will pay a sum of Rs.7000/- per month beginning October, 2018 towards maintenance for the wife.The amount would be payable by the 15th day of every month.A certified copy of this order be immediately made available to the petitioners subject to compliance with all requisite formalities.2 3 (Abhijit Gangopadhyay, J.) (Sanjib Banerjee, J. )
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['Section 498A in The Indian Penal Code', 'Section 307 in The Indian Penal Code', 'Section 438 in The Indian Penal Code']
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Analyze the legal case and identify the corresponding section it comes under.
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154,813,067 |
At the time of withdrawal of the said bail application, the petitioner had also informed the Court that he would like to appear before the investigating officer and, thereafter, if need be, apply for regular bail in the event of he being arrested.After three months, the present application has been moved again for release on anticipatory bail under Section 438 Cr.P.C. Similar application was earlier moved (bearing No. 2582/2018) before Bail appln.Bail appln.2366/2018 Page 1 of 3It reveals that the petitioner has been evading joining investigation till date and process under Section 82 Cr.P.C. has consequently been issued against him.The counsel present for the petitioner at this stage started arguing that the petitioner is an illiterate person who was surprised on being told that his previous application has been withdrawn on 03.07.2018 by the earlier counsel, his explanation being that he had not given any such instructions to the counsel.On being asked to show the pleadings in above regard, the counsel present submits that he has not made any averments to such effect in the present application.If such were the instructions vis-a-vis the past conduct, pleadings were definitely required to be made.If such were the scenario vis-a-vis the conduct of the counsel previously engaged, there was also a need to seek explanation from him.2366/2018 Page 2 of 3 34 of the Indian Penal Code, 1860 (IPC), it is seen that the first informant is stated to have been cheated by the petitioner and his associates on the false representation of making available to him certain motor vehicles (in damaged condition), inducing him to part with money, the promised vehicles not having been made available.When persuaded, the appellant handed over certain cheques through co-accused Avinash Jain which were later disowned.It was claimed by the petitioner that he had passed on money to the complainant through RTGS, the documents respecting which, upon investigation, were found to be forged and fabricated.Bail appln.2366/2018 Page 2 of 3The allegations in the case at hand are quite serious.The petition and the application filed therewith are dismissed.R.K.GAUBA, J.2366/2018 Page 3 of 32366/2018 Page 3 of 3
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['Section 420 in The Indian Penal Code', 'Section 419 in The Indian Penal Code', 'Section 34 in The Indian Penal Code', 'Section 406 in The Indian Penal Code', 'Section 120B in The Indian Penal Code', 'Section 376 in The Indian Penal Code']
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Analyze the legal case and identify the corresponding section it comes under.
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154,813,625 |
Allowed, subject to all just exceptions.Application is disposed of.3. Vide the present petition, the petitioner seeks direction thereby quashing FIR No. 195/2019 dated 22.06.2019, registered at PS - Amar Colony, for the offences punishable under Sections 323/354-A/354-D/506 IPC and all other proceedings emanating therefrom.CRL.M.C. Page 1 of 3Notice is accepted by learned APP for the State and respondent no.3 and with the consent of the counsel for the parties, the present petition is taken up for final disposal.The present petition is filed on the ground that the parties have settled their disputes and the respondent No.3 has no objection if the present petition is allowed.Respondent No.3 is personally present in Court and she has been identified by SI Abhishek Kumar/IO and submits that matter has been settled and she does not wish to prosecute the matter any further.The petitioner and respondent no.3 are advocates by profession and they have entered into an amicable settlement by mutual consent.Taking into account the aforesaid facts, this Court is inclined to quash the concerned FIR as no useful purpose would be served in prosecuting the petitioners any further.For the reasons afore-recorded, the FIR No. 195/2019 dated 22.06.2019, registered at PS - Amar Colony, for the offences punishable under Sections 323/354-A/354-D/506 IPC and consequent proceedings therefrom are quashed.CRL.M.C. Page 2 of 3CRL.M.C. Page 2 of 3The petition is allowed accordingly.(SURESH KUMAR KAIT) JUDGE SEPTEMBER 26, 2019 ab CRL.M.C. Page 3 of 3CRL.M.C. Page 3 of 3
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['Section 323 in The Indian Penal Code', 'Section 506 in The Indian Penal Code']
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Analyze the legal case and identify the corresponding section it comes under.
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154,814,147 |
Therefore, first informant rushed to the field and opposed the appellants for dumping the raw material of the brick kiln in his field.But, the appellants roughed up the first informant Subhash, his wife and son Ganesh.The appellants hurled castiest abuses to them on their caste.::: Uploaded on - 20/03/2019 ::: Downloaded on - 21/03/2019 03:23:32 :::hearing on merit with the consent of both sides.This appeal is directed against the impugned order dated 05-01-2019 passed by learned Additional Sessions Judge, Sangamner, in Criminal Misc.Application (Bail) No. 245 of 2018 rebuffing the relief of pre-arrest bail of the appellants in Crime No. I-195 of 2018 registered at Ghargaon Police Station Taluka Sangamner, District Ahmednagar under Sections 143, 147, 323, 504 and 506 of the Indian Penal Code (IPC) and under section 3(1)(r)(s) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as "Act of 1989" for the sake or brevity).The prosecution case in nutshell is that, the first informant- Subhash Bhimaji Sonawane, resident of Sakur, Ta.Sangamner District Ahmednagar, on 26-12-2018 visited to the Police of Ghargaon Police Station, Taluka Sangamner, District Ahmednagar and filed the report alleging that he is handicapped person belonging from Hindu Mahar Community.On 24-12-2018 at about 2.00 p.m. the appellants, namely, Dada Abdul Patel, Rustum Abdul Patel, Wasim Dada Patel, Ismail Rustum Patel and Usman Ahmed Patel, all resident of village Sakur, were seen::: Uploaded on - 20/03/2019 ::: Downloaded on - 21/03/2019 03:23:32 ::: 3 CriAl-19-19 unloading the raw material of brick kiln in his field.They had also given threats of life to the first informant and also attempted to kill him by driving the tractor on his person.Thereafter, first informant rushed to the Police Station and filed report.::: Uploaded on - 20/03/2019 ::: Downloaded on - 21/03/2019 03:23:32 :::Pursuant to the FIR, Police of Ghargaon Police Station registered the Crime bearing No. I-195 of 2018 for the offence punishable under Sections 143, 147, 323, 504 and 506 of the Indian Penal Code (IPC) and also under section 3(1) (r) (s) of the Act of 1989 and set the penal law in motion.The Investigating Officer (IO) visited the spot and drawn panchnama of scene of occurrence.He recorded statements of witnesses acquainted with facts of the case.The appellants apprehending their arrest at the hands of Police knocked the door of Court of learned Additional Sessions Judge, Sangamner and filed the application for their pre-arrest bail under section 438 of the Cr.P.C. vide Criminal Misc.But, the learned Additional Sessions Judge did not favour the appellants- applicants and rejected the application.The impugned order of the learned Additional Sessions Judge, Sangamner is challenged::: Uploaded on - 20/03/2019 ::: Downloaded on - 21/03/2019 03:23:32 ::: 4 CriAl-19-19 in this appeal.::: Uploaded on - 20/03/2019 ::: Downloaded on - 21/03/2019 03:23:32 :::Learned counsel for the appellants vehemently submitted that the appellants are innocent of the charges pitted against them.They have not committed any crime.They are falsely implicated in this case on account of civil litigation of agricultural land in between the appellants and father of the first informant sub-judice before the Court of Civil Judge, Senior Division Sangamner.The learned trial Court did not consider the circumstances on record in its proper perspective and committed error in rejecting the application.According to learned counsel, ingredients of provisions of Act of 1989 are not attracted against the appellants in this case.The alleged injuries caused to the first informant and his family members were of simple in nature.Therefore, it would not justifiable to curtail valuable liberty of the appellants for the sake of investigation in this crime.Hence, he urged that the application for pre-arrest bail filed under section 438 of the Cr.P.C. be allowed in favour of appellants.6. Learned APP for respondent No.1 and learned counsel for respondent No. 2 raised objection and submit that first informant and his family members are the owners and in possession of the agricultural land Gut No.1445 of village Sakur, Tahsil Sangamner.The present appellants have no concerned at all with said land.They used to do the money lending business and they are habituated to garb the immovable properties of the poor and::: Uploaded on - 20/03/2019 ::: Downloaded on - 21/03/2019 03:23:32 ::: 5 CriAl-19-19 needy person from the locality.The appellants got registered the sale-deed of the land of the first informant from his father by committing fraud.The dispute about the same is subjudice before the Civil Court at Sangamner.On the day of incident, the appellants attempted to store the raw material of the brick kiln on the agricultural land of the first informant and thereafter the alleged incident of assault and castiest abuses occurred with the first informant and his family members.According to learned APP and learned counsel for respondent No. 2, learned trial Court has correctly appreciated the factual aspect of the matter on record and rejected the application.The learned counsel for respondent No.2 filed affidavit in reply on record.Learned APP produced relevant documents and investigation papers for perusal.::: Uploaded on - 20/03/2019 ::: Downloaded on - 21/03/2019 03:23:32 :::::: Uploaded on - 20/03/2019 ::: Downloaded on - 21/03/2019 03:23:32 :::xx xx xx xx xx xx xxThe exposition of law as referred above unequivocally pointer to the inference that the application for anticipatory bail can be entertained only on the ground of inapplicability of the provisions of Act of 1989 and it would be ascertainable only on perusal of recitals of the FIR or complaint and not beyond that, because once it is gathered from the FIR that the applicant is accused of committing the offence prescribed under section 3 of the Act of 1989, a bar under section 18 of the Act of 1989 would instantly operate against him.Therefore, the Courts are not permitted to enter into roving enquiry in regard to sustainability of accusation nurtured on behalf of complainant.Moreover, further scrutiny by summoning the case diary or other material to test veracity of the allegations made in the FIR also not permissible under the law.In the instant appeal, the prosecution applied the provisions of section 3(1)(r)(s) of the Act of 1989 against the present appellants, which reads as under :Punishments for offences of atrocities :-(1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe :-(r) Intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view ;::: Uploaded on - 20/03/2019 ::: Downloaded on - 21/03/2019 03:23:32 :::7 CriAl-19-19There must be "intentional insults" or "intimidation" with "intent" to humiliate member of Scheduled Caste and Scheduled Tribes in any place within "public view".In the matter-in-hand, it has been alleged that the appellants hurled castiest abuses as "segkjMs" "egkjxkaMs" during the altercation on account of dumping the raw material of brick klin on the agricultural land of the first informant.If words "segkjMs" "egkjxkaMs" are taken out from the complaint for::: Uploaded on - 20/03/2019 ::: Downloaded on - 21/03/2019 03:23:32 ::: 8 CriAl-19-19 moment then other utterances that, ^^rq>s bFks dkgh ukgh-** ^^rq>h bFks 'ksrh ukgh vls Eg.kqu frl /kDdk cqDdh dsyh-** , perceived from the FIR though indicate "threat" or "intimidation" but does not pointer to the inference that there was any intent or mens rea to humiliate the complainant and his wife on their caste within public view.The allegations in the FIR in regard to assault and intimidation taking name of caste of the complainant would be at the most fall under the provisions of Indian Penal Code under Sections 323, 504 and 506 of the IPC.However, the appellants are already arraigned for the offence under Sections 147, 323, 504 and 506 read with Section 149 of the IPC.::: Uploaded on - 20/03/2019 ::: Downloaded on - 21/03/2019 03:23:32 :::In view of aforesaid discussion, I am of the opinion that in spite of bar under section 18 of the Act of 1989, for invocation of powers under section 438 of the Cr.P.C., it is still open to this Court to find out by looking to the FIR of the case itself as to whether prima facie case is made for the offence under the Act of 1989 against appellants.The circumstances on record adumbrates that the incriminating factor to show the intentional insult or intimidation with intent to humiliate the complainant and his wife within public view on the part of appellants are lacking in this case.As such, there is no statutory bar for this Court to::: Uploaded on - 20/03/2019 ::: Downloaded on - 21/03/2019 03:23:32 ::: 9 CriAl-19-19 consider the application of the appellants filed under section 438 of the Cr.P.C.::: Uploaded on - 20/03/2019 ::: Downloaded on - 21/03/2019 03:23:32 :::As regards to the merits of the application for bail, I find that there is no propriety to curtail valuable liberty of the appellants for the sake of investigation of present crime.There is no recovery from the appellants.The injuries sustained to the first informant and his wife all were simple in nature.There is no possibility of absconding the appellants, as they are permanent resident of village Sakur, Tq.The apprehension expressed by the I.O. in his report about tampering of evidence of prosecution, would be overcome by imposing certain condition on the appellant.Therefore, it would be unjust and improper to refuse the relief of pre-arrest bail in favour of appellants-accused in the present crime.In such circumstances, appeal deserves to be allowed.In sequel, the appeal stands allowed.The impugned order 05-01-2019 passed by learned Additional Sessions Judge, Sangamner, in Criminal Misc.Application (Bail) No. 245 of 2018 is hereby quashed and set-aside.The application of the appellants-applicant filed under Section 438 of the Cr.P.C. for their pre-arrest bail before the learned trial Court stands allowed.The appellants, namely, (1) Dada S/o Abdul Patel, (2) Rustum S/o Abdul Patel, (3) Wasim S/o Dada Patel, (4) Ismail S/o::: Uploaded on - 20/03/2019 ::: Downloaded on - 21/03/2019 03:23:32 ::: 10 CriAl-19-19 Rustum Patel and (5) Usman S/o Ahmed Pathan be released on bail, in the event of their arrest, in connection with Crime No. I-195 of 2018 registered at Ghargaon Police Station, Taluka Sangamner, District Ahmednagar, under Sections 143, 147, 323, 504 and 506 of the Indian Penal Code and also under Section 3(1)(r)(s) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, on furnishing PR bond of Rs.15,000/- (Rupees Fifteen Thousand) with one solvent surety of like amount each.It is stipulated that appellants-applicants shall not indulge, directly or indirectly, in any kind of activities of tampering with the evidence of prosecution witness.The appellants - applicants shall attend the Ghargaon Police Station, Ta.Sangamner, District Ahmednagar on every Sunday in between 11.00 a.m. to 3.00 p.m. till filing of the charge-sheet and shall co-operate with the Investigating Officer for the sake of investigation into the crime.Inform the concerned Investigating Officer accordingly.::: Uploaded on - 20/03/2019 ::: Downloaded on - 21/03/2019 03:23:32 :::The present Criminal Appeal stands disposed of in above terms.No order as to costs.[ K. K. SONAWANE ] JUDGE MTK.***::: Uploaded on - 20/03/2019 ::: Downloaded on - 21/03/2019 03:23:32 :::::: Uploaded on - 20/03/2019 ::: Downloaded on - 21/03/2019 03:23:32 :::
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['Section 504 in The Indian Penal Code', 'Section 506 in The Indian Penal Code', 'Section 323 in The Indian Penal Code', 'Section 143 in The Indian Penal Code', 'Section 147 in The Indian Penal Code', 'Section 149 in The Indian Penal Code']
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Analyze the legal case and identify the corresponding section it comes under.
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154,823,907 |
Case diary is available.With aforesaid liberty, the application is dismissed as withdrawn.
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['Section 354 in The Indian Penal Code']
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Analyze the legal case and identify the corresponding section it comes under.
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154,824,455 |
According to the compromise, the applicant no. 1 paid Rs. 50,000/- to O.P. No. 2 and also given an undertaking to the Aryavrat Grameen Bank, Branch Fatehpur Yashoda, District Kannauj to transfer Rs. 5,000/- per month to the saving a/c No. 2914480 of the O.P. No. 2 at Chief Post Office, Hardoi.Since then both parities were living separately.The applicant no. 1 is residing with his children, mother and brother and petitioner no. 3 the sister of the petitioner no. 1 is residing with his husband, who is petitioner no. 5 at Farrukhabad.The O.P. No. 2 violated the condition of compromise and left all the children with the petitioner, who is looking after the children and they are studying at Sarashwati Shishu Mandir, Kannauj.Instant petition has been filed under section 482 Cr.P.C. praying that the court may please to quash the entire proceeding of complaint case no. 814 of 2010 P.S. Kotwali Shahar, District Hardoi, under sections 498A, 504 IPC and Section ¾ D.P. Act, (Smt. Shushma Mishra vs. Ashish Mishra and others).The case as narrated by the applicants are that the marriage of applicant no. 1 and O.P. No. 2 was solemnized as per Hindu retual on 23.04.2000 and during their wedlock three children (two daughters and one son) were born.Thereafter, opposite party no. 2 filed an application before the Civil Judge (Sr. Division), bearing Misc.Application No. 6 of 2007, under section 125 Cr.P.C. demanding Rs. 5000/- per month for livelihood of herself and her three children and Rs. 50,000/- for education and other expenses of the children.On the application moved by the O.P. No. 2, notices were issued to the applicant no. 1 and thereafter, the matter was referred to the District Legal Services Authority, Kannauj and on 22.11.2007 a compromise was executed between applicant no. 1 and opposite party no. 2 before Civil Judge (Sr. Division) Kannauj.The O.P. No. 2 moved an application under section 156 (3) Cr.P.C. before the CJM.Hardoi on 18.10.2010 alleging therein that on 31.07.2010 at about 12.00 noon applicants forcefully abducted the opposite party no. 2 in his jeep at Subhash Nagar, Hardoi, from her father's house and when the opposite party no. 2 objected she was beaten and slapped and thereafter her mother and father came at the place of the incident and when the father and mother and other persons came for the help then petitioners left the opposite party no. 2 and started the abusing and advanced the life threat to the opposite party no. 2 and left the place.No specific role has been assigned to any one, however, by the impugned order the learned magistrate Hardoi (court no.1) summoned all the accused persons/applicants without going through the record and circumstances of the case after treating the application under section 156 (3) Cr.P.C. on complaint.The applicants have no option except to seek shelter of this Court under section 482 Cr.P.C. for quashing the proceedings pending in the court of Judicial Magistrate, Hardoi.The learned counsel for the O.P. No. 2 argued that the O.P. No. 2 has submitted counter affidavit and specific allegations have been levelled against the applicants in the complaint.She has also cleared that the applicants have not deposited any amount in her account as alleged by them and in case of the compromise between the parties, the applicants did not deposit any money with her account.She was living along with her parents and she was forced to go to her parents and she has been forcibly taken away from her parents house and beaten up.Learned counsel for the applicants filed rejoinder affidavit stating therein that all the arguments set up by the O.P. no. 2 has been denied and argued that there is specific mention in the compromise between the parties before the Civil Judge, Sr.Division, Kannauj, it is submitted that the worthiness of the O.P. No. 2 is suspected and their version are contrary from the record on the one hand she moved an application before the civil judge (Sr. Divsion), Kannauj stating therein that she is living separately on the rented house and on the other hand she alleges that she was abducted from the parents house.Heard learned counsel for the applicants, learned counsel for O.P. No. 2 as well as learned AGA.Learned counsel for the applicants sited (2003) 4 SCC 675 B.S. Joshi and others vs. State of Haryana and another ? A. Criminal Procedure Code, 1973- Ss. 482 and 320- Inherent powers under S. 482- Exercise of, in relation to matrimonial disputes- Scope- Non-compoundable offences (offences under Sc.226 and 136- Interference in criminal matters- Quashing of criminal proceedings or FIR or complaint- Permissibility of, where non-compoundable offences involved.B. Criminal Procedure Code, 1973- S. 482- Powers under- Held, have no limits- Therefore, utmost care and caution required while invoking such powers.C. Family Law- Matrimonial disputes/offences- Duty of court- Held, is to encourage genuine settlements of matrimonial disputes.As per the compromise entered between the parties the presence of O.P. No. 2 was not supposed to be at Kannauj, because as per compromise the parties started residing separately.All the applicants have been made accused in the present case.The presence of applicant nos. 1, 2 and 3 can be presumed.The applicants have however, filed certified copies which pointed out that after the compromise and settlements was registered between the parties and as per settlement, they have parted their ways and the applicants no. 1 was taking care of three children (offspring) and get the matrimonial dispute, solved.As alleged by her, she was abducted and thrown to her father's place and was beaten up by not only by the applicant his father and mother, but by his sister and brother in law, who are living separately in different district.No order as to costs.
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['Section 498A in The Indian Penal Code', 'Section 156 in The Indian Penal Code', 'Section 504 in The Indian Penal Code', 'Section 506 in The Indian Penal Code']
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Analyze the legal case and identify the corresponding section it comes under.
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139,723,412 |
Learned Counsel appearing for the defacto complainant opposes the prayer for bail and submits that female accused persons were enlarged on bail earlier.Learned Counsel appearing for the State opposes the prayer for bail and submits that the petitioners participated in the assault of the victim.We have considered the materials on record.We note that the petitioner no. 2 dealt a blow on the head of the victim resulting in his 2 death.They shall not intimidate the witnesses or tamper with evidence in any manner whatsoever and they shall appear before the trial court on every date of hearing and in the event they fail to do so, the trial court shall be at liberty to cancel their bail without further reference to this Court The application for bail is, accordingly, allowed so far as the petitioners no. 1, 3, 4 and 5 are concerned.However, in view of the fact that petitioner no. 2 is the principal offender who dealt a blow on the head of the victim resulting in his death, we are not inclined in granting bail to petitioner no. 2 at this stage.Accordingly, prayer for bail so far as the petitioner no. 2 concerned is rejected.(Ravi Krishan Kapur, J.) (Joymalya Bagchi, J.) 3
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['Section 304 in The Indian Penal Code']
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Analyze the legal case and identify the corresponding section it comes under.
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139,730,839 |
This petition has been filed seeking to quash the proceedings in CCNo.304 of 2015, on the file of the Judicial Magistrate-VI, Madurai.2.The petitioners are arrayed as A-3, A-4 and A-5 in the final report.3.The case of the prosecution is that A-1 and husband of thede facto complainant are brothers.Both of them were living in Singapore andwere working there.At that point of time, the de facto complainant's husbandis said to have given 90,000/- Singapore Dollars to A-1 and with that amount,A-1 is said to have purchased a house at Singapore.When the defacto complainant, her husband and A-1 returned to India, A-1 was requestedto repay the 90,000/-Singapore Dollars, which he had borrowed from hisbrother.In this document, A-4 and A-5 had stood as witnesses.Thereafter, the de facto complainant, her husband and A-1 returned toSingapore.At Singapore, it seems that the de factocomplainant's husband had given a complaint in the Indian Embassy against theaccused persons, as if, he was threatened and was made to sign the agreement to receive 55,000/- Singapore Dollars.A-1 was called for enquiry by theIndian Embassy.Enraged by this, A-1 had informed about this incident to A-3,A4 and A-5 and they in turn went to the de facto complainant's house on25.05.2015 and had verbally abused the de facto complainant.4.The learned Counsel for the petitioners would submit that there wassome money dispute between the brothers and the entire transaction had takenplace in Singapore.All these three persons had nothing to dowith the transaction that took place between the brothers.The learnedCounsel would further submit that if really the de factocomplainant's husband was threatened and made to sign the agreement dated 16.05.2014, he would have immediately given a complaint to the Police.However, the de facto complainant's husband has not given any complaint inthis regard.After nearly 1 year and 2 months, the de facto complainant haschosen to give a complaint to the first respondent Police on 22.07.2015, asif, all the accused persons have committed the offence.The learned Counselalso brought to the notice of this Court that there are absolutely nomaterials against these persons in order to attract the offence underSections 406 and 420 of IPC.6.The learned Counsel for the second respondent would submit that thesecond respondent's husband has been cheated and has been forced to execute an agreement and when this was questioned, the second respondent was abused and threatened by the accused persons.The learnedCounsel, therefore, submit that the petitioners herein will have to face thetrial and establish their innocence.The petitioners herein namely A-3 to A-5 have nothing to do with themoney transaction that took place between A-1 and his brother.16.In view of the above, the proceedings in CC No.304 of 2015, on thefile of the learned Judicial Magistrate -VI, Madurai is hereby quashed.TheCriminal original petition is allowed.Consequently, connected miscellaneouspetitions are closed.1.The Judicial Magistrate No. VI, Madurai.2.The Inspector of Police, K.Pudur Police Station, Madurai.3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
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['Section 506 in The Indian Penal Code', 'Section 406 in The Indian Penal Code', 'Section 294(b) in The Indian Penal Code', 'Section 420 in The Indian Penal Code']
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Analyze the legal case and identify the corresponding section it comes under.
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1,397,318 |
(3) Brief facts of the case are us under : "Aquarrel took place between Tillu alias Pradeep and Romesh alias Kaly and Vijay on 30th March, 1975, at 12.30 p.m. Kaley caught hold of Tillu, Vijay proclaimed as to what for be was waiting and that Tillu should be taught a lesson.Romesh alias Kaley gave knife injuries to Tillu on his abdomen and back.In the mean time Mathra Pershad father of Tillu came there and tried to rescue his son.Vijay proclaimed that Mathra Pershad should also be taught a lesson.Vijay caught hold of Mathura Pershad while Romesh alias Kaley inflicted knife injuries on the person of Mathra Persbad.Mathra Pershad fell down on receiving the stab wounds.The appellants managed to escape from the spot.The injured persons, Tillu and Mathra Pershad were removed to the Irwin Hospital by Nanwa Ram (P.W. 7), who got them admitted in the Hospital."(4) Jagdish Bharti (Public Witness 10) informed the police control room at about 12.30 or I P.M. that a quarrel had taken place in Basti Julahan.sub inspector Kundal Lal Sharma (Public Witness 3) on receipt of the above said telephonic message entered a report at serial No. 116 of the daily diary, copy Exhibit Pw 3/A, and passed on the message to Police.(5) SUB-INSPECtor Mohan Chander (Public Witness 8) on receipt of the message from the control room made entry in the daily diary at number 10-A, a copy of that entry, copy Exhibit Public Witness Public Witness 8/A, was given to Sub-Inspector Prithvi Singh (Public Witness 24) for investigation of the case.On receipt of the copy, Prithvi Singh went to the spot where he learnt that the injured had already been removed to the Hospital.He went to the lrwin Hospital and collected the injury sheets of Mathra Pershad and Pardeep.Both of them were declared to be unfit for making statement.He met Dalip and Nanwa Ram at the hospital, and recorded the statement of Nanwa Ram Exhibit Public Witness Public Witness 7/A. He sent the same with his endorsement, Exhibit Public Witness Public Witness 9/A, to police station Sadar Bazar for registeration of the case.(6) Assistant Sub-Inspector Vishwa Nath (Public Witness 9) on receipt of the above said Ruqqa recorded first information report No. 272 dated 30th March, 1975 (Copy Exhibit Public Witness PW9/B).He sent its copy with the original Ruqqa to Sub-Inspector Prithvi Singh for investigation.(7) Accompanied by Nanwa Ram Public Witness Public Witness Sub-Inspector Prithvi Singh visited the spot and prepared rough site plan.Exhibit Public Witness Public Witness 24/A. He also recorded the supplementary statement of Nanwa Ram.On 31st March, 1975, he went to the lrwin Hospital and recorded the statement of Pardeep who was declared fit by the doctor to make a statement.Mathra Pershad, however, was still declared unfit for making a statement.In the evening Ramji Lal(Pw 12) and Harish Kumar (Public Witness 11) came to the police station and informed Sub-Inspector Prithvi Singh that they had seen the appellants near rescue his brother but Kaley threatened to inflict injury on him with the knife.He avoided the attack by movingnioving backward.He stated that Pardeep was given three stab wounds.His father Mathura Pershad came there and enquired from the appellants, as to what they were doing upon which Ramesh abused his father.Vijay caught Mathra Pershad while Ramesh stabbed him in the abdomen.Matbra Pershad fell down.Both the accused ran away towards, Nala.He along with Nanwa, took the injured to the Hospital in a Taxi, and got them admitted in the Hospital.the Imperial Cinema.Prithvi Singh accompanied by Raniji Lal and Harish Kumar and two constables proceeded towards Imperial Cinema.He apprehended the appellants at the pointing of Harish.Sub-Inspector Prithvi Singh interrogated Ramesh alias Kaley who made a disclosure statement, Ex. Public Witness Public Witness II/C staling that he could get recovered the kniFe/dagger from his house kept under shoes lying on the roof of the bath room of the second floor of his house.Ramesh then led them to the roof of the bath room on the second floor got recovered the knife/dagger.Prithvi Singh took the knife into possession vide Memo Ex.PW I I/E, of the knife and converted the knife into a sealed parcel.He prepared the injury statements Ex. Public Witness Public Witness 24/B and Ex. Public Witness Public Witness 24/C in respect of Ramesh alias Kaley and Vijay Kumar and sent them for medical examination.On 4.4.75 he went to the lrwin Hospital.Mathura Pershad was declared fit to make a statement which he recorded.On 19.4.75 an information was received from lrwin Hospital about the death of Mathura Pershad.He went to lrwin Hospital and prepared the inquest report Ex. Public Witness Public Witness 24/D. He sent the dead body of Mathura Persbad for post mortem examination vide application Ex. Pw 24/E. On 7.7.75 he made on application Ex. Public Witness Public Witness 24/F to the Medical Officer lrwin Hospital, and sent the dagger in the sealed parcel for obtaining the opinion as to whether the injuries on the person of Mathura Pershad could be caused by that dagger.He sent the clothes and blood sample of Mathura Pershad in a sealed cover to C.F.S.L. He proved the reporis fcx.Pw 24/G and Ex. Public Witness Public Witness 24/H received from the office of C.F.S.L. After completing the investigation, he filed the challan against the appellants in Court.(8) Prosecution story regarding the assault made on Pardisp alias Tillu and Mathra Pershad was fully supported in court by Nanwa Ram (PW. 7) He on 30th March, 1975, at about 12.30 (noon) was working at his house No. 2086, Basti Pipal Wali Julahan, where he heard the noise of children that a quarrel had taken place.He came out of his house and saw a quarrel going on between Tillu and Kaley alias Ramesh and Vijay.Giving details of the attack as noted earlier, he stated that he took the injured Tillu and Mathra Pershad to the lrwin Hospital and got them admitted there.He further stated that the police on reaching title Hospital recorded his statement, Ex. Public Witness Public Witness 7/A, which he thumb marked at point 'A' after admitting its contents to be correct when read over to him.The injured and the appellants who are the residents of Basti Jullahan were known to him earlier.Kaley accused, he stated, is also kno^n as Ramesh.(9) The other eye-witness to the occurrence are Pardeeo Kumar (PW 15) and his brother Dalip Kumar (Public Witness 16).About two years earlier SPradeep had a quarrel with Ramesh and gave beating to him.On 30th March, 1975, at about 12.30 noon he came out of his house for urinating when he was stopped by the appellants.Vijay asked Ramesh to take revenge from him.He was caught by Vrjay who asked Ramesh to inflict injury on him.He was injured by Ramesh with two edged knife like a Kirpan.He sustained one injury on the left side of his chest and two on the left leg.On his raising alarm his brother Dalip came to his help.Ramesh threatened t)alip, who went a little aside but kept standing there.In the meantime his father Mathra Pershad came to his help.Vijay asked Ramesh to leave Pardeep Kumar and catch hold of his father Mathura Pershad.His father was caught by Vijay and Ramesh stabbed him in the abdomen.Nanwa helped his father in getting up.They were taken to the Hospital in a Taxi by Nanwa and Dalip and were got admitted there.Dalip Kumar, Public Witness PW. 16 at about 12.15 noon on the day of occurrence on hearing alarm 'Jhagra Ho Gaya' came out of his house and saw Vijay holding his brother Pardsep while Kaley accused was inflicting injuries on him.He went forward to (10) Pardeep Kumar was examined by Dr. J.L. Rawal who noted the injuries on his person in the Medico Legal Certificate Ex. Public Witness PW21/A. Dr. Rawal also examined Mathura Pershad and noted the injuries on his person in the Medico Legal Certificate Ex. Public Witness PW21/D. Dr. Rawal had left the service with the hospital without leaving his address.The above certificates were proved by Khazan Singh Public Witness PW21 who stated that they are in the hand of Dr. Rawal.Khazan Singh also proved endorsements Ex. Public Witness PW21/B and Ex. Public Witness PW21/C and Mlc Ex. Public Witness PW21/A to be in the hand of Dr. Sruti.Both the said doctors, Khazan Singh stated, had left the service of the hospital without leaving their present address.Khazan Singh, also proved endores- mentsEx.PW21/E and Ex.PW2l/F on the Mlc Ex. Public Witness PW21/D of Mathura Pershad to be in the hand of Dr. Sruti Gandhi.(11) Dr. A.K. Ghosh, Public Witness PW/14 on 20.4.75 conducted the postmortem examination on the body of Mathura Pershad aged about 44 years.Trachia were normal, the right lung was adherent to chest wall otherwise normal on both sides, heart was normal, the intestines were comparatively lustreless, matted together.Several adhessions were seen present between coils mesentery and ometuam.Foul smell was coming out of the abdominal Cavity stitches were seen present over the stomach, omentum and mesentely and few coils of large illiac transverse colostomy seen.Stomach: Presented stiches over interior wall contains little thick blackish material.Walls were normal.The small intestines were unremarkable except the illiac transverse colostomy.Large intestines contained semi liquid faeces and gasses and presented stitches as mentioned in illiac transverse colostomy.The civic spleen and kidney were normal.JUDGMENT Prithvi Raj, J.(1) Vijay son of Karan Singh and Romesh alias Kaley son of Piarey Lal were tried by Shri V B. Bansal, Additional Sessions Judge, Delhi, under section 302 read with Section 34 Indian Penal Code, for having intentionally caused the death of one Mathra Pershad in furtherance of their common intention and under Section 324 read with section 34, Indian Penal Code, for having caused simple injuries with a dagger, in furtherance of their common intention, to Pardeep.The trial court by its impugned judgment dated 26th March, 1976, found the appellants guilty of the aforesaid offences and consequently sentenced them to imprisonment for life under section 302 read with Section 34 and to rigorous imprisonment for one year under section 324, Indian Penal Code read with section 34 of the Code.The sentences, however, were made to run concurrently.(2) The appellants feeling aggrieved by their conviction and sentence have separately filed the present appeals which are being disposed of by this common judgment.On external examination he found Greenish dis-colour action over the abdomen and the chest.Scrotum and penis were swollen, bandages were seen-over the abdomen, riger mortis was absent in upper limbs and present in lower limbs.He also found that Blackish regurigitate material was coming out of nose and mouth.The examination revealed the following external injuries on the dead body: (1) Paramortoid stitched wound 16c.m.over the front of the abdomen extending from epigastrium with one draignage tube attached at the bottom of this injury (operation).(2) Incised punctured stitched wound 1.3 x 1 c.m. into abdomen deep over the right iliac fossa for draingage tube 10 c.m. above the inner fold of right groin (operation).(2) Cut open drip wounds, 3 in number and measuring 1.8 c.m., 2.3 c.m. and 2 c.m. over the upper part of right thigh in front lower and inner part of right leg and over the upper front part of left arm respectively (operation).(4) Longitudinal incised stab wound 1.5 c.m.x 0.6 c.m.into abdomen deep over the left illiac fossa, outer part 5 c.m. above the middle of left illiac crest, with drainage tube attached.All the above injuries were ante-mortem.The bladder was nearly empty.Skull and brain were normal.The doctor opined the death due to peritonIT is subsequent to stab injury abdomen, as alleged, by sharp edged penetrating weapon.Injury No. 4 was directed obliquely towards the middle line and upward..The said injury was sufficient to cause death in the ordinary course of nature.Injury No. 4 in the opinion of the doctor could possibly be caused by the dagger Ex. P.1 alleged to be the weapon of offence.(12) Harish Kumar (Public Witness 11) and Ramji Lal (Public Witness 12) fully supported the testimony of Sub-Inspector Prithvi Singh regarding the arrest of the appellants and Ramesh alias Kaley having made the disclosure statement Ex. PW11/C leading to the recovery of the knife Ex. P. I by recovery memo (13) The Trial Court accepting the testimony of the prosecution witnesses, noted above, convicted and sentenced the appellants to undergo life imprisonment under Section 302 I Pc read with Section 34 and also separately convicted and sentenced them to Rigorous Imprisonment for one year under Section 324 Indian Penal Code read with Section 34 IPC.(14) Shri K.N. Chitkara, appearing for appellant Vijay, assailed the prosecution evidence contending that it bristles with discrepancies and as such conviction should not be maintained on such an evidence.He further submitted that prosecution witnesses wars interested and partisan ones.He contended that it is on record that the area where the occurrence took place was thickly populated and a number of people had assembled at the spot as admitted by the prosecution witnesses, yet not a single independent witnesses had been produced to lend credibility to the prosecution case.It was contended that Nanwa admits that Pearey Lal father of Ramesh alias Kaley appellant had appeared against him in a case in which Nanwa had caused injuries to his landlord and that he was convicted to six months rigorous imprisonment in that case.It was further submitted that Nanwa admits that his conviction was maintained in appeal though his sentence of imprisonment was converted into one of fine.The testimony of Nanwa was also sought to be eliminated on the ground that he was not present at the spot and that according to Nanwa the quarrel took place for about an hour and he is alleged to have seen it standing at a distance of 24 feet and yet he did not try to rescue Tillu and Mathura Pershad from the clutches of the appellants and neither he made an effort to apprehend the appellants nor pursued them when they ran away.We see no merit in these submissions.The quarrel between Nanwa and his landlord took place 10/12 years prior to the present occurrence.Nanwa is related to both the parties.The cousin sister of his wife is married to Vinod, brother of Ramesh appellant.His house is adjacent to the house of Mathura Pershad.The occurrence took place near the house of Santa which is on one side of the house of Nanwa.Nanwa works at his house.His presence in his house at the time of occurrence was natural.He came out of his house hearing the noise of children that a quarrel had taken place.His presence at the spot cannot be doubted.He carried the injured to the hospital and got them admitted there.The case was registered on his statement.Exhibit Public Witness PW7/A, which was recorded by Sub-Inspector Prithvi Singh in the hospital.We have examined his statement carefully and find that the same is credible.There is a ring of truth in it.The mere fact that he did not come to the rescue of the injured would not be enough to discard his statement.The appellants were armed with a knife and had caused injuries to Pardeep and his father Mathura Pershad.May be he was scared and did not intervene to separate the parties.This act of his would not be enough to discard his testimony which despite a lengthy cross-examination remains unshaken.(15) Shri Chitkara, then contended that Nanwa Ram was not aneyewitness to the injury being given to Mathura Prasad.On his own admission, it was submitted when Nanwa Ram came out of his house, he saw Mathura Prasad bending and placing his hands on his adbomen which was indicative of the fact that injury had already been given.We see no force in this submission.Nanwa Ram had stated that Mathura Prasad was suffering from T.B.for about 10/15 years prior to the occurrence and had become very weak on account of his suffering from T.B. may be because of his weak health when Mathura Pershad had come out of his house he was seen by Nanwa bending downward placing his hands on his abdomen.(16) It is no doubt true that Nanwa admits that some persons had collected at the spot.(17) The real question for determination is not as to what is the effect of non-examination of certain witnesses but whether the witnesses examined in Court on oath should be believed or not.Once the witnesses examined by the prosecution are believed because of their evidence being truth-worthy, the non-examination of other witnesses will not affect the credibility of these witnesses (See Nirpal Singh and others v. State of Haryana (1977)2 (18) The testimony of Pradeep and Dalip was sought to be condemned on the ground that they are had characters and, therefore, not worthy of much credence.Even Dalip, it was contended, admitted that he was involved in a case under Section 307, Indian Penal Code and had been convicted and sentenced to four years' rigorous imprisonment with a fine of Rs. 5oo.00 by Shri D.C. Aggarwal, Additional Sessions Judge, Delhi.He, however, added that his appeal against that conviction was pending.The mere fact that both Pradeep and Dalip did not try to rescue their father from the clutches of the appellants or they did not pursue them to apprehend them would not detract from their testimony.(19) Statement of Dalip was sought to be discarded on the ground that his statement was forged by the Investigating Officer and that the ordinal statement made by him to the Constable on duty in the hospital was being suppressed.
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['Section 34 in The Indian Penal Code', 'Section 324 in The Indian Penal Code', 'Section 307 in The Indian Penal Code', 'Section 302 in The Indian Penal Code']
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Analyze the legal case and identify the corresponding section it comes under.
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139,733,097 |
Heard learned counsel for the applicant, learned AGA for the State and perused the material on record.By means of this application, the applicant who is involved in case crime no. 100 of 2019, under Sections 376, 504, 506 IPC and Section 4 POCSO Act, P.S. Bisanda, District Banda, is seeking enlargement on bail during the trial.Learned counsel for the applicant submits that the FIR of the incident was lodged by father of the victim against applicant under Sections 354 (K), 504, 506 IPC and Section 8 POCSO Act. The age of the girl is shown about 16 years however, when her statement under Section 164 Cr.P.C. was recorded in which she admitted that the applicant has committed sexual assault upon her and thereafter Investigating Officer has added Section 376 IPC.He has next submitted that applicant has been falsely been implicated in the present case.Per contra learned AGA opposed the prayer for bail and could not dispute the aforementioned facts.Considering the submissions made by learned counsel for the applicant as well as learned AGA and without expressing any opinion on the merits of the case, I find it to be a fit case for bail.In view of the above, let the applicant- Manoj Yadav, be released on bail on his executing a personal bond and furnishing two sureties each in the like amount to the satisfaction of the court concerned in case crime no. 100 of 2019, under Sections 376, 504, 506 IPC and Section 4 POCSO Act, P.S. Bisanda, District Banda, with the following conditions:-(i) THE APPLICANT SHALL FILE AN UNDERTAKING TO THE EFFECT THAT THEY SHALL NOT SEEK ANY ADJOURNMENT ON THE DATE FIXED FOR EVIDENCE WHEN THE WITNESSES ARE PRESENT IN COURT.IN CASE OF DEFAULT OF THIS CONDITION, IT SHALL BE OPEN FOR THE TRIAL COURT TO TREAT IT AS ABUSE OF LIBERTY OF BAIL AND PASS ORDERS IN ACCORDANCE WITH LAW.(ii) THE APPLICANT SHALL REMAIN PRESENT BEFORE THE TRIAL COURT ON EACH DATE FIXED, EITHER PERSONALLY OR THROUGH THEIR COUNSEL.IN CASE OF THEIR ABSENCE , WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIM UNDER SECTION 229-A IPC.(iii) IN CASE, THE APPLICANT MISUSE THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HIS PRESENCE PROCLAMATION UNDER SECTION 82 CR.P.C., MAY BE ISSUED AND IF APPLICANT FAILS TO APPEAR BEFORE THE COURT ON THE DATE FIXED IN SUCH PROCLAMATION, THEN, THE TRIAL COURT SHALL INITIATE PROCEEDINGS AGAINST HIM IN ACCORDANCE WITH LAW, UNDER SECTION 174-A IPC.
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['Section 376 in The Indian Penal Code', 'Section 504 in The Indian Penal Code', 'Section 506 in The Indian Penal Code']
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Analyze the legal case and identify the corresponding section it comes under.
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139,752,575 |
Heard on I.A.No.7184/2015, which is second application under Section 389 (1) of Cr.P.C. filed on behalf of appellant- Raju @ Rajesh son of Gokul for suspension of jail sentence and grant of bail.The present appellant suffered the conviction and the jail sentence as follows :However, he made default in appearance, and therefore, in due course of time, a non- bailable warrant was issued against him.Presently, he is under-going jail sentence awarded to him in Dewas.Taking into consideration the facts and circumstances of the case, it appears that one more opportunity should be granted to the present applicant.Accordingly, this application is allowed.The remaining portion of the jail sentence is suspended.It is directed that on production of personal bond for Rs. 30,000/- and a solvent surety of the like amount to the satisfaction of the trial Court and also on payment of fine, the appellant shall be released on bail for his appearance before the Registry of this Court on 16.12.2015, and thereafter, on all subsequent dates as may be fixed by the Registry of this Court in this behalf.Further, it is directed that the Trial Judge shall be at liberty to recover the suitable amount from the personal bond and also from the person, who is surety for him.C.C.as per rules.(Alok Verma) Judge Chitranjan
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['Section 389 in The Indian Penal Code']
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Analyze the legal case and identify the corresponding section it comes under.
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13,975,359 |
(i) The Appeal is allowed.(ii) The impugned Order dated 25/10/2018 passed by the learned Special Judge and Additional Sessions Judge, Baramati rejecting Criminal Bail Application No.745 of 2018 moved by the appellants/accused is quashed and set aside.::: Uploaded on - 10/10/2019 ::: Downloaded on - 10/10/2019 23:19:44 :::(iii) The application for anticipatory bail moved by the appellants/accused in subject crime is allowed.(iv) In the event of their arrest in Crime No.561 of 2018 registered with Police Station, Baramati City, at the instance of respondent No.2 Vaishali Bhosale, the appellants/accused be released on bail on their executing P.R.Bond in the sum of Rs.15,000/- each and on furnishing surety in the like amount by each of them.(v) The appellants/accused shall not make any inducement, threat or promise to any person acquainted with the facts of the accusation against them so as to dissuade him from disclosing such facts to the Court or to any police officer.(vi) The appellants/accused shall co-operate with Investigating Officer in the investigation of the crime.(vii) The Appeal is disposed of accordingly.::: Uploaded on - 10/10/2019 ::: Downloaded on - 10/10/2019 23:19:44 :::
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['Section 506 in The Indian Penal Code', 'Section 323 in The Indian Penal Code', 'Section 504 in The Indian Penal Code']
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Analyze the legal case and identify the corresponding section it comes under.
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139,753,594 |
However, he has arrived at the subjective satisfaction only on the ground that similarly placed accused person was granted the relief of bail by the Sessions Court.Consequently, the Detention Order stands vitiated.7.In the result, the Habeas Corpus Petition is allowed and the order of detention in Detention Order No.21/2019 passed by the second respondent is set aside.3.The Superintendent, Central Prison,Madurai.4.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.http://www.judis.nic.in 8/9 H.C.P(MD)No.395 of 2019 S.VAIDYANATHAN, J.
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['Section 302 in The Indian Penal Code']
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Analyze the legal case and identify the corresponding section it comes under.
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1,397,555 |
No. 84105325 HC Mohinder Singh was my superior officer and I left the post under his orders.It was my duty to obey his orders.Applicant L / NK Nirmal Lakra 'A' Coy"Mr. Anil Gautam, the learned counsel appearing on behalf of the petitioner, would submit that there were enough evidence on record to show that the petitioner and the said HC Mohinder Singh were overpowered by Bangladeshi civilian well within Indian territory and taken over to Bangladesh after having been blind folded and handed over to Bangladesh Rifles.The entire case, the learned counsel would contend, is based upon the 'Protest Note' received from the Company Commander BDR COY, Takerghat wherein the following allegations were made :-It is to inform you that on 12 January 1999 at about 1830 hrs (BST) two BSF personnel of your Lalghat camp illegally entered into Bangladesh with arms and ammunitions in drunk condition and engaged themselves in fighting with civilians of our country-near Takerghat Bazar 700 yds south of MP 1198 inside our territory.Later on they were apprehended by civilians and handed over to out Takerghat BOP.Such incident, by your troops is unexpected and a clear violation of Indo - Bangla Border Treatyyour protest-note No. Nil dt.Please accept my best wishes and convey the same to your troops.It is to inform you that our BSF Jawans was on patrolling duty in the I.B. on 12.1.99, and they were not in drunked condition and they were well inside Indian territory.It is therefore requested that both BSF Jawans may be handed over to BSF with Arms / Amn immediately.In this regard Coy comdr.Flag meeting may be conducted at BP 1195/96 AT 130600 hoursYour kind Co-opine this regard is highly appreciated please.Sd/- 13.1.99 Coy Comdr.BSF BARSORA"The learned counsel would contend that even the wireless messages sent by Coy Commander also suggest that the petitioner was on patrolling duty.The said wireless messages are :-"From A Coy (OPT) DTO 130500 Confd.No : 017201 Inadvertent crossing of I.B. No. 84005233 HC Mohinder Singh and No. 80003707 L/NK Nirmal Lakra of BOP Lal Ghat left for patrolling at about 121230 to Barsora along with their personal weapons Butt No. 03 Body No. 35452 and Butt No. 63 Body No. DJ 9091 with 50 RDs 7.62 mm.BDR and 3 mag each (.) They did not turn up to their BOP up to 1800 hrs.(.) at about 1900 hrs two civilians inform BOP Barsora that both personnel have been apprehended along with Arms and Amn by BDR Tekkarghat Post opposite Barsora (.) accordingly coy comdr.Immdly try to contact with BDR Post Tekkarghat for return these both personnels but BDR not responsed (.) at about 2100 hrs Bn HQ informed through Arty Conversation about this crossing(.) at about 122230 hrs Sh.Swaran Singh Dy Comdt came to this location with the direction of offg Comdt to hold the flag Meeting with counterparts (.) Letter No : ops/99/9 Dt. 12.1.99 was sent to BDR Post Tekkarghat.The flag meeting at BP No. : 1198/9S at about 122345 hrs 1st (.) Letter was sent through the civilians which was received by BDR Post Tekkarghat but BDR did not turn up for flag meeting up to 130030 hrs (.) again Messenger was sent to hold flag meeting but BDR not turn up in the pretext that their officer is coming from Bn HQ (.) They told through Messenger that they will return both personnels along with Arms and Amn.On arrival of their officer (.) effort are being continue to hold the flag meeting and to take both personnels along with Arms / Amn from BDR (.)along with their personal weapons Butt No. 03H.S. Randhawa Coy Comdr.JUDGMENT S.B. Sinha, C.J.The petitioner in this writ petition questions the legality of the Summary Security Force Court (hereinafter for the sake of brevity referred to as, 'SSFC') wherein by reason of the impugned order he was not only dismissed from his services but was also sentenced to undergo 4 months rigorous imprisonment.The petitioner joined Border Security Force (hereinafter for the sake of brevity referred to as, 'BSF') as a Constable in the year 1980 and was promoted to the post of L/NK.In January, 1999 he was posted at BOP Lalghat at Indo- Bangladesh Boarder in 62 Bn BSF, where HC Mohinder Singh was the Post Commander.As the festival of Lohri fell on 13.01.1999 and certain items were required therefore, he was directed to accompany HC Mohinder Singh for patrolling to Barsora along the border on 12.01.1999 and to bring certain items for the troops on account of the said festival.However, allegedly while coming back from Barsora, he and HC Mohinder Singh noticed some Bangladeshi intruders carrying wood from india to Bangladesh and on being challenged by them, the intruders started running upon throwing away the same.Allegedly, as he and HC Mohinder Singh chased them, about 15-20 Bangladeshi nationals came out from hiding from behind the bushes and overpowered them; tied them with ropes within the Indian territory; and took them to Bangladesh BOP Tekkar Ghat after blindfolding them.Allegedly, they were kept in captivity at the Bangladesh BOP for the night and on 13.01.1999, they were handed over back to BSF authorities in a flag meeting attended by BSF Commandant, Shri B.K. Mehta by Bangladesh Rifles.Thereafter, the petitioner was tried by SSFC on 08.02.1999 on charges under Section 16(d) of the Border Security Force Act, 1968 ( hereinafter for the sake of brevity referred to as, 'the BSF Act' ) for leaving the post without orders from superior officer and under Section 40 of the BSF Act for crossing over to Bangladesh without authority along with personal arms and ammunition and sentenced him to suffer rigorous imprisonment for 4 months and dismissal from service.Admittedly, the said trial proceedings were set aside by the competent authority holding the same to be illegal.Despite the same, another Record of Evidence (in short, 'ROE') proceeding was started against him in respect of the aforementioned charges purported to be under Section 16(d) and 40 of the BSF Act. Thus, the Commandant by SSFC once again tried the petitioner on 11.03.1999 on the self same charges.He was found 'Not Guilty' on the first charge while he was convicted on the second charge and awarded dismissal from service and was also sentenced to 4 months' rigorous imprisonment."VERDICT OF THE COURT"When our eyes were opened in Bangladesh, we came to know that we had been brought there after making us cross the border.We did not cross the border with our free will and we were made to cross the border.it will hamper the present peaceful and cordial relationship between us."But, thereto, a definite stand had been taken by the Company Commander of the BSF in his letter dated 13.01.1999, which is to the following effect :-"Office of Coy Comdr.BSF Barsora 13 JAN' 99 To The Coy Comdr.A Coy Dt. 13/1/99."COY LEVEL.FLAG MEETING.(.) COY LEVEL FLAG MEETING.HELD AT ABOUT 130825 TO 130845 HRS.AT BP NO. 1198/95 IN CONNECTION WITH INADVERTENT CROSSING OF TWO BSF PERSONNELS.OWN SIDE.SH-SWARN SINGH DY COMDT SUB.HS RANDHAWA AND 02 OR AND BD DIDE.COY COMDR TEKARGHAT SUB NOOR MOHD.AND 03 ORS ATTENDED (.) OWN SIDE ASKED THEM TO.TWO BSF PERSONNELS ALONG WITH.ARM/AMN.TO BSF (.) THEY REPLIED THAT COMMANDANT LEVEL METING IS REQUIRED TO SHOT OUT THE MATTER (.) A FORMAL LATTER HAS BEEN HANDED TO BDR REP.HOLDING COMMANDANT LEVEL BORDER MEETING AT ABOUT 131200 HRS IST AT THE SAME PLACE (.) THEY PROMISE THAT THEY WILL RETURN.THE BSF PERSONNELS (.) MEETING ENDED AT CO-ORDIAL.SWARN SINGH DY COMDT."The further case that the respondent was required to stay back because a VIP was to visit the 'A' Company is also of no substance.The VIP was to visit only on 5th November.That charge was proved.This showed that a false entry had been made to show that the respondent had gone to those posts when in fact he had not gone there.Not only did the respondent not obey the command from the Headquarters but he falsified records in order to make out a case that he had already gone to two of the forward posts.These are very serious offences.
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['Section 228 in The Indian Penal Code']
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Analyze the legal case and identify the corresponding section it comes under.
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141,252,035 |
(24/02/2018) The appellant has filed the present appeal challenging the judgment dated 28/11/2005 passed by the 1 st Additional Sessions Judge, Raisen in Sessions Trial No.216/2005 thereby convicting the appellant for committing an offence under Sections 376, 450 & 506-B of the IPC with R.I. for 7 years and fine of Rs.500/-, 5 years with fine of Rs.500/- and 1 year and fine of Rs.200/- respectively.In short the prosecution story is that on 19/01/2005 her brother-in-law Ramcharan came to her house at about 12 O'clock in the night.He knocked the door and entered into the house and committed an offence of rape against her.She immediately lodged an FIR against the appellant.Thereafter, police has filed the challan before the competent Court.Since the matter is under trial to the Court of Session, therefore, the same was committed to the Sessions Court from where it was received by the trial Court for trial.During the trial, the prosecution has examined the prosecutrix as well as Dr. Pratibha (PW-7).The statement given by the prosecutrix was corroborated by the medical report.Thus, on the basis of these evidence, the trial Court has convicted the appellant for committing an offence under Sections 376, 450 & 506-B of the IPC.
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['Section 376 in The Indian Penal Code', 'Section 450 in The Indian Penal Code', 'Section 506 in The Indian Penal Code']
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Analyze the legal case and identify the corresponding section it comes under.
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14,125,780 |
Brief facts stated are that on receiving DD No. 28A Ex.PW4/A on 29.07.2011 at PS Hari Nagar, ASI Surender alongwith Ct.Mahesh reached at House No. WZ-74 A Ist Floor, Meenakshi Garden, Hari Nagar, Delhi where they met Harpreet Singh (PW1) and found the dead body of an old lady lying in pool of blood in main lobby of first floor of the house.There were injury marks caused by sharp edged weapon on back, near neck and on the hands of the deceased and blood smeared footprints were also found there.The statement of Mr. Harpreet Singh Ex.PW1/A, who is son-in-law of the deceased, was recorded.An amount of Rs. 50,000/- and two gold bangles from the hand of deceased were found to be missing.Crime team and photographer were called and they inspected the spot vide crime scene report Ex.PW7/A. Meanwhile, rukka Ex.PW20/A was sent through HC Arun Kumar.Consequentially, FIR No. 339/2011 Ex.PW4/D was got registered under Section 397 and 302 IPC.Further investigation was handed over to I.O. Insp.M.L. Meena.Dead body of the deceased was sent to Mortuary, DDU Hospital for post mortem.Post mortem of the dead body of Smt. Pavitra Kaur was got conducted on 30.07.2011 in DDU Hospital vide post mortem report Ex.PW19/A. Exhibits such as snapped lock and hook, blood CRL.A. 739/2017 Page 2 of 32 stains from the spot, blood stain from kitchen, blood stain from door knob of toilet and a pair of slipper were seized vide seizure memo Ex.PW1/B, Ex.PW1/C, Ex.PW1/D, Ex.PW1/E and Ex.PW1/F which were deposited with MHC(M) vide serial no. 3318 Ex.PW3/A and samples were sent to CFSL.I.O. prepared rough site plan Ex.PW26/A. During investigation name of the accused came up as a suspect after statement of the witnesses under Section 161 Cr.P.C. were recorded alongwith the statement of one Smt. Narinder Kaur.Consequentially, the mobile phone No. 9779209597 of the suspect was searched out.I.O. Insp.Sandeep, etc left for Patiala, Punjab but could not locate the accused at the designated place where his Cell ID location was showing.Thereafter, with the help of and on the pointing out of secret informer, the accused Amarjeet Singh @ Raju @ Wadhwa was apprehended on 02.08.2011 at Anardana Chowk, Patiala.He made a disclosure after which he was arrested on 02.08.2011 vide arrest memo Ex.PW13/A and his personal search was conducted vide personal search memo Ex.PW13/B. The disclosure statement is Ex.PW13/C. In pursuance to the said disclosure statement, accused Amarjeet Singh got recovered two gold bangles which were seized vide seizure memo Ex.PW13/E and also got recovered 60 currency notes of Rs. 500 each (Rs. 30,000/-) out of robbed amount which were seized vide seizure memo Ex.PW13/D. He got recovered cosmetic items worth Rs. 20,000/- which were seized vide seizure memo Ex.PW13/F. Accused was brought back to Delhi and the case property was deposited with MHC(M) vide Ex.PW3/B and accused was produced in the court and police sought 3 days police custody remand and got the same.In pursuance to disclosure statement, the accused on 04.08.2011 was again CRL.A. 739/2017 Page 3 of 32 taken to Patiala for the recovery of the weapon of offence i.e., knife, musli (pestle) and blood stained t-shirt which accused disclosed to have thrown in Bakhra Nehar, Khedi Gadiya.He further disclosed the fact of throwing away the shoes, socks and the T-shirt in Bhakhra Canal Kheri Gadiya Pul, Punjab vide pointing out memo Ex.PW13/H and Ex.PW13/I. Accused also disclosed about one brown colour pant and white colour vest which he was wearing at the time of commission of the crime, and was kept at his house in Patiala.Same were recovered having blood stains, despite accused having them washed.Both the articles were seized vide seizure memo Ex.PW13/G and deposited with MHC(M) vide serial no. 3337 Ex.The deceased Smt. Pavitra Kaur was alone at her house at the time of the incident.The accused resided in Punjab and was on visiting terms with deceased - who happened to be his mausi (mother's sister).On the date of the incident Harpreet Singh (PW1) recieved telephone call from Sunit Singh (PW2), son of deceased and brother-in-law of PW1, who told him to reach immediately at his house as his mother had received injury and had fallen down in the kitchen of their house.Harpreet Singh on reaching to his in law's house made a call to police at 100 No. Consequently, ASI Surender alongwith Ct.Mahesh reached at the spot and recorded the statement of Harpreet Singh, on basis of which FIR Ex.PW4/D was registered.The prosecution has examined Harpreet Singh (PW1), Sunit Singh (PW2), Kanwaljeet Singh (PW5) and Bineet Gujral (PW5) on this material point and Smt. Narinder Kaur could not be examined as she died during the trial.Mr. Katyal further argued that the dead body was sent to Mortuary, DDU Hospital for post mortem, and Post mortem report is Ex.PW19/A records that the deceased received 17 external injuries on her person.The prosecution has examined Harpreet Singh (PW1) who stated that he was residing at Hari Nagar, near to the house of the deceased.He reached to the spot of the incident at about 3:30-3:45 PM on 29.07.2011 after receiving information from Sunit Singh (PW2) regarding the injury on the person of the deceased.He, on reaching the place of the incident, met Smt. Narinder Kaur.Thereafter, he called the police at 100 number.Meanwhile, Kanwaljeet Singh (PW5) and Sunit Singh (PW2) also reached to the spot.Thereafter, ASI Surender Singh alongwith Ct.Mahesh reached the spot, and recorded his statement Ex.PW1/A on the basis of which, FIR No.339/2011 vide Ex.PW4/D was got registered and crime team was called.After CRL.A. 739/2017 Page 7 of 32 reaching, the crime team got the place photographed, all the exhibits were seized from the spot and were deposited in MHC(M) and subsequently sent to CFSL, Rohini.It was found that two gold bangles and money amounting to Rs. 50,000/- is missing from the house.CRL.A. 739/2017 Page 7 of 32The husband of the deceased Kanwaljeet Singh, son of the deceased Sunit Singh and grandson of the deceased Bineet Gujral who were residing with the deceased Smt. Pavitra Kaur were not present in the house at the time of the incident as they left to their respective engagements in morning and deceased Smt. Pavitra Kaur was alone in the house.Further, the statement of aforesaid witnesses proves on record that the accused is the real son of deceased's sister, and they were closely related to each other and were on visiting terms.The statement of PW5 Kanwaljeet Singh indicates that the accused visited the house of deceased on one Friday prior to the incident and did not talk to any of the family members and left the house from stairs, whereas, he generally used to ask for money from his mausi i.e., deceased.The conduct of the accused that he left the house without talking to anyone lead to the suspicion of his involvement in the crime which resulted in his arrest in the present case from Narda Chowk, Patiala, Punjab vide arrest memo Ex.PW13/A and personal search memo Ex.PW13/B.The accused during investigation made disclosure Ex.PW13/C and in pursuance to the said disclosure soon after his arrest, he lead the police party to his House No. 756/3 behind Dharampura Bazaar, Patiala, Punjab and got recovered two gold bangles Ex.P4, robbed amount in cash Rs. 30,000/- Ex.P5 and purchased cosmetics amounting to Rs. 20,000/- Ex.I.O. M.L. Meena (PW26) deposited the same with the MHC(M) vide entry number CRL.A. 739/2017 Page 8 of 32 3333 Ex.PW3/C on 02.08.2011 itself.The accused has not claimed the recovered articles during his cross-examination of the prosecution witness.The accused has not examined his wife in his defence to claim the said articles.The accused has not claimed that the aforesaid articles belong to him in his statement under Section 313 Cr.P.C. Further, the two gold bangles Ex.The prosecution has exhibited Exhibits such as snapped lock and hook, blood stains from the spot, blood stain from kitchen, blood stain from door knob of toilet and a pair of slipper which were seized vide seizure memo Ex.PW1/B, Ex.PW1/C, Ex.PW1/D, Ex.PW1/E and Ex.PW1/F.The I.O. M.L. Meena (PW26) got conducted the post mortem of the dead body of the deceased Smt. Pavitra Kaur at Mortuary, DDU Hospital on 30.07.2011 by Dr. Komal Singh (PW19).He has proved the post mortem report Ex.PW19/A got conducted by him on the body of the deceased.Thereafter, I again went back to Patiala.On 01.08.2011, police caught me at Patiala.The accused was the son of sister of the deceased Smt. Pavitra Kaur.The accused entered into the house of the deceased at First Floor, WZ 74A, Meenakshi Garden, Hari Nagar, New Delhi when she was alone at about 1 PM to 3:30 PM, as shown in the site plan Ex.PW26/A and scaled site plan Ex.PW26/A (and the scaled site plan Ex.PW17/A) there, she used derogatory remark against the accused and his mother by saying, "your mother has got a bad luck, and you are not even capable enough to take care of her", which resulted into the aggravation of the anger and the accused got provoked to such an extent that he picked up a pestle which was lying nearby in the kitchen and hit her on the head.Because of the said hit blow, blood gushed out from her head which resulted in his getting panicked.He lost his mental stability and picked up a knife and repeatedly stabbed her.Thereafter, he removed 2 gold bangles from her hand and broke open the almirah and took out Rs. 50,000/-Accused was sentenced under Section 302 IPC to undergo imprisonment for life and to pay fine of Rs. 10,000/-, in default of payment of fine, the convict is further sentenced to undergo rigorous imprisonment for a period of six months.Accused was sentenced under Section 404 IPC to undergo rigorous imprisonment for a period of three years and to pay fine of Rs. 3,000/-, in default of payment of fine, the convict was further sentenced to undergo rigorous imprisonment for CRL.A. 739/2017 Page 1 of 32 a period of one month.Accused was sentenced under Section 380 IPC to undergo rigorous imprisonment for a period of seven years and to pay fine of Rs. 5,000/-, in default of payment of fine, the convict was further sentenced to undergo rigorous imprisonment for a period of three months.Accused was sentenced under Section 201 IPC to undergo rigorous imprisonment for a period of seven years and to pay fine of Rs. 5,000/-, in default of payment of fine, the convict was further sentenced to undergo rigorous imprisonment for a period of three months.CRL.A. 739/2017 Page 1 of 32Subsequently, on 16.08.2011, his confessional statement was recorded by Ld.Metropolitan Magistrate Ms. Vandana Jain (PW24).Vide Ex.PW24/B and after the completion of the investigation chargesheet was filed.MM after complying with Section 207 Cr.P.C., sent the case for trial.CRL.A. 739/2017 Page 2 of 32CRL.A. 739/2017 Page 3 of 32There is no last seen evidence; no weapon of offence was recovered, and; the confessional statement, as such, is a weak piece of evidence as it has been retracted subsequently in the statement recorded under Section 313 Cr.P.C. Also, that recovery of blood stained Pant and vest and recovery of two gold bangles CRL.A. 739/2017 Page 4 of 32 and Rs. 30,000/- cannot be relied upon for want of identification of the case property.Therefore, these evidences fail to connect the accused to the crime.He further pointed out that prosecution has failed to examine Smt. Narinder Kaur and the CDR of the accused does not connect the appellant to the crime in any manner.CRL.A. 739/2017 Page 4 of 32It was an act committed due to grave and sudden provocation in the heat of passion at the spur of the moment.Mr. K. Singhal further argued that when the accused came into his senses, he found that his maternal aunt (mausi) Smt. Pavitra Kaur has already died and he left the place.There was no intention to cause any harm to the deceased.Therefore, his conviction should be altered from one under Section 302 IPC as he claims that the act of the appellant is covered by the 4th exception to section 300 IPC, and he submits that, at the highest, it is a case falling under Section 304 Part II IPC.He relied on Hari Bahadur @ Hari V. State, 229 (2016) Delhi Law Times 107 (DB); Sanjay Kumar V. State, Delhi High Court (CRL.A. 1533/2013); Jamil @ Jamir V. State, Delhi High Court (CRL.A. 1226/2013, 1383/2013, 1460/2013 and CRL.A. 739/2017 Page 5 of 32 1581/2013); SA V. AA [(2016) 229 DLT 675]; Krishan Kumar @ Monu V. State, Delhi High Court (CRL.A. 907/2012 and 246/2012); Ajay Bind V. State NCT of Delhi, Delhi High Court (CRL.A. 392/2016 and 925/2016); Ankush Shivaji Gaikwad V. State of Maharashtra, Supreme Court of India S.L.P. (Crl.)N0 6287 of 2011); Ashok Bind V. State, Delhi High Court (CRL.A. 89/2017) in support of his submission.CRL.A. 739/2017 Page 5 of 32The judicial confession made by the accused is voluntary, without CRL.A. 739/2017 Page 6 of 32 pressure and inspires confidence to reach to the guilt of the accused.His statement was recorded by the Ld. Magistrate after repeatedly giving him time to think about making the same.Therefore the court below rightly convicted the appellant.P4 independently during the investigation loses its significance.CRL.A. 739/2017 Page 8 of 32HC Ramchander (PW13) and Insp.M.L. Meena (PW26) further proved the recovery of pre-washed blood stained brown coloured pant and white vest Ex.The said articles were seized vide seizure memo Ex.PW13/G by I.O. PW26, and was deposited with the MHC(M) vide entry No.3337 Ex.PW3/D which were subsequently sent to CFSL, Rohini and the report of the same is Ex.The said report shows that human blood was detected on both the articles.CRL.A. 739/2017 Page 9 of 32I. Clean incised wound (CIW) of size 3.5cm x 0.5cm present on the occipital region with clean cut margins obliquely placed having acute and obtuse angle, liquid and clotted blood present in and around the wound.CIW of size 5.5cm x 0.6cm, penetrating at posterior aspect of neck which is more on right obliquely placed with regular margins with both angle acute with liquid and clotted blood in an around the wound.Bruise of size 5cm x 3cm on the outer aspect of lower right forearm just above the right wrist.CIW of size 3cm x 1cm x bone deep present on the outer aspect of the right hand on the base of ring finger with clotted blood.V. Bluish green bruise of size 3cm x 2cm present on the posterior aspect of right shoulder joint.CIW present on the posterior aspect of right upper chest medial to the medial border of right scapula of size 3.5cm x 0.5cm deep to T.C obliquely placed with both angle acute.CIW of size 3.5cm x 0.5cm x abdominal cavity horizontally placed on the lateral aspect of right Sessions Case No. 57737/16 Page 39/59 abdominal wall, 14 cm lateral to posterior mid line, 16 cm below from the angle of right scapula, 98 cm above the right heel with medial angle acute and lateral angle obtuse.CRL.A. 739/2017 Page 10 of 32CIW of size 2.5cm x 0.8cm x deep to oral cavity present on the right side of face.CIW of size 3cm x 0.5cm x deep to abdominal cavity, 9.5cm above the umbilicus and 7cm below from sternum medical angle acute lateral angle obliquely place.CIW of size 1.5cm x 0.3cm x muscle deep, 2cm below the umbilicus.CIW of size 3cm x 1cm x muscle deep present on the lateral aspect of the lower left forearm, 6cm above the left wrist joint.CIW of size 3.5cm x 0.5cm x deep to skull.All CIWs are covered with clotted blood.The cause of the death as per the post mortem report is "hemorrhagic shock subsequent to multiple stab injuries involving the vital organs of the body".No.2 and No.7 injuries were sufficient to cause the death in the ordinary course of nature either individually, or in combination.The time since death is approximately 24 hours prior to the post mortem which was conducted at 12:05 PM on 30.07.2011 which connects to the date and time of the incident with the accused.The prosecution has examined I.O. Insp.M.L. Meena (PW26) who has proved the arrest of the accused on 02.08.2011 in Punjab on the pointing CRL.A. 739/2017 Page 11 of 32 out by the secret informer and the recovery made on the basis of the disclosure statement of the incriminating articles i.e. 2 gold bangles Ex.P4 and robbed amount in cash Rs. 30,000/- Ex.P5 and the purchased cosmetics amounting to Rs. 20,000/- Ex.P6 on the same day.He has deposed that the accused was brought back to Delhi and he deposited the articles with MHC(M) and moved the application Ex.PW24/A on 05.08.2011 before the Ld.MM M.P. Singh at the instance of the accused, for recording his confession, while accused was in police custody.The said application was marked to Ld.MM Ms. Vandana Jain (PW24) being link MM.On 08.08.2011 the accused was brought again by the I.O. for recording his confessional statement.On 12.08.2011 the accused was produced before Ld. MM Ms. Vandana Jain, I.O. was also present.On 16.08.2011 accused was produced from JC and I.O. was not present and one Insp.Harpal Singh was present and he was directed to remain present outside the court and due inquiries were made from the accused by Ld. MM in question answer form to assess his voluntariness and to ensure that he was under no fear before recording the CRL.A. 739/2017 Page 12 of 32 statement to bring out the truthful statement.The Ld. MM Ms. Vandana Jain, after satisfying herself that the accused was under no fear and capable to make a voluntary statement, allowed him to make the confessional statement.English translation of the said confessional statement Ex.PW24/B is as follows:CRL.A. 739/2017 Page 11 of 32CRL.A. 739/2017 Page 12 of 32I, on 29.07.2011 at 1 PM reached at my aunt (mausi) Pavitra Kaur's place who resided in Subhash Nagar (Hari Nagar), Delhi.At that time she was alone at home.I asked from her Rs. 50,000/- on interest as my financial condition is not good.She refused to give money, she got angry and started saying against my family.Then she went to cook food in kitchen.There she started saying things against my mother that "your mother has got a bad luck, and you are not even capable enough to take care of her".On this I got angry.Then I saw a metal pestle, I attacked on her head with that pestle, blood started gushing out.On seeing that I got panicked.I saw knife there.I lost my self control and I stabbed her.I lost all my self control.I even don't know that how many times I stabbed her.Thereafter, I removed 2 bangles from her hand, and took out Rs. 50,000/- from almirah.Almirah was locked, I broke the lock with knife.I washed my shoes thereafter, put my ensanguined T-shirt in a plastic bag and wore another T-shirt which I picked from other room.Some jewellery was also kept there which I did not pick.I put the knife, pestle and T-shirt in a plastic bag and from there I went to Ambala, from Ambala I went to Patiala.On the way there is a canal, I threw away that plastic bag in that canal.Thereafter, I came back home.I then noticed that there was blood on the back side of my shoes.Those shoes and T-shirt which I picked from my Aunt's house, I threw them away in yet another canal.Thereafter, I came back home.On the next day, I came to my Aunt's funeral.I took this step in anger.I did not do this intentionally.The recovery of gold bangles Ex.P4 and blood stained brown pant and white vest Ex.P14 on which human blood was found remains unexplained satisfactorily by the accused.The subsequent confessional statement Ex.PW24/B recorded on 16.08.2011 also corroborates the other factors emerging on the records to connect the accused to his guilt.Therefore, we unhesitatingly conclude that the accused was involved in committing the crime.CRL.A. 739/2017 Page 14 of 32Exception 4 to tsection 300 IPC reads as follows:To avail benefit of this exception, following four pre-requisites must be satisfied:CRL.A. 739/2017 Page 15 of 32In the present case, the deceased was 63 years of age, who suffered 17 injuries on her person.PW17/A. The accused demanded Rs. 50,000/- on interest as financial help from the deceased.The deceased refused to help and went in the kitchen to cook food.While the accused followed the deceased in the kitchen - as shown in the site plan Ex.and left.Thereafter, he threw away the knife, pestle and blood stained T-shirt in a canal on his way to Patiala.The confessional statement Ex.PW24/B has put light on the events that took place chronologically at the relevant point of time.PW24/B. Even if, it is assumed that there was a sudden provocation, giving a blow with the pestle on the head of the deceased was enough to give vent to the anger of the accused.The appellant took undue advantage of the loneliness of the old helpless lady, who was his own aunt (mausi) and attacked her brutally such that she suffered 17 injuries - two of which were fatal independently.CRL.A. 739/2017 Page 17 of 32No order as to costs.The confessional statement of the accused is that while the deceased was busy cooking food in the kitchen, he inflicted a blow on her head with a metal pestle.It was for the accused to show, firstly, that there was a sudden quarrel and there was no pre-meditation.In Ajay Bind (supra) the deceased asked the accused to keep quiet while they were embroiled in a quarrel amongst themselves in highly inebriated condition.The deceased was struck with weapons such as hammer, danda and saria picked up from the spot.Intervention by the deceased to loudly command the appellants to keep quiet resulted in their attention - while they were running high temper, getting directed towards the deceased.The offence was committed by use of weapons picked up from the spot which are not dangerous weapons, but were ordinary tools lying on the spot.There was no pre - meditation and the violence was a result of sudden provocation in the ongoing fight between the appellants, which came from a stranger i.e. the deceased.In Ankush Shivaji Gaikwad (supra), the dog of the deceased started barking on the accused.The accused hit the dog with an iron pipe that he was carrying in his hand.It was a case where the deceased was sleeping on a bench on the railway platform.His friend was sitting on the bench and was awake.The accused came to the platform with a bag and asked them to get up.However, the friend refused to do so.This led to a quarrel.The accused went to a nearby gutter, picked up a stone from there and hit the same on the head of the deceased who was deep in sleep.He suffered injuries on his head and died.The court held that the case did not fall under Section 300 IPC as there was no evidence of pre- meditation.The incident happened in a sudden quarrel and in the heat of passion.In this case the accused was consuming alcohol on the day of Chhat Puja, a sudden quarrel ensued between him and one Akshay - one of the two deceased.On being separated, the appellant ran inside the factory where he was working and also residing.CRL.A. 739/2017 Page 28 of 32In Krishan Kumar (supra) a dispute arose between the accused and the deceased as they both were interested in the same girl.The deceased was engaged to the said girl.The accused and the deceased met in the company of two others.A hot verbal dialogue resulted in a physical fight in which the accused Krishan Kumar suffered injury of a deep cut on the fore finger of the right hand.The ring finger of the left hand was decapitated.On facts, this is materially a different situation from the one at hand.The accused and deceased owned neighbouring agricultural land and an altercation broke out between them since the appellant was throwing soil on the land of the deceased.The deceased sought to persuade the appellant not to do so and settle the matter amicably.The appellant, however, was annoyed with the conduct of the deceased, his sons and son in law.The son of the accused instigated the accused and he inflicted a blow with kassi (spate, sharp edged cutting instrument) on the head of the deceased and with its impact the deceased fell down.CRL.A. 739/2017 Page 31 of 32
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['Section 300 in The Indian Penal Code', 'Section 302 in The Indian Penal Code', 'Section 304 in The Indian Penal Code', 'Section 380 in The Indian Penal Code', 'Section 201 in The Indian Penal Code', 'Section 299 in The Indian Penal Code', 'Section 397 in The Indian Penal Code']
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Analyze the legal case and identify the corresponding section it comes under.
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14,126,367 |
It is at Exh.47 on record.10] PW2-Mohammad Bashir Shaikh Umer, who was attached to Nanal Peth police station, on 15.1.2008 was on his duty in police chouky attached to Civil Hospital, Parbhani.He received intimation of Medico Legal Case and also an intimation that a lady, who has sustained burns, is admitted in the hospital and he should record her statement ::: Downloaded on - 13/02/2014 23:12:43 ::: 10 cra215.11 immediately.Accordingly, PW2-Mohd.Bashir went to the Medical Officer and disclosed his intention to record the statement of injured.The doctor accompanied him in the ward.Then doctor asked certain questions to the patient.Mohd. Bashir was informed by the doctor that patient was conscious and was in a position to give her statement, and accordingly, her statement was recorded by PW2-Mohd.11] After recording of the statement of injured Savitrabai (Exh.45), Kishor Achyut Deshmukh, Incharge Tahsildar of Parbhani, who is examined as Prosecution Witness No. 1, also visited the hospital, since he was intimated by Nanal Peth police station, requesting him to record dying declaration of Savitrabai.Accordingly, he visited the Civil Hospital, Parbhani.After making inquiry about the patient, he went to the concerned ward with the concerned Medical Officer.He requested ::: Downloaded on - 13/02/2014 23:12:43 ::: 11 cra215.11 the doctor to verify whether the patient was conscious and was in a position to give her statement.Thereupon, the doctor examined Savitrabai and verified that she was in a position to give her statement.12] PW16-Annasaheb Gholap, Assistant Police Inspector was attached to Daithana police station.He took over the investigation.On 15.1.2008, he arrested five accused.From his evidence, it is clear that he has purchased two gunthas of land from Apparao approximately 25 to 30 years back and erected cattle shed.His evidence further shows that the assailants, namely appellants were asking him to vacate the land and also extended threat that if he failed to vacate the same, they would kill him.38] Another witness, who was examined by the prosecution as a witness to the incident is PW4 Raghunath Shinde.At about 7.30 a.m. on the date of incident he was present near the temple of Lord Hanuman and he noticed some people running towards eastern side of the village.He also followed ::: Downloaded on - 13/02/2014 23:12:44 ::: 39 cra215.11 them.He noticed that the people had gathered in front of the cattle shed of Madhavrao Renge (PW1).As per this witness, all the appellants were present there and all of them had entered the cattle shed of Madhavrao.They started removing the tin sheets of the cattle shed.The evidence of this witness further goes to point out that, that time Savitrabai igarrived and she entered in the cattle shed.When she attempted to run away from the cattle shed, Madhavrao came forward to extinguish the fire, that time a blow of axe was inflicted on the head of Madhavrao by Gopalrao, due to which he fell down.This witness attempted to extinguish the fire and in that process he sustained injuries.DATE OF RESERVING THE JUDGMENT : 15.1.2014 DATE OF PRONOUNCEMENT OF THE JUDGMENT : 03.2.2014 J U D G M ENT : (Per V.M.Deshpande, J.) 1] These two appeals are directed against the judgment and order of conviction, dated 11.4.2011, passed by the learned Sessions Judge, Parbhani, in ::: Downloaded on - 13/02/2014 23:12:43 ::: 3 cra215.11 Sessions Trial No. 80 of 2008, by which learned Sessions Judge convicted the appellants in both the appeals, principally for the offence punishable under Section 302 r/w Section 149 of the Indian Penal Code and sentenced each of them to suffer imprisonment for life and to pay fine of Rs.::: Downloaded on - 13/02/2014 23:12:43 :::The learned Judge of the Court below has also convicted the appellants in both the appeals for the offences punishable under Sections 147 and 148 and directed that the appellants shall serve the jail sentence for one year in respect of each of the offence and each shall pay a fine amount of Rs.5,000/- in respect of Sections 147 and 148 of the Indian Penal Code.The learned Judge also convicted all the appellants for the offence punishable under Section 324 r/w Section 149 of the Indian Penal Code and sentenced each of them to undergo rigorous imprisonment for one year and to pay fine amount of Rs.1,000/- each.::: Downloaded on - 13/02/2014 23:12:43 :::4 cra215.11 The learned Judge further convicted all the appellants for the offence punishable under Section 436 r/w Section 149 of the Indian Penal Code and directed that each of the appellants shall serve rigorous imprisonment for five years and shall pay an amount of Rs.2,000/- towards payment of fine.The appellants were also convicted for the offence punishable under Section 440 r/w Section 149 and each of them was directed to suffer rigorous imprisonment for three years and to pay fine amount of Rs.1,000/-.The appellants were also convicted for the offence punishable under Section 448 r/w Section 149 of the Indian Penal Code and each of the appellants was sentenced to suffer rigorous imprisonment for six months and to pay fine of Rs.The learned Judge further convicted the appellants for the offence punishable under Section 449 r/w Section 149 of the Indian Penal Code and on that count, each of the appellants was sentenced to suffer rigorous imprisonment for three years and to ::: Downloaded on - 13/02/2014 23:12:43 ::: 5 cra215.11 pay fine amount of Rs.5000/-.::: Downloaded on - 13/02/2014 23:12:43 :::Needless to mention, the learned Judge also found that if the appellants fail to deposit the fine amount, they shall suffer the jail sentence for various period, as indicated in the operative part of the judgment.So far as Criminal Appeal No. 225 of 2011 is concerned, it is filed by original accused no.2 Gopal Pund, accused no.4 Sachin Pund, accused no.5 Balu Pund, accused no. 6 Sandeep @ Sanjay Pund, accused no. 8 Motiram Pund, accused no. 9 Rustum Pund and accused no.10 Gopinath Pund.Original accused no. 7 Saheb Gopal Pund was acquitted by the learned Judge of the court below for all the offences with which he was charged.::: Downloaded on - 13/02/2014 23:12:43 :::to in the present judgment as per their position before the trial court.4] The prosecution case, as it was unfolded during the trial through the prosecution witnesses and also on the basis of two dying declarations recorded during the course of the investigation, in nut shell, is as under :-Apparao Pund and Madhavrao Renge-the husband of deceased Savitrabai were friends for pretty long time.However, it appears that the discord amongst their friendship started due to the fact that Madhavrao Pund formed his own panel to contest the election of Grampanchayat and in the Grampanchayat elections, the panel led by accused no.1-Apparao Pund lost the said election and eventually Apparao Pund lost his post as Sarpanch.5] It could be further noticed that about 25 to 30 years back, Madhavrao Pund purchased two gunthas of land from Apparao Pund and has erected a ::: Downloaded on - 13/02/2014 23:12:43 ::: 7 cra215.11 cattle shed.It appears from the evidence on record that the sale deed in respect of the land purchased by Madhavrao was not executed in his favour by Apparao.::: Downloaded on - 13/02/2014 23:12:43 :::6] It appears that after losing the elections, Apparao started pressurizing Madhavrao, who was examined as Prosecution Witness No.3 that Madhavrao shall vacate the land and shall hand over the cattle shed.It appears that though there are no exact dates, on which the threats were extended to Madhavrao that if the land and cattle shed is not vacated, he will have to face the dire consequences.7] It appears that 15.1.2008 was an unfortunate day for Madhavrao Renge and his family.The prosecution case further proceeds that on the said date, the appellants/accused, at about 7.30 to 8.00 a.m. armed with the deadly weapons, barged in the cattle shed and they started removing iron sheets fixed on the roof of the cattle shed. PW3-::: Downloaded on - 13/02/2014 23:12:43 :::8 cra215.11 Madhavrao requested not to remove the iron sheets.In spite of request, the appellants were removing the tin sheets, and therefore, PW3-Madhavrao attempted to stop them from removing the said sheets.At the same time, his wife Savitrabai (who lost her life in the said incident) and their son Uddhav, who was examined as Prosecution Witness No. 5, attempted to intervene in order to prevent the appellants from removing the tin sheets.At that time, accused no.1 Apparao, accused no.4 Sachin and accused no.3 Achyut beat PW3-Madhavrao with fist blows and leg kicks and he was thrown out of cattle shed.8] The prosecution case further states that at that time Savitrabai entered in the cattle shed and prayed that sheets should not be removed.The prosecution case further proceeds that accused no.1 Apparao, who was possessing bottle containing kerosene, splashed the same in the entire cattle shed and then accused no.4 Sachin set cattle shed on fire, due to which Savitrabai also caught fire ::: Downloaded on - 13/02/2014 23:12:43 ::: 9 cra215.11 and when PW3-Madhavrao attempted to enter in the cattle shed, accused no.2 Gopal inflicted an axe blow on the head of Madhavrao, due to which, Madhavrao sustained bleeding injury.It is further case of the prosecution that Madhavrao gave call for help and one Navnath reached Savitrabai, after wrapping her in a piece of cloth, in the hospital.::: Downloaded on - 13/02/2014 23:12:43 :::The same was treated as complaint of Madhavrao.The statement of injured Savitrabai, so recorded by PW2-Mohd.::: Downloaded on - 13/02/2014 23:12:43 :::Accordingly, the statement of Savitrabai was recorded by PW1-Kishor and the said statement is at Exh. 42 on the record.::: Downloaded on - 13/02/2014 23:12:43 :::On 16.1.2008, the spot panchanama was drawn by him in presence of two panchas.From the spot, two pieces of green colour bangles, half burnt mangalsutra, half burnt Tulsi mal and one key entangled in the safety pin, iron pipe of one inch diameter and chilly powder were seized.Panchas put their signatures on the said panchanama.::: Downloaded on - 13/02/2014 23:12:43 :::who was battling for her life, ultimately succumbed to her burn injuries on 16.1.2008 at 6.15 a.m. Accordingly, the offfence punishable under Section 302 of the Indian Penal Code was added.He arrested remaining accused.Accused persons, while in the custody, expressed their desire to produce the weapons, and accordingly, their statements were recorded and respective recoveries were made from the accused persons.The seized articles were sent to the Chemical Analyser at Aurangabad with covering letter.He also recorded supplementary statements of the witnesses.14] After completion of the investigation, charge sheet was filed in the court of learned Magistrate and since the offence was exclusively triable by the court of Sessions, the learned Magistrate committed the case before the Sessions Court at Parbhani.::: Downloaded on - 13/02/2014 23:12:43 :::It is at Exh. 27, which was read over and explained to all the accused.They pleaded not guilty and claimed to be tried.16] The prosecution, in support of its case, placed reliance on the oral as well as the documentary evidence on record.In all sixteen witnesses were examined by the prosecution.17] Amongst the documents, the prosecution heavily relies on two dying declarations, spot panchanama and recovery panchanamas, under which the weapons used in the offence were recovered.18] After appreciating the evidence brought on record and on appreciation of the documentary evidence, the learned Sessions Judge vide judgment and order of conviction, dated 11.4.2011 convicted the accused persons as indicated in the earlier part of this judgment.::: Downloaded on - 13/02/2014 23:12:43 :::and order of conviction, the appellants approached this court and has filed the present two appeals as indicated in the earlier paragraph of the judgment.20] We have heard Shri Joydeep Chatterjee, learned counsel in Criminal Appeal No. 215 of 2011 filed on behalf of accused no.1 Apparao and accused no.3 Achyut and we have also heard Shri Jadhavar, learned counsel who represents the appellants in Criminal Appeal No. 225 of 2011 in extenso.We have also heard learned A.P.P. Shri Suryawanshi appearing on behalf of the respondent/State.21] According to the learned counsel for the appellants, the dying declarations (Exh.45 and Exh.42) cannot be relied upon to convict the appellants, in as much as according to them, the attending circumstances available on record, do not inspire confidence in respect of truthfulness and genuineness of these two dying declarations.::: Downloaded on - 13/02/2014 23:12:43 :::concerned, the submissions of the learned counsel are that their testimonies, inter se, reflect variance on the material points.Further, their evidence suffers from omissions and contradictions, which go to the root of the matter.Apart from that, according to them, the witnesses are the close relatives of deceased Savitrabai, and therefore, they being interested witnesses, it is really unsafe to rely on their testimonies for reaching to the conclusion that the appellants are guilty of the offences for which they were charged.22] Another plank of the argument of the learned counsel for the appellants was that it was never the intention on the part of any of the appellants/accused to cause the death of Savitrabai.According to them, the appellants at the most can be guilty of attempting to get the cattle shed in their possession from the possession of Madhavrao and during that process the unfortunate incident has happened, and therefore, ::: Downloaded on - 13/02/2014 23:12:43 ::: 16 cra215.11 the death of Savitrabai, according to them, is not a culpable homicide amounting to murder.::: Downloaded on - 13/02/2014 23:12:43 :::It is further the submission of the learned counsel for the appellants that the learned Judge of the court below has erred in convicting the appellants under Section 302 of the Indian Penal Code with the aid of Section 149 of the Indian Penal Code, in as much as, according to them, there was no evidence brought on record by the prosecution in order to substantiate that the incriminating act was done to accomplish the object of unlawful assembly and it was within the knowledge of each of the member of the said unlawful assembly.Therefore, it was the contention of the learned counsel for the appellants that the learned trial court ought not to have convicted the appellants with the aid of Section 149 of the Indian Penal Code, apart from the fact that they ought not to have been convicted separately for the commission of the offence under Section 149 of the Indian Penal Code.::: Downloaded on - 13/02/2014 23:12:43 :::counsel for the appellants, though very dimly, that the appellants were erroneously convicted for the other offences for which they were charged.24] Per contra, the learned Additional Public Prosecutor supported the judgment and order of conviction passed by the learned Judge of the court below by pointing out that the appellants were found to be the members of unlawful assembly with the common object.It was his further submission that there is no evidence on record to even remotely suggest that Savitrabai was tutored.In that view of the matter, relying upon the two dying declarations on record along with the version of eye witnesses, the learned Judge of the court below has rightly found the appellants guilty.He further submits that the ocular evidence on the part of the prosecution is consistent one and the discrepancies and/or omissions, as found in their evidence, are minor in nature.However, the core of the prosecution case remained intact, and ::: Downloaded on - 13/02/2014 23:12:43 ::: 18 cra215.11 therefore, he submits for dismissal of both the appeals.::: Downloaded on - 13/02/2014 23:12:43 :::25] Firstly, we would like to examine the dying declarations.The first in point of time is the dying declaration recorded by PW2 Mohammad Bashir Shaikh Umer.The said dying declaration is at Exh.If we scrutinize the evidence of PW2 Mohd.Bashir, it is clear that after reaching to the Civil Hospital, Parbhani, he went to the Medical Officer, namely PW11 Dr. Anjali More.According to PW2 Mohd. Bashir, PW11 Dr. Anjali put certain questions to the patient.Obviously, the said questions were put by her in order to ascertain about the consciousness and fitness of Savitrabai so as to give her statement as desired by PW2 Mohd.PW2 Mohd. Bashir asserts in his evidence that he was told by PW11 Dr. Anjali that Savitrabai was conscious and was in a position to give her statement.This assertion made by PW2 Mohd. Bashir is corroborated by PW11 Dr. Anjali, who has deposed that she went to the burn ward ::: Downloaded on - 13/02/2014 23:12:43 ::: 19 cra215.11 along with the police and she examined Savitrabai.::: Downloaded on - 13/02/2014 23:12:43 :::She verified the pulse rate and heart beats of Savitrabai.She found her heart rate and respiratory rate normal and Savitrabai was conscious and was in a position to give her statement, and therefore, she made an endorsement accordingly on the piece of paper whereon PW2 Mohd.Bashir was intending to record the statement of Savitrabai.According to the evidence of PW2 Mohd. Bashir, he asked Savitrabai the cause of the burns sustained by her and to the said questions she gave replies, and accordingly, the dying declaration Exh.45 was recorded.From the perusal of dying declaration Exh.45, though it is clear that it is not in question and answer form, but from the evidence of PW2 Mohd. Bashir, it is clear that he put questions to Savitrabai, which were replied and those answers were reduced into writing as a statement of Savitrabai.In so far as putting questions to Savitrabai, there is no cross-examination on that point by the learned counsel ::: Downloaded on - 13/02/2014 23:12:43 ::: 20 cra215.11 for the appellants.::: Downloaded on - 13/02/2014 23:12:43 :::26] The perusal of the dying declaration (Exh.45) clearly reveals that firstly when the accused persons were trying to remove the tin sheets, Savitrabai went there and she asserted that the premises belongs to her and why they were removing the tin sheets.ig Whereupon accused no.1 Apparao asserted that the premises belongs to him and at that time the other accused were present with Apparao.The dying declaration further discloses that PW1 Madhavrao, the husband of Savitrabai, was assaulted by axe blow and thereafter accused no.1 Apparao thrown Savitrabai on grass and it was set ablaze, due to which she received burn injuries.The dying declaration further discloses that when her son intervened in order to save her, the accused persons prevented and assaulted him.After dying declaration was recorded, PW11 Anjali again examined Savitrabai and she found that she was conscious.::: Downloaded on - 13/02/2014 23:12:43 :::27] The dying declaration (Exh.45) is assailed by the learned counsel for the appellants, as according to them, the said dying declaration is the outcome of tutoring.In order to buttress this point, it is strenuously urged that in the dying declaration Savitrabai has given complete names of all the appellants.According to the submission, as put forth, this fact itself demonstrates that Savitrabai has not given any statement, but the same was fabricated.The dying declaration does not render worthless, merely because Savitrabai has given complete names of the assailants, and on that count the said dying declaration cannot be discarded.We cannot forget the fact that the assailants and the injured Savitrabai hail from village Itlapur.From the cross-examination of PW3 Madhavrao, it is established on record that village Itlapur consists of 100 houses only.Further, from the evidence of PW5 Uddhav, son of Savitrabai, it is clear that the ::: Downloaded on - 13/02/2014 23:12:43 ::: 22 cra215.11 relations between his father Madhavrao i.e. husband of Savitrabai and Apparao were cordial in past.In fact, it appears so, because according to Madhavrao, he has purchased two gunthas of land from Apparao about 25 to 30 years back, on which the cattle shed was erected and in spite of the fact that the land was purchased, no sale deed was executed in favour of Madhavrao, that clearly suggests and shows that the relations between them were extremely cordial.Therefore, even Madhavrao did not bother to obtain the sale deed from Apparao.::: Downloaded on - 13/02/2014 23:12:43 :::The evidence of PW5 Uddav further shows that in the Grampanchayat election, his father Madhavrao formed a panel and the panel formed by Madhavrao defeated the panel of Apparao.Therefore, Apparao had grudge in his mind.This fact clearly shows and suggests that Savitrabai was knowing the full names of the assailants.Therefore, merely because full names were given, the dying declaration cannot be branded as doubtful.::: Downloaded on - 13/02/2014 23:12:43 :::counsel to attack the dying declaration (Exh.45) is the over writing on the dying declaration about the timing.According to the learned counsel, the over writing in respect of the timing creates serious doubt about the truthfulness and genuineness of the dying declaration.Obviously, the said timing is in respect of the examination of Savitrabai by PW11 Dr. Anjali about Savitrabai s fitness in order to give her statement.According to PW2 Mohd. Bashir, he received intimation of M.L.C. At about 10.15 and he immediately rushed to the hospital and thereafter the doctor after examining the patient gave the certificate (Exh.64).According to the learned counsel, in cross-examination of PW11 Dr. Anjali initially time was recorded as 10.55 a.m. and later on it was corrected as 10.15 a.m. The learned counsel for the appellants has heavily relied upon these admissions and also on the statement made by PW2 Mohd. Bashir in the cross-examination that he ::: Downloaded on - 13/02/2014 23:12:43 ::: 24 cra215.11 received the letter from the police station at 10.45 a.m. and at the end of the dying declaration Exh.45 the doctor has recorded her endorsement (Exh.65) at 10.45 a.m. This was the submission on behalf of the appellants in order to buttress and substantiate their claim that the dying declaration (Exh.45) is not genuine document and in fact it is not the version of Savitrabai.::: Downloaded on - 13/02/2014 23:12:43 :::29] At the first blush, the argument of learned counsel for the appellants is very attractive.::: Downloaded on - 13/02/2014 23:12:43 :::25 cra215.11 Neither there is any case nor it is the submission of the counsel for the appellants that any person from the hospital authorities was interested to secure conviction of each of the appellants and they have manipulated the said record.No doubt, it is true that there is statement of PW11 Dr. Anjali that initially at Exh.64 time was mentioned as 10.55 a.m. and it was corrected as 10.15 a.m. and the doctor had put her initials thereon.However, if Exh.76 is minutely perused and especially at paper book page 287, it is very clear that the doctor has made endorsement in the case papers of Savitrabai on 15.1.2008 at 10.15 a.m. to the effect that, patient is conscious during statement.Thus it is very clear that contemporaneous document, namely the case paper of Savitrabai duly maintained by the hospital authorities clearly shows that Savitrabai was examined at 10.15 a.m. on 15.1.2008 and recording of her statement was started at 10.15 a.m. We ::: Downloaded on - 13/02/2014 23:12:43 ::: 26 cra215.11 cannot forget the fact that PW11 Dr. Anjali and PW2 Mohd. Bashir were giving their evidence after the lapse of two years.::: Downloaded on - 13/02/2014 23:12:43 :::According to the learned counsel for the appellants, in cross-examination PW2 Mohd. Bashir has stated that he has received the letter at 10.15 a.m. and the doctor has put her endorsement at the end of the dying declaration as 10.45 a.m. Therefore, according to the learned counsel for the appellants, this fact itself demonstrates that the dying declaration (Exh.45) is not genuine one.Even if we examine Exh.76 again, it is clear that the timing given by the doctor is 10.45 a.m. So merely because it was stated by PW2 Mohd. Bashir that he received the letter at 10.45 a.m. that by itself does not render the entire dying declaration a waste paper, especially when there is no other ::: Downloaded on - 13/02/2014 23:12:43 ::: 27 cra215.11 circumstance pointed out by the learned counsel by which it could be said that the statements made in the dying declaration are untrue and/or it is not the truthful version of Savitrabai, and therefore, we have no hesitation in our mind to record a finding that on appreciation of the evidence of PW2 Mohd. Bashir and PW11 Dr. Anjali, coupled with the documents, namely endorsements (Exh.64), Exh. 65 as found on the dying declaration (Exh.45) and the entries about the timings of starting of the dying declaration and its completion as available on page 287 of the paper book, which is part and parcel of Exh.76 the case papers of Savitrabai, clearly show that PW2 Mohd. Bashir recorded the dying declaration (Exh.45) of Savitrabai and she has given the account of assault in the said dying declaration.Therefore, according to us, the dying declaration (Exh.45) of Savitrabai can safely be relied upon.::: Downloaded on - 13/02/2014 23:12:43 :::30] Now turning to Exh.42, another dying declaration of deceased Savitrabai recorded by PW1 ::: Downloaded on - 13/02/2014 23:12:43 ::: 28 cra215.11 Kishor Deshmukh, Incharge Tahsildar of Parbhani.::: Downloaded on - 13/02/2014 23:12:43 :::PW1 Kishor when he was in his office on 15.1.2008, received a letter from Nanal Peth police station requesting him to record the dying declaration of Savitrabai, who was admitted in the Civil Hospital, Parbhani.Accordingly, he went to the Civil Hospital, Parbhani and made inquiry about the patient.His evidence further discloses that he visited the concerned ward along with the concerned Medical Officer and it is clear from the record that the said concerned Medical Officer was PW11 Dr. Anjali More.PW1 Kishor made request to PW11 Anjali to verify whether the patient is conscious and is in a position to give statement before him.Accordingly, PW11 Dr. Anjali examined Savitrabai and found that she was in conscious state of mind.Accordingly, PW11 Dr. Anjali made an endorsement to the effect that the patient is conscious.This endorsement was made at 11.20 a.m. and thereafter PW1 Kishor started recording the dying declaration of Savitrabai.From the evidence of PW1 Kishor, it is ::: Downloaded on - 13/02/2014 23:12:43 ::: 29 cra215.11 clear that initially he asked the name of the patient, age, occupation and residential address.::: Downloaded on - 13/02/2014 23:12:43 :::The evidence of PW1 Kishor further shows that to these questions put by him to Savitrabai, she has disclosed her name as Savitrabai Madhavrao Renge, aged 40 years, occupation household and resident of Itlapur.He has stated that Apparao s sons set Savitrabai ablaze forcibly.She has disclosed that since Apparao lost election of Sarpanch, she was set ablaze.Apparao was present at that time.The incident occurred at 9.00 a.m. in the morning.She has further stated that at the occurrence of the incident, there were many persons, however, she was unable to disclose their names.She has further stated that she has complaint against Apparao.After recording of the dying declaration which was finished at 11.30 p.m., PW1 Kishor obtained her left thumb impression in his presence.The evidence further discloses that thereafter he asked the doctor whether the patient was conscious through out during recording of her dying declaration and the doctor made endorsement that ::: Downloaded on - 13/02/2014 23:12:43 ::: 30 cra215.11 the patient was conscious at the end of the statement and was conscious through out recording of her statement.The said endorsement is at Exh.::: Downloaded on - 13/02/2014 23:12:43 :::The said endorsement is proved by PW11 Dr. Anjali.PW1 Kishor has also stated that he put his signature on the dying declaration and the doctor has also signed the said dying declaration in his presence.The dying declaration, as recorded by PW1 Kishor, was identified by PW1 Kishor before the court.During cross-examination, from the evidence it appears that the authenticity of the dying declaration was tried to be put under cloud on the basis that in the dying declaration he has not mentioned in Exh.42 that the contents of the dying declaration were read over to the patient, nor near the thumb impression it is mentioned by him that it is the thumb impression of Savitrabai.31] The same line, which was found in cross-examination was further toed by the learned counsel appearing for the appellants before this court.::: Downloaded on - 13/02/2014 23:12:44 :::contemporaneous document to show and suggest that the dying declaration was read over to the declarant and it was admitted by her to be correct.It is true that the record shows that in Exh.42 it is not mentioned by PW1 Kishor that the statement of Savitrabai was read over to her and she admitted the contents thereof.However, from the witness box, PW1 Kishor has specifically stated that the contents of the dying declaration were read over by him to the patient.The further limb of argument, as advanced by the learned counsel to attack on Exh.42 is that the thumb impression, as found in Exh.42, is not identified by either the scribe i.e.PW1 Kishor or the doctor, who has certified about the fitness.From the perusal of the dying declaration (Exh.42), we find that there is considerable force in the arguments of learned counsel.However, the question is whether on that count alone the dying declaration should be discarded or not.::: Downloaded on - 13/02/2014 23:12:44 :::Kishor, nothing is brought on record even remotely to show and/or suggest that on 15.1.2008, apart from recording of dying declaration of Savitrabai, PW1 Kishor has recorded dying declaration of another patient on that day, nor we find anything on record from the entire evidence of PW11 Dr. Anjali that on the same day, apart from Savitrabai, she examined another serious patient and gave the certification about the fitness like Exhs.66 andTherefore, it is clear that on 15.1.2008 PW1 Kishor was given duty of recording of dying declaration of patient Savitrabai and he has recorded the statement of Savitrabai alone.Had there been no other dying declaration and/or the eye witnesses as available in the present case, then even this omission of mentioning the fact that the thumb impression of the declarant was not certified, would have made great impact on the prosecution case and if such dying declaration is the sole evidence available against the accused, then it would certainly a case wherein one could ::: Downloaded on - 13/02/2014 23:12:44 ::: 33 cra215.11 safely reach to the conclusion that the prosecution has failed to establish its case beyond reasonable doubt.::: Downloaded on - 13/02/2014 23:12:44 :::However, if both the dying declarations are examined very minutely and closely, one fact clearly emerges that Savitrabai has made a specific statement that it is Apparao and his sons who are the culprits of setting Savitrabai ablaze.Merely because, the sentence in Exh.45 that Savitrabai was thrown on grass and grass was put on fire, does not find place in Exh. 42, according to us, that by itself is not sufficient to discard Exh.42, especially when the author of setting her ablaze is consistent one.::: Downloaded on - 13/02/2014 23:12:44 :::34] Learned counsel appearing in Criminal Appeal No. 215 of 2011 has relied upon following cases.In that view of the matter, merely because there is no certification on the part of PW1 Kishor Deshmukh about the fact that he has not mentioned that the contents in dying declaration were read over to the patient and/or he has not certified that the thumb impression is that of Savitrabai, the dying declarations do not lose its importance, and one cannot raise suspicion about the truthfulness of its contents.In that view of the matter, the afore ::: Downloaded on - 13/02/2014 23:12:44 ::: 36 cra215.11 said cases, as relied upon by the learned counsel, are of no use in the present case.::: Downloaded on - 13/02/2014 23:12:44 :::::: Downloaded on - 13/02/2014 23:12:44 :::Therefore, we are of the view that both the dying declarations Exh.42 and Exh.45 can safely be accepted as a truthful version of deceased Savitrabai.It is amply proved that while recording both the dying declarations the declarant was in a fit mental condition to give her statement.According to us, there are no circumstances which could be branded as suspicious to discard the said statements.36] Apart from these three witnesses, we have on record the evidence of PW12 Parmeshwar Renge and PW13 Vishwanath Renge, who reached the spot of the incident immediately and they were also attacked and sustained injuries.37] In so far as eye witness account is concerned, PW3 Madhavrao the husband of deceased Savitrabai gave the account of occurrence that on 15.1.2008 when he was present in his house, that ::: Downloaded on - 13/02/2014 23:12:44 ::: 37 cra215.11 time all the appellants arrived in the cattle shed.::: Downloaded on - 13/02/2014 23:12:44 :::At that time, they were armed with lathis and axes and they started removing the iron sheets fixed on the roof of the cattle shed and when he requested not to remove the said sheets, those were thrown on the ground.In spite of the request, when the assailants were not obliging, he attempted to intervene and stop them from removing the sheets, at that time his wife Savitrabai and son Uddhav also attempted to intervene to stop the appellants from removing cattle shed tin sheets.At that time, according to this witness, he was attacked by Apparao, Sachin and Achyut with fist blows and kicks and he was thrown out of the cattle shed and the door was closed.::: Downloaded on - 13/02/2014 23:12:44 :::38 cra215.11 As per the ocular version of this witness, that time his wife Savitrabai entered in the cattle shed.His further version is that Apparao was possessing the bottle containing kerosene.According to the ocular version, after Savitrabai entered into the cattle shed, Apparao splashed the kerosene in the entire cattle shed and then Sachin set the cattle shed on fire, due to which Savitrabai caught fire and on hearing the cry from Savitrabai when he tried to enter in the cattle shed, accused Gopal inflicted an axe blow on his head.The injury certificate of Madhavrao is at Exh.72, which shows that he received contused lacerated wound 10x2x2 cms.on scalp (parieto temporal region).::: Downloaded on - 13/02/2014 23:12:44 :::From the testimony of this witness, it is clear that this witness was present on the spot of the incident and it was found by him that Apparao was removing tin sheets and when it was requested by Madhavrao not to remove the tin sheets, he was asked to leave the cattle shed.When Savitrabai attempted to resist, abuses were hurled by Sachin and Achyut.Thereafter, after extending threats, Apparao started sprinkling kerosene on the fodder in the cattle shed.The evidence of this witness further establishes that though kerosene was sprinkled, Savitrabai did not move from the place and then Sachin ignited match stick and set the fodder on fire.Savitrabai ::: Downloaded on - 13/02/2014 23:12:44 ::: 40 cra215.11 caught fire.It is very clear from the version of this witness that this incident occurred because Apparao and his panel lost Grampanchayat election against Madhavrao (PW1) and his panel, and taking undue advantage of the fact that premises of cattle shed was standing in the name of Apparao, Apparao picked up quarrel to take revenge.The injury certificate of Raghunath Shinde is at Exh.::: Downloaded on - 13/02/2014 23:12:44 :::68, which shows that he received 9% burn injuries on both upper limbs.39] The third person examined as eye witness to the incident is PW5 Uddhav s/o Madhavrao and deceased Savitrabai.The evidence of this witness shows that initially relations between his father and Apparao were cordial, however, because of ::: Downloaded on - 13/02/2014 23:12:44 ::: 41 cra215.11 elections the relations became sore.The panel formed by his father was elected in Grampanchayat elections and the panel of Apparao lost the said election and thereafter Apparao bore grudge in his mind.This witness, in clinching words, has stated that on the date of incident all the appellants/accused armed with sticks and axes arrived at the cattle shed and started removing tin sheets from the cattle shed.When this witness and his father requested not to remove the tin sheets, Apparao uttered that his father has become proud, he has formed panel and contested the election against him and succeeded in the same.According to this witness, Apparao quipped that he would remove tin sheets and will get the cattle shed vacated.That time, mother Savitrabai attempted to request Apparao, however, Apparao extended threat.::: Downloaded on - 13/02/2014 23:12:44 :::Thereafter, Apparao sprinkled kerosene on the fodder in the cattle shed and Sachin set it on fire by lighting the match stick and when this witness tried to prevent Sachin from setting on fire the cattle shed he was assaulted by Saheb and Sachin on ::: Downloaded on - 13/02/2014 23:12:44 ::: 42 cra215.11 his head.This witness has also deposed that when his father tried to extinguish flame of his mother, he was attacked.His injury certificate is at Exh.::: Downloaded on - 13/02/2014 23:12:44 :::69, which shows that he received contused lacerated wound 10x1x1 cms.on his scalp.40] According to the counsel for the appellants, it was never the intention on the part of the accused persons to kill Savitrabai.According to the learned counsel, the evidence on record would suggest that Savitrabai was never set on fire.Savitrabai had entered in the cattle shed, therefore she sustained injuries.Savitrabai was not restrained from coming out of the cattle shed.According to the learned counsel, there is material variance in between the evidence of PW3 Madhavrao and PW4 Raghunath in as much as PW4 Raghunath is silent about making the statement that the accused were armed with lathis as stated by Madhavrao.According to the counsel, even the evidence of PW5 Uddhav clearly shows that it was never the intention of the accused persons to set ::: Downloaded on - 13/02/2014 23:12:44 ::: 43 cra215.11 Savitrabai on fire, but they set cattle shed on fire and accidentally Savitrabai got burn injuries.::: Downloaded on - 13/02/2014 23:12:44 :::These submissions on behalf of the appellants, in our considered view and opinion, have to be rejected.There is a clear evidence, which has not been shattered during cross-examination that the accused persons arrived on the spot of the incident and that time they were armed with deadly weapons like axes and sticks.It is also very clear that kerosene was brought by them.Kerosene when used as a weapon of offence can cause death of human being.Now, from the evidence of this eye witness, it is clear that the couple, namely Madhavrao and his wife Savitrabai were requesting Apparao and his associates not to remove the tin sheets, however, Apparao and his associates were adamant.The cattle shed was having dry fodder and grass.It is established on record that Savitrabai was inside the cattle shed.If there was no intention on the part of the appellants to cause bodily injury, Apparao would not have sprinkled kerosene, and ::: Downloaded on - 13/02/2014 23:12:44 ::: 44 cra215.11 knowing fully well that kerosene was sprinkled on the dry fodder and grass and Savitrabai was inside the cattle shed, still Sachin ignited the match stick and set it on fire.Therefore, it is really difficult to accept the argument of the counsel for the appellants that Savitrabai has received injuries due to accident.Therefore, it is our considered view that this case is nothing but a culpable homicide amounting to murder, as it squarely falls under clause Fourthly of Section 300 of the Indian Penal Code.::: Downloaded on - 13/02/2014 23:12:44 :::41] It was common argument on behalf of the counsel appearing for the appellants in both the appeals that apart from Apparao and Sachin, the other appellants cannot be held responsible for the offence punishable under Section 302 with the aid of Section 149 of the Indian Penal Code.According to the learned counsel appearing in Appeal No. 225 of 2011, the prosecution has failed to prove common object.::: Downloaded on - 13/02/2014 23:12:44 :::45 cra215.11 It is strenuously urged that in view of the reported judgments, in the cases of - Shaji and others vs State of Kerala [AIR 2011 SC 1825];Shiyjee Singh and others vs State of Bihar [AIR 2009 SC 417]; and Kuldip Yadav and others vs State of Bihar [AIR 2011 SC 1736], mere presence in an unlawful assembly cannot render a person liable for commission of offence, unless there was a common object and said person was actuated by common object and that object is one of those as set out in Section 141 of the Indian Penal Code.42] It will be useful to give the account of the evidence of PW6 Sanjay Renge.From his evidence, it is clear that he reached to the spot and found that Apparao and his associates were removing tin sheets.This witness requested Apparao not to remove tin sheets.His evidence shows that he made a suggestion that he will call police and they should try for amicable settlement, however, this witness was expelled from the field with a threat that he should not enter the field, ::: Downloaded on - 13/02/2014 23:12:44 ::: 46 cra215.11 and therefore, he left the place and proceeded for going to the police station, however, when he went at some distance, he heard hue and cry of a woman, and therefore, he returned back at the place of the incident, only to find that Madhavrao sustained injury and Savitrabai sustained burn injuries.::: Downloaded on - 13/02/2014 23:12:44 :::43] PW7 Eknath Renge also reached to the spot when the incident was going on and when he tried to intervene, he received a blow of stone.He has received contused lacerated wound on his scalp.44] Another witness, who was present at the time of incident is PW8 Shahurao Renge, whose evidence shows that when the accused party was removing tin sheets, Savitrabai and Madhavrao were requesting them not to remove the tin sheets and that time Apparao and his associates were armed with sticks, axes, etc. The accused were hurling abuses.This witness also received a stick blow on his leg, which was dealt with by Apparao.::: Downloaded on - 13/02/2014 23:12:44 :::45] PW9 Dnyanoba Renge was examined as a panch to prove the spot panchanama (Exh.58).The spot panchanama reveals that eleven tin sheets were found to be thrown on ground, half burnt Mangasutra was found on the spot, not only that, chilly powder was found on the spot.46] Another witness PW13 Vishwanath Renge also deposed that when he reached to the spot of the incident on hearing hue and cry, he sustained injuries.He received injury on knee joint and leg.Also PW12 Parmeshwar Renge, who also reached the spot of the incident after hearing hue and cry, found that Madhavrao was lying on the ground with head injury and when he attempted to help him in getting up, he was inflicted blow of stick by accused no.3-Achyut Pund.::: Downloaded on - 13/02/2014 23:12:44 :::not only the eye witnesses, but also the persons, who tried to rescue the couple, were also attacked by the members of unlawful assembly, namely the appellants.It is clear that, right from beginning, all the appellants were armed with deadly weapons.Even giving a premise in favour of the appellants that initially their common object was to get the cattle shed vacated, however, from the quality of the evidence on record, it is crystal clear that it was their common object to go to the extreme step so as to get the cattle shed vacated.Therefore, it is clear that in order to execute their common object, they were armed with the deadly weapons and inflammable article like kerosene.From the spot panchanama, it is clear that even the appellants were carrying chilly powder with them, though no witness has stated that it has been ever used, however, the spot panchanama mentions that, पलािििक कॅनमधे िमरची पूड पडलेली ििसत आहे ".We should not forget one fact that the place of ::: Downloaded on - 13/02/2014 23:12:44 ::: 49 cra215.11 incident is cattle shed, wherein presence of chilly powder in a carry bag is most unnatural.::: Downloaded on - 13/02/2014 23:12:44 :::Therefore, it is clearly attributable to the appellants that they carried the same, though it was not used, however, this shows their intention.The evidence clearly shows that the common object of the unlawful assembly was to get the cattle shed vacated at any cost, which was in lawful possession of Madhavrao.Therefore, the said object to get vacated the land from the lawful possession of the person by using force was clearly an unlawful act.The evidence clearly shows that the incriminating act on the part of Apparao, Sachin and Achyut and others was to accomplish the common object of unlawful assembly, and as stated herein above, every member was armed with some kind of deadly weapon and it was well within the knowledge of every member of the unlawful assembly that the such act is likely to be committed in prosecution of the common object.::: Downloaded on - 13/02/2014 23:12:44 :::50 cra215.11 Therefore, the submission on the part of learned counsel Shri Jadhavar appearing for the appellants that no specific role is attributed to accused no.5 Balu, accused no.6 Sandeep, accused no.8 Motiram, accused no.9 Rustum and accused no.10 Gopinath and as such they cannot be held guilty for the commission of the offence punishable under Section 302 r/w Section 149 of the Indian Penal Code, has to be rejected, because these accused persons were members of unlawful assembly having common object to get the cattle shed vacated and for the said purpose, they all were armed with deadly weapons and in prosecution to accomplish their common object, the other members of the unlawful assembly have attacked the prosecution witnesses and also the prosecution witnesses who tried to extend helping hand to Madhavrao and Savitrabai.Therefore, these persons cannot come with the case that they did not share common intention to accomplish the common object of the unlawful assembly.::: Downloaded on - 13/02/2014 23:12:44 :::51 cra215.11 In that view of the matter, it is crystal clear that each of the appellant is guilty of commission of the offence punishable under Section 302 r/w Section 149 of the Indian Penal Code.48] The learned Trial Judge has rightly found that the appellants were guilty of committing offences punishable under Sections 147, 148, 302 r/w 149, 324 r/w 149, 436 r/w 149, 440 r/w 149, 448 r/w 149 and 449 r/w 149 of the Indian Penal Code and they were rightly convicted.No interference is called for in the impugned judgment and order of conviction and sentence.Consequently both the appeals are dismissed.The judgment and order of ::: Downloaded on - 13/02/2014 23:12:44 ::: 52 cra215.11 conviction, dated 11.4.2011, passed by the learned Sessions Judge, Parbhani, in Sessions Trial No. 80 of 2008 is hereby confirmed.::: Downloaded on - 13/02/2014 23:12:44 :::(V.M.DESHPANDE, J.) (S.S.SHINDE, J.) dbm/cra215.11 ::: Downloaded on - 13/02/2014 23:12:44 :::::: Downloaded on - 13/02/2014 23:12:44 :::
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['Section 149 in The Indian Penal Code', 'Section 302 in The Indian Penal Code', 'Section 147 in The Indian Penal Code', 'Section 148 in The Indian Penal Code', 'Section 324 in The Indian Penal Code', 'Section 448 in The Indian Penal Code', 'Section 300 in The Indian Penal Code', 'Section 436 in The Indian Penal Code']
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Analyze the legal case and identify the corresponding section it comes under.
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141,267,371 |
Heard the learned counsel for the parties.The applicant is in custody since 1.6.2015 in connection with Crime No.50/2009 registered at Police Station Seoni Malwa District Hoshangabad for the offence punishable under Sections 342, 395 397 of IPC.Learned counsel for the applicant submits that the applicant is a youth of 24 years of age, who has no criminal past alleged against him.The alleged offence against the applicant is not so grave.He is in custody without any substantial reason.Under these circumstances, he prays for bail.This order shall be effective till the end of trial but in case of bail jump, it shall become ineffective.Certified copy as per rules.(N.K. GUPTA)
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['Section 114 in The Indian Penal Code', 'Section 394 in The Indian Penal Code', 'Section 342 in The Indian Penal Code', 'Section 395 in The Indian Penal Code', 'Section 397 in The Indian Penal Code']
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Analyze the legal case and identify the corresponding section it comes under.
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141,268,577 |
And In the matter of : Khudiram Nayek @ Biswajit Nayek ... ... petitioner Mr. Arabinda Manna ... ... for the petitioner Mr. Rana Mukherjee, Mr. Ashok Das ... ... for the State The petitioner seeks anticipatory bail in connection with Goghat P.S. Case No. 240 of 2018 dated 31.10.2018 under Sections 147/148/149/325/307/332/333/353/427/435 of the Indian Penal Code and Sections 3/4 of the Prevention of Damage to Public Property Act and Section 9 of the Maintenance of Public Order Act.The petitioner is entitled to the same benefit.In addition, the petitioner is directed to meet the investigating officer at such time and place as may be specified by the concerned police officer, till the investigation is completed.The petition for anticipatory bail is allowed subject to the conditions as indicated above.A certified copy of this order be immediately made available to the petitioner, subject to compliance with all requisite formalities.
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['Section 353 in The Indian Penal Code', 'Section 307 in The Indian Penal Code', 'Section 332 in The Indian Penal Code', 'Section 148 in The Indian Penal Code', 'Section 427 in The Indian Penal Code', 'Section 149 in The Indian Penal Code', 'Section 325 in The Indian Penal Code', 'Section 147 in The Indian Penal Code']
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Analyze the legal case and identify the corresponding section it comes under.
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141,269,984 |
Heard the learned counsel for the parties.The applicants are in custody since 1.8.2015 relating to Crime No.284/2015 registered at Police Station Civil Lines, District Chhatarpur for the offences punishable under Sections 147, 452, 354, 323, 294, 506-B of IPC and Sections 3(I)(x) and 3(I)(xi) of SC/ST (Prevention of Atrocities) Act (hereinafter referred to as Special Act).Learned counsel for the applicants submits that the applicants are reputed citizens of the locality, who have no criminal past alleged against them.Except of offence under Sections 3(I)(x) and 3(I)(xi) of SC/ST (Prevention of Atrocities) Act, remaining offences are triable by the Court of J.M.F.C. The offences of Special Act are punishable with imprisonment of five years only.Hence for such a lesser grave offence, the applicants cannot be kept in custody for an unlimited period.Under such circumstances, they pray for bail.Learned panel lawyer for the State opposes the application.This order shall be effective till the end of trial but in case of bail jump, it shall become ineffective.Certified copy as per rules.(N.K. GUPTA)
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['Section 452 in The Indian Penal Code', 'Section 147 in The Indian Penal Code', 'Section 354 in The Indian Penal Code', 'Section 294 in The Indian Penal Code', 'Section 323 in The Indian Penal Code']
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Analyze the legal case and identify the corresponding section it comes under.
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141,275,496 |
R.V. EASWAR, J.:It is necessary to give a brief background of the facts leading to the filing of the present appeal.The respondent-company, Vista Hospitality CO.A. (SB) 22/2013 Page 1 of 38 Private Ltd. was incorporated on 10.01.2003, with the appellants as the original promoters and directors.Pursuant to a joint venture agreement, hereinafter referred to as JVA, entered into between the appellants and the respondents herein on 21.12.2007 there was a restructuring of the shareholding as well as the board of directors under which the appellants, the Gurpartap group, came to hold 65% and the respondents, the Jhankar group, came to hold 35% of the shares in the company.The board of directors consisted of 5 directors nominated by the Gurpartap group and 3 directors nominated by the Jhankar group.Upto the year 2010, the affairs of the company were running smoothly.Sometime early in the year 2011, it appears that disputes over the functioning of the company and the conduct of its business arose between the two groups.There were allegations and rebuttals that the respondents were trying to entice away the clientele of the company to their concern, Jhankar Banquets, which was operating opposite to the company and thereby causing loss.CO.A. (SB) 22/2013 Page 3 of 38"Arguments were part heard.(Justice D.R. Deshmukh) Chairman"On 15.01.2013, a letter was written by the appellants (respondents before the CLB in the application) which is as below: -"To, The Bench Officer, Company Law Board, C.G.O. Complex, Paryavaran Bhawan New Delhi Reg.: Company Petition in the matter of "Shri Gurpartap Singh & Anr.Versus M/s. Vista Hospitality Private Limited & Ors.Thanking you Yours faithfully Sd/-(Justice D.R. Deshmukh) Chairman"The following are its findings:It was also alleged by Gurpartap group that the Jhankar group was acting to the detriment of the companys business.CO.A. (SB) 22/2013 Page 1 of 38In the above situation, the Gurpartap group, the appellants herein, filed a petition before the Company Law Board (CLB) in C.P. No. 101(ND)/2012 under sections 397-398 of the Act alleging oppression and CO.A. (SB) 22/2013 Page 2 of 38 mismanagement and sought reliefs by way of permanent injunction against the Jhankar group (i) from diverting the business of the company to their own business and (ii) from acting contrary to the understanding arrived at in the JVA and (iii) to pass orders directing the parties to make offers for buying out the other partys shares even before the expiry of the lock-in period of five years which was to expire on 20.12.2012 and (iv) to direct that respondent No.3 was not capable of being appointed a director of the company.The aforesaid company petition was mentioned before the CLB on 30.08.2012, on which date it would appear that the respondents took the plea that the petition was not maintainable in view of the provision in the JVA for arbitration and wanted to move an appropriate application.The appellants filed their reply to the application.Some attempt at a settlement appears to have been made which did not fructify.What happened on that CO.A. (SB) 22/2013 Page 3 of 38 date as well as the next two dates was a matter of intense debate and considerable arguments were advanced on that point before me which I will refer to at the appropriate juncture.I will for the present only notice what was stated in the orders passed by the CLB on 14.01.2013 and 16.01.2013 and the letter dated 15.01.2013 written by the appellants to the CLB.On 14.01.2013, the order passed by the CLB was this:The Petitioners would like to withdraw the said Company Petition i.e. 101 (ND) of 2012, which is pending before the Hon'ble Bench and coming up for hearing on 16th January, 2013 and would seek a liberty to file the fresh company petition before the Hon'ble Bench.The Petitioners would serve the present company petition along with its annexures on the Respondents on 16th January, 2013 i.e. the next date of hearing fixed in the said C.P. No.101(ND) of 2012 on which date the Petitioners are proposed to withdraw the said C.P. No.101(ND) of 2012 and will serve the company petition to the Respondents.Take notice that we have filed the accompanying Company Petition under Section 397, 398 read with Section 402 of the Companies Act, 1956 against the Respondents.The above said petition is likely to be listed on 17th day of January, 2013 at 2.30 P.M.Please find attached herewith the copy of the Petition along with Annexures.M/s. Jhankar Banquets Private Limited, G-87, Preet Vihar, Delhi - 110092CO.A. (SB) 22/2013 Page 5 of 38Shri Mahesh Kapoor, G-87, Preet Vihar, Delhi- 110092Smt. Usha Kapoor, G-87, Preet Vihar, Delhi- 110092Shri Balvinder Sachdeva, D-72, Lajpat Nagar, New Delhi-110024 (Counsel for the aforesaid Respondents will be duly served in the forthcoming hearing in C.P. No.101(ND) of 2013 on 16th January, 2013).: Copy of Petition along with Annexures"On 16.01.2013, the CLB passed the following order:"Counsel for the Petitioner sought leave to withdraw the petition with liberty to file a fresh petition on a fresh cause of action.Leave granted.Petition is dismissed as withdrawn.This application was a composite application for dismissal of the petition both under section 8 of the Arbitration and Conciliation Act, 1996 and under Order VII, Rule 11 CO.A. (SB) 22/2013 Page 6 of 38 of the Code of Civil Procedure (CPC) read with Regulation 44 of the CLB Regulations.CO.A. (SB) 22/2013 Page 6 of 38CP No. 24(ND)/2013 was thereafter filed by the Jhankar group in February, 2013 under sections 397-398 of the Act alleging oppression and mis-management on the part of the Gurpartap Singh group, the appellants herein.That petition remains to be disposed of by the CLB as on date.These are all matters which require detailed consideration CO.A. (SB) 22/2013 Page 17 of 38 and have to be decided on the merits at the final hearing of the petition."CO.A. (SB) 22/2013 Page 17 of 38It appears to me, on a careful reading of the judgment of the Bombay High Court (supra), that the CLB cannot dismiss a petition under Section 397/ 398 of the Act as not maintainable, unless the petition raises issues which are absolutely unarguable or frivolous or in a case where the petition does not disclose the satisfaction of the basic requirements of these sections.In this light, I proceed to examine the question whether the CLB was justified in rejecting the company petition on the ground that it did not disclose any fresh cause of action within the meaning of Order VII Rule 11 of the CPC.Rejection of plaint.- The plaint shall be rejected in the following cases: -(c) Where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;CO.A. (SB) 22/2013 Page 18 of 38(d) Where the suit appears from the statement in the plaint to be barred by any law:"It is necessary to bear in mind the sequence of the events leading to the filing of the fresh petition.In the first petition filed by the appellants herein in Company Petition No.101(ND)/2012, several allegations were made and several acts were brought to the notice of the CLB which according to the petitioners constituted oppression and mis-management on the part of the respondents.On 16.01.2013 the CLB passed an order stating that the petitioner sought leave to withdraw Company Petition No.101(ND)/2012 with liberty to file a fresh petition on a fresh cause of action.Since the prayer was not opposed, leave was granted and the petition was dismissed as withdrawn.The matter was directed to be listed on 15.02.2013, on which date it was heard.(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;(c) compelling the production of documents or other material objects producible as evidence and impounding the same;(d) examining witnesses on oath;(e) granting adjournments;The CLB not only has to form such an opinion but shall further pass such order as it thinks fit with a view to bringing to an end the matters complained of.On this date the CO.A. (SB) 22/2013 Page 32 of 38 CLB passed an order for listing the petition filed by the respondents herein along with the fresh petition filed by the appellants before the CLB.However, the fresh petition filed by the appellants was dismissed, though the petition filed by the respondents was adjourned and is kept pending.When both the petitions were initially directed to be listed together for hearing it would have been just and equitable that the mutual allegations were examined and an opinion was formed as to whether the affairs of the company were being conducted in a manner prejudicial to public interest or oppressive to any member or members and it was eminently desirable that the CLB passed an order with a view to bringing to an end the matters complained of.Taking up both the petitions together for hearing would have given an opportunity to the CLB to see the points of view of both the sides in order to arrive at a just decision.If there were disputes which needed to be referred to arbitration, for the very same reason, it can also be said that there was a continuing cause of action on the basis of which the fresh petition may be entertained.I do not consider it necessary to examine this aspect of the matter despite the elaborate arguments advanced by both the sides on this issue.I have preferred to rest my decision on the assumption that there was no such suggestion by the CLB and that in withdrawing the earlier petition and filing the fresh petition, the petitioners (appellants herein) were acting on their own.CO.A. (SB) 22/2013 Page 36 of 38
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['Section 228 in The Indian Penal Code', 'Section 193 in The Indian Penal Code']
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Analyze the legal case and identify the corresponding section it comes under.
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1,412,790 |
The petitioner petitioned and complained to higher authorities but to no avail.The requisition dated 19.8.1992 received at 6.15 p.m. which reads as follows:vHkh rd dh tkap ij tks Jheku ,l- Mh- vksa- egks- }kjk yh xbZ gS! Ekrd ds laca/k es dksbZ Li"V dkj.k irk ugh py ik jgk gS! Iakpks dh jk; ls Hkh lgh dkj.k e`R;q dk tkuus ds fy, ih- ,e- djk ysuk mfpr crkus ij ih- ,e- QkeZ Hkj dj fuosnu gS fd e`Rkd dk ih- ,e- M+kDVjks dh cSp ls fdjk;s tkus dh d`ik dh tk;The following are findings of the panel of Doctors, highly qualified and experienced:On external examination of dead body of young aged about 28 years.Eyeballs were open, pupils dilated and fixed, conjunctive pale blood-stained fluid Coming out from both nostrils, fall pale, lips and tongue were pale, tongue was inside the oral cavity and nails were pale, skin pale.Rigor mortis was present.No external injury over genital organs.And sphincter was normal and not relaxed.JUDGMENT V.D. Gyani, J.The petitioner, an old man, past sixty, whose sons and son-in-law were allegedly carried away by Mhow police on the night of 15.8.1992 and later shown to have been arrested on 18.8.1992, in connection with an offence under Section 457, Indian Penal Code, registered at the Police Station, had moved the Court of A.C.J.M. for their release but in vain.It was on the 19th that he was asked by a senior Police Officer to see his son Anees in the Civil Hospital at Mhow.The petitioner rushed to the hospital, he was taken to the mortuary by Doctor in charge, only to find him lying dead with several injuries on his body.A call for 'Mhow Bandh' was given by public, accordingly Mhow was kept 'Bandh'.He has now approached this Court with the present petition praying for the following orders:The following injuries were found:(1) Transverse contusion reddish blue 4" x 3 1/2 on (1) arm middle part on anterolateral aspect on dissection no bony injury.(2) Abrasion circular on shafe 1 1/2 x 3/4" with formation on (L) forearm on anterolateral aspect in middle.(3) Transverse contusion 3" x 2 1/2 on anteromedian aspect mid of (L) leg.(4) Vertical abrasion 1" x 1/4" anterior aspect of upper 1/3rd of (L) leg.(5) Contusion 2" x 2" reddish blue on anterior aspect of (R) leg before knee.(6) Contusion 1" x 1/2 x on front of lower 1/3rd of (R) leg.(7) Contusion 3" x 2" on dorsum of mid of (R) foot reddish blue in colour.(8) Contusion 21/2" x 2" on dorsum of mid of (L) foot, reddish blue in colour.(9) Multiple reddish blue contusions on both buttocks.(10)Transverse contusions 6" x 3/4" on the back on sacral region, reddish blue in colour.(11)Contusion reddish blue in colour 8" x 3" on back of (L) thigh upper half.(12) Contusion reddish blue 4" x 2" on back of lower 1/3rd of (L) thigh.(13) Multiple contusions reddish blue on (L) scapular region.(14)Circular abrasion 1/4" x 1/4" on medial side of (R) wrisi.All above contusions on dissection the subcutaneous tissues of muscles were congested.No bony injury anywhere and no rupture of any major verse were noted.Note: All the injuries were ante-mortem, caused by hard and blunt object.Their opinion reproduced below:(1) In our opinion, no definite opinion can be given regarding the cause of death.However, viscera (pieces) have been presented sealed and handed over to the same police constable to be sent for chemical analysis.(2) Duration of death was between 18 to 24 hrs.at the time of performing postmortem examination.(a) Yellow shirt(b) Black full pant(c) Blue underwear(d) White baniyan All the four articles after examination in sealed packet, handed over to the same police constable.The Doctors at no point of time asked for the viscera report from the police nor have they, in their post-mortem/examination report, indicated that before giving any opinion they would await the viscera report from the chemical examiner.It was during the course of hearing of this petition, particularly, when the magisterial enquiry papers were placed before us, then we asked the Government Advocate to place the viscera report on record.On such report being placed on record by the G.A., the Doctors concerned were noticed.Accordingly, the appeared before this Court.The Doctors on 26.4.1993, submitted the following opinion in writing, which reads as follows:They are supposed to base their report on positive facts or lack of them.
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['Section 155 in The Indian Penal Code', 'Section 190 in The Indian Penal Code', 'Section 302 in The Indian Penal Code']
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Analyze the legal case and identify the corresponding section it comes under.
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14,128,315 |
Shri A.K. Rawat, learned counsel for the objector.Heard on this first bail application under Section 439 of the Code of Criminal Procedure filed on behalf of the applicants in connection with Crime No.156/2018 registered by Police Station Bijawar, District Chhatarpur for offence punishable under Sections 323, 324, 341, 326, 294, 506 and 34 of the Indian Penal Code.The allegation of the prosecution is that, on 17.07.2018 at about 10:00 am at Village Bilgae under the jurisdiction of Police Station Bijawar, District Chhatarpur near the house of complainant Ganesh Yadav an altercation ensued between the applicants and other co-accused persons with complainant Ganesh Yadav on the dispute of plucking the branch of a tree, applicant Ramavtar has assaulted complainant by means of an Axe and inflicted injury on the elbow of right hand.Co-accused persons have also assaulted him by means of lathis and stones.The family members of the complainant have also sustained injuries.On the report of complainant Ganesh Yadav offence under Sections 294, 323, 341, 506 and 34 of the Indian Penal Code have been registered against the applicants and co-accused persons.Later on, the injury on the right elbow of the complaint was found to be grievous and caused by sharp cutting weapon, therefore, Section 326 of IPC have been added in the crime.Learned counsel or the applicants has submitted that the applicants are innocent and have falsely been implicated in the crime.It is further submitted that there is no independent and Digitally signed by TAJAMMUL HUSSAIN KHAN Date: 31/10/2018 22:07:36 The High Court Of Madhya Pradesh MCRC-38882-2018 (RAMAVTAR AND ANO.THE STATE OF MADHYA PRADESH) 2 reliable evidence against the applicants.It is also submitted that the applicants are ready to furnish adequate surety and shall abide by all the directions and conditions which may be imposed upon them.It is also submitted that the applicants have been in custody since 13.09.2018; therefore, it has been prayed that the applicants be released on bail.Learned Panel Lawyer for the respondent/State on the other hand has opposed the application.On perusal of the case diary, it seems that applicant no.1 Ramavtar is the main accused, who inflicted injury to him by means of an Axe.The injuries sustained by the complainant are grievous in nature.The other co-accused persons have also yet to be arrested.However, keeping in view the facts and circumstances of the case in their entirety, particularly the fact as pointed out by the learned Panel Lawyer, looking to the allegation made against the applicant no.1 and the nature of injury sustained to the complainant, in the opinion of this Court, it is not a fit case to grant bail to the applicant no.1 Ramavtar.Consequently, this first application for bail under section 439 of the Code of Criminal Procedure, filed on behalf of applicant no.1 Ramavtar stands dismissed.So far as applicant no.2 Dharmendra is concerned, the allegation of pelting stones was made against him.Looking to the involvement of the applicant no.2 and the role assigned to him, in the opinion of this Court, the applicant no.2 Dharmendra deserves to be released on bail.Consequently, this first application for bail under section 439 of the Code of Criminal Procedure, filed on behalf of applicant no.2 Dharmendra, stands allowed.Digitally signed by TAJAMMUL HUSSAIN KHAN Date: 31/10/2018 22:07:36 The High Court Of Madhya Pradesh MCRC-38882-2018 (RAMAVTAR AND ANO.THE STATE OF MADHYA PRADESH) 3 It is directed that the applicant no.2 Dharmendra shall be released on bail on furnishing a personal bond in the sum of Rs.30,000/- with one solvent surety in the like amount to the satisfaction of the trial Court for his appearance before that Court on all dates fixed in the case and for complying with the conditions enumerated under Section 437 (3) of the Code of Criminal Procedure.Certified copy as per rules.(Mohd. Fahim Anwar) Judge taj.Digitally signed by TAJAMMUL HUSSAIN KHAN Date: 31/10/2018 22:07:36
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['Section 341 in The Indian Penal Code', 'Section 326 in The Indian Penal Code', 'Section 294 in The Indian Penal Code', 'Section 506 in The Indian Penal Code', 'Section 323 in The Indian Penal Code', 'Section 34 in The Indian Penal Code', 'Section 324 in The Indian Penal Code', 'Section 437 in The Indian Penal Code']
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Analyze the legal case and identify the corresponding section it comes under.
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1,412,833 |
Yamataru Maru marked "LB".According to the prosecution, accused No. 1 was interested in the goods imported under the consignments shipped both by s.s.JUDGMENT Naik, J.This application is directed against the order passed by the Presidency Magistrate, 26th Court, Mazagaon, Bombay, in Case No. 132/W of 3965 rejecting certain prayers made on behalf of the petitioners, who were accused Nos. 1 and 2 in that case.The manifest showed the four eases as containing Nylon Oriental Georgette.Accused No. 3 purported to import Nylon Georgette under the licence granted to him under Export Promotion Scheme.Accused No. 3 opened a letter of credit for the import of the said Nylon Georgette through the Indian Overseas* Bank Ltd., Bombay.M/s. Larmell Enterprises of which accused No. 1 is the proprietor and accused No. 2 the manager guaranteed the letter of credit.The guarantee was signed by accused No. 1, L.R. Melwani as the proprietor of M/s. Larmell Enterprises.The complainant has asserted that though the shippers of the said four consignments were shown as four different parties viz. (1) M/s. Y. Lilaram & Co. (Singapore) Ltd. (2) M/s. New Era Traders, (3) M/s. Meridian International Agency and (4) M/s. Traders Syndicate, they are one and the same persons and in fact they negotiated the import documents in respect of the four consignments, through the same letter of credit.M/s. P. Jamnadas & Co., who are the clearing agents, filed one bill of entry on December 16, 1959, in respect of one case.They purported to act as agents of M/s. Champaklal Ananthram.That case was examined on December 26, 1959, and found to contain Nylon Georgette as per the declaration.The bill of entry presented was in respect of item No. 423, On December 29, 1959, M/s. P. Jamnadas & Co., on behalf of M/s. Champaklal Ananthram filed three more bills of entry in respect of the remaining three consignments relating to items Nos. 424 to 426 of the Import General Manifest (hereinafter referred to as the manifest).The markings on these three cases were the same siz., VIP.The bills of entry, therefore, were returned to the representative of the said clearing agents viz., M/s. P. Jamnadas & Co. for further action.It is alleged that the accused on finding endorsements regarding duplication of marks on the said bills of entry realized that the same would lead the examining authorities to examine all the cases simultaneously and thus expose their fraud.Therefore, they did not process the said bills of entry further and kept back the same.Further enquiries revealed that the measurements of the three cases out of the said four cases bearing the same marks viz., VIP., were 22 c. ft.each as against the measurement of the fourth case, which was 7 ft. 10 inches c. ft.(This was the case which was already examined).It is the case for the prosecution that what was removed on December 23, 1959, was not the small case that was actually examined but one of the three bigger cases.By a letter dated January 26, 1960, M/s. Champaklal Ananthram were asked to have the cases examined under the three bills of entry.They, however, informed the Customs that apart from the case already examined under the bills of entry for item No. 423 (viz., the small case containing genuine goods) only one more case could be traced.On examination of the said case it was found to contain contraband goods viz., wrist watches, straps, motor car upholstery material, textile goods etc. of a very high value.The other two cases could not be traced at that time.It is alleged that on further enquiries the Customs learned that the said two cases were surreptitiously removed by the accused on or about January 2, 1960, as stated hereafter.Two more consignments were imported from Singapore per s.s.Yamataru Maru.M/s. Larmell Enterprises had an import licence for import of Nylon Georgette under the Export Promotion Scheme.They opened a letter of credit dated October 15, 1959, through the Indian Overseas Bank Ltd., for the import of Nylon Georgette quality 633 in favour of M/s. V. Lilaram & Co., Singapore.Accused No. 2 signed the application and the agreement for the opening of the said letter.These two consignments were manifested as items Nos. 150 and 152 of the manifest for Yamataru Maru.It is the case for the prosecution that one of the said two consignments contained contraband goods which were smuggled by resorting to duplication of marks.The bill of entry was presented in respect of only one of the two consignments which related to item No. 150 of the manifest in the first instance.It is only after the examination of the two cases in respect of the aforesaid bill of entry, the accused filed the bill of entry in respect of the second consignment relating to item No. 152 of the manifest.It is alleged that the accused while taking delivery of the consignment under the first bill of entry took cross delivery and removed the consignment of two cases, which were not the cases examined under the bill of entry for item No. 150 but the other consignment of two cases also bearing marks "LE" and containing contraband goods.It is alleged that there were only the marks "LE" in respect of these two' cases as declared in the bill of entry.There' were no additional words or marks beside "LE".The Customs Examiner, Dolas, examined the two cases bearing marks "LE".Accused No. 5 was the Shed Appraiser in charge of the Customs Examination Centre at Shed No. 2 of Alexandra Docks, where the said two cases bearing marks "LE" were examined.Ozarda and that on January 2, 1960, they did take delivery of the said two bigger cases containing the contraband and bearing marks 'V.I.P.' imported by s.s.Ozarda under the pretence that they were taking delivery of the two cases bearing marks "LE" imported by s.s, Yamataru Maru.It is alleged that as a matter of fact, the two eases bearing marks "LE" imported per s.s.Yamataru Maru were not taken delivery of at all and subsequently the marks "LE" on these two cases were fraudulently tampered with and altered to read "EE".It is the case for the complainant that the marks "LE" were tampered with and altered to read "EE" fraudulently by the conspirators with a view to avoid detection by the authorities that the two eases bearing marks "LE" had not been taken delivery of and instead the two bigger cases bearing marks "VIP" imported per s.s.Ozarda had been taken delivery of.It is alleged that the said two cases bearing marks "LE" imported per s.s.Yamataru Maru, which were subsequently altered by the aforesaid acts to read "EE" are still lying with the Bombay Port Trust authorities.As regards the firm M/s. Larmell Enterprises of which accused No. 1 is the proprietor, the Collector of Customs stated that although it was apparent that they had directly assisted the importers in their illegal activities and Were morally guilty, there was no conclusive evidence against them holding them as falling within the category of persons concerned in the act of unauthorised importation' they must escape penalty on the principle of benefit of doubt.The Collector, therefore, did not impose any penalty on accused No. 1, the proprietor of Larmell Enterprises.On behalf of accused No. 1 an application was made before the Presidency Magistrate, 26th Court, Mazagaon, Bombay asking for the following reliefs:(3) there had been inordinate delay in launching the prosecution.The prosecution, therefore, amounted to abuse of the process of the Court and the same should be quashed.(4) the copies of statements of various witnesses whom the prosecution intends to examine and also of the documents on which the prosecution proposes to rely including statements of the accused persons as well as notings, note sheets and reports of the Customs Officers made during the course of the investigation be supplied.In the alternative, it was prayed that summons be issued under Section 94, Criminal Procedure Code, directing the Collector of Customs or the Special Prosecutor to produce in the Court the aforesaid state- ments, documents, notings, note-sheets and reports of the Customs Officers before the commencement of the inquiry into the complaint.The trying Magistrate recorded findings against the petitioners on all the points and dismissed the petition.That is why accused Nos, 1 and 2 have now come up in revision asking for the same reliefs from this Court.The facts in Manipur Administration's case may be briefly stated as follows: There was an agitation by certain political parties and groups in Manipur in April T960 for establishing responsible Government in the Manipur area.The agitation took the form of picketing of Government offices and the residences of Government servants and blocking roads in order to paralyse the administration.After this form of agitation continued for some time, the District Magistrate of Manipur promulgated orders under Section 144, Criminal Procedure Code, on the morning of April 25, 1960, banning public meetings and processions and these orders were proclaimed and communicated to the public through loudspeakers.Not-withstanding this order, crowds continued to collect and move on the streets shouting slogans.Bira Singh-the respondent-was said to have been leading this mob.There was firing by the police which resulted in injuries to certain persons including some of the police personnel.The first information report in regard to the incident and the offences committed during its course was lodged at the Imphal Police Station at about 7 p.m. that day in which the informant specified the name of the respondentBira Singh as the leader of this mob.On this a ease was registered under as.114, 149, 332, 349 and 307, Indian Penal Code, and Section 7 of the Criminal Law Amendment Act. The charge-sheet stated that the respondent was in the crowd between 3 and 5 p.m. on that day, that the crowd was an unlawful assembly, that he was among those who pelted stones which caused grievous hurt to one person and simple hurt to others and also caused damage to the Inter State Police Wireless Station.It may be stated that there was a prior prosecution of Bira Singh.That prosecution was founded on a complaint against him filed on May 12, 1960, under Section 188, Indian Penal Code, in connection with his participation as a member of the same crowd in regard to which the charge which was the subject-matter of the present proceedings.In that complaint the District Magistrate alleged that the respondent had disobeyed the order passed under Section 144 by himself forming himself along with two thousand other persons into an unlawful assembly between the hours of 3 and 5 p.m. on April 25, 1960, by shouting slogans and pelting stones at police officers and this was stated to be on the road in front of the police Wireless Station.Bira Singh in his defence pleaded that he was not present at the scene of the occurrence at all and that he had been falsely implicated by the Police.Bira Singh went in appeal to the Sessions Court.The learned Sessions Judge allowed the appeal holding that the prosecution had not established that the respondent was present at the place and at the time where the occurrence took place at which he was said by the prosecution to have been present or that he disobeyed the order under Section 144, Criminal Procedure Code.was the same.He refused to supply copies of the statements of witnesses recorded in the said departmental enquiry.At the same time, he pointed out that accused No. 5 must have got copies of the same.
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['Section 120B in The Indian Penal Code', 'Section 228 in The Indian Penal Code']
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Analyze the legal case and identify the corresponding section it comes under.
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141,283,421 |
The applicant has filed this criminal revision under Section 397 / 401 of the Code of Criminal Procedure challenging the order dated 7th October, 2016 passed in S. T. No.4100963/2016 by learned First Additional Sessions Judge, Rewa, whereby the charges for the offence punishable under section 376 of the IPC and under section 5 / 6 of the Protection of Children from Sexual Offences Act, 2012 (in brief hereinafter referred to as the "POCSO Act") have been framed against the applicant.As per the prosecution case, on 18.4.2016 the prosecutrix made a written complaint to the Superintendent of Police, Rewa, against the applicant alleging that she performed love marriage with the applicant on 24.5.2009 and thereafter, they both have been living as husband and wife.On 13.4.2016 the applicant informed her that his parents are compelling him to do marriage with other woman and the marriage is proposed to be solemnized on 19.4.2016 and now, the applicant is denying her to be his wife.The applicant has challenged the aforesaid impugned order on the ground that if all the allegations are considered to be correct then also no offence is made out against the applicant.Learned lower court has wrongly come to the conclusion that on the day i.e. on 24.5.2009 the age of the prosecutrix was 17 years and as per the provision of Section 375 (6) of the IPC, if sexual intercourse is committed with a woman before completion of the age of 18 years even with her consent or will it would amount to offence of rape.The aforesaid finding is against the law prevailing at the time of incident as the provisions of IPC relating to definition of offence of rape has been amended w.e.f. 3.2.2013 by the Criminal Law (Amendment) Act No. 13 of 2013 and on 24.5.2009 unamended provision was in force and as per the version of the prosecutrix, on 24.5.2009 she was more than 16 years old and there is no doubt that it is a case of consent.Hence, on the basis of the fact that on 24.5.2009 the prosecutrix was below 18 years, no offence under section 376 of the IPC is made out.It will be profitable to quote sub- clause 6 of Section 375, as existed on 24.5.2009, which is as under :-Rape- A man is said to commit "rape" who except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following description:-On that date, the prosecutrix was more than 21 years old.In the present case, as per the allegation, the marriage has already taken place.Now, as per the allegation, the applicant intended to solemnize re-marriage with other woman and denying the status of the prosecutrix as his wife.Thus, the learned lower court has committed grave legal error and framed the aforesaid charges against the applicant which is unsustainable in the eyes of law.Hence, the impugned order be set- aside.Learned Panel Lawyer appearing for the State has supported the impugned order and prayed for rejection of the revision.Heard the rival contentions of learned counsel for both the parties.
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['Section 376 in The Indian Penal Code']
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Analyze the legal case and identify the corresponding section it comes under.
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111,346,380 |
Heard on I.A.No.3738/2018, an application moved under section sh 389 (1) of the Code of Criminal Procedure for suspension of sentence e and grant of bail on behalf of appellant Amit Verma.ad The appellant has been convicted for offences punishable under Pr section 11/12 of POCSO Act read with Sections 354-A(1) and (2) of IPC and sentenced to R.I. for 2 years and fine of Rs.500/- with default a hy stipulation.He has also been convicted under section 323 of IPC and sentenced to R.I. for 6 months and fine of Rs.500/- with default ad stipulation.M It is submitted by the learned counsel for appellant that the appellant remained on bail during trial and it is not alleged that he has of misused the liberty granted in this regard.It is further submitted that rt there is no chance of early hearing of this appeal and it will take a ou considerable time for final hearing, therefore, the appellant may be released on bail.C Learned counsel for the State has objected to the prayer.h Keeping in view the facts and circumstances of the case and the ig facts that the appellant has been convicted for maximum sentence of 2 H years, he remained on bail during trial and has not misused the liberty granted to him, without expressing any opinion on the merits of the matter, I find it to be a fit case for suspending the sentence and enlarging appellant on bail.Accordingly, the application is allowed and it is directed that the execution of jail sentence of appellant Amit Verma shall remain suspended and he be released on bail on his furnishing a personal bond in the sum of Rs.40,000/- (Rupees Forty Thousand) with one solvent surety in the like amount to the satisfaction of the trial court for his appearance before the Registry of this Court on 7.8.2018 and thereafter on such other dates as may be directed by the office.Certified copy as per rules.(ANURAG SHRIVASTAVA) JUDGE sh TG /-e Digitally signed by TRUPTI ad GUNJAL Date: 2018.03.16 17:06:42 +05'30' Pr a hy ad M of rt ou C h ig H
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['Section 323 in The Indian Penal Code']
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Analyze the legal case and identify the corresponding section it comes under.
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111,347,582 |
::: Uploaded on - 07/06/2016 ::: Downloaded on - 30/07/2016 00:53:34 :::Mr. S.P. Dharmadhikari, Sr.Adv.with Mr. C.H.Jaltare, Adv for appellant Mr. T.A. Mirza, A.P.P. for Respondent- State ............................................................................................................................APEAL.521.14+ 5The prosecution case in a nutshell is that, PW 1-Rajesh Ghongade, is serving in Police Department as a Constable.On 10.8.2011 between 10.30 and 10.45 a.m., Rajesh Ghongade(PW 1) and his brother Ganesh @Pinku Ghongade (deceased)were proceeding towards Jadumahal Chowk from Rajkamal Chowk on their respective motorcycles.Sumit Chintalwar (appellant/accd.no.1) and his associates who were 17 to 18 in numbers, were standing in Jadumahal Chowk armed with deadly weapons.When Rajesh (PW 1) and his brother-Pinku (deceased) reached Jadumahal Chowk, the appellant/accd.no.1 Sumit called the deceased by saying "Ye Pinku rook".On hearing this, Pinku (deceased) stopped his motorcycle.Rajesh (PW 1) also stopped his motorcycle at some distance.As soon as Pinku halted his motorcycle, Sumit and Nayan Chintalwar (absconding accused) and their associates apprehended and cordoned him.Pinku, therefore, tried to run away from that spot by leaving his motorcycle.However, the accused persons chased and caught hold of him and started assaulting him by means of small sword, knives, chopper, blade of spear and weapons like Farsha, due to which the deceased fell down in a pool of blood.Amar Lohkare (accused no.2) and Pravin Murarkar (accused no.11) assaulted Pinku by means of stones on his head.It is the case of the prosecution that by seeing such incident, Rajesh (PW 1) got frightened and fled away from ::: Uploaded on - 07/06/2016 ::: Downloaded on - 30/07/2016 00:53:34 ::: APEAL.521.14+ 6 the spot.The accused persons also left the said place on assaulting Pinku.At the relevant time, Police Inspector Prakash Bada (PW 11) was attached to Ajni Police Station.On receipt of the said information, an offence came to be registered.Police Inspector, Prakash Bada (PW 11) then proceeded to the place of the incident along with PSI Paradkar and other police staff.They noticed the deceased lying in a pool of blood and, at some distance, one Bullet motorcycle was also found lying on the ground.P.I. Bada (PW 11) seized two mobiles and big stones and bracelet of white metal as well as Bullet Motorcycle.Samples of plain earth, blood mixed earth and plain earth from the place of the incident were taken in the presence of two panchas.P.I. Bada recorded the spot panchnama (Exh.124).PSI Paradkar sealed all those articles.PI Bada thereafter sent the dead body of Pinku to Government Medical College and Hospital for post-mortem examination.He conducted the inquest panchnama in the mortuary in the presence of two panchas (Exh.193).P.I. Bada (PW 11) tried to get the information from the people about the incident.However, since the people were terrorised to the hilt, he could not get any information from them.PW 1-Rajesh had ::: Uploaded on - 07/06/2016 ::: Downloaded on - 30/07/2016 00:53:34 ::: APEAL.521.14+ 7 given the names of appellants as assailants of his brother, in the FIR.Accordingly, those persons were brought to the Police Station on the same day.They were, (1)Girish Wasnik, (2) Sachin Wasnik , (3) Vikas Gedam, (4) Vijay Kamble, (5) Sonu Thaware and (6) Sanjay Waghare.PI Bada along with ACP and DCP interrogated those persons.However on interrogation, they were allowed to go as they were not found to be involved in the alleged offence.P.I. Prakash Bada (PW 11) took charge of the clothes of the deceased vide Exh.127 in the presence of two panchas.On 12.08.2011 PI Bada received secret information that seven accused persons had gathered at Vanjarinagar Durgah.Therefore, he along with his staff went there and caught hold of them.They were brought to the Police Station and were arrested by the Police vide arrest panchnamas - Exhs.According to PW 1-Rajesh at the relevant time, he was serving as a Police Constable at Nagpur.He was required to attend his duty at 9.00 pm.His brother Pinku was at home.He told him that he had to attend the Court case and also to see their younger sister who is residing at Chandramani nagar.Therefore, he himself along with his brother Pinku (deceased) proceeded towards the house of their sister.They both were on their respective CBZ motorcycles.When they were proceeding towards the Jadumahal chowk from Rajkamal chowk at about 10.45 am., the accused/appellant no.1 Sumit Chintalwar called Pinku by saying "Ye Pinku rook".The appellant-Sumit was beside the road near ::: Uploaded on - 07/06/2016 ::: Downloaded on - 30/07/2016 00:53:34 ::: APEAL.521.14+ 14 Shraddha Apartment along with 22 to 25 associates.At that time, PW 1-Rajesh was riding his motorcycle side by side.On hearing the call of accused no.1, Pinku stopped his motorcycle.PW 1 had gone little ahead and stopped his motorcycle.As soon as Pinku stopped the motorcycle, appellant/accd.No.1- Sumit, Nayan Chintalwar (absconding accused) and their associates cordoned Pinku.Pinku tried to run away with his vehicle.However, Sumit, Nayan and their associates chased Pinku and caught hold of him.Then Sachin Wasnik dealt a sword blow, Girish Wasnik dealt a blow of Gupti, Sebastian (accused no.7) dealt a blow of chopper, Akshay Waghmare gave of blow of sword and Vikas Gedam also gave a sword blow to Pinku, Yogesh Bhagat, Vijay Kamble, Titya, Michal and Khuntya @ Wakadtondya had given blows to Pinku by means of spear stab and the weapon like Farsha, Nishant @ Gabbar (accused No.9) had also assaulted Pinku.Pinku fell down.Pravin Murarkar, Amar Lohkare (appellant/ accd.No.2) and one Sanjay Waghade assaulted Pinku by means of stones.According to PW 1-Rajesh, on seeing this, he got frightened and thought that the accused persons would also assault him, hence he fled away.After some time, he returned to the place of the incident.Police had reached at that place.The shop owners had closed their shops at the time of the incident.Ritesh Selokar (accused no.8) had also assaulted Pinku by means of fists and kicks.When PW 1 came to the spot he saw his brother was lying in the middle of the road in a pool of blood and was dead.His bracelet was lying beside him.His motorcycle was lying ::: Uploaded on - 07/06/2016 ::: Downloaded on - 30/07/2016 00:53:34 ::: APEAL.521.14+ 15 near Shraddha Apartment.PW 1 identified accused nos.1 to 4, 7, 9 to 11 before the Court.According to PW 1 his brother Pinku was looking after the business of running taxis of his maternal uncle.Bablu Sahare and Raju Kamble were also doing the same business.Due to the business rivalry, murders took place of Bablu Sahare and Raju Kamble and Pinku was one of the accused in the murders of Bablu and Raju.According to PW 1, Vikas Gedam is the cousin of Bablu Sahare and the accused persons are his friends therefore in order to take revenge of Bablu and Raju, the accused persons had committed the murder of his brother.PW 2 testified that he was knowing Pinku Ghongade (deceased) as well as Vicky Ghongade, as they used to visit his locality.He was also knowing Sumit Chintalwar (app/accd.According to PW 2, he was confused while identifying the app/accd.According to PW 2, on 10.8.2011 between 10.30 a.m. and 10.45 a.m, he was present at Jadumahal chowk.He had gone there to purchase kharra from panstall of one Guddu.At that time, Sumit(app/accd.No.1); Amar Lohkare (app/acc no.2); Nayan Chintalwar (absconding accused) and their associates were standing at Jadumahal Chowk.He saw Vicky Ghongade coming to Jadumahal from the side of Rajkamal Chowk on his CBZ Extreme.He was followed by his brother Pinku (deceased) on his bullet motorcycle.117).The accused Shrikant Ingole confessed that he had handed over the Pachpan Chaku to Sumit (app/acc.no.1).Likewise, the app/acc.no.2 Amar Lohkare made a voluntary statement that he had handed over Hattimar knife to Sumit Chintalwar (app/acc.no.1).Then the app/acc.no.1 Sumit showed his willingness to show the place where he had kept the bag containing one small sword, two Pachpan chaku and one Hattimar knife given by accused Shubham Fulzele, Shrikant Ingole and Amar Lohkare.The memorandum panchanama was drawn at Exh.So far as the alleged recovery of clothes of the app/acc.no.1 and app/acc.no.2 is concerned, the prosecution relied upon the testimony of PW 7 Inosh Pande.According to PW 7, on 13.8.2011 the police called him to the Police Station.The bloodstained clothes of the app/acc.no.1 Sumit from his person were seized in his presence.The clothes were black shirt (P-11) and black jeans pant (P-12).CRIMINAL APPEAL NO. 521/2014 WITH CRIMINAL APPEAL NO. 558/2014 WITH CRIMINAL APPEAL NO.133/2015 (1) CRIMINAL APPEAL NO. 521/2014 Amar s/o Ramesh Lohkare Aged 25 years, occu: student R/o Shesh Nagar Nagpur.Mr. R.K.Tiwari, Advocate for appellant Mr. T.A. Mirza, A.P.P. for Respondent- State ............................................................................................................................::: Uploaded on - 07/06/2016 ::: Downloaded on - 30/07/2016 00:53:34 :::Mr. Y.B. Mandpe, Advocate for appellant Mr. T.A. Mirza, A.P.P. for Respondent no.1- State Mr.C.R. Thakur, Adv.for Res.Nos.2,3,5,7,9,10 Mr.R.K.Tiwari, Adv.for Res.No.4 Mr. C.H.Jaltare, Adv.for Res.1. Being aggrieved by the judgment and order of conviction dated 24.9.2014 passed by the learned Additional Sessions Judge-6 Nagpur in S.T. No.612/2011 thereby convicting the appellant (ori.No.1-Sumit s/o Ramesh Chintalwar and appellant Amar @ Chhotu Ramesh Lohkare (ori. accd.No.2), under sections 147, 148, 302 read with Section 149 of the Indian Penal Code and u/s. 4/25 of Arms Act and sentencing them to undergo (i) R.I. for life and to pay a fine of Rs.2,000/- and, in default, to suffer R.I. for six months u/s. 302 r/ws. 149 of IPC; (ii) R.I. for six months and to pay a fine of Rs. 500/- and, in ::: Uploaded on - 07/06/2016 ::: Downloaded on - 30/07/2016 00:53:34 ::: APEAL.521.14+ 4 default, to suffer R.I. for six months u/s 147 of IPC and; (iii) R.I. for one year and to pay a fine of Rs. 750/- and, in default, to suffer R.I.for two months, under section 148 of IPC and (iv) R.I. for one year and to pay a fine of Rs. 500/- and, in default, to suffer R.I. for two months, u/s.::: Uploaded on - 07/06/2016 ::: Downloaded on - 30/07/2016 00:53:34 :::Similarly, the appellant/mother of deceased-Smt.Shantabai w/o Maroti Ghongade has preferred an Appeal bearing Criminal Appeal No.133/2015, being aggrieved by the judgment and order of acquittal passed against the respondent nos. 2 to 4 in S.T. No.612/2011 and in Sessions Trial No.147/2012 between the State of Maharashtra and respondent no.5 and in Sessions Trial No.148/2012 between the State of Maharashtra and respondent no.6 and in Sessions Trial No.580/2012 between State of Maharashtra and respondent no.7 and in Sessions Trial No.75/2012 between State of Maharashtra and respondent nos.8 and 9, whereby the learned Additional Sessions Judge acquitted all the respondents and convicted the ori/accd.nos. 1 and 2 in Sessions Trial No. 612/2011 dated 24.9.2014 thereby acquitting the respondents for the offence punishable u/s 302 r/ws. 149, 147, 148, 120-B r/ws. 4/25 of the Arms Act.::: Uploaded on - 07/06/2016 ::: Downloaded on - 30/07/2016 00:53:34 :::PW 1-Rajesh then proceeded to the Police Station and lodged the complaint against the accused persons (Exh. 112).::: Uploaded on - 07/06/2016 ::: Downloaded on - 30/07/2016 00:53:34 :::::: Uploaded on - 07/06/2016 ::: Downloaded on - 30/07/2016 00:53:34 :::One of the accused out of seven persons, namely, Chetan Meshram was a juvenile and, as such, he was not kept in the police lock up.PI Bada then produced before the Court six accused (1) Sumit Chintalwar (2) Amar Lohkare (3) Amar Dharmare (4) Shrikant Ingole (5) Pravin Kalindi and (6) Shubham Fulzele.On 15.08.2011, accused-Shubham Fulzele made a voluntary statement that he had handed over the pachpan knives to ::: Uploaded on - 07/06/2016 ::: Downloaded on - 30/07/2016 00:53:34 ::: APEAL.521.14+ 8 Sumit Chintalwar and, accordingly, P.I. Bada prepared the memoradum panchnama (Exh.117).On the same day, the appellant/accd.no.2-Amar Lohkare made a confessional statement and stated that he had handed over the Hattimar knife allegedly used in the offence to app/accd.-::: Uploaded on - 07/06/2016 ::: Downloaded on - 30/07/2016 00:53:34 :::Sumeet Chintalwar.The memorandum panchnama was accordingly prepared (Exh.114).On the same day, the app/accd.Sumit Chintalwar made a voluntary statement and showed his willingness to point out the place where he had kept one sword (art.P-3), 2 Pachpan knives ( art.P-5 and P-6 respectively) and one big Hattimar knife (art. P-4), in a bag which was kept in Bamboo bushes in the premises of Medical College and Hospital compound.During the course of investigation, P.I. Bada (PW11) recorded the statements of various persons.On 16.8.2011 P.I.LMJ Medical College examined those weapons and issued its report (Exh.192).Those sealed ::: Uploaded on - 07/06/2016 ::: Downloaded on - 30/07/2016 00:53:34 ::: APEAL.521.14+ 9 weapons were deposited in Malkhana.On 20.10.2011 P.I. Bada sent all those weapons to R.F.S.L. vide requisition letter No. 219 for chemical analysis (C.A. Report-Exh.89 to 102).::: Uploaded on - 07/06/2016 ::: Downloaded on - 30/07/2016 00:53:34 :::After completion of investigation, P.I. Bada submitted the charge-sheet against six accused persons before the learned JMFC; three accused Lalit, Nitin and Yogesh were shown as absconding.After filing the charge-sheet against six accused (1) Lalit Thakre, (2) Pravin Murarkar (3) Nishant Sahare (4) Ritesh Selokar (5) Sebastian Anthony were arrested subsequently and a separate charge sheet has been filed against them.In due course, the case was committed to the Court of Sessions.The charge was framed by the learned Addl.Sessions Judge Nagpur.The accused pleaded not guilty to the charges levelled against them and claimed to be tried.The defence was of total denial and false implication.After going through the evidence adduced, the learned Addl.Hence, these Appeals preferred by the appellants against the conviction and sentence.At the same time as the other appellants were acquitted by the learned Addl.::: Uploaded on - 07/06/2016 ::: Downloaded on - 30/07/2016 00:53:34 :::APEAL.521.14+ 10Shri S.P.Dharmadhikari, learned senior counsel with C.H.Jaltare in Criminal Appeal No.558/2014 for the appellant vehemently argued that the case set up by the prosecution is false and fabricated and the facts put forth by the prosecution clearly lead to the inference that there was no involvement of the appellant/accused whatsoever.According to him, the alleged eyewitness, who is the brother of the appellant PW 1-Rajesh is a brought up witness, for the simple reason that although he served in Police Department, he did not take pains to report the matter to the police immediately and allegedly fled away from the place of incident, leaving behind his victim brother to be assaulted by the accused, which is the most unnatural conduct on his part.half hours in lodging of the FIR.Similarly, the alleged eye witness PW 1-Rajesh also appears to be a got up witness as his statement is recorded by the police five days after the incident.Moreover, the recovery of weapons allegedly at the instance of the appellant/accd is not at all reliable as it is from the open space in the compound of the Medical College and Hospital.Mr. R.K.Tiwari, learned counsel for the appellant in Cri.Appeal No. 521/2014 adopted the arguments of Mr. S.P.::: Uploaded on - 07/06/2016 ::: Downloaded on - 30/07/2016 00:53:34 :::APEAL.521.14+ 11 Dharmadhikari.On the point of naming the six persons in the FIR, learned APP contended that PW1-Rajesh must have named them being associates of appellant /accd.However, this fact itself would not falsify his entire evidence and his version cannot be disbelieved.Mr. Y.B.Mandpe, learned counsel for the appellant -Smt.Shantabai Ghongade in Criminal Appeal No.133/2015 has adopted the arguments of learned A.P.P.It is well-settled by now that the First Information Report is not a substantive piece of evidence but it can be only used to corroborate and contradict the version of the first informant.Being a vital piece of evidence, it is expected from the informant to lodge the report immediately after the commission of an offence without any delay.The delay no doubt can be explained.However, the inordinate delay without any satisfactory explanation is certainly fatal to the prosecution case.It is also well-settled that reliance can be placed on the solitary testimony of the eye witness, ::: Uploaded on - 07/06/2016 ::: Downloaded on - 30/07/2016 00:53:34 ::: APEAL.521.14+ 12 provided it stands test of rigorous cross-examination and found to be cogent, reliable and trustworthy.::: Uploaded on - 07/06/2016 ::: Downloaded on - 30/07/2016 00:53:34 :::Thus, in the light of these guiding principles, we have carefully scrutinized the evidence before the court.::: Uploaded on - 07/06/2016 ::: Downloaded on - 30/07/2016 00:53:34 :::APEAL.521.14+ 13We have carefully examined the contentions advanced by both the sides.After hearing them and giving anxious consideration to the facts and circumstances of the case, the judgment delivered by the learned Addl.Sessions Judge and considering the evidence on record, for the reasons stated below, we are of the opinion that the appellant/ori.acc.nos.1 and 2 are not the perpetrators of the alleged crime.It is not seriously disputed by the defence that the deceased Pinku died an homicidal death.P.M. report (Exh.182) reveals as many as 42 injuries on the dead body of deceased-Pinku.The cause of death is shock and haemorrhage due to multiple chop wounds and stab wounds.The prosecution case mainly rests on direct evidence of the alleged eye witnesses PW 1-Rajesh Ghongade and PW 2-Vivek Masarkar.The prosecution mainly relies upon the evidence of PW 1-Rajesh.::: Uploaded on - 07/06/2016 ::: Downloaded on - 30/07/2016 00:53:34 :::PW 1-Rajesh proceeded to Ajni Police Station and lodged his complaint (Exh.11).He also identified the weapon (P-3) sword used by appellant/accused no.1 Sumit Chintalwar and the other weapons.::: Uploaded on - 07/06/2016 ::: Downloaded on - 30/07/2016 00:53:34 :::On careful scrutiny of the testimony of PW 1- Rajesh and the FIR Exh.112, it is noticed that the alleged incident had taken place in the broad daylight at about 10.45 am, whereas the incident was reported to the police at at 1.30 p.m. It is noticed that the Ajni Police Station was at a distance of about 1 km. from the place of the incident.However, the complainant PW 1-Rajesh did not rush to the Police Station and lodge his complaint.On the contrary, he fled away from the spot leaving his brother at the hands of assailants.Similarly, PW 1 Rajesh did not even try to give a phone call to the Police Station in respect of the alleged incident, although he ::: Uploaded on - 07/06/2016 ::: Downloaded on - 30/07/2016 00:53:34 ::: APEAL.521.14+ 16 was serving in the Police Station as a police constable.PW1-Rajesh also failed to contact his sister serving in Police Department and staying just ½ k.m.from the place of the incident.PW 1-Rajesh even failed to seek help from the police, immediately after the incident, till he again reached to the spot.This conduct of PW-1 Rajesh appears to be most unnatural one and creates serious doubt about his presence at the place of the incident.Under normal circumstances, if at all PW 1 had witnessed the incident, he being a person from the Police Department, he would have immediately tried to rescue his brother or even if frightened, he would have sought assistance from the police or his sister or from the public, to save his brother.However PW 1-Rajesh failed to do so.The lodging of the FIR after the gap of about two-and-a-half hours is certainly fatal to the prosecution case and creates a serious doubt about the presence of PW 1-Rajesh at the place of the incident.::: Uploaded on - 07/06/2016 ::: Downloaded on - 30/07/2016 00:53:34 :::Thus,PW 1-Rajesh is not found to be a trustworthy and reliable witness and, as such, his testimony cannot be relied upon.The prosecution further placed reliance upon the testimony of Vivek Masarkar (PW 2).No.1) and Amar Lohkare (app/accd.No.2).Although PW 2 said that he was knowing app/accd.No.1 Sumit, however,he pointed out his finger towards accused Lalit Thakre.He however rectified his mistake and thereafter identified the app/acc.no.1 ::: Uploaded on - 07/06/2016 ::: Downloaded on - 30/07/2016 00:53:34 ::: APEAL.521.14+ 17 Sumit before the Court.Sumit called Vicky Ghongade, therefore he stopped on the road.Pinku also stopped his motorcycle on the road.Sumit Chintalwar and his associates were taking with Vicky.Suddenly, Sumit Chintalwar took out a small sword and assaulted Pinku.Therefore Pinku left his motorcycle and started running away.Sumit, Amar, Nayan and their associates who were 10 to 15 in numbers chased Pinku.They caught hold of him in front of Anjali Medical Stores and started assaulting Pinku with knives of different size, stones and other weapons.Due to the said assault, the shop owners closed their shops and went away.Pinku fell down on the spot.Thereafter the accused persons also fled away.According to PW 2, he was frightened due to the incident and therefore he went to his home and narrated the incident to his mother, who warned him not to venture outside the house and disclose the incident to anybody.On 15.8.2011 the police came to his house made enquiry with him about the incident and recorded ::: Uploaded on - 07/06/2016 ::: Downloaded on - 30/07/2016 00:53:34 ::: APEAL.521.14+ 18 his statement.::: Uploaded on - 07/06/2016 ::: Downloaded on - 30/07/2016 00:53:34 :::::: Uploaded on - 07/06/2016 ::: Downloaded on - 30/07/2016 00:53:34 :::The testimony of PW 2 is indicative of the fact that he had not taken any pains to disclose the incident either to the police or any one in the vicinity.According to him, he disclosed the incident to his mother, however, his mother advised him not to tell the incident to anybody and therefore PW 2 kept mum for five days.When the police visited his house, at that time only, he disclosed the incident to the police and his statement came to be recorded.The entire version of PW 2 is undigestable and unbelievable.Interestingly, the mother of PW 2 has not been examined by the prosecution.Therefore it is difficult to accept that PW 2 narrated the episode of assault to his mother.Even the prosecution failed to examine Guddu who was allegedly at the pan kiosk at the time of the incident.PW 2 fairly admitted in his cross-examination that he had not stated before the Police that he had narrated the incident to his mother who had warned him not to go out of the house and not to tell the incident to anybody.The said version of PW 2 goes to the root of the case and makes his entire testimony doubtful.As such, PW 2 is not found to be a trustworthy and reliable witness.As regards the recovery of weapons, it is well-settled that under section 27 of the Evidence Act, the part of information which is exculpatory in nature, is not to be considered.However only such part of the information which is distinctly related to the discovery of the place where the weapons are allegedly concealed would be admissible.In this regard, ::: Uploaded on - 07/06/2016 ::: Downloaded on - 30/07/2016 00:53:34 ::: APEAL.521.14+ 19 the prosecution has examined panch witness PW 3-Rahul Tamgadge.::: Uploaded on - 07/06/2016 ::: Downloaded on - 30/07/2016 00:53:34 :::According to PW 3, Shubham Fulzele made a voluntary statement 15.8.2011 that he had handed over the knives (Pachpan chaku) to Sumit (app/accd.No.1).Accordingly, memorandum panchnama was drawn (Exh.According to PW 3, the app/accd.No.1-Sumit took out an ash colour bag from the bushes which was containing four weapons.Those weapons were sword (art.P-3) Hattimar knife(art. P-4), Pachpan knives (art.P-5 ad P6) respectively.Pertinently, the alleged seizure was from behind the bushes which were in the Medical College and Hospital compound.The said place was accessible to the patients and public at large.We do not find any ::: Uploaded on - 07/06/2016 ::: Downloaded on - 30/07/2016 00:53:34 ::: APEAL.521.14+ 20 concealment of such weapons.The said open space must be one cleaned by the sweepers of the Medical College and Hospital, so also said hospital is under the control of the Security Guards.In these circumstances, it is difficult to digest that for five days after the alleged incident, the weapons were lying in the open space without anybody's attention.The alleged concealment of the weapons does not appear to be within the distinct exclusive knowledge of the accused.::: Uploaded on - 07/06/2016 ::: Downloaded on - 30/07/2016 00:53:34 :::The police prepared the seizure Panchnama (Exh. 157).According to PW 7 on the same day, the police took charge of the clothes of app/acc.no.2 Amar Lohkare.PW 7 however failed to recollect those clothes.The police prepared the seizure panchnama (Exh.158).On careful scrutiny of the testimony fo PW 7 and the panchnamas, it did not appeal to our mind that the bloodstained clothes were taken charge three days after the incident from the person of app/acc.nos.1 and 2 and the accused persons were wandering in the town with those alleged bloodstained clothes.The alleged recovery of the clothes ::: Uploaded on - 07/06/2016 ::: Downloaded on - 30/07/2016 00:53:34 ::: APEAL.521.14+ 21 does not appear to be convincing and appears to be doubtful.Thus, no reliance can be placed on the recovery of clothes of app/accd.::: Uploaded on - 07/06/2016 ::: Downloaded on - 30/07/2016 00:53:34 :::P.I. Bada has conducted the investigation as discussed above in the prosecution case.Coming to the First Information Report, according to PW 11, Ajni Police Station has received information about the incident at about 11.05 am.It was given by one person.The said information was received by the Duty Officer.PW 11 admitted that such a serious information was required to be entered into the Station Diary.However according to him, the name of the informant of such information was not entered anywhere.He further stated that he has not verified the Station Diary and there is no document to show as to what was the nature of the said information.The said version of PW 11 clearly indicates that PW 11 has failed to verify whether any such entry in respect of the cognizable offence was taken in the Station Diary.At the same time, the concerned Duty Officer failed to make any such entry in the Station diary about the alleged cognizable offence and the name of the assailants.Even the name of the informant has not been entered anywhere in the Station Diary, which is supposed to be maintained by the Police Station.In this context, it may be recollected that according to the complainant, the alleged incident had taken place at about 11.45 a.m; whereas he has reported the said incident to the Police at 1.35 p.m, nearly two and a half hours after the alleged incident.::: Uploaded on - 07/06/2016 ::: Downloaded on - 30/07/2016 00:53:34 :::APEAL.521.14+ 22 PW 11 prepared the Spot panchnama.However he specifically stated that the brother of the deceased namely Rajesh Ghongade (PW 1) did not meet him at the place of the incident.According to him, there was tense atmosphere at the place of the incident and, therefore, people were not coming forward to give any information about the incident.PW 11 however admitted that he had not taken entry in the Station Diary regarding the said fact.PW 11 also admitted that the seized articles are to be deposited in the Malkhana immediately.PW 11 even failed to file document on record to show as to where the seized properties were kept till the date of their deposit in the Malkhana.PW 11 admitted that the Rajesh (PW 1) had specifically named (1) Sachin Wasnik (2) Girish Wasnik (3) Akshay Waghmare (4) Yogesh Bhagat (5) Vijay Kamble (6) Sonu Thavare (7) Sanjay Waghade (8) Vikas Gedam, in his report.However, according to PW 11 they could not have been possibly present at the place of the incident, at the time of its occurrence.The said version of PW 11 indicates that PW 11 has not conducted fair investigation.The investigation appears to be shoddy in nature.As far as the C.A. Report (Exh.90) is concerned, it indicates the blood of deceased as of 'B' Group on the clothes of the app/accd.No.1 as well as appellant no.2, however, in view of the fact that the recovery of the clothes of appellant/accd.No.1 and 2 is doubtful, the C.A. report which is a ::: Uploaded on - 07/06/2016 ::: Downloaded on - 30/07/2016 00:53:34 ::: APEAL.521.14+ 23 corroborative piece of evidence and not a substantive one, is of no assistance to the prosecution case.::: Uploaded on - 07/06/2016 ::: Downloaded on - 30/07/2016 00:53:34 :::Furthermore, there is an inordinate delay in lodging the FIR which is not explained satisfactorily, although the first informant is in the service of Police Department.Pertinently, the investigating agency failed to take the Station Diary entry in respect of the incident although, according to PW 11, the duty Officer at Ajni police Station had received the information about the incident at 11.0.5 a.m. given by one person.The said information was not entered into the register and PW 11 even failed to verify the Station Diary.::: Uploaded on - 07/06/2016 ::: Downloaded on - 30/07/2016 00:53:34 :::APEAL.521.14+ 24Thus, there is a delay in lodging of the F.I.R. The alleged eye witnesses are not found to be trustworthy.The recovery of articles is doubtful.On careful scrutiny of the entire evidence on record against all the accused persons, it is noticed that there is no iota of convincing evidence on record against any one of the accused.The prosecution has miserably failed to prove the charges levelled against them.Hence the following order :-ORDER Criminal Appeal Nos. 521 of 2014 and 558 of 2014 filed by accused/appellants-Amar s/o Ramesh Lohkare and Sumit Ramesh Chintalwar respectively are allowed.Criminal Appeal No.133 of 2015 filed by Smt.::: Uploaded on - 07/06/2016 ::: Downloaded on - 30/07/2016 00:53:34 :::
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['Section 148 in The Indian Penal Code', 'Section 149 in The Indian Penal Code']
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Analyze the legal case and identify the corresponding section it comes under.
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1,113,477 |
2. Prosecution case in brief needs narration P.W. 2 Akkal Naicker is the owner of a match factory sitauted in Perianaickenpatti village.The match works was being run under the name and style 'Tamil Nadu Match Works'.Ex. P. 2 is the xerox copy of the said licence.At the time of receiving the licence in 1959, P.W. 2 had executed a bond for Rs. 500/- apart from taking a National Savings Certificate for Rs. 50/-.He knew the appellant.P.W. 2 became aware from traders similarly placed like him, that he may have to execute q bond for Rs. 2,000/- due to change in rules and regulations.On 25-1-1983, P.W. 2 handed over an application to the appellant, seeking permission to use the label with inscription 'Nandi' on the matches manufactured in his factory.Appellant, on receipt of the application, appears to have acceded to the request made by P.W. 2, and Ex. P. 3, the photostat copy produced by the prosecution, substantiates granting of such permission.It was at that time, appellant had allegedly informed P.W. 2 that he will have to execute a bond for Rs. 2,000/- and the bond executed earlier by him for a lesser sum may not suffice.Appellant also allegedly directed P.W. 2 to prepare the bond and bring it to him.Approximately three months thereafter on 12-4-1983, P.W. 2 went over to the appellant over again and handed over a petition, informing him that work had to be suspended in his factory, since some repairs were being carried out.Ex. P. 4 is the letter handed over by P.W. 2 to the appellant.This document shows receipt by the appellant, in view of the initials put therein by the appellant.It is the case of P.W. 2 that even on this occasion, appellant reminded him about the execution of the bond for a greater value.P.W. 8 also directed P.W. 2 to meet the appellant on that date.Accordingly, between 11 a.m. and 12 noon, P.W. 2 met the appellant at his office.Appellant directed P.W. 2 to produce the bond, with a copy, on the next evening and further demanded payment of Rs. 50/-, as bribe to him.It is also the case of P.W. 2 that the appellant then told him, that he would sign the bond only in the event of payment of Rs. 50/-, for otherwise, he would keep the matter pending.Appellant had also instructed P.W. 2 to have the matter typed in stamp papers valued at Rs. 31/-.Since, P.W. 2 was averse to payment of bribe, he complained to the Sivakasi Police Station orally.He was informed by the local police that they had no power to take action and hence directed him to P.W. 6 Subbiah Deputy Superintendent of Police, Vigilance and Anti Corruption, whose office was situated at Madurai.In his turn, P.W. 6 informed P.W. 2 that he too did not have jurisdiction, since the offence complained of related to an officer of Central Government.However, he introduced to P.W. 2, P.W. 9 Krishnan, Deputy Superintendent, C.B.I., Madras, who was then available at Madurai, in connection with an enquiry, in a crime registered by his Bureau.P.W. 9 escorted P.W. 2 to a lodge, where he was halting at Madurai.Thereafter, P.W. 9 instructed P.W. 2 to be present at Sivakasi Bus stand at 12 noon on the next day with Rs. 50/- to be handed over to the appellant, in the event of a demand being made.P.W. 2 was also directed to have a witness along with him.As advised by P.W. 9, on the next day at noon, P.W. 2 was present at the bus stand, Sivakasi, along with Ramaswamy Naicker of his village (not examined).On the same day, P.W. 2 had the bond Ex. P. 7 typed, with a copy Ex. P.S. P.W. 9 arrived at Sivakasi at 2 p.m. on 4-5-1983 and on the basis of pre arrangement, P.W. 2 was escorted to Nadar Lodge.Where in the presence of P.W. 3 Venkatarama, a Postal Inspector and another, P.W. 9 demonstrated the procedure to be followed in handing over of the phenolphthalein powdered notes to the appellant, in the event of demand.P.W. 2 and the other witnesses present were made aware of the Chemical reaction that would set in due to smearing of the currency produced by P.W. 2 (3 ten rupee notes and 4 five rupee notes - M.Os. 2 to series) with phenolphthalein.On the directions of P.W. 9, P.W. 3 and P.W. 2 went over to the office of the appellant, which they reached at 3.10 p.m. Appellant was in his office room P.W. 2 handed over Exs.P.W. 3 and another affixed their signatures as witnesses in that document.Then the appellant asked for money, which promptly P.W. 2 handed over by removing it from his shirt pocket.Appellant allegedly received it in his right hand and tucked it down under a file, which was lying on the left side, apparently on his table.P.W. 2 came out and gave the pre arranged signal to P.W. 9, by tying his towel on his hand.P.W. 9 was quick enough in reaching the office of the appellant.He directed P.W. 2 to remain outside for sometime.P.W. 9 after introducing himself to the appellant, enquired of him if it was true that he had received Rs. 50/- as bribe.Appellant was shocked and expressed regret for that incident.Thereafter, sodium carbonate solution was prepared in a glass tumbler, which was initially colourless.P.W. 9 asked the appellant to dip his fingers, in that solution.Appellant refused to do so initially.P.W. 9 persuaded him to dip his fingers, since Officers of Postal Department were present and it will be erroneous on his part not to accede to his command.Appellant is alleged to have half heartedly dipped his fingers (right hand) in that solution, resulting in the liquid turning pink in colour, P.W. 9 asked the appellant to produce the money.Appellant remained silent.P.W. 9 directed the appellant to retrieve the money and give it to him.Appellant did not do so.Hence, P.W. 9 himself took away M.Os.2 to 8 series from underneath the file and prepared mahazar.Ex. P. 11 for such seizure.The numbers of notes (M.Os. 2 to 8 series) tallied with the numbers mentioned in the initial entrustment mahazar, Ex. P. 10, M.O. 9 is the bottle, which contains the sodium carbonate solution, pink in colour.Appellant had in his pocket his own money of Rs. 35/-.House search of the appellant did not reveal anything incriminating.In C.C. No. 5/83 on the file of the First Additional Sessions Judge (Special Judge), Madurai, appellant Ramanathan, who was then a Superintendent in the Office of Central Excise (D Range) at Sivakasi, was convicted under Section 161 I.P.C. as well as under Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act and sentenced to undergo rigorous imprisonment for six months for the former offence and one year rigorous imprisonment for the latter offence, with an added fine of Rs. 500/-, in default to suffer rigorous imprisonment for three more months.Substantive sentences of imprisonment were directed to run concurrently.During the course of the investigation, P.W. 9 obtained from the concerned authority, Es.P. 1 sanction to prosecute the appellant.After completion of investigation, final report was laid before the Special Court.During the course of trial, apart from examining P.Ws. 1 to 10, the prosecution brought on record Exs.The nature of those documents already form part of the narration of facts.Appellant was examined under Section 313 of the Code of Criminal Procedure, to explain the incriminating circumstances appearing against him in evidence.While choosing to deny his complicity in the crime, he stated, that P.W. 2 and his son Venkataswamy had falsely involved him, in this crime, due to previous enmity.According to the appellant, he had taken action against Venkataswamy, son of P.W. 2, for violation of the provisions of the Excise Rules, in or about 1981, resulting in Venkataswamy approaching the Court for anticipatory bail, which was however cancelled to a later point of time, due to non abiding of conditions imposed.Ultimately, departmental action also was taken against Venkataswamy and during the latter part of 1982 penalty was imposed.To substantiate his case, appellant examined himself as D.W. 1 and brought on record Exs.Learned trial Judge, on assessment of the oral and documentary evidence placed before him, chose to accept the prosecution case while rejecting the defence and dealt with the appellant as stated earlier.Mr. S. Govindswaminathan, learned Senior counsel appearing on behalf of the appellant, contended, that the evidence of P.Ws. 2 and 3 cannot be accepted on any reasonable standard, that P.W. 2 was inimical towards the appellant, was a matter of record.He pointed out, that P.W. 3 was a witness of very poor moral fibre and his version could not have been accepted, by the learned trial Judge.He also submitted, that P.W. 9, the investigating Officer, had wrongly claimed, that his enquiries, revealed that the information, about the appellant was correct, for admittedly there was no complaint at any point of time or any proceeding taken against the appellant during his service, except the instant prosecution.He also submitted, that on mere recovery of M.Os.2 to 8 series, a conviction cannot be founded, more so, when the entire evidence brought on record looked so artificial and incredible.On these contentions, I have heard Mr. N. Ranganathan, learned Advocate representing Mr. P. Rajamanickam, learned Senior counsel on record for the respondent.He submitted that, it will be for this court, to appreciate the credibility that could be attached to the versions of P.Ws. 2 and 3 on the basis of infirmities pointed out by learned Senior defence counsel.However, he was at pains to submit, that as far as the trap proper is concerned, the evidence of P.W. 9 was available, which had assurance lent to it, by the evidence of P.Ws. 2 and 3 and it will not be impossible in law, to convict the appellant, if the court was prepared to unhesitatingly accept the evidence of the Investigating officer.Counsel on either side have relied upon certain decided cases, which I will refer to at the appropriate stage.I have audited the merits of the rival contentions, on the foundation of the evidence adduced.At the relevant time, he was also aged about 85 years and naturally a businessman with ripe experience.That P.W. 2 with all his experience, would always have matters verified, before acting either way, has also been brought in evidence, in that he had enquired proprietors of certain match factories before deciding to execute a bond for Rs. 2000/- as directed by the appellant.It has not been disputed by the appellant, that P.W. 2 had been permitted to use the label "Nandi", but it is certainly only after verification, as is clear from the endorsement made on Ex.It is not as though P.W. 2 had just handed over an application on 25-4-1983 (Ex. P. 3), and obtained instantaneous orders, from the appellant.That P.W. 2 was well aware about the procedure to be followed is also evident from the letter Ex. P. 4 presented to the appellant., bringing to his notice, that work stood suspected in his factory.In other words, P.W. 2 was anxious to inform the authorities concerned, that he cannot be made liable for excise duty and other commitments, so long as work stood suspended in his factory.It can easily be held, that P.W. 2 is an experienced and dexterous trader, knowing clearly the procedure, that had to be followed, for conducting his business, without any problem.It is rather amazing that P.W. 2 claims lack of knowledge about seizure of counter feit band rolls from the factory of his son, in spite of such factory being situated just two hundred yards away from his factory.Apart from it, it has been admitted by P.W. 2, that only a common wall separates his factory and the residence of his son.It was specifically suggested, that the seizure from Kannan Match Factory belonging to his son, found to be counterfeit band rolls, by the Nazik Export.Equally his presumed lack of awareness, about his daughter in law having complained to the superior Officer, about Central Excise Officials visiting her house often and causing nuisance, at about the time when her husband was taken to task, by the officials, for violation of Central Excise Law, cannot easily be swallowed.May be in cases of rustic villagers, who do not attach importance to every minor detail, a certain amount of loeway can be given while appreciating their evidence, but we have in the witness box, a person or capacity, experience and necessarily it an intelligent person.It will be odd to hold him, as a witness of truth, in spite of his choosing to deny knowledge about important events in the factory of his son, not general in nature, but connected with the local Central Excise Office, and more particularly, when the appellant was responsible for initiating action against his son Venkataswamy.Without fear, of divergence, it can easily be held that P.W. 2 is certainly motivated witness and there was no love last between the appellant and him.Equally, the appellant must have been aware, that he was dealing with P.W. 2, the father of Venkataswamy, whom he had prosecuted earlier, and in that background, it certainly appears odd that he had allegedly demanded Rs. 50/- as bribe from such a person like P.W. 2 for affixing the signature in a bond to be executed.Let us test the evidence of P.W. 2 from yet another angle.P.W. 2 had known the appellant for a long long period.P.W. 2 had admitted, that never in the past, the appellant whom he had met quite often, had ever demanded any bribe for any purpose.He is also very categoric in his evidence, that it struck to him that he should not be given any bribe and he had also told the appellant on his face, that he was not in the habit of giving bribe and he would not offer it.If such exhibition of aversion to the demand of the appellant, had in fact been made by P.W. 2 on 3-5-1983, the appellant would have certainly been in guard, especially when he was aware that P.W. 2 would not have a soft corner for him in view of his having dealt with Venkataswamy, the son of P.W. 2, in respect serious violations committed by him in the not far off past.It is still more surprising that P.W. 2, had not told his son, who was also residing in Perianaickenpatti, about the bribe demanded by the appellant.It appears to be opposed to normal human conduct, that P.W. 2 had not mentioned about this episode to any one from 3-5-1983, till the time he appeared in Court in September 1984, to depose in this prosecution.Though it is possible to hold that there can be failure of memory, especially when a witness is put into the box after several months, of the happening of an occurrence, in the case of P.W. 2, it will be very difficult to give him such benefit.On this aspect, I am not inclined to suspect the evidence of P.W. 9, the Police Officer concerned, that infact Ex. P. 6 was taken down to the dictation of P.W. 2 on 5-5-1983 at 7 p.m. This aspect only shows that P.W. 2 would not hesitate to change his version when occasion so demanded.In other words, P.W. 2 appears to be a person, who has no respect for truth whatever.When the courts deal with witnesses of this caliber, it always happens that they look for some assurance before acting on evidence of this nature, which does not have an impressive impact at once.It cannot be gain said, that demand of bribe is primordial requisite based on which the acceptance follows.In this case, demand was admittedly made on two occasions, one on 3-5-1983 and again on 4-5-1983, during the course of the trap.As far as the demand on 3-5-1983 is concerned except the version of P.W. 2 there is no other corroborating link.I have already stated that the evidence of P.W. 2 cannot be accepted at its face value, since he appears to be a dubious witness.It can safely be held that for the alleged demand on 3-5-1983, there is practically no corroboration whatever.I have already pointed out that the appellant could not have demanded a bribe from P.W. 2, in view of the past record of his son and in any event if P.W. 2 had brought to his notice that he was averse to demand of bribe, the chapter would have stood closed, without giving rise to any further negotiations.Despite all that had happened on 4-5-1983 inside the room of the appellant.P.W. 2 wants to feign ignorance about the presence of others at the relevant time.In an office, on a working day, it will be odd for one to expect total solitude.Normally, bribes are demanded in secret, but P.W. 2 is specific that the appellant had asked for a bribe in an ordinary tone and there was no secrecy about it.I have no hesitation whatever in rejecting the version of P.W. 2 as totally unworthy of credit.It is not known as to why P.W. 9 a responsible police officer, had thought it fit to take a witness from Madurai and that too from the Postal Department, to Sivakasi, situated miles away.It is not as though responsible public servants would not be available at Sivakasi to present themselves for a trap, more so when requested by a public Officer of the Vigilance Department.Let us take it that P.W. 9 was particular about the presence of fairly High ranking officials to witness the trap, but, if that be so, it would not have been difficult for P.W. 9 to have verified the antecedents of P.W. 3, which on his own admission, to say the least, is stinking.P.W. 3 has admitted that he has signed in Ex. P. 7 by furnishing a false address as well false details as to the nature of his job.He was aware that it was wrong to write false details in Ex. P. 7, but yet he would do so, since he had no other go.He has admitted that it was a lie, when he chose to write in Ex. P. 7 that he was a lorry accountant.If P.W. 3 had given false address at the instance of P.W. 9 naturally the weight that could be attached to the evidence of P.W. 9 also gets substantially reduced.On the other hand, if we take it that P.W. 9 could not have given such instructions it is not known as to how P.W. 9 was prepared to choose a witness of such poor moral fibre to be present during a trap.It is not as though P.W. 9, who claims to have found out within a very short duration, on secret enquiry, that the accused was corrupt without any material, could have overlooked the overwhelming bad record of P.W. 3, pointing out that he was most unsuitable, to be taken as a witness for a trap.It is on this basis, I am unable to clearly hold that the evidence of P.W. 9 alone would be sufficient, on the basis of recovery of M.Os.2 to 8 series, to clinchingly hold that the guilt of the appellant has been established beyond reasonable doubt.Let us now look into the admissions of P.W. 3, who seems to be quite clever enough, for in spite of forgery committed by him he was able to wangle a promotion to a higher post in his Department.It is rather unfortunate that a person like P.W. 3, after suffering initial reversion, was still taken to hold a higher post, when his admissions reveal that he was indulging in activities, which would be offences under the Indian Penal Code.He has admitted that there was a charge against him regarding radio licence of V. Abdul Jaffar.In the place, in a register where a licence belonging to Chellammal should have been written he had inscribed the name of Abdul Jaffar, though the latter did not have a licence.He has also admitted that in the application relating to this transaction, he had himself affixed a false signature of Abdul Jaffar.He had himself signed for him and issued a duplicate licence.He was charged for having received a bribe for doing all that stated above.He was reverted on proof of charges, and such reversion existed for three years.In 1974, when he was a Wireless Inspector, he was charged for having transferred the radio for commercial purposes, after obtaining a bribe.Less said about P.W. 3 the better it would be for the prosecution.The evidence of P.W. 3 cannot be accepted on any reasonable standard for rejection outright, would be the dictum of any normal judicial conscience.Once another important aspect cannot be lost sight of in this prosecution.Let us assume that the appellant was interested in taking a bribe from P.W. 2 and he had also told P.W. 2 that only in the event of receiving the bribe, he would affix his signature in the bond concerned.The evidences of P.Ws. 2 and 3 clearly show that even before the receipt of Rs. 50/- from P.W. 2, the appellant had handed over Ex. P. 8 to P.W. 2, P.W. 2 does not want to be clear, if even initially on 4-5-1983, the appellant had asked for payment of Rs. 50/- from him, for he would dubiously state that the appellant had asked him to give him all what had to be given to him.Even the evidence of P.W. 3 affirms that the appellant had asked P.W. 2 whether he had brought the forms and whether the other things were ready, to which he replied in the affirmative.P.W. 3 is also specific that Ex. P. 8 was handed over to P.W. 2 before Rs. 50/- was delivered.The all that is left is the evidence of P.W. 9, the Officer who conducted the trap.The evidence of P.W. 9 himself will disclose that as far as he knew except this case no other anti-corruption case stood filed against the appellant.It is not known as to how even after conduct of investigation, he could state, that he did not know anything about P.W. 2 and his son Venkataswamy having enmity against the appellant.An impartial investigation must have unearthed such details.The appellant would have it that the solution did not turn pink, while P.Ws. 2, 3, and 9 would depose contra.All that the appellant will have to do is to probabilise his case so long the onus does not shift at him which would arise only after the prosecution had discharged its initial burden.It is not as though the notes were seized from the person of the appellant.Admittedly, the appellant was wearing a pant and shirt with pockets.The normal human tendency will be to tuck the currency into the pant or shirt pocket and not to leave them underneath a file in the office.It is here that the evidence of P.W. 3 and P.W. 9 become relevant.Both the them state that since the appellant was not inclined to pull out the currency and hand them over to P.W. 9, P.W. 9 asked P.W. 3 as to where the currency had been kept and on becoming aware, choose to take the currency all by himself for preparing a mahazar.The case of the appellant as D.W. 1 that he had pushed aside the currency, when it was sought to be trusted by P.W. 2 an inimical witness, can certainly make the solution turn pink.It will be hazardous, in my opinion to base a conviction merely on the basis of seizure of currency notes from underneath a file, divorced from other circumstances, which stare at our face.The evidence of D.W. 1 about the prior proceedings initiated against Venkataswamy, the son of P.W. 2, substantiated by documentary evidence, would certainly clinch the issue in favour of the appellant, that P.W. 2 and his son were inimically disposed against him.These factors underlined by the Supreme Court have passed through the process of my appreciation of evidence, brought on record.I am satisfied that the learned trial Judge had not considered the evidence in the right perspective and had also omitted to follow the guidelines laid down by the Supreme Court.The net finding is that this impugned judgment has led to grave miscarriage of justice.The conviction and sentence imposed on the appellant shall stand set aside.The appellant is acquitted.This appeal is allowed.Appeal allowed.
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['Section 161 in The Indian Penal Code', 'Section 5 in The Indian Penal Code']
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Analyze the legal case and identify the corresponding section it comes under.
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111,348,719 |
O.P.No.1504 of 2020 and Crl.This petition has been filed to quash the proceedings in C.C.No.875 of 2019 on the file of the Judicial Magistrate Court No.II, Erode, thereby taken cognizance for the offences under Sections 420 and 109 IPC, in Crime No.9 of 2014, as against this petitioner.The learned Counsel appearing for the petitioner would submit that the petitioner is innocent and he has not committed any offence as alleged by the prosecution.Without any base, the first respondent police registered a case in Crime No.9 of 2014 for the offences under Section 120-B, 405, 506, 464, 465, 471 and 420 IPC and subsequently altered into 420 and 109 IPC as against the petitioner and the same has been taken cognizance in C.C.No. 875 of 2019 on the file of the Judicial Magistrate Court N.II, Erode.Hence he prayed to quash the same.http://www.judis.nic.in 2/8 Crl.O.P No.1504 of 2020The learned Additional Public Prosecutor would submit that the trial has been commenced and some of the witnesses have been examined in this case.Heard Mr.Arvind Khanna, wherein, it has been held as follows:After perusing the impugned order and on hearing the submissions made by the learned senior counsels on both sides, we are of the view that the impugned order passed by the High Court is not sustainable.In a petition filed under Section 482 of Cr.P.C., the High Court has recorded findings on several disputed facts and allowed the petition.A look at the complaint filed by the appellant would show that the appellant had incorporated the ingredients necessary for prosecuting the respondents for the offences alleged.The petitioner is at liberty to raise all the grounds before the trial Court.The trial Court is directed to complete the trial within a period of nine months from the date of receipt of copy of this Order.Accordingly, this Criminal Original Petition is dismissed.Consequently, connected miscellaneous petitions are also closed.03.08.2020 Internet:Yes Index:Yes/no uma ToInspector of Police, District Crime Branch Erode District2.The Public Prosecutor, High Court, Madrashttp://www.judis.nic.in 7/8 Crl.O.P No.1504 of 2020 G.K.ILANTHIRAIYAN.J, uma Crl.
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['Section 420 in The Indian Penal Code', 'Section 465 in The Indian Penal Code', 'Section 506 in The Indian Penal Code', 'Section 120B in The Indian Penal Code', 'Section 109 in The Indian Penal Code', 'Section 471 in The Indian Penal Code']
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Analyze the legal case and identify the corresponding section it comes under.
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1,113,505 |
There was an altercation between them due to the appellantthrowing soil into the lands of the deceased from 'Dali'(strip of land dividing the two fields of the deceased andthe appellant).At the instigation of his sonby name Pappu (who was a juvenile offender and was dealtwith separately), the appellant inflicted with Kassi (spade,sharp edged cutting instrument) on the head of the deceasedand with its impact the deceased fell down.From the Judgment and Order dated 12.9.1990 of the RajasthanHigh Court in D.B. Criminal Appeal No. 185 of 1984.C.V., Rappai, Amicus curiae for the Appellant.Aruneshwar Gupta for the Respondent.The Judgment of the Court was delivered byK. RAMASWAMY, J. Special leave granted.The appellant was convicted under s. 302 I.P.C. andsentenced to undergo imprisonment for life for causing thedeath of Jeet Singh on May 22, 1983 at about 11,00 a.m. inthe field of the deceased.The Rajasthan High Courtconfirmed the conviction in Criminal Appeal No. 105 of 1984.The case of the prosecution in nutshell was that thedeceased and the appellant are neighbouring owners of lands.Thereafter theappellant inflected two more injuries.When PW- 1 to 3raised alarm, the accused ran away.PWs- 1 to 3 went nearJeet Singh and found him dead with bleeding injuries onhead, neck and back.PW-1 went and lodge at the policestation the report Ex. P-1 narrating the entire prosecutioncase.At the trial PWs- 1 to 3 were examined as directwitnesses whose evidence was believed by both the courtsbelow as natural witnesses and the appellant was convictedfor the offence of murder.We found no infirmity in the699assessment of the evidence, though the counsel for theappellant attempted to argue the case in that behalf.However, notice was issued to the State oil the nature ofthe offence and the State has appeared.We have heard the counsel on both sides.During post-mortemthe doctor found the following thee injuries on the deadbodyIncised wound 11 cm x 2-1/2 cm x 5 cm on the right pariete occipital area.Bone fractured ura matter was seen from the wound.Incised wound 15 cm x 6 cm x 5 cmon the right scapular area bone fractured.Incised wound 13 cm x 10 cm x 12 cm on the right side of neck.All vessels of the right side neck were cut cervical vertebrae 4 and 5 along with the spinal cord was cut through and Larynx and right side of mandible cut.The witnesses have stated that when the appellant caused thefirst injury on the head, the deceased fell down andthereafter the appellant inflicted the other two injurieswhile the deceased was lying on the ground.The incisedinjury on the parieto occipital region was the first injury.The doctor found that by the third injury on the right sideof the neck, the vessels on the right side of the neck, werecompletely cut, cervical vertebra along with spinal cordwere cut through larynx and also right side of mandible.According to him, the third injury was sufficient to causedeath in the ordinary course of nature.The contention of the learned counsel is that the appellantcommitted the offence on the spur of moment when quarrelensued between the appellant and the deceased, when theappellant was prevented to spread the soil in his field.
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['Section 300 in The Indian Penal Code', 'Section 302 in The Indian Penal Code', 'Section 304 in The Indian Penal Code', 'Section 299 in The Indian Penal Code']
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Analyze the legal case and identify the corresponding section it comes under.
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1,113,518 |
In short, the prosecution case is that on 1.6.1996 appellant and co-accused Hariram took lift in Truck Number U.P.-77-5811, which was being driven by Kedarnath Shukla.Ashok (deceased) was the second driver.Accused Hariram stretched his leg outside the window of the running truck, which was objected by Ashok.On this, there occurred an altercation between them.At Metewani Dhaba, truck was parked 2 Cr.A.1667/2009 and all the persons alighted from the truck.When Ashok went to drink water, accused Hariram inflicted a blow on him by means of a bamboo stick.Accused Radheshyam gave fist blows to him.Ashok suffered injuries on his head and other parts of body.Kedarnath took Ashok to Police Station Kurai.Since Ashok was not able to speak, he lodged the report of the incident (Ex.P/6).Ashok was sent for medical examination and treatment to Primary Health Centre, Kurai.However, according to Ghanshyam (PW-2) after all of them got down from the truck there occurred an altercation between accused Hariram and the deceased.Deceased admonished Hariram that instead of truck he ought to have travelled in Maruti.They then indulged in scuffle.Suddenly, appellant inflicted a blow by blunt side of axe on the head of Ashok, as a result of which Ashok fell down.Driver Kedarnath went to police station and lodged the report.Per: Rakesh Saksena, J.Appellant has filed this appeal against the judgment dated 29.7.2000, passed by the Second Additional Sessions Judge, Seoni, in Sessions Trial No. 77/1996, convicting him under Section 302 read with Section 34 of the Indian Penal Code and sentencing him to imprisonment for life.A Case under Section 302 read with Section 34 of the Indian Penal Code was registered against the accused persons.He was thereafter referred to District Hospital, Seoni and ultimately to Medical College, Nagpur.On 2.6.1996, at about 8.30 p.m., Ashok succumbed to injuries.After investigation, charge sheet was filed and the case was committed for trial.During trial, appellant abjured his guilt and pleaded false implication.Prosecution, to substantiate its case, examined nine witnesses.Trial Court, relying mainly on the evidence of Ghanshyam (PW-2), Kedarnath Shukla (PW-8), Dr. S.S. Naphde (PW-1) and Dr.A.N.Kewalia (PW-3), held both the accused persons guilty and convicted and sentenced them as mentioned above.Appellant filed the present appeal after about 8 years and 342 days of his conviction.In view of the fact that appellant remained ignorant about the fact that his appeal was not filed until co-accused Hariram was released from jail, the present appeal was entertained.Learned counsel for the appellant submitted that the allegation against the appellant was only of assaulting the deceased by hands.Co-accused Hariram, in the circumstances of the case, was acquitted of the charge under section 302/34 I.P.C. and was found liable only under section 304-II I.P.C. and his sentence was reduced to period of custody undergone by him.Counsel submitted that in these circumstances conviction of appellant under section 302 of the Indian 3 Cr.A.1667/2009 Penal Code was erroneous.According to PW-2 Ghanshyam and PW-8 Kedarnath Shukla, Kedarnath was taking the truck from Nagpur to Kanpur.Second driver Ashok and conductor Munna were also with him.From Khawas border accused Hariram and Radheshyam along with a woman and a girl boarded the truck.On way, Hariram stretched his leg outside the window.When Ashok objected to it, there occurred a wordy quarrel between them.Near Metewani, Kedarnath stopped the truck and all the persons got down for taking tea.According to Kedarnath Shukla (PW-8), both the accused persons assaulted Ashok by Dandas as a result of which he suffered injuries on the head.In para 14 of his statement, Ghanshyam (PW-2), when he was confronted with his police statement Ex.Apart from it, from the first information report Ex.P/6, it appears that Radheshyam assaulted deceased only with his hands.In these circumstances, in our opinion, it cannot be held that appellant inflicted injuries to deceased by blunt side of axe.However, it was clear that in furtherance of common intention with accused Hariram he assaulted the deceased.Evidence of aforesaid eyewitnesses finds corroboration from the medical evidence.S.S.Naphde (PW-1) examined the injuries of Ashok.According to his report (Ex.P/1), he found one lacerated wound 4 Cr.A.1667/2009 2" x 1/4" on left parietal region of the skull.According to him, this injury was caused by hard and blunt object.He referred Ashok to District Hospital for X-ray examination and treatment.However, in the night, at about 8.30 p.m. he died.On postmortem examination of his body, Dr. A.N. Kewalia (PW-3) found as many as eight injuries.Two injuries were only on left and right temporal region of skull; one was 6 cm.x 1 cm.and other was 1 cm.x 1 cm.Other injuries were superficial abrasions on abdomen, arms, thigh and back.He also detected a fracture of right parietal bone of his skull.There was sub-dural haemetoma in the brain.In his opinion, the death of deceased was homicidal in nature.Other two witnesses PW-5 Ashabai and PW-4 Makkhu were also examined as eyewitnesses of the incident, but they did not support the case of the prosecution.Though PW-2 Ghanshyam and PW-8 Kedarnath were subjected to lengthy cross-examination but except some minor contradictions nothing could be elicited out to render their testimony unreliable.On scanning the evidence of aforesaid two eyewitnesses carefully, we find it established that in furtherance of common intention accused Hariram caused injury to Ashok on his head which resulted into his death.The next question before us is as to what offence in the facts and circumstances of the case is made out against the appellant.PW-2 Ghanshyam and PW-8 Kedarnath categorically stated that the incident occurred suddenly after an altercation when deceased objected to Hariram that he should not stretch his leg out of the window in running truck.Accused persons were not known to deceased from before.The incident of assault occurred at the spur of moment in the sudden quarrel.There was no evidence to indicate that the assault was premeditated.However, since the appellant acted in furtherance of common intention with accused Hariram who wielded stick and inflicted its blow on the head of deceased, it could be inferred that he 5 Cr.A.1667/2009 knew that he was likely to cause his death.In these circumstances, conviction of appellant under Section 302 read with Section 34 of the Indian Penal Code was not justified.He was liable to be punished only under Section 304-II of the Indian Penal Code.Appeal partly allowed.
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['Section 34 in The Indian Penal Code', 'Section 302 in The Indian Penal Code']
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Analyze the legal case and identify the corresponding section it comes under.
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111,354,576 |
Criminal Original Petitions filed u/s 482 Cr.P.C. praying this Court to call for the records and quash the proceedings in C.C. Nos. 31 and 32 of 2014 on the file of the Principal Sessions Judge, Chennai.The present petitions have been filed for the quashment of the the case on the file of the Principal Sessions Judge, Chennai, which has been taken pursuant 1/21http://www.judis.nic.in ___________________ Crl.O.P. Nos.23026 & 23027/2014 to the complaints lodged by the respondent in the wake of the Government Orders issued sanctioning prosecution against the petitioners for defamation.Insofar as the publication dated 22.6.14 is concerned, the defamation alleged by the respondent pertains to the following :“40% rjtPjk; jdpahhplk; muR nghf;Ftuj;J fHf gzpfs;”.Insofar as the publication dated 2.7.14 is concerned, the defamation alleged by the respondent pertains to the following :- 2/21http://www.judis.nic.in ___________________ Crl.O.P. Nos.23026 & 23027/2014 “g!; fl;lzj;ij cah;j;j jkpHf muR jpl;lk;”/19/21http://www.judis.nic.in ___________________ Crl.O.P. Nos.23026 & 23027/2014In the result, the criminal original petitions are allowed.
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['Section 500 in The Indian Penal Code']
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Analyze the legal case and identify the corresponding section it comes under.
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111,359,576 |
each, in default of payment of fine amount, to undergo further Rigorous imprisonment of one month.U/s 201 of IPC Rigorous Imprisonment for four years and fine of Rs.2000/- each, in default of payment of fine amount, to undergo further Rigorous imprisonment of two month.All the sentences to run concurrently.Appellant Anju Singh is sister-in-law of the deceased, appellant Shushila Singh is the mother-in-law of the deceased, Omkar Singh is husband of the deceased and Shushil Singh is brother-in-law (Devar) of the deceased.Prosecution story in short is that on 12.05.2006 at about 19:30, one person namely Tilak Raj has made a report in writing to the Police Station Naurajabad that his relative Neetu Singh has died due to injury on her head caused by the frame of the door (Chaukhat).The Merg intimation was registered and thereafter the Police commenced the investigation.During the course of the investigation, it was found that the appellants had together assaulted the deceased and she scummed to death due to the injuries caused by these persons.In order to conceal the fact accused had reported that the deceased had died due to the injuries caused to her by accident.He deposed that when he was at his home on 12.05.2006, at about 04:00 P.M. his son Ravi came to him and informed that aunty (deceased) had received injuries.He immediately went to the house of the appellants and found that the deceased was lying near the cooking place in the kitchen and no one was present in the house.Wife of Sundar Singh informed that all the family members have gone to see off Sushil Singh who was going to Bilaspur.He had given the intimation to the Police which is Ex.(Jabalpur: 06.02.2018) Per- V.K. Shukla, J.All these Criminal Appeal are arising out of a common order of conviction and sentence dated 30.08.2007 passed by IIIrd Additional Sessions Judge (Fast Track Court), Umariya, District Umariya (M.P.) in Sessions Trial No.164/2006, whereby the appellants have been convicted and sentenced as under:Conviction U/s Sentence In Criminal Appeal No. 1848/2007 appellant Anju Singh U/s 302 of IPC Imprisonment for Life and fine of Rs.1000/-, in default of payment of fine amount, to undergo further Rigorous imprisonment of one month.U/s 201 of IPC Rigorous Imprisonment for four years and fine of Rs.2000/-, in default of payment of fine amount, to undergo further Rigorous imprisonment of two month.In Criminal Appeal No. 2023/2007 appellant Shushila Singh U/s 302 of IPC Imprisonment for Life and fine of Rs.1000/-, in default of payment of fine amount, to undergo further Rigorous imprisonment of one month.U/s 201 of IPC Rigorous Imprisonment for four years and fine of Rs.2000/-, in default of payment of fine amount, to undergo further Rigorous imprisonment of two month.In Criminal Appeal No. 2049/2007 appellants Omkar Singh and Sushil Singh U/s 302 of IPC Imprisonment for Life and fine of Rs.1000/-The police registered the Crime No. 160/2006 for the offences punishable under Sections 302, 201 & 34 of IPC.After the investigation, the challan was filed, the appellants abjured their guilt and pleaded innocence.The prosecution has examined 11 witnesses and three 4 defence witnesses were examined by the defence.The motive behind the murder of the deceased has been stated by the prosecution that Omkar Singh (husband of the deceased) was doubting the character of his wife (deceased).The report was lodged by Tilakraj Singh (PW-8).He admitted his sign in Ex. A to A. The police reached at the spot.Dead body Panchnama was prepared vide Ex.P-1 and it bears his signature.He has stated that the dead body was handed over to the husband Omkar Singh after execution of the Panchnama.The Police has also seized the blood stained soil and the pieces of the broken bangles etc.Dr. K.L. Baghel was examined as PW-10, he deposed that he had conducted the Postmortem.He found that there was injury on head 1 x 1 inch and there was also lacerated wound on 5 the front side of the had of 2 x 1/2 inch.There was profuse bleeding from the injuries.There was also wound injury of 1 x 1 inch on the back side of the head and scratches were also there of 1/2 x 1/2 inch.In para 3 of his deposition he stated that that there was fracture in the scull in occipital region.He opined that cause of death was shock due to excessive bleeding on the head.The death was homicidal nature.Surendra Singh (PW-1) father of the deceased had turned hostile and did not support the prosecution case.However, the Investigating Officer (PW-11) S.I. Phool Singh Tekam stated that he was posted at the relevant time in Police Station Naurajabad and had carried out the investigation.Dead body Panchnama was prepared, articles were seized by him.In para-2 of the statement he stated that on the disclosure statement of Sushil Singh, Smt. Shushila Singh and Omkar Singh the ' baas' stick and 'tangia' were seized.The 'tangia' was sent for chemical examination.According to the prosecution, on the seized weapons 'lakri' Article-B, 'tangia' Article-c and 'lathi' Article-D the blood was present.In the FSL report in the seized Articles B, C & D human blood was found.However, the blood group could not identified as the sample was inconclusive.From the testimony of Tilakraj Singh (P.W.-8) and Phool Singh Tekam (PW-11) it is established that the dead body was lying in the house of the appellants.The father of the deceased (PW-1) has turned hostile but he has stated that at about 04:00 P.M. he received the phone that his daughter has received the injuries with the frame of the door (Chaukhat).He has also stated that when he reached at the spot, the deceased was lying dead.From the aforesaid consideration of the evidence, it is establish that the deceased died in the house of the appellant and the defence could not proved that the deceased died due to any accident as they have stated that she had received injuries from the frame of door (chaukhat) the medical evidence the postmortem report and the testimony of Doctor K.L. Baghel (PW-10) it is proved by the prosecution that the death of the deceased was homicidal as she died due to the injuries on the head which was caused by hard and sharp edged weapon.The statement of Doctor and the postmortem report Ex.P-16 establishes the fact that the death of the deceased was homicidal.As the prosecution story is that the husband was doubting the character of the deceased, the same cannot be a motive for murder of the deceased for other members of the 7 family.
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['Section 34 in The Indian Penal Code', 'Section 201 in The Indian Penal Code', 'Section 302 in The Indian Penal Code']
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Analyze the legal case and identify the corresponding section it comes under.
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111,360,329 |
1 55 10.09.2014 SD C. R. M. 10714 of 2014 Ct.In the matter of : Md. Alauddin & Ors...... Petitioners.Mr. Ranadeb Sengupta..... For the Petitioners.The application for anticipatory bail is, thus, disposed of.(SUBHRO KAMAL MUKHERJEE, J. ) (SUBRATA TALUKDAR, J.) 2
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['Section 438 in The Indian Penal Code', 'Section 143 in The Indian Penal Code', 'Section 323 in The Indian Penal Code', 'Section 34 in The Indian Penal Code', 'Section 448 in The Indian Penal Code']
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Analyze the legal case and identify the corresponding section it comes under.
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111,367,250 |
The case of the prosecution, in brief, is as follows:The deceased in this case was one Mr.Karthikeyan.Manikandan are his brothers.These three had a sister by name one Meena.Meena was given in marriage to one Mr.Arunagiri, who was residing in Athipattu Village.All the accused were residing in Minjur.The first accused viz., Murugan is a friend of Arunagiri.Arunagiri used to visit the house of the first accused frequently.In the course of time, Arunagiri had developed illicit intimacy with the wife of the first accused.It is alleged that Arunagiri used to carry the wife of the first accused in the motorcycle to various places and to roam around with her.She informed her brothers namely P.Ws.1 and 2 and the deceased about the same and they wanted to settle the issue.It is further alleged that in response to the said call made by Meena, P.Ws.1 and 2 and the deceased had gone to Athipattu village on 19.06.2008 around 8.00 p.m. They went to the house of the first accused.They told the first accused to warn his wife not to have any illicit intimacy with Mr.Arunagiri, because the life of Meena was spoiled.The first accused got enraged over the same.He shouted at them.P.Ws.1 and 2 and the deceased shouted at the first accused that he allowed his wife to lead a wavered life, more particularly to have illicit intimacy with Arunagiri.This resulted in a quarrel between them.At that time, the second accused was also present at the scene of occurrence.The second accused suddenly held P.W.2 by his hands.The first accused took out a knife from the hide out and stabbed P.W.2 on his chest and left side of the stomach.The third accused, who came there suddenly held the deceased.The first accused stabbed the deceased below the abdomen near the penis.The deceased cried for help.P.W.1 went near them to rescue.These three accused held him also.Then on hearing the alarm raised, the neighbours rushed to the place of occurrence.On seeing them, all the three accused took to their heels.With the help of the neighbours, P.W.1 took P.W.2 and the deceased to a nearby private hospital viz., Sugam Hospital at Thiruvottiyur.On the way to hospital, Karthikeyan [deceased] died.He proceeded to the place of occurrence at 5.00 a.m., and prepared an Observation Mahazar and a rough sketch in the presence of P.W.12 and another witness.Then he recovered blood stained earth and sample earth from the place of occurrence.P4 is the post-mortem certificate.She gave opinion that the injuries found on the body of the deceased could have been caused by a weapon like M.O.1 - Knife.P.W.14 arrested all the three accused on 21.06.2008 at 6.00 a.m near Athipattu Railway Station.On such arrest, the first accused gave voluntary confession, in which he disclosed the place where he had hidden the knife.These Criminal Appeals have been preferred to set aside the conviction and sentence imposed vide judgment dated 16.07.2015 made in S.C.No.165 of 2011 on the file of the IV Additional District and Sessions Judge, Ponneri, Thiruvallur District, by allowing these appeals.For Appellants in Crl.A.No.514 of 2015 is the first accused and the appellants in Crl.A.No.476 of 2015 are Accused 2 and 3 in S.C.No.165 of 2011 on the file of the IV Additional District and Sessions Judge, Ponneri, Thiruvallur District.They stood charged for offences under Sections 302, 307 and 326 r/w 34 IPC.By judgment dated 16.07.2015, the Trial Court convicted and sentenced them as follows:-Accused Section of lawSentenceA.1 307 r/w 34 IPCRigorous imprisonment for 10 years and to pay a fine of Rs.1000/- in default to undergo rigorous imprisonment for 3 months302 r/w 34 IPCTo undergo Life Imprisonment and to pay a fine of Rs.1000/- in default to undergo rigorous imprisonment for 3 months.A.2 307 r/w 34 I.P.C.Rigorous imprisonment for 10 years and to pay a fine of Rs.1000/- in default to undergo rigorous imprisonment for 3 monthsA.3302 r/w 34 IPCTo undergo imprisonment for life and to pay a fine of Rs.1000/- in default to undergo rigorous imprisonment for 3 monthsChallenging the said conviction and sentence, the appellants are before this Court with these appeals.Meena was aggrieved by the same.P.W.2 was admitted in the hospital and given treatment.At 8.00 a.m., he examined P.W.2 and recorded his statement.Between 9.30 and 11.30 a.m., he conducted inquest on the body of the deceased and forwarded the same for Post-mortem.P.W.10 - Dr.Sridevi conducted autopsy on the body of the deceased on 20.06.2008 at 3.30 p.m. She found the following injuries:"1. 8 x 5 x 1 cm punctured wound on the medial aspect of left thigh.Edges well defined On further dissection, muscle found lacerated.Femoral vessels cut and severed oozing of blood.2. Abrasion 3 x 2 cms over the left upper arm.Abrasion 2 x 1 cm over the left forehead."In pursuance of the same, he took the Police and other witness to the place of hide out and produced M.O.1 knife.On returning to the Police Station, he forwarded all the three accused to the Court and also handed over the material object.At his request, the material object was sent for chemical examination.On completing the investigation, he laid charge sheet against the accused.Based on the above materials, the trial Court framed charges as detailed in the first para of this judgment against all the accused.They denied the same.In order to prove the case of the prosecution, on the side of the prosecution, as many as 14 witnesses were examined; 11 documents were exhibited, and 1 Material Object was marked.Out of the said witnesses, P.Ws. 1 and 2 are the eye witnesses to the occurrence.P.W.2 is an injured witness.He has also spoken about the complaint made by him.P.W.3 has stated that she heard about the occurrence.P.W.4 has stated that on 19.06.2008 when he was in his shop, there was a huge crowd in front of the shop and one person was taken in the auto.P.W.5 has stated that he went to the place of occurrence on hearing about the same.P.W.6 has spoken only about the arrest of the first accused and the consequential recovery.P.W.7 has spoken about the same.P.W.9 has stated that he handed over the dead body to the doctor for post-mortem.P.W.10 has spoken about the post-mortem conducted by her and her final opinion regarding the cause of death.P.W.11 has stated that he examined the internal organs of the deceased and found that there was neither poison nor alcohol.P.W.12 has spoken about the preparation of Observation Mahazar, Rough sketch and recovery of material objects from the place of occurrence.P.W.14 has spoken about the investigation done and final report filed in this case.When the above incriminating materials were put to the accused under Section 313 Cr.P.C, they denied the same as false.However, they did not choose to examine any witness on their side nor marked any document in their favour.Their defence was a total denial.The learned counsel for the appellant would submit that this inordinate delay in forwarding the FIR to the Court would create doubt as to whether the FIR could have come into existence at 12.30 a.m. on 20.06.2008 itself.We find some force in the said argument.The learned counsel would next contend that according to P.Ws.1 and 2, who claim to have witnessed the occurrence, the first accused stabbed the deceased only once on the lower abdomen near the penis.Now there are three accused before the Court.Further, according to the medical opinion, on the deceased, there was only one stab injury and the other was a depressed fracture on the skull.P.W.2 has not accounted for these injuries properly.Therefore, we are of the view that though P.W.2 sustained injuries in the said occurrence and his presence at the place of occurrence cannot be doubted, the credibility of the said witness is doubtful.False implication of the accused in this case cannot be ruled out in view of the inconsistency between medical evidence and the eye witness account.In such view of the matter, we find it difficult to sustain the conviction of the accused.
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['Section 120B in The Indian Penal Code', 'Section 326 in The Indian Penal Code', 'Section 302 in The Indian Penal Code']
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Analyze the legal case and identify the corresponding section it comes under.
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358,930 |
The victim girl, Usarani, is the daughterof one Thangaswamy of S.V.Mangalam, Annanagar.During that time, A1 hadsexual intercourse with her and Usarani also become pregnant.Heard both sides.The trial Court has also directed that a sum ofRs.22,000/- from out of the fine amount to be collected from the first appellantand a sum of Rs.14,000/- each to be collected from out of the fine amounts ofappellants 2 & 3, totalling a sum of Rs.50,000/- has to be paid as compensationto the victim girl, Usarani, under Section 357 of Cr.P.C.The facts giving rise to the filing of this criminal appeal, as stoodexposited from the records would run thus;Subsequently,Usarani was driven out of their house and she was left in the lurch.The Police registered the case in Crime No.54of 2001 and took up investigation, for the offences punishable under Sections417, 493, 366-A of IPC.(ii) In the course of the investigation, the police examined witnesses andgot the victim girl examined medically and after completing the usualinvestigation, laid the report in terms of Section 173 of Cr.P.C, as againstaccused A1 to A3 for the offence under Section 417 493, 366A of IPC.[At thisjuncture, it is worthwhile to point out that in the judgment of the trial Court,at the first page it is stated as though the police laid the charge sheetwithout referring to Section 34 of IPC.(iii) On committal of the case to the Sessions Court and on being madeover to the Assistant Sessions Judge, Sivagangai, the trial was conducted beforehim.During such trial, on the side of the prosecution PWs 1 to 11 wereexamined and Exs.P1 to P7 were marked along with Mo1, X-ray film.On thedefence side, DW1, Muthaiya was examined.(iv) The learned Assistant Sessions Judge framed the charges as againstA1 to A3 for the offences punishable under Sections 417, 493, and 366-A of IPC,for which the accused pleaded not guilty.[The trial Court has not referred toSection 109 of IPC as against A2 & A3 in the charges.However, curiously enoughA2 & A3 were convicted under Section 493 of IPC by invoking Section 109 of IPC](v) Ultimately, the trial Court found the accused A1 guilty under Section493 of IPC and A2 & A3 guilty under Section 493 of I.P.C r/w 109 of IPC and A1to A3 were acquitted of the other two charges.Being aggrieved by the said conviction and sentence passed by thelearned trial Judge, the appellants preferred this appeal on the followinggrounds among others.(ii) The trial Court failed to hold that the charges were not proved asagainst the appellants.(iii) No offence was made out at all from the evidence adduced on the sideof the prosecution.(iv) The trial Court misunderstood the ingredients of Section 493 IPC andconvicted the appellants.(v) The trial Court failed to see that Section 493 of IPC, is intended topunish a man for having Cohabitation or sexual intercourse with a womanby deceitfully making her to believe that she is lawfully married to him.(vi) The trial Court believed verbatim the interested testimonies of PWs 1to 4 and arrived at the wrong conclusion.(vii) There was inordinate delay in preferring the complaint and that itwould speak volumes about the falsity of the case.Accordingly, the appellants prayed for setting aside the conviction andsentence imposed on them.The point for consideration is as to (1) whether the ingredients of Section 493 of IPC have not been made outfrom the evidence placed before the trial Court on the side of the prosecution ;and (2) Whether there is any infirmity in the judgment of the trial Court inrecording the conviction and imposing the sentences as against A1 to A3.Point No.1:The learned advocate for the appellants, at the outset itself drew theattention of this Court to the fact that even ex-facie, as per the evidence ofthe prosecution witnesses, no offence under Section 493 of IPC, had been madeout.Before analysing the evidence on record, it is just and necessary toextract the ingredients of Section 493 of IPC, thus; "Ingredients:- The section has two ingredients;1) The deceit that causes a false belief in the existence of lawfulmarriage.This Court put a question to the learned Additional Public Prosecutoras to whether on the prosecution side any evidence had been adduced relating toany deceitful representation made by A1 about any alleged marriage which tookplace between the accused and the victim woman, for which the learned AdditionalPublic prosecutor in all fairness stated that there was no such evidence adducedbefore the trial Court.The above discussion as set out supra would evince that the firstingredient i.e., the deceit, causing false belief, about marriage, is missing inthis case.The learned advocate for the appellants' argument on the aforesaidline correctly throws beacon light on the subject and on this ground itself theappeal should succeed.The evidence of prosecution witnesses asdiscussed supra would only be to the effect that A1 to A3 simply promised PW2,the victim girl that she would be given in marriage to A1 and that subsequently,they turned turtle.In such a case, it is crystal clear that the offence under Section 493of IPC has not been made out at all.The learned trial Judge, without adverting to this fact simply foundA1 to A3 guilty of the offence under Section 493 IPC.PW8, Srinivasan, the Principal of Seethaiammal College, with referenceto Ex.As such, as on date of the alleged offence during the year 2001,he was around 20 years old and it is only a formal piece of evidence in thiscase.PW9, the Sub-Inspector of Police, would depose that he, afterreceiving Ex.P1, the complaint from PW1, registered the case as found in Ex.P6,FIR format in crime No.54 of 2001, under Section 417, 493 and 366A of IPC asagainst A1 to A3 and that he placed the case before the Inspector of Police forinvestigation.As such, his evidence is formal in nature.PW10, the Inspector of Police, would detail and delineate about theinvestigation conducted by him and following him PW11, Jeyaseelan, one otherInspector of Police, continued the investigation and ultimately, laid the policereport.In the facts and circumstance of this case as discussed supra, theevidence of Police Officials would in no way further the cause of theprosecution.On the defence side one Muthaiya, DW1, was examined.He would narratethat no complaint was lodged with the Panchayators and no Panchayat was held inthat connection.The evidence of DW1 is for proving the negative aspect.Not to put too fine a point on it,I may remark that the Inspector of Police, who filed the police report, theMagistrate who took on file and committed the case to the Court of Sessions andthe trial Court, have all conducted themselves without having any regard for theprovisions of law, as the scope of Section 493 of IPC, even for a moment, wasnot considered by them.Hence, in this view of the matter, there is no other go, but to setaside the conviction and the sentence imposed by the trial Court and accordinglyA1 to A3 are found not guilty of the offence under Section 493 IPC andaccordingly their convictions and the sentences are set aside.Point 2:In the result, the criminal appeal is allowed and the judgment of thetrial Court in recording the conviction as against A1 under Section 493 of IPCand as against A2 & A3 under Section 493 r/w 109 of IPC are set aside andcorrespondingly the sentences imposed on them are also set aside.The fine amount paid, if any, shall be refunded to them.gcgTo The Assistant Sessions Judge,Sivagangai.
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['Section 417 in The Indian Penal Code', 'Section 366A in The Indian Penal Code', 'Section 109 in The Indian Penal Code', 'Section 34 in The Indian Penal Code']
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Analyze the legal case and identify the corresponding section it comes under.
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35,893,315 |
A first information report was lodged against the applicant at Police Station Muhammadabad, District Ghazipur, on 01.07.2019 relating to offence under Sections 363, 366, 354 (kha) Indian Penal Code and Sections 7/8 POCSO Act.The applicant is in jail since 04.12.2019 pursuant to the said F.I.R.As per the assertions in the bail application and the statement of the alleged victim recorded under Section 164 Cr.P.C., the applicant and other co-accused are D.Js.(ii) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel.In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code.(iii) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under Section 82 Cr.P.C. is issued and the applicant fails to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him, in accordance with law, under Section 174-A of the Indian Penal Code.
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['Section 229A in The Indian Penal Code', 'Section 174A in The Indian Penal Code']
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Analyze the legal case and identify the corresponding section it comes under.
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35,899,397 |
The respondent herein is allegedly a Trustee of a trust called the Date: 2020.04.27 20:32:20 IST Reason:Sumandeep Charitable Trust, which established and sponsors 1 2 ‘Sumandeep Vidyapeeth’, a deemed University, which is the institution concerned herein.Brief facts necessary for the disposal of the case are that an FIR, being IER No. 3 of 2017, dated 28.02.2017 was filed by one Dr. Jasminaben, wife of Dilipbhai Devda, before the Vadodara City A.C.B. Police Station against four accused persons including the present respondent.Her daughter’s course fee was completely paid up as per the annual fee slab.In the year 2017, her elder daughter while filling up her final examination form, was asked to meet the respondent herein.On meeting, the respondent, in conspiracy with others, had communicated that the complainant’s husband had to further pay Rupees Twenty Lakhs for allowing the complainant’s daughter to take the examination.Further, it is alleged that the accusedrespondent had communicated that they can deposit a cheque and the same would be returned on payment of cash, considering that demonetization had recently taken place.In lieu of the same, cheques were deposited with the accused 2 3 respondent herein.Thereafter, the complainant, who was unwilling to pay the amount, filed the FIR.After following the necessary procedure, phenolphthalein powder was applied to the currency notes and were delivered to accused Vinod alias Bharatbhai Savant (the alleged companion/agent of respondent through whom the demand was facilitated).N. V. RAMANAThereafter, accused Vinod confirmed the receipt of money to the respondent over the telephone.The aforesaid incriminating conversation stood intercepted in an audio video camera set up by the complainant.Further, separate raids were conducted whereupon several undated cheques drawn in the name of the institution worth more than Rs. 100 crores and certain fixed deposits were recovered.The chargesheet came to be filed on 25.04.2017 against several accused persons, including the present respondent for various offences under Sections 7, 8, 10 and 13 (1)(b) and 13(2) of the Prevention of Corruption Act, 1988 [hereinafter referred to as the ‘PC Act’] read with Section 109 of Indian Penal Code, 1860 [hereinafter referred to as the ‘IPC’],.The District and Sessions Court by an order dated 29.11.2017, rejected the application.Aggrieved by the rejection of the aforesaid application, the respondent herein filed a criminal revision application, being Criminal Revision Application No. 1188 of 2017, before the High Court of Gujarat, at Ahmedabad.The High Court, by the impugned judgment and order dated 02.02.2018, allowed the revision and discharged the accusedrespondent herein.Aggrieved by the impugned order, the State of Gujarat is in appeal before this Court.
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['Section 109 in The Indian Penal Code', 'Section 228 in The Indian Penal Code']
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Analyze the legal case and identify the corresponding section it comes under.
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359,100 |
The prosecution case in short is that the accused persons and the deceased, Dhanuwa, were not having good relations for some days prior to the incident of murder.Sometime before the incident of murder when the accused persons had been assaulting a bus-driver, Razaaq, the deceased Dhanuwa had intervened and the said Dhanuwa was also beaten by the accused persons.The accused persons particularly the accused Pyare Raja also wanted to drive out Dhanuwa from the village altogether.On January 24, 1979, shortly before the said incident of murder, the accused Pyare Raja had given a slap to Imaratibai, the widow of the deceased Dhanuwa over some altercation.Thereafter, Imaratibai had returned to her house and was sitting in front of this door;.There was a Maddiya belonging to the accused Pyare Raja which is also close to the house of the deceased Dhanuwa and near a flour-mill of Pran Singh.It is the case of the prosecution that when the deceased Dhanuwa returned from village Kheda at about 2.30 P.M. on January 24, 1979, the accused persons were lying in wait for the said Dhanuwa in the Maddiya and the accused persons assaulted him.The accused Pyare Raja, Veerendra Singh and Sawai Diwan were armed with lathis and Vijay Singh was armed with a pharsa.It is also alleged that Pyare Raja first dealt with a lathi blow at the back of the deceased and as result of such blow, the deceased fell down.Thereafter, all the accused persons started assaulting the deceased with lathis and pbarsa.The son of the deceased Radhey Lal (PW-1) having seen the accused persons assaulting his father rushed to call the village constables and the constable Jagdev'(PW- 3) while coming to rescue the deceased had found that the accused persons were taking the body of Dhanuwa but seeing the constables left the body and disappeared in the nearby jungle.Dhanuwa was found to be dead on the spot due to injuries caused to him.A report of the incident was lodged by Radhey Lai to the Police Station and the crime case under Section 302 read with Section 34 IPC was registered and investigation was taken up.The spot map was prepared and the inquest of the dead body was held and the body of the said Dhanuwa was sent for post mortem examination and blood stained earth and blood stained piece of stone from the spot were seized and seizure of blood stained1 plastic shoes was also made.On January 30, 1979 the Police arrested all the four accused and they were interrogated.On the basis of statements made by the said accused persons, the pharsa, and the lathi (excepting one) were recovered from the place where the same were concealed.Dr. R.S. Dhengula had performed the post mortem examination on the dead body of Dhanuwa on January 25, 1979 and six incised wounds on the right knee, leg and on the left parietal bone were noted by the doctor.There were also swelling and contusions on the right hand, right and left shoulders, on the hip and on left hand and an abrasion on the left knee.It was also found that the tibia bone was cut and the radius and ulna of both the hands were fractured.There was a lacerated wound on the left side of the head of the deceased which was noted as injury No. 12 in the post mortem report.As a result of such injury, the parietal bone was reduced into pieces and the brain was damaged and the brain matter had come out.According to the doctor, Dhanuwa had died as a result of the said injuries particularly due to the aforesaid head injury (injury No. 12).The widow of the deceased, Imaratibai, and the son of the deceased, Radhey Lai, deposed about the commission of the said crime and they stated that the accused persons had murdered the deceased Dhanuwa.The village Constable, Jagdev, also stated in his deposition that on being informed by Radhey Lal, he rushed to the spot where the alleged incident had taken place and he found that all the four accused persons were carrying the dead body of Dhanuwa, the deceased.On seeing the Police, they left the dead body and fled away and thereafter disappeared in the jungle.The learned Additional Sessions Judge on considering the evidences and materials on record held that all the four accused persons were guilty of an offence punishable under Section 302 read with Section 34 IPC.He therefore convicted the accused persons under Section 302 read with Section 34 IPC and sentenced to each of them to suffer imprisonment for life.The accused/appellants thereafter preferred Criminal Appeal No. 287 of 1979 before the Jabalpur Bench of Madhya Pradesh High Court challenging their convicted and sentence passed by the learned Additional Sessions Judge.The High Court accepted the finding of the learned Additional Sessions Judge that it was a case of murder but since the two eyewitnesses were close relations of the deceased, namely, the son and the widow, and no independent eye-witness was examined although according to the prosecution, some of villagers had also witnessed the said incident of murder, the High Court inter alia held that, in the absence of corroboration by independent witnesses, the complicity of the accused could not be established convincingly particularly when there was contradiction in the depositions of the eye-witnesses.The High Court also did not intend to place reliance on the deposition of the eye-witnesses in view of the fact that P.W. 2 widow of the deceased had stated that only two pharsa blows had been inflicted on the deceased but from the medical evidence it transpired that six incised wounds were caused by pharsa.The High Court had also drawn adverse inference against uV prosecution case for not examining the.village Chowkidar when the said Chowkidar was also present when the report was made in the police station.The High Court was of the view that the first information report was not without suspicion and improvements had been made in the prosecution case to suit the prosecution case.Accordingly, the conviction and sentence passed by the learned Additional Sessions Judge was set aside by the High, Court and all the accused persons were acquitted.The State of Madhya Pradesh thereafter made an application for leave before this Court to assail the decision of the High Court and this Court granted leave.The learned Counsel for the appellant has submitted that the two eye-witnesses, namely P.W.I and P.W. 2 had stated specifically about the commission of murder of Dhanuwa by the accused persons.The said two witnesses were natural witnesses and simply because they were close relations of the deceased, there was no occasion to discard their evidences as unreliable.It is in evidence that seeing his father being assaulted by the accused persons.P.W.I, Radhey Lai, went to call the village Constable and when the village Constable Jagdev (PW3) rushed to the spot, the Constable also found the accused persons carrying the dead body of the deceased and seeing the police they left the dead body and fled away.It has been contended by the learned Counsel that the learned Additional Sessions Judge has rightly held that there is no material contradiction in the depositions of the said eye-witnesses and the evidence adduced by them also gets support from the evidence of an independent police constable who had also seen the accused persons carrying the dead body of the deceased immediately after the assault.The learned Counsel for the State has also submitted that it has transpired in evidence that when P.W.I, Radhey Lal, was in the police station, the widow, Imaratibai, had also reached the police station and informed his son that his father had died.It is, therefore, quite reasonable that in the first information report the factum of death of Dhanuwa was noted and there was no reason for the High Court to take any exception as to why in the first information report lodged by Radhey Lai the factum of death was mentioned when Radhey Lai was not sure by that time whether his father had died.The learned Counsel for the appellant has also contended that the deposition of P.W.I, Radhey Lai, as to how Pyare Raja first hit Dhanuwa with lathi and thereafter other accused persons also attacked the deceased with lathis and pharsa tallies with the statement in the first information report and such deposition stands corroborated by the deposition of P.W. 2, Imaratibai.The learned Counsel for the appellant has further submitted that although both the eye-witnesses had specifically stated that the accused Vijay Singh gave pharsa blows on the deceased Dhanuwa, the High Court unjustly emphasised a minor contradiction to the effect that although the said two witnesses stated that two pharsa blows were given but from medical evidence it transpired that six incised wounds were caused on the person of the deceased.It has been submitted by the learned Counsel for the appellant that it was nobody's case that any other accused was armed with pharsa and if in the deposition of P.W.I, number of pharsa blows given by Vijay Singh who alone had phrasal could not be properly been and stated in the deposition, it cannot be held that there is such a material contradiction in the evidence of the eye-witnesses that the case cannot be accepted to be believable.The learned Counsel for the appellant has also submitted that the police constable who came immediately after the occurrence has also deposed and has categorically stated that the accused persons had been carrying the body of the deceased.The said police constable is an independent witness and nothing has been suggested against the veracity of the said witnesses.The learned Additional Sessions Judge has also noted that Pyare Raja and other accused persons were in aggressive mood and previously they had assaulted the bus driver and also the deceased.Even on the date of incident, Pyare Raja slapped the widow of the deceased, Imartibai, shortly before the incident and nobody dared to protest.The learned Counsel has submitted that in the aforesaid facts, it was quite likely that the villagers out of fear were not inclined to give evidence in the case.The learned Counsel has also submitted that the village chowkidar was present in the police station when first information report was lodged.The learned Counsel has, submitted that the order of acquittal passed by the High Court was completely against the weight of the evidence and the prosecution case was discarded on flimsy grounds.Such decision therefore, should be set aside and the well reasoned order of conviction and sentence passed by the learned Additional Sessions Judge should be upheld by this Court.Mr. Gambhir, the learned Counsel appearing for the respondents has however submitted that admittedly there was bad feeling between the deceased and Pyare Raja and other accused persons and it is the positive case of the prosecution that Pyare Raja had assaulted the deceased Dhanuwa prior to the fateful date of murder.According to prosecution case only four persons took part in murdering the deceased and three were armed with lathis and only Vijay Singh was armed with pharsa.In such circumstances, both the eye-witnesses could not have missed the number of blows caused by Vijay Singh with pharsa.Apart from the two eye-witnesses, the police constable Jagdev (P.W. 3) has supported the case of murder of Dhanuwa on the day and at the time alleged in F.I.R. Jagdev has seen immediately after the occurrence that the accused had been attempting to take away the dead body of Dhanuwa.Even the owner of Mill had left the mill and gone to his house.The village chowkidar was not an eye-witness to the incident of murder.The son Radhey Lai after seeing his father critically injured by the accused rushed to call the police constable.The learned Additional Sessions Judge has noted that both the eye-witnesses could not be shaken in cross examination.The deceased died on the spot and had suffered multiple injuries numbering thirteen.His tibia was cut and both the ulnas and radius were broken.Even when he was lying helplessly on the ground, assaults continued.The wife of the deceased, when in attempt to save his life, fell on his body, she was pushed back and further assaults were made.
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['Section 34 in The Indian Penal Code', 'Section 302 in The Indian Penal Code']
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Analyze the legal case and identify the corresponding section it comes under.
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35,910,719 |
Case diary is available.This is the first bail application filed by the applicant/accused under Section 439 of Cr.P.C. for grant of bail in connection with Crime No.42/2016 registered at Police Station Raghogarh, Distt.Guna for the offence punishable under Sections 323, 294 and 506 of IPC and further added Sec. 326 of IPC.Learned counsel for the applicant/accused submits that earlier case was registered under Sections 323, 294 and 506 of IPC.All the offences are bailable.During investigation the applicant/accused was arrested and he was released on bail.After that an offence under Section 326 of IPC has been falsely added in this case in order to arrest the applicant/accused whereas there is no evidence against the applicant/accused to connect him with the offence under Section 326 of IPC because as per the contents of the FIR and the statement of injured Ramkesh the applicant/accused assaulted him with a stick on his head.Resultantly he sustained grievous injury.In the circumstances offence under Section 326 of IPC is not made out.At the most offence under Section 325 of IPC is made out which is bailable.On the aforesaid ground learned counsel for the applicant/accused prayed for bail.Learned Panel Lawyer opposing the submissions made on behalf of the applicant/accused has prayed for rejection of the bail application.Heard the arguments of both the parties and perused the Jagdeesh v. State of Madhya Pradesh Mcrc.3780.2016 case diary.On perusal it transpires that applicant/accused assaulted the injured with stick on his head and resultantly he sustained grievous injury.Considering the submissions made on behalf of the applicant/accused, the application is allowed.It is directed that the applicant-accused be released on bail on his furnishing a personal bond for the sum of Rs.50,000/- (Rs. Fifty Thousand only) with one solvent surety of the like amount to the satisfaction of the trial Court for his regular appearance before the trial Court on the condition that he shall remain present before the Court concerned during the trial and shall also comply with the conditions enumerated under Section 437(3) of Cr.P.C. and so also as imposed by the trial Court.A copy of this order be sent for compliance to the Court concerned.Certified copy as per rules.(M.K. Mudgal) Judge ar
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['Section 326 in The Indian Penal Code', 'Section 506 in The Indian Penal Code', 'Section 323 in The Indian Penal Code', 'Section 294 in The Indian Penal Code', 'Section 325 in The Indian Penal Code']
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Analyze the legal case and identify the corresponding section it comes under.
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359,198 |
Facts leading to those appeals are asunder:for the above breach a case under Section 14 of theForeigners Act, 1946 was registered against her by theVanchiyoor police Station (Crime No. 225 of 1994) theinvestigation taken up.On November 13, 1994, on the complaint of Shri Vijayananother case was registered by Vanchiyoor Police Station(Crime No. 246 of 1994) against her ( Mariyam Rasheeda) andFouzia Hassan [appellant in the Criminal Appeal arising outof S.L.P. (Crl.) No. 503 of 1998] for offences punishableunder Sections 3 and 4 of the Indian Officials Secrets Act,1923 ('IOS' Act for short) on the allegation that incollusion with some Indians and foreigners they hadcommitted acts prejudicial to the safety and sovereignty ofIndia.Initially both the cases were investigated by ShriVijayan but later on a special team of State policeofficials, headed by Shri C.B. Mathew, Deputy InspectorGeneral (Crimes ), and including Shri Vijayan, wasconstituted to investigate into the same.In course of theinvestigation S. Nambi narayanan (appellant in Criminalappeal No. 493 of 1997), two senior scientists working withthe Indian Space Research Organisation ('I.S.R.O.' forshort), a labour contracter, K. Chandrasekhar (appellant inCriminal Appeal No. 494 of 1997), an authorisedrepresentative of a Russian Firm in India, besides the abovetow ladies were arrested.While the investigation was in progress, Shri Mathewsent a report to the Director General of Police, Kerala onNovember 30, 1994 station, that the special team of StatePolice Officials was not adequately equipped to conducteffective investigation into the two cases and praying forappropriate orders for getting the cases investigated by theCentral Bureau of Investigation ( 'C.B.I.' for short.On receipt of the report, the Director General ofPolice recommended to the Government of Kerala to entrustthe investigation to the C.B.I.; and accept in the aboverecommendation the Government of Kerala issued the followingnotification on December 2, 1994;" In pursuance of the provisions of Section 6 of the Delhi Special Police Establishment Act, 1944 (Central Act 25 of 1946) the Government of Kerala hereby accord consent to the extension of powers and jurisdiction of the members of the Delhi Special police Establishment in the Whole of the State of Kerala for investigation of Crime Nos. 225/94 and 246/94 of Vanchiyoor Police Station.(By order of the Governor) Sd/- C.P. Nair Commissioner and Secretary to Govt. (Home) Explanatory Note (This does not form part of the notification be- is intended to indicate its general purport).Two cases in Crime Nos. 225/94 and 246/94 have been registered in the Vanchiyoor police Station under Section 7; of the foreigners Orders, 1948 read with Section 14 of the foreigners Act, 1946 and under Sections 3 and 4 of the official Secrets Act, 1923 read with Section 34 of I.P.C. involving inter alia charges of espionage of the accused, so far arrested, two persons are nationals of Maldives.The District General of Police has now brought to the notice of the Government that since the incidents of this case spread over to the other States of India and foreign locations and also considering the special nature of the crimes the above two cases may be transferred to the Central Bureau of Investigation who are better equipped and also have the advantage of being a Central Police Investigating outfit.After carefully considering the request, Government have decided that the cases in Crime Nos. 225/94 and 246/94 of Vanchiyoor Police Station may be transferred to the Central Bureau of Investigation.Hence the notification."Following the above notification, C.B.I. re-registeredthe above cases as R.C. NO. 10/S/1994 and R.C. No. 11/S/1994respectively and took up investigation.As regards the latter the C.B.I. filedits report in final from under Section 173 (2) of the Codeof Criminal Procedure ('Code' for short) on April 16, 1996before the same Magistrate praying for discharge of all theaccused persons as, according to it, the allegations ofespionage were not proved and they were false.The reportwas accepted and the accused-appellants were discharged.Thereafter on June 27, 1996 the Government of Keralaissued a notification withdrawing t he consent earlier givento the C.B.I. to investigate Crime No. 246/94 ( R.C.No.11/S/1194).The said notification along with itsexplanatory note reads as under:-Later on.J U D G M E N TM.K. MUKHERJEE,J.These appeals have been heard together as they aredirected against one and the same judgment rendered by theKerala High Court.Hence this notification."Eloquent proofthereof is furnished by the following facts andcircumstances as appearing on the record:-(i) while requesting the Director General of Police, Thiruvananthapuram, to transfer the case to C.B.I. for investigation by his letter dated 30.11.94, Shri Mathew, the Deputy Inspector General of Police (who, as noticed earlier, impleaded himself as a respondent in the writ petitions filed by the accused - appellants in the High Court) Stated as under:-" (1) The incidents of this case are spread over the three states of Kerala, Tamilnadu and Karnataka and foreign locations like Colombo and Male.(2) There is reason to believe that strategically important information about the IAF/Armed Forces (R & D Wing ) have been passed on by the espionage chain to unfriendly countries.That there would be no difficulty in carrying on aneffective and purposeful investigation with the assistanceof the related organisations of the Central Government.Having regard to the stand taken by the Central Governmentthat they are satisfied with the report of investigation ofthe C.B.I. we are not prepared to accept the abovestatement, in the absence of any supporting affidavit onbehalf of the Government of India or any of thoseorganisations; (ii) On a careful perusal of the policereport submitted by the C.B.I. on completion of theinvestigation (which runs through more than 100 pages) wefind that it has made a detailed investigation from allpossible angles before drawing the conclusion that theallegations of espionage did not stand proved and were foundto be false.mr. Shanti Bhushan, however, drew our attentionto certain passages from that report to contend that C.B.I.only 'Investigated the Investigation' (to use the words ofMr.Shanti Bhushan), which had been carried on for less thanthree weeks by the Kerala police and the Intelligence Bureauof the Central Government, in its (C.B.I.'s) anxiety toestablish that the statements of the accused - appellantsrecorded by the Kerala Police and the Intelligence Bureaucould not be accepted as correct.He also drew out attentionto pages 7 to 15 of the counter affidavit filed by Shri T.P.Sen Kumar, Deputy Inspector General of Police, Kerala ( InCriminal Appeal No. 491 of 1997) , wherein detailed reasonshave been given for not accepting the police reportsubmitted by the C.B.I. and for the State Government'sdecision to withdraw the consent.After having gone throughthe relevant averments made in those pages we find that themain endeavour of Shri Sen Kumar has been to demonstratethat the conclusions arrived at by the C.B.I. from thematerials collected during investigation were wrong and notthat the investigation was ill directed or that thematerials collected in course thereof were insufficient orirrelevant.If the State Government found that theconclusions drawn by the C.B.I. were not proper, the onlycourse left to the State Government, in our opinion, was toask the Central Government to take a different view of thematerials collected during investigation and persuade it tolodge a complaint in accordance with Section 13 of theI.O.S. Act. The contention of Mr. Shanti Bhushan that theC.B.I. only 'investigated into the investigation' is alsowithout any basis whatsoever for we find that keeping inview the statements made by some of the accused appellants,the C.B.I. sought for the assistance of INTERPOL and got anumber of persons examined by them in Srilanka and Maldives[besides a number of witnesses in India, who were examinedby it (C.B.I.)].On the contrary, from the police report submitted by the C.B.I. we find that several scientists of this organisation were examined and from the statements made by those officers the C.B.I. drew the following conclusion:-" The sum and substance of the aforesaid statements is that ISRO does not have a system of classifying drawings/documents.In other words, the document drawing are not marked as Top Secret, Secret, confidential or classified etc. Further, ISRO follows an open door policy in regard to the issue of documents to scientists.Since ISRO, is a research oriented organisation, any scientist wanting to study any document is free to go to the Documentation Cell/Library and study the documents.As regards the issue of documents to various Divisions, the procedure was that only the copies used to be issued to the various divisions on indent after duly entering the same in the Documentation Issue Registers.where accused sasikumaran was working, various drawings running into 16,800 sheets were issued and after his transfer to SAP, Ahmedabad on 7.11.1994, all the copies of the drawings were found to be intact.Nambi Narayan being a senior scientist, though had access to the drawings, but at no stage any drawings/documents were found to have been issued to him.they have also stated it was usual for scientists to take the documents/drawings required for any meetings/discussions to their houses for study purposes.This willbe evident from the followed passage from the order datedDecember 13, 1996 passed by the Chief Judicial Magistrate,Thiruvananthapuram while granting permission to the KeralaPolice to further investigate :-" The report submitted by the Director General of Police disclosed the fact that the he has got reliable information that the conclusions arrived at by the C.B.I. during investigation were not correct.( emphasis supplied)and from the order of detention dated September 6, 1997passed against the appellant Mariyam Rashida by Mr. MohanKumar, Additional Chief Secretary, Government of Kerala.Thesaid order reads as under:-" WHEREAS Smt. Mariyam Rasheeda who is a Maldivian National, a foreigner, is an accused in Crime No. 246/94 of Vanchiyoor Police Station.Thiruvananthapuram WHEREAS in the judgment dated 27- 12-1996 in O.P. Nos. 27-12-96 in O.P. Nos. 127-7/96 , 14248/96, 15363/96 and 16358/96 the Hon'ble High Court of Kerala said that the order of Government of kerala to conduct further investigation in the above crime case is valid.WHEREAS the Government of Kerala have taken steps to obtain the formal permission of the Chief Judicial Magistrate, Thiruvananthapuram to conduct further investigation.From the above facts and circumstance we areconstrained to say that the issuance of the impugnednotification does not comfort with the known pattern of aresponsible Government bound by rule of law.this isundoubtedly a matter of concern and consternation.We say nomore.On the conclusions as above we allow these appeals andquash the impugned notification.
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['Section 34 in The Indian Penal Code', 'Section 173 in The Indian Penal Code', 'Section 186 in The Indian Penal Code', 'Section 411 in The Indian Penal Code', 'Section 380 in The Indian Penal Code']
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Analyze the legal case and identify the corresponding section it comes under.
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35,920,391 |
Case diary is available for perusal.The applicant has filed this first application under Section 438 of Cr.On the aforesaid grounds, the applicant has prayed for grant of bail.MCRC.7129.2014. 2When the complainant told him that owing to it being hot inside the house, the applicant-accused hurled filthy abuses at him pertaining to his caste and assaulted him by lathi on his head, due to which, complainant suffered injury on right eyebrow.Applicant also beat him by kicks and fists and only when he raised alarm for his help, other village people came there and rescued him.The applicant-accused told him that he had escaped that day by luck and threatened him to kill if he ever talked about it being hot in the house.On perusal of the FIR and the statements of witnesses, it is evident that when complainant was sitting at his door, he was abused by the applicant-accused and assaulted.In such circumstances, it cannot be inferred that MCRC.7129.2014. 3 he was humiliated by the applicant in public view as held in the earlier judgments (supra).Hence, the submissions made on behalf of the applicant-accused placing reliance upon Ummed Singh and others (Supra) appears to be convincing.MCRC.7129.2014. 3The applicant shall comply with all the terms and conditions of the bond executed by him;The applicant shall cooperate in the investigation/trial, as the case may be;
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['Section 3 in The Indian Penal Code', 'Section 323 in The Indian Penal Code', 'Section 294 in The Indian Penal Code']
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Analyze the legal case and identify the corresponding section it comes under.
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35,922,412 |
CRL.A. 353/2003 Page 1 of 27The factual matrix of the case as presented by the prosecution is that in the evening of 29.4.2000, the deceased, Sh.Ravi Chaudhary alongwith his wife, Smt. Shashi Chaudhary and two minor children had gone to Sidhartha Hotel, East Patel Nagar to attend a party.After attending the party, when the deceased and his family stepped out from the hotel and sat in the car, Maruti car bearing number DL-6C B 2548, to return to their home, at about 10.15/10.30 P.M., the deceased drove towards the right side of the road to take a U-turn and turn back to the Pusa Road round about.On reaching Dasa Prakash Restaurant, situated down the same road from Sidhartha Hotel, the appellant, who was driving a Maruti Gypsy bearing registration number DL 1C 4328 and had two children sitting alongwith him, drove down from the Pusa Road round about side and hit the Maruti car of the deceased causing some scratches/dent on it.A quarrel erupted between the parties.Ravi stopped his car, he and his wife came out and walked towards the Gypsy of the appellant, who remained seated in his vehicle and started hurling abuses at them.When Ravi turned back to walk towards his car, the appellant said that he will teach him a lesson and hit him with his Gypsy.Ravi was dragged for about 20 yards with the vehicle and then he fell down from the bonnet on to the road and collapsed while the appellant fled from the spot in his vehicle.The victim was taken by his wife to Sir Ganga Ram Hospital (SGR Hospital in short) and given treatment.He could not survive for CRL.A. 353/2003 Page 2 of 27 long and expired on 30.4.2000, at about 10.10 A.M. While in the hospital, the police recorded the statement of the victims wife on 29.04.2000 (Ex.PW5/A).Her supplementary statement was recorded by the police on the next day as well wherein, she clarified that the appellant was driving a Gypsy.Earlier, she had described the vehicle as a "Sumo type" vehicle.PW-1, Dr. Sanjay Rohtagi, CMO, SGR Hospital proved the MLC prepared by him and marked as Ex.PW1/A. Dr. Rishabh Jain, Medical Officer, SGR Hospital appeared as PW-2 and proved the death certificate of the victim, marked as Ex.PW2/A and his death summary marked as Ex. PW2/B. Dr. K. Goel, who appeared as PW-3, proved the postmortem examination report of the deceased, marked as Ex.PW3/A. PW-11, ASI Karan Singh, who was posted at PS Patel Nagar at that time, was assigned DD No.40A, for investigation.He along with PW-12, Constable Devender Kumar, who was handed over DD No.42A, reached SGR Hospital on 29.04.2000 and found that the victim was unfit to give a statement.The statement of the wife of the deceased, (PW-5) recorded by PW-11, is marked as Ex.PW5/A. The said statement was endorsed by PW-11 as Ex.PW11/A and handed over to PW-12 for getting the case registered.The said witness returned to the scene of the crime and seized the blood lying at CRL.A. 353/2003 Page 3 of 27 the spot vide Ex.PW11/B. The seizure memo of the Maruti car of the deceased parked in the Hospital premises was proved by the said witness as Ex.PW11/C.CRL.A. 353/2003 Page 3 of 27After depositing the case property in the Malkhana of the Police Station, PW-11 accompanied PW-20, Inspector Ombir, SHO, PS Patel Nagar to the hospital.He again returned to the spot and prepared the unscaled site plan, Ex.PW11/D. On going back to the hospital, the doctor handed over to PW-20, Inspector Ombir, the SHO, a sealed parcel containing the clothes of the deceased, seized vide seizure memo, Ex.PW-12, Constable Devender deposed on the same lines as PW-11. PW-19, SI R.S. Meena was present when PW-20 arrested the appellant and seized the vehicle involved in the crime, i.e., the Maruti Gypsy alongwith its keys vide seizure memo Ex.PW10/A. The driving license and a copy of the Registration Certificate were seized vide seizure memo Ex.PW10/B. Since some blood stains were noticed on the aluminium plate near the right side of the vehicle, a photographer was called to take the photographs and the blood was seized vide seizure memo, Ex.PW10/C.On 01.05.2000, the appellant was arrested and produced for his TIP in a muffled face, but he declined to participate in the TIP.The said report is marked as Ex. PW24/A wherein, it was recorded that the appellant had declined to participate in the TIP proceedings.We may first note some relevant facts.Smt. Shashi Chaudhary, (PW-5), wife of the deceased, who is the sole eye witness in the present case, had initially deposed that on 29.04.2000, the appellant, who was driving a Maruti Gypsy, had overtaken their Maruti car and signaled to her husband, Shri Ravi Chaudhary to stop his car, which he did by parking it on the side.Thereafter, her husband had stepped out from the car and walked towards the drivers seat of the Gypsy, where the accused was sitting.As soon as he reached the drivers seat, the appellant started abusing him to which her husband had objected and when he turned back towards his car, the appellant shouted "Mai tumhein abhi maja chakhata hoon" and thereafter, he stepped up the speed of his vehicle and hit her husband, who was pushed on to the bonnet of the Maruti Gypsy.The CRL.A. 353/2003 Page 7 of 27 appellant continued driving the vehicle for about 20 yards in this manner whereafter, her husband fell from the bonnet on to the road and collapsed while the appellant fled from the spot in his Maruti Gypsy.However, during her examination-in-chief conducted on 13.3.2001, PW-5 had denied stating to the police that even after her husband fell down from the bonnet, the driver had again hit him with his Maruti Gypsy.PW-5 also denied having stated to the police that her husband had been dragged by the appellant, who had again hit him at point C, as reflected in the unscaled site plan of the spot (Ex.PW11/D).She denied having stated to the police on 15.5.2000, that on seeing the appellant, she had stated that he was the same person who had crushed her husband to death ("mere pati ko kuchal kar mara thaa").In her cross-examination, PW-5 stated that the appellant was not known to her and her husband earlier and nor did they have any enmity with him.Dr. Sanjay Rohtagi (PW-1), who had examined the injured when he was brought to SGR Hospital on 29.4.2000, at about 10.30 P.M., described the case as a history of road traffic accident and stated that he had noticed "Local injury CLW" on the back of the scalp, left side and swelling on the left ankle and had referred him to the Neurosurgery and Intensive Care Department for further management and treatment.In the MLC prepared by PW-1 (Ex.There was no injury in mid brain and hind brain where the most vital parts of the brain are situated controlling the vital functions of the body.Whether the frontal lobe of brain is a vital part of the body or not.He was a married man, having two small children.(i) The deceased had died at the prime of his life, at the age of 39 years.(ii) The deceased was married at that time and had a wife and two children to support.(iii) The appellant was aware of the fact that the deceased was accompanied by his wife and two small children, who were with him in the Maruti car at the time of the incident but he did not act in a humane manner by trying to help him.A limited question that has come up for consideration in the present appeal, arising from Sessions Case No.185/2001, in FIR No.301/2000, PS Patel Nagar, is as to whether the conviction of the appellant vide impugned judgment dated 21.4.2003, under Section 302 IPC and the order on sentence dated 22.4.2003, sentencing him to undergo rigorous imprisonment for life and pay a fine of Rs.5,000/-, and in default of payment of fine, undergo simple imprisonment for a period of three years, is liable to be upheld or he deserves to be held guilty for the commison of a lesser offence under Section 304 Part II of the IPC.On conclusion of the investigation, vide order dated 20.10.2000, charges were framed against the appellant under Section 302 IPC.He pleaded not guilty and claimed trial.CRL.A. 353/2003 Page 2 of 27To prove its case, the prosecution examined 24 witnesses.PW-16, Teerath Raj Singh CRL.A. 353/2003 Page 4 of 27 was the Draftsman, who on the pointing out of the wife of the deceased, (PW-5), had reached the place of occurrence on 13.5.2000 and prepared the scaled site plan, marked as Ex.PW16/A.CRL.A. 353/2003 Page 4 of 27Dr. Rajender Singh, Sr.Scientific Officer, Grade-I, CFSL, CBI, New Delhi, who deposed as PW-21, proved the microscopical examination report dated 31.7.2000, in respect of the white colour Maruti car driven by the deceased and the white colour Maruti Gypsy driven by the appellant, as Ex.PW21/A. The FSL report dated 15.11.2000 in respect of the case material forwarded by the police was marked as Ex.Pertinently, the articles forwarded to the FSL for an analysis included a piece of the alluminium plate of the Maruti Gypsy seized by the police.The analysis report stated that no blood could be detected on the exhibit.The serological report submitted by the FSL confirmed that the human blood found on the soil lifted from the scene of the crime, matched with the blood group of the deceased (AB Group), lifted from his clothes.PW-22, ASI Devender Kumar, who had mechanically inspected the Maruti car driven by the deceased and the Maruti Gypsy driven by the appellant, submitted his reports, Ex.PW22/A and Ex.PW22/B.On conclusion of the evidence, the appellant was granted an opportunity to lead evidence in defence, which he declined.On 20.08.2002, his statement was recorded under Section 313 Cr.PC wherein, he stated that he was innocent and claimed that he had been falsely implicated in the case.In the impugned judgment dated 21.4.2003, the trial court has relied on the testimony of PW-5, Smt. Shashi Chaudhary and held that her statement was duly corroborated CRL.A. 353/2003 Page 5 of 27 with the expert evidence including the CFSL report of inspection, CFSL report on the serological analysis read with the medical evidence, i.e., MLC (Ex.PW1/A) and the post mortem report (Ex.PW3/A), which proved that the appellant, who was driving the Gypsy on 20.4.2000, had hit the Maruti car driven by the deceased, causing scratches on the vehicle and thereafter, in the ensuing quarrel that took place between the parties, he abused the deceased to which the latter had objected.At that, the appellant had threatened to teach him a lesson and had hit him with his Maruti Gypsy, as a result whereof the deceased was pushed on to the bonnet of the Gypsy.The appellant kept on driving the Maruti Gypsy at a fast speed and dragged him for about 20 yards whereafter the deceased fell off the bonnet on to the road and collapsed.He was taken to SGR Hospital immediately where he breathed his last and expired on the next day.CRL.A. 353/2003 Page 5 of 27We may note that initially, Mr. Mohit Mathur, learned Senior Advocate appearing for the appellant had opened his arguments by challenging the impugned judgment on merits and had contended, amongst others, that the testimony of PW-5, the sole eye witness is neither consistent, nor reliable and even her presence at the spot is doubtful; that the medical evidence did not support the case of the prosecution; that no motive was attributed to the appellant to cause the death of the deceased and the alleged incident had also not been scientifically proved by the prosecution.Subsequently, on instructions received, learned Senior Counsel elected to confine his arguments to the nature of the offence and canvassed that this case falls under Section 304 CRL.A. 353/2003 Page 6 of 27 Part II and not under Section 302 IPC, as held by the trial court.He argued that the incident that had occurred on the night of 29.4.2000, was without any premeditation and the act of the appellant in the ensuing sudden quarrel that took place with the deceased, of speeding up his Maruti Gypsy with the deceased on the bonnet of the car, who fell on to the road on the breaks being applied by him, was an act which squarely falls within the scope of Exception 4 to Section 300 IPC, thus attracting the provisions of Section 304 Part II IPC.CRL.A. 353/2003 Page 6 of 27She admitted that there was no physical scuffle between the parties and stated that the appellant had started hurling abuses at her husband at which both of them had turned back towards their car without any discussion.She denied the suggestion made by the defence counsel that her husband had jumped on to the bonnet of the Maruti Gypsy to stop the appellant from driving away or to CRL.A. 353/2003 Page 8 of 27 beat him up or that he had fallen down on the road before he could balance himself.CRL.A. 353/2003 Page 7 of 27CRL.A. 353/2003 Page 8 of 27During his cross-examination, when it was put to him by the defence as to whether the head injury of the patient was possible by a fall on the verge or by hitting with some hard/blunt object, he had answered in the affirmative.He had also stated that the said injuries were not possible on crushing and dragging by a vehicle upto 20 yards.Dr. K. Goel (PW-3), who proved the postmortem examination report (Ex.PW3/A), deposed that the patient was brought to the hospital on 29.4.2000 at 10.30 P.M. and he had expired on the next day, i.e., on 30.4.2000, at 10.10 A.M. In his report, PW-3 mentioned the following injuries found on the body of the victim:-"On external examination, the following injuries were found on the body:1) Surgical wound over scalp extending from left frontal right parietal and right temporal upto just infront of right ear.CRL.A. 353/2003 Page 9 of 272) Defused bruises with over-ling abrasions scattered over left side face in area 4.5" x 3" , all over nose, forehead at places and over chin with fracture nasal bone.3) Grazed abrasions 2.5" x 2" over front of left shoulder, 12" x 4" over lateral aspect of left arm, elbow and upper part of left fore-arm.4) Grazed abrasions with bruises in area 5" x 2.5" over left chest around the nipple.5) Multiple abrasions scattered over right elbow joint both knee joints, upper part of left leg, medial side of the left ankle and few over right leg at places.6) Multiple grazed abrasions scattered allover the back of chest and back of right abdomen.INTERNAL EXAMINATION.There was sub scalp bruising left parieto temporal and right temporal region cranio-toum operation with removal of bones over left fronto-parietel and over right fronto-parieto temporal bones with were holes.Bone pieces were present.There was fissur fracture over part of left temporal bona sub-dural hemotoma seen over right frontal and right temporal lob, defused sub-arachnoid haemorrhage over right fronte temporal and left temporal lob.Frontal lob was contused brain edema was present.There was fracture of left second to 7th ribs anteriorally with clots at fracture sides."The report of PW-3 concluded that "cause of death was cranio-cerebral injuries consequent upon blunt force impact.All injuries were ante- mortem in nature.Post mortem findings were consistent with hit and run by a vehicle.Time since death was about 4 hour."CRL.A. 353/2003 Page 10 of 27PW-3 was extensively cross-examined by the defence counsel.In his cross-examination, on being suggested that any of the injuries on the dead body were crush injuries, he denied the same and stated that injuries 3 to 6 could be caused on the person of the deceased by a fall in an accident case by a motor vehicle on the road or on hard rough surface.He further stated that the head injury (cranio-cerebral injury) is possible by striking of a moving head against some stationary hard blunt surface and that such an injury was possible if a person falls from the bonnet of a running Gypsy, which is running with some speed on the road, that may not be a fast speed.PW-3 was recalled for further examination-in-chief on the same day, i.e., on 30.1.2001 and following are the questions put and the answers given by him:-PW3/A were abrasions and bruises only.In general were non fatal.The craniocerebral injuries were likely to cause death in ordinary course of nature.Likely I mean the injuries in the brain was on the frontal lobe and the deceased survived about 12 hours after the incident.In general the whole brain is the vital part of the body but in case of frontal lobe injury the death is not instantaneous and the patient can survive."CRL.A. 353/2003 Page 11 of 27Coming next to the FSL report (Ex.PX), the report noted that the blood detected on the clothes of the deceased (AB Group) had matched with the human blood found on the soil lifted from the spot.However, no blood was detected on the piece of alluminium plate affixed on the Maruti Gypsy of the appellant, that was sent for an analysis.Dr. Rajender Singh (PW-21) proved the mechanical report in respect of the two vehicles, namely, the Maruti car, driven by the deceased and the Maruti Gypsy driven by the appellant (Ex.PW21/A), wherein he mentioned that there were dents/scratches on both the vehicles and they matched with one another in respect of their height and transfer of similar paint material.PW-21 he concluded that the right side of the Maruti car had come in contact with the left side of the Maruti Gypsy.From the evidence brought on record, the following facts and circumstances stand proved:-(i) A road accident had taken place in the night of 29.4.2000, on the road where Hotel Siddharth is located in East Patel Nagar in which a Maruti Gypsy being driven by the appellant had hit the Maruti Car being driven by the deceased.(ii) That the accident had resulted in a sudden heated exchange of words between the two parties.(iii) That when the deceased had turned to go back to his car, the appellant had accelerated his Maruti Gypsy and hit him.(iv) That impacted by the hit, the deceased fell on to the bonnet of the Maruti Gypsy and the appellant continued driving for about 20 yards.CRL.A. 353/2003 Page 12 of 27(v) That when the appellant applied the breaks, the deceased fell down from the bonnet of the Maruti Gypsy on to the road and sustained a head injury.(vi) That on the date of the incident, the appellants two children were sitting in his Maruti Gypsy.Similarly, the deceased, who were returning from a party at Hotel Siddharth, was accompanied by his wife and two children.(vii) Neither of the parties were known to each other before the incident and there was no history of enmity between them.The said provision is reproduced herein below for ready reference:-CRL.A. 353/2003 Page 19 of 27It is noteworthy that in the instant case, the deceased was brought in an injured state to SGR hospital on 29.4.2000 at 10.30 PM and he had expired after about 12 hours reckoned there from, i.e. on 30.4.2000, at 10.10AM.Thus, his death was not instantaneous, but had occurred after a period of 12 hours from the time of the accident.The medical evidence demolishes the prosecution version that the deceased was crushed under the wheels of the Maruti Gypsy driven by the appellant.Rather, the evidence brought on record, supports the version of the defence that when the appellant had accelerated his Maruti Gypsy and hit the deceased, the latter had rolled on to the bonnet of the car and had clung on to it for about 20 yards, till he had applied the breaks.Rather, it was the victim who stepped out from his car and walked towards the appellants vehicle whereafter a quarrel had erupted between the parties.(iv) Instead of extending a helping hand and rushing the victim to the hospital for medical treatment, the appellant fled from the spot, only to be arrested by the police on the next day.CRL.A. 353/2003 Page 26 of 27In our opinion, in the peculiar facts and circumstances of the present case, where the appellant has undergone sentence for almost seven years, interest of justice would be adequately met if he is sentenced for the period already undergone by him.However, the fine of Rs.5,000/- imposed upon the appellant is enhanced to Rs.7 lakhs and in default, he shall undergo simple imprisonment for a period of three years.The fine imposed upon the appellant shall be deposited before the trial court within two weeks from today.In the facts and circumstances of this case, we further direct that the fine amount of Rs.7 lakhs shall be treated as compensation payable to the wife and children of the deceased.The trial court and the SHO, Police Station: Patel Nagar shall ensure that the said amount of Rs.7 lakhs is paid to the wife and children of the deceased at the earliest.The appeal is partly allowed and disposed of on the above terms.Trial court record be released forthwith alongwith a copy of the judgment.The appellant shall comply with the provisions of Section 427 of the Cr.PC at the earliest.(HIMA KOHLI) JUDGE (MANOJ KUMAR OHRI) JUDGE APRIL 05, 2019 NA/ap/rkb CRL.A. 353/2003 Page 27 of 27CRL.A. 353/2003 Page 27 of 27
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['Section 300 in The Indian Penal Code', 'Section 304 in The Indian Penal Code', 'Section 302 in The Indian Penal Code', 'Section 299 in The Indian Penal Code', 'Section 338 in The Indian Penal Code', 'Section 304A in The Indian Penal Code']
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Analyze the legal case and identify the corresponding section it comes under.
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35,925,932 |
It was a hundred per cent export oriented unit, engaged in export of tea, coffee, fruit juice concentrate, canned food products, rice, garments, leather goods, computer peripherals, V belts, electronic items, brushes, etc. etc.The main trading activity of the said company was in the erstwhile USSR and CIS countries.The company gradually became one of the leading exporters in India and enjoyed the status of a government recognized Trade House.On 28.04.1992, Head Office vide its letter advised the Branch Manager, Janpath Branch of UBI to obtain requisite documents from the Company for forwarding enhancement proposal of the Company.This Crl.M.C. 160/2010 5/64 letter was endorsed by Head Office to the Regional Manager and Zonal Manager also.The Janpath Branch with whom Company (accused no.4) was maintaining its account for more than a decade recommended to the Regional Manager, North India Region vide its letter dated 01.06.1992 for sanction of enhancement limit.On 24.06.1992, this recommendation was forwarded by the Regional Manager (North India Region) with similar recommendation to Zonal Manager, New Delhi Zone.Counsel has further submitted that petitioner, who assumed charge as Zonal Manager, New Delhi Zone hardly a month back and had no personal or better knowledge of the said account.Based on the recommendation of Regional Manager and Branch Manager, Janpath Branch, sent his recommendation on 27.06.1992 for the enhancement of Credit Limits to the Head Office for scrutiny.It is to be noted that Head Office was already following up the matter, as the account was Head Office Controlled Account and the process was initiated by Head Office itself, vide letter dated 28.04.1992 addressed to Janpath Branch and copies endorsed to the Regional Manager and Zonal Manager.Thereafter, the Head Office by way of detailed "Draft Board Note" signed by General Manager and Deputy Manager (Credit) recommended for Crl.M.C. 160/2010 6/64 enhancement of Oral Credit Limits on 09.10.1992, which was approved by the Chairman and Managing Director.Counsel has further pointed out that the Board of Directors in the addendum note dated 23.10.1992 mentioned that "Accordingly we sought sanction for approval of RBI in respect of aforesaid Facility.We also sought approval of RBI for increasing the overall Credit Limit of the Company from Rs.1672.00 Lacs to Rs.4442.00 Lacs, as we have agreed in principle for such enhancement.Reserve Bank per telex No. 5709 dated 16.10.1992 advised us to dispose of the case in the light of their instructions conveyed to our Bank per telex no. 5520 dated 09.10.2012."It is further submitted that on 07.11.1992, the said approved Board Note was then placed before the Board of Directors.The Head Office conveyed the enhanced sanction to the Zonal Manager with intimation to the Branch Manager and Regional Manager.Counsel has further submitted that the officiating Chief Manager namely Sh.S. Bose Roy of Janpath Branch vide letter dated 10.12.1992, informed the Zonal Manager of Companys representation for inclusion of DA Bills also in the sub-limit of FOBP along with D.P. Bills, also that the party of late had been submitting bill of DA (Delivery against acceptance) basis which were duly accepted and honoured on scheduled dates in the last 9 months and that they were not experiencing any problem.Pursuance thereto, the Chief Manager (Credit Operation-II) Head Office, vide telex message dated 31.12.1992 informed the approval in writing to the petitioner, specifically stating therein that the competent authority had agreed to modify the FOBP sub-limit of the company by inclusion of DA Bills as well.It is important to mention here that before allowing the petitioner to retire, Bank had called for explanation from him and after being satisfied with his detailed reply, came to the conclusion that the petitioner was not involved in any irregularities in respect of this account.Thus the petitioner was allowed to retired on attaining superannuation.It is further submitted that thereafter on 24.08.2001, FIR was lodged with CBI, BS & FC, New Delhi on the basis of source information, against the Company (A-4), its Directors and few officials of the Bank including Crl.M.C. 160/2010 10/64 the petitioner for causing wrongful loss of Rs.21.39 Crores to the United Bank of India, in fact no loss has been caused.Since the petitioner was not provided any record either by Bank or CBI, in spite of his written request, he had to make a statement out of memory in relation to the decisions he had taken or the act done about 10 years back.On 26.03.2004, CBI submitted chargesheet in the case before the court, wherein it is recorded as under:-Investigation further revealed that Sh.Ratan Bagaria (A-2) as the Managing Director of the Company submitted an application dated 28.05.1992 for further enhancement of Working Capital Limits of the Company from Rs.1672 Lacs to Rs.4442 Lacs for achieving the projected turnover for Rs.200 Crores.The proposal submitted by the Branch was recommended by Sh.Kasibatla Ramakrishna, the then Deputy General Manager, United Bank of India, Janpath Branch, New Delhi (A-6) vide his letter dated 27.06.1992 dishonestly by ignoring the adverse facts and circumstances and without keeping the interest of the Bank in mind.The personal net worth of the Directors of the Company was very low while the collateral security of Rs.57 Lacs provided by the Company for covering the recommended limits was inadequate.There was then ongoing Turmoil in USSR starting from the yar 1992 which had lead to trade squeeze by the Exporters.Devraj, the then Deputy General Manager (Credit), Head Office, United Bank of India Kolkata (since deceased) prepared a Note for the Board of Directors, United Bank of India, for sanction of enhanced limits to the Company which was approved by Sh.Manas Kumar Basu, the then General Manager, Credit Department (A-5) knowingly, willfully, and dishonestly.They all had failed to Crl.M.C. 160/2010 11/64 appreciate the facts regarding squeeze of trade; turmoil in the USSR and further also the low cumulative turnover of only Rs.16.80 Crores achieved by the Company during the first two quarter ending with 30.06.1992 & 30.09.1992 against the projected Turn Over target of Rs.200 Crores and thus, the Note prepared for Board of Directors for sanction of steeply enhanced Limits to the Company was in fact prejudicial to the interest of the Bank.The said enhanced limits were subsequently sanctioned by the Board of Directors on 07.11.1992 as detailed under:For Merchandise Unit at Delhi (Overall Limit - Rs.3700 Lacs)(a) Packing Credit (PC)-FBP Limited to Rs.2500 Lacs i. PC - Rs.1200 lacs ii.EBP - Rs.1600 lacs(b) Letter of Credit (I & F) Rs.900 lacs(c) Letter of Guarantee (BG) Rs.300 lacsFor its Hyderabad Unit (Overall Limit - Rs.742 lacs)(a) Packing Credit (PC) Cum FOBP Rs.350 lacs(b) Letter of Credit (I & F) Rs.300 lacs(c) Rupee Term Loan as existing Rs. 92 lacs The Limits to the extent of Rs.3700 lacs was to be released through Janpath, New Delhi Branch which was later on transferred to newly Overseas Branch at Asaf Ali Road, New Delhi opened on 12.09.1995, for the Merchandise Unit of the Company at New Delhi and the remaining Limits of Rs.742 lacs was to be released through Hyderabad Branch for the Manufacturing Unit of the Company at Hyderabad.With the Creation of Overseas Branch at Asaf Ali Road, New Delhi \Investigation further revealed that the Packing Credit cum FOBP sub-limit to be released for the Merchandise Unit of the Company at New Delhi to the extent of Rs.1600 lacs, was only against DP Bills (documentary), backed by confirmed Orders Letter of Credit and details of the documents as specified in the contract.However, Sh.Kasibatla Ramakrishna (A-6), the then Deputy Crl.M.C. 160/2010 12/64 General Manager, United Bank of India, New Delhi knowingly, willfully and dishonestly directed Sh.Kasibhatla Ramakrishna (A-6) subsequently sent a Fax Message dated 14.12.1992 to General Manager (Credit), Head Office, United Bank of India, Kolkata for amendment of the terms and conditions of the Sanction Letter dated 07.11.1992 so as to include the discounting of Foreign Export Bills on DA Basis also.Shantanu Guha, the then Chief Manager (Credit Operation - II), Head Office, Kolkata in league with Sh.Kasibatla Ramakrishna (A-M.K. Basu (A-5) the then General Manager (Credit & IB) vide his Note dated 28.12.1992 who willfully, knowingly and dishonestly approved the said Note.M.K. Basu (A-5) further failed to obtain the approval of the competent authority for such an amendment which in this case was the Board of Directors.Shantanu Guha consequently dishonestfully sent a Telex Message dated 31.12.1992 to Sh.Kasibatla Ramakrishna (A-6) falsely intimating that in terms of his recommendations, the Competent Authority had agreed to modify the FOBP sub-limit of the Company by including the Purchase of Bills of unexpired usance of 60 days backed by confirmed order/Letter of Credit and other documents as specified in the Contract, on DA basis knowing well that Company was including in the "In-house" Business.Investigation further disclosed that Sh.Ratan Lal Bagaria (A-2) of the Company (A-4) dishonestly and deceitfully submitted the Foreign Export Bills which were drawn on the Companies owned and controlled by his brother Sh.Rajan Bagaria (A-3) who at one time was also the Director of the Company (A-4) and Sh.V.K. Maheshwari (A-1) in conspiracy with Sh.Ratan Lal Bagaria (A-2) and with the active connivance of Sh.Kasibatla Ramakrishna (A-6) allowed the purchase of Foreign Bills on DA Basis which were earlier submitted by the Company (A-4) on DP Basis and made available the advance / finances against these Foreign Bills under the cover of the above-said illegal and unauthorized Crl.V.K. Maheshwari (A-1) had allowed the discounting of these 44 bills when the Concurrent Auditor of the Bank had already adversely commented in respect of Discounting of Bills in the account of the Company (A-4).Out of these 44 Bills, bill NO. 069316 purchased on 29.05.1995 for US$ 70,686.00 was drawn on M/s. Arvee International PTE Ltd., 10, Anson Road, Singapore 0207 and the Bill NO. 069369 for 42,167,06 purchased on 17.08.1995 was drawn on M/s. Continental Trading Co., Polant while the rest of the 41 Bills for US$ 15,184.80 each and further another Bills for US$ 2,31,691.00 were drawn on M/s. Interlog Pvt. Ltd. Singapore.All the three companies on which the Bills of the Company (A-4) were drawn, were either owned wholly or were controlled by Sh.Rajan Bagaria (A-3) brother of Sh.Ratan Lal Bagaria (A-2) against which the total amount of Rs.3,15,57,073/- had remained outstanding for payment.M.C. 160/2010 14/64 Maheshwari (A-1) knowingly, willfully, dishonestly and deceitfully had continued to purchase the Foreign Exports Bills of the Company (A-4) when the amount against the earlier discounted / purchased bills had remained outstanding for payment and these facts were well within the knowledge of Sh.Kasibatla Ramakrishna (A-6).Shantanu Guha was posted and functioning as Chief Manager (Credit Operation - II) in the Head Office of United Bank of India, Kolkata and as such was a public servant.The Chairman & Managing Director was the Competent Authority to grant sanction for prosecution of Sh.Shantanu Guha.Mr. Arvind Kumar (PW17) stated that debit voucher dated 04.07.1994 and three credit vouchers all dated 04.07.1994 were prepared by him and identified his writing on these vouchers.The credit voucher dated 29.05.1995 was prepared by Sh.This witness further stated that as per working system in their bank relating to purchase of export bills, he stated that the concerned export bills were first submitted by the borrower and the same were examined by the Chief Manager.Thereafter, approval was accorded by Chief Manager Sh.V.K. Maheshwari to purchase these bills by the borrower.He had prepared the debit and credit voucher.Further stated that as per system export bills were sent to foreign bill with the instructions either to hand over the documents against the acceptance or against payment to the drawee firm depending on the nature of sanction.He further stated that the account of M/s Ratan Export Industries Ltd., was being maintained at our Janpath Branch and this was transferred to Overseas Branch after opening of Overseas Branch.He had also worked in Janpath Branch and handled this account when Sh.He further stated that the foreign bill purchase file relating to M/s. Ratan Export & Industries Ltd. of Janpath / Overseas branch, he stated that as per remark on the letter of the borrower Sh.S. Basu Roy who was Branch Manager of Janpath branch had mentioned that the bills might be purchased against acceptance and borrower had submitted the bills to be purchased against acceptance whereas, sanction was there for accepting for purchasing bills of the borrower against payments.As per instruction of Sh.Officers to whom his letter was endorsed would have definitely raised objections and would have given necessary directions.But he did not receive any direction or objection from them.He further stated that the limits of FOBP was sanctioned against DP i.e. Drawn against payment but the borrower started submitting export bills for DA i.e. Drawn against Acceptance and wanted the Bank to purchase the bills.He did not act as per request of the borrower at his level and sent a note to the DGM, UBI, New Delhi (petitioner), requesting for consideration and approval.V.K. Maheshwari had instructed him to go ahead and asked him to discount the bill on the same day and the account of borrower should be credited with the discounted amount.Accordingly, he had approved the concerned bill of M/s. Ratan Exports & Industries Ld. on 18.03.1996 while Crl.M.C. 160/2010 27/64 working as officiating Branch Manager, United Bank of India, Overseas Branch, New Delhi.When some questions were put before Sh.P. Basu (PW26) during the recording of his statements he replied as under:-Q. As per the sanctioned note dated 0711.1992, the FOBP sub- limit to the borrower was sanctioned against DP basis.Do you agree?To DA has been specifically mentioned in the concerned note.Do you agree?Do you agree.A. Yes, as far as I remember, the performance of the company was good and they are in need for financing on account of increase of export business and was being periodically referred to from our Delhi Zonal Office.The Zonal Manager, number of times had said that this export account will be lost in case we do not take care of their ultimate credit needs.My predecessor, it was reported, Mr. J.V. Shetty, who was the then Chairman & Managing Director of Canara Bank was keen to take over this account from the United Bank of India.Q. Sir, as per draft Note in March, 90, actual sale of the borrower was Rs.41.62 Crores.In March 91, it was 51.98 Crores whereas in March 92, it was estimated to Rs.127.59 Crores and for March 93, the projected sale has been shown at Rs.200 Crores.Along with this, it has also been mentioned about the problematic political situation in Russia which had already been disintegrated by that time and the borrower had although made export business with Russia only.The concerned officials of the Branch, Zonal Office and Head Office should have Crl.K. Ramakrishna, GM, who was formerly DGM, New Delhi."Raj Kumar (PW32) stated that this firm was sanctioned Rs.44.42 Crores limit as enhancement by United Bank of India during Nov92 which includes Packing Credit and FOBP limit.FOBP limit was sanctioned to the tune of Rs.1600 Crores.The firm started availing the limit from Dec92 on DA basis after approval of the amendment was obtained from the Dy.General Manager, Delhi from DP to DA in respect of discounting of bills.Further stated that in case of discounting of foreign bills on DP basis, the foreign bank was under obligation to deliver the documents to the drawee firm only after receipt of the payment and subsequently the payment Crl.M.C. 160/2010 36/64 amount was transferred to the Bank which was required to be credit in the FOBP a/c of the borrower.It is further stated that in the instant case, of M/s. Ratan Exports & Industries Ltd., the sanction of the limits were enhanced during Nov92 by the Board of discounting of export bills on DP basis, however, the bills were purchased on DA basis as per order of the then Dy. General Manager, United Bank of India, New Delhi as reveals from the records.It was further mentioned that during the relevant time, Sh. S. Basu Rai and later on Sh.V.K. Maheshwari were Chief Managers of Janpath Branch / Overseas of United Bank of India.Book dues as per records as on 04.03.1998 was Rs.21.40 Crores.In respect of the 44 bills, which have been analysed above, the Bank had suffered substantial loss on account of non-payment of the bills from the foreign buyer.V.K. Hora (PW34) stated that the news item in question related to facing of trade squeeze by the exporters to erstwhile USSR.From this document, it was evident that as in Jan92, the Zonal Office of United Bank of India, New Delhi as well as the branch was aware about the difficulties in respect of trade with erstwhile USSR and hence such liberal Crl.K. Ramakrishna (the petitoner), the then Deputy General Manager, New Delhi that he had accepted the information furnished by the borrower as gospel truth without examining the matter in proper perspective, in his recommendation while mentioning about the uncertainty in the business with the USSR but subsequently he had totally accepted the statement of the borrower that they would achieve the projected sales target for 1992-93 but he has not recorded any logic for such optimistic expectations and this was clearly against the interest of the bank.In the instant case, even if the borrower was sanctioned Rs.44.42 Crores as limits but since his achievements during the financial year March 93 followed by March 94 and so on were not favourable, the Branch Manager and the Deputy General Manager could have taken strict action by properly monitoring the account of the borrower to safeguard the interest of the Bank.G.S. Trikha (PW41) stated that the account of M/s. Ratan Exports and Industries Ltd. was used to be treated by their bank as an important and VIP account.It was a clear and repeated instruction of Sh.V.K. Maheshwari, Branch Manager and Sh.K. Ramakrishna, DGM, UBI, New Delhi that under no circumstances the bills of M/s. Ratan Exports and Industries Ltd. should be delayed for discounting and need not follow routing procedures strictly.Accordingly, he had approved the concerned bill of M/s. Ratan Exports and Industries Ltd. on 17/8/1995 while working as Crl.M.C. 160/2010 38/64 officiating Branch Manager, United Bank of India, Overseas branch, New Delhi.To strengthen her arguments, ld.G.D. Bagaria, Managing Director.v) Sh.Manas Kumar Bose, S/o, Late Sh.Kalipada Basu, the then General Manager, United Bank of India, Head Office, Kolkata.vi) Sh.Kasibhatla Ramakrishna, S/o, Sh.Ramajogayaya, the then Zonal Manager (Deputy General Manager),United Bank of India, Zonal Office, New Delhi.- in the absence of which the charge cannot be sustained - this is, however, not so, in the matter of framing of charge since the incidence of the offence shall have to be investigated."This letter was endorsed by Head Office to the Regional Manager and Zonal Manager also.The Janpath Branch, with Company (accused no.4) was maintaining its account for more Crl.M.C. 160/2010 52/64 than a decade recommended to the Regional Manager, North India Region vide its letter dated 01.06.1992 for sanction of enhancement limit.On 24.06.1992, this recommendation was forwarded by Regional Manager (North India Region) with similar recommendation to Zonal Manager, New Delhi Zone.The petitioner who assumed the charge as Zonal Manager, New Delhi Zone hardly a month back, based on the recommendation of Regional Manager and Branch Manager, Janpath Branch, sent his recommendation on 27.06.1992 for the enhancement credit limits to the Head Office for scrutiny.Thereafter, the Head Office by way of detailed "Draft Board Note" signed by General Manager and Deputy Manager (Credit) recommended for enhancement of Oral Credit Limits on 09.10.1992, which was approved by the Chairman and Managing Director.It is further to be noted that thereafter, Board of Directors in addendum note dated 23.10.1992 sought approval from RBI in respect of aforesaid facility.Accordingly, the account was seriously followed up by the Chief Regional Manager, i.e. petitioner who was functioning as the Chief Crl.M.C. 160/2010 54/64 Regional Manager of North India Region, consequent upon the abolition of Zonal system of administration, arising out of the organization restricting w.e.f. March, 1994, as well as the Branch and Head Office.Also Sh.Ratan Bagaria, was persuaded to offer mortgage of his Farm House property at Vasant Kunj, Delhi (valued over Rs.6 Crores) to strengthen the banks security position, which he did.Undisputedly, the accused company was a very valued client of the bank and had immensely satisfactory transaction with the bank for more than two decades.The Managing Director of the Company used to directly correspond with the CMD of the bank and its file was directly controlled by the Head office.Even the enhancement proposal was initiated and forwarded by Head Office to the Branch Manager to be processed.The petitioner served this bank for about 39 years and he never been dragged in any criminal proceedings for any wrong at all on his part.1. Vide the instant petition the petitioner has sought to quash the criminal case FIR no. RCA/BDI/2001 (E)/2005/CBI/BS registered for the offences punishable under Section 120B read with Section 409/420 Indian Penal Code, 1860 and Sections 13(2) and 13(1) (d) of the Prevention of Corruption Act, 1988 pending before the Additional Sessions Judge, Delhi, against the petitioner.It is submitted by ld. Counsel for the petitioner, that whole thrust of allegation against the petitioner in the charge sheet is regarding his act as a Zonal Manager of the Bank, and by making recommendation for enhancement of Working Capital Limits of the company (A-4) and Crl.M.C. 160/2010 1/64 permitting the then Branch Manager, United Bank of India, Janpath Branch, New Delhi to purchase and discount the Foreign Export Bills of the Company (A-4) on DA basis.It is further submitted that the allegations against the petitioner in the charge sheet are that petitioner dishonestly and deceitfully acted upon, but has completely failed to take into account the fact that the petitioner, who at that point of time was posted as Zonal Manager, of the New Delhi Zone of the Bank, recommended for enhancement credit limit of the Company (A-4), which was made on the basis of recommendation sent by Sh.M.P. Sharma, the then Branch Manager, Janpath Branch to the Regional Manager, North India Region Sh.The petitioner was Zonal Manager at that particular point of time and had acted on the basis of the telex message sent by Shri Shantanu Guha intimating that the competent authority has approved recommendation of the petitioner to modify/amend the terms and conditions of the sanction letter so as to include the discounting of Foreign Export Bills on DA basis also.Counsel for the petitioner has asserted that undisputedly the accused company was a very valued client of the bank and had immensely satisfactory transaction with the bank for more than two decades.The Managing Director of the Company used to directly correspond with the with the CMD of the bank and its file was directly controlled by the Head office.Even the enhancement proposal was initiated and forwarded by Head Office to the Branch Manager to be processed.M.C. 160/2010 3/64Counsel has humbly submitted that the petitioner has served the bank for about 39 years with honesty and complete devotion and exemplary performance.He has not been dragged in criminal prosecution for no wrong at all on his part and on top of it when the bank has suffered no loss at all.It is further submitted that the petitioner at this age is forced to face a criminal trial for the decisions which were finally taken by the competent authority/Board of Directors.The CBI was provided whole lot of documents by the Bank, which clearly shows that no malafide can be assigned for the act of the petitioner, and for this reason alone the Bank refused to give sanction to CBI to prosecute Sh.Guha, as mentioned above.Presently, the dispute between the Bank and the borrower company has already been settled.The Honble Supreme Court in Nikhil Merchants's case [(2008) (9) SCC 677] quashed the criminal proceedings on the basis that the parties have settled their account with the Bank.Partys request Crl.M.C. 160/2010 7/64 for allowing them L/G limit under Inland & Foreign both may be considered favourably.Accordingly, on 14.12.1992, the petitioner then sought the approval by telex.Ratan Lal Bagaria (A-2) and as such, these Foreign Bills of the Company submitted to the Bank for purchase, amounted to an In House Trading.The details of these outstanding 44 Bills are given in the attached Annexure.Ratan Lal Bagaria (A-2) through the Company (A-4) availed the funds against these 44 bills from the United Bank of India and further availed the Export Incentives / Benefits in respect of these Foreign Bills.The consignments against these 44 Foreign Export Bills of the Company (A-4) were retained by Sh.Rajan Bagaria (A-3), brother of Sh.If this is the position, then why the petitioner be dragged such a long trial for nothing.M.C. 160/2010 16/64 enhanced in 1992 in favour of M/s. Ratan Exports & Industries Ltd., New Delhi, Insurance Cover of ECGC was required to be obtained by the branch in respect of each export bills and this was the responsibility of the then Branch Manager.He stated that in respect of the export bills of M/s. Ratan Exports & Industries Ltd., New Delhi, which were discounted for by the branch, no ECGC cover was either obtained by this branch nor the exporter was asked to obtain ECGC cover in respect of the concerned exports by the Branch Manager of this branch.Moreover, in respect of post shipment of ECGC cover on whole turn over basis, no ECGC cover was obtained by the Head Officer of our bank.V.K. Maheshwari.Further stated that the bills against which the above vouchers were prepared, were all against acceptance of bills and not against payment.As per procedure the bills which were purchased against acceptance was sent to the Foreign Bank with the instruction to hand over the documents to the drawee firm and payment was to be received by that bank within a stipulated time.In case of purchase of bills against payment, bills were purchased by the bank and these are sent to the Foreign Bank with the instruction to hand over these bills after getting the payment from the drawee firm and eventually the payment was sent to us by the Foreign Bank.This system had been going on in the branch when he joined there.V.K. Maheshwari against acceptance.This witness further deposed that he had seen all the 45 bills submitted by M/s. Ratan Export & Industries Ltd., which were purchased by Janpath / Overseas Branch during 1994-1995 against limit sanction to the borrower.He state that these bills were sent to Foreign Banks of the drawee firm for releasing payments and, as that was stated earlier, these bills were purchased by his / their bank against DA i.e. drawn against acceptance.He identified his signatures in all the 45 bills and confirmed his signatures.V.K. Maheshwari, Chief Manager.Regarding forwarding letter dated 20.05.1994, he stated that letter had been signed by Sh.Jagdish Singh Dugal, Officer of Janpath Branch and identified his signature on the concerned letter.S. Basu Roy, Manager of Janpath Branch, he distinctly remember that a letter was prepared and addressed to DGM, United Bank of India, New Delhi, which was signed by Sh.S. Basu Roy for confirming the approval which was communicated by him on telephone and the confirmation was also received from the branch by Zonal manager / petitioner.When the first bills were discounted on 29.05.1995 drawn on M/s. Arvee International, Singapore, a number of payments in respect of this firm were already outstanding, even then Sh.V.K. Maheshwari allowed discounting of this bill.Again 12 bills were allowed to be discounted on 28.07.1995 by Sh.In the instant case, all the 44 bills were allowed to be discounted by Sh.V.K. Maheshwari in such situations when the borrowers a/c was already overdue on account of non receipt of payments from foreign buyers through their banks and such practice was highly irregular and prejudicial to the interest of the Bank.S. Basu Roy (PW19) stated that in his letter dated 21.11.1992, he had noted all the conditions etc. including special conditions for information and necessary action of the borrower which were there in the sanction note except those conditions on which borrower had nothing to do.One of the special conditions in the sanction note was regarding ECGC coverage for the Crl.He had received the approval of the DGM, UBI, New Delhi.The petitioner on that issue and after that bills of M/s. Ratan Export & Industries Ltd., were accepted and purchaser against DA basis.In this case, sanction of credit limits to the tune of Rs.44.42 Crores was accorded by the Committee of Management of the Board of Directors of UBI in favour of the borrower.In case any amendment of the sanction was required, then the matter had to be placed before the same authority for approval which had sanctioned the credit limits.He was not aware whether Crl.M.C. 160/2010 23/64 petitioner the then DGM, UBI, New Delhi, on receipt of his request had obtained approval of the Competent Authority for amendment of sanction or not.P.P. Singh (PW20) stated that approval of the Branch Manager to purchase of export bill was required either in oral or writing.He was an officer of Scale-I. He had no power to allow purchase of discounting export bills.He further stated that he had seen a note dated 09.10.1992 relating to proposal for revoke of enhancement of export credit limit in favour of M/s. Ratan Export Industries Ltd. The note was approved and limits were sanctioned vide resolution no. 21 dated 07.11.1992 by the Board of Directors of UBI.Vide this sanction, credit limit of Rs.4442 lacs were increased inclusive of Packing Crediting, foreign bill purchase / foreign bill negotiations and others.With reference to this sanction in respect of FOBP/FOBN, he stated that the sanction was for foreign bank purchase / foreign bank negotiations.Against the sanction, the Branch was required to accept the bills of the party and sent it to the foreign bank with the instructions to hand over the documents to the drawee firm against payment only.M.C. 160/2010 24/64He further stated that after enhancement of the limits of the concerned firm at the initial stage the bills were submitted for purchase and thus used to be sent to the foreign bill for DP i.e. to be drawn against payment.But later on, the party had requested to send his bills to the foreign bill as DA i.e. drawn against acceptance.Initially, the Branch Manager did not allow the discounting against DA basis as requested by him in his letter dated 12.12.1992 but later on purchased these bills after getting approval of the Zonal Manager, United Bank of India on telephone.Later on althrough bills of this company used to be submitted for purchase on DA basis.Further stated that during his tenure, in M/s. Rattan Exports Industries Ltd., he had found that after 1992, Sri Rattan Lal Bagaria was not very serious about making payments to United Bank of India and it was likely that he was planning to leave the country and that was what he did at a later stage.M.C. 160/2010 26/64Further stated that on account of his connections with Senior officers, of United Bank of India Head office, he managed the bills for purchase on DA basis but this was done by him with ulterior motive as is evident now.The sanction relates to sanction of limits of M/s. Ratan Export & Industries Ltd. In this sanction note limit for bill purchase has been sanctioned by the Board of Directors against DB facility i.e. bills were to be purchased against payment.He could not say under what circumstances, the bills of the borrowers used to be purchased against acceptance.Since, this system was going on in the branch when he joined there, he also prepared vouchers after the purchase of bills were approved by Sh.V.K. Maheshwari against acceptance.Further stated that it was a clear and repeated instructions of Sh.V.K. Maheshwari, Branch Manager and Sh.K. Ramakrishna, DGM, UBI, New Delhi (the petitoner) that under no circumstances the bills of M/s. Ratan Export & Industries Ltd. should be delayed for discounting and for this account need not follow routing procedures strictly.Further stated that before giving approval to discount the bill of M/s. Ratan Exports & Industries Ltd. on 18.03.1996, he had talked to Sh.V.K. Maheshwari on phone at his residence and informed him about the matter.D.K. Bhattacharya (PW25) stated that in the analysis prepared by his office and sent to ED it was mentioned that in respect of three clarifications, no specific reply was given by Sh.K.B. Ramakrishna (the petitioner) in his explanation.In respect of another point, the reply was only denial by the CRM and the concerned document which was a letter dated 16.09.1996, was never put up and the same was not available.Accordingly, the matter against Sh.K.B. Ramakrishna (the petitioner) was closed.the two DA or DP regarding purchase of foreign bills? A. In respect of purchase of foreign bills, L.C. backed foreign bills or D.P. Basis are preferable option I the interest of the Bank.Q. Since the sanction of the limit was done by the Board of Directors of UBI, amendment on the concerned sanction, if any, Crl.M.C. 160/2010 28/64 requires to be done by the Board of Directors, which is the competent authority or not?A. Yes.Q. Sir, subsequent to the enhancement on 07.11.1992, as many as three Notes were put up.One to CMD and two Notes to the Board of Directors on different issues and nowhere it was mentioned about the amendment was approved by the General Manager (Credit) and post facto approval was not sought in as much as these three Board Notes, General Manager (Credit) continued to mention to FOBP limits on D.P. basis.Later on, GM (P), UBI sent back 6 draft explanation letters to the Vigilance Department, UBI vide his letter dated 21/12/1999, mentioned that the same were returned as discussed.Accordingly, the matter in respect of other responsible officers except petitioner Sh.K. Ramakrishna was closed.Late on as per order of CVO I prepared another note vide no. 394 dated 27.11.1999 on this subject and submitted the same to CVO for perusal.The High Crl.The High Court ought to have quashed Crl.Counsel has pointed out that vide judgment dated 29.04.2009, this Court quash the criminal proceedings against Sh.Rattan Bagaria observing therein that it has not been disputed that the amount has already been paid to the bank and the settlement includes all dues of the borrower company.Counsel further submitted that thereafter, the petitioner also filed the instant petition on 17.01.2010 for quashing of the criminal proceedings against him in Crl.Sessions Judge, Delhi.Only thereafter, ld.Trial Court could fix the matter for arguments on charge.On the basis of evidence discussed above, if goes without rebuttal, the petitioner cannot be convicted.On the other hand, Mr. Narender Mann, ld.Ratan Lal Bagaria, S/o, Late Sh.M.C. 160/2010 49/64 instituted on a police report.To sum up his arguments, ld.Counsel has prayed that keeping in view the facts and circumstances and material on record, present petition is not maintainable and the same may be dismissed in the larger interest of society and in the interest of justice.I heard ld.I further note that they principally agreed for increasing the overall Credit limit of the company from Rs.1672.00 Lacs to Rs.4442.00 Lacs.Thereafter on 07.11.1992, the said approval Board Note was then placed Crl.Accordingly, the Head Office conveyed enhanced sanction to the Zonal Manager with intimation to the Branch Manager and Regional Manager.Pursuant thereto, the Chief Manager (Credit Operation- II) Head Office vide telex message dated 31.12.1992 informed the approval in writing to the petitioner, specifically stating therein that competent authority had agreed to modify the FOBP sub-limit of company by inclusion of DA bills as well.In fact, the problem started from August, 1993 to April, 1994 on account of large scale crystallization of bills amount to Rs.15.43 Crores and their subsequent realization to the full extent on account of relentless follow up by the bank supported by the cooperation extended by the parties.The manner in which advances made under packing credit was treated as fully secured both by primary and collateral, also explained by Head Office to RBI vide communication dated 01.06.1994, wherein it was clearly mentioned as to how consequent upon the disintegration of Soviet Union, in the absence of mutually agreed trade terms between India and CIS countries, realization of export bills were getting abnormally delayed.Thus, the petitioner was allowed to retire on attaining superannuation.M.C. 160/2010 59/64 Accordingly, the matter against Sh.K.B. Ramakrishna (petitioner) was closed.P. Basu (PW26) when put to some questions answers as under:Accordingly, the matter in respect of other responsible officers except Sh.K. Ramakrishna was closed.After going through all the witnesses deposed against the petitioner, settled law and the submissions of ld.P.C. comes on rescue.Accordingly, FIR no.RCA/BDI/2001 (E)/2005/CBI/BS under Section 120B read with Section 409/420 Indian Penal Code, 1860 and Sections 13(2) and 13(1) (d) of the Prevention of Corruption Act, 1988 with emanating proceedings against the petitioner are hereby quashed.M.C. 160/2010 63/64Accordingly, Crl.No order as to cost.
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['Section 420 in The Indian Penal Code', 'Section 409 in The Indian Penal Code', 'Section 482 in The Indian Penal Code', 'Section 13 in The Indian Penal Code', 'Section 306 in The Indian Penal Code', 'Section 155 in The Indian Penal Code', 'Section 120B in The Indian Penal Code']
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Analyze the legal case and identify the corresponding section it comes under.
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3,592,924 |
Learned Advocate for the appellants submits that the appeal hasbecome infructuous as against appellant No.3 as she has been recently arrested.Heard learned Advocate Mr. N. V. Gaware for appellants and learnedAPP Mr. P. K. Lakhotia for respondent No.1-State.Perusal of the FIR lodged by present respondent No.2 on 04-06-2020i.e.Crime No.519 of 2020 with Shrigonda Police Station for the offences (1) ::: Uploaded on - 14/07/2020 ::: Downloaded on - 15/07/2020 07:49:04 ::: 918-Apeal-388-2020.odtpunishable under Sections 341, 504, 506, 34 of Indian Penal Code and Section3(1)(r), 3(1)(s) of Scheduled Castes and Scheduled Tribes (Prevention ofAtrocities) Act, 1989 (hereinafter referred to as "SC ST Act") would show that theincident is alleged to have taken place at about 1.30 p.m. on 02-06-2020, yet, theFIR that has been lodged is belated.Further, the appellants have produced onrecord the FIR lodged by present appellant No.1 on 02-06-2020 i.e. Crime No.514of 2020 registered with the same Police Station for the offences punishable underSections 354-A, 323, 504, 506, 34 of Indian Penal Code against one Pappu GovindShinde.[SMT.VIBHA KANKANWADI, J.]SCM (3) ::: Uploaded on - 14/07/2020 ::: Downloaded on - 15/07/2020 07:49:04 :::::: Uploaded on - 14/07/2020 ::: Downloaded on - 15/07/2020 07:49:04 :::
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['Section 34 in The Indian Penal Code', 'Section 504 in The Indian Penal Code', 'Section 506 in The Indian Penal Code', 'Section 341 in The Indian Penal Code', 'Section 323 in The Indian Penal Code']
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Analyze the legal case and identify the corresponding section it comes under.
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359,296 |
The short facts necessary for the disposal of this appeal can be stated as follows:(i) P.W.1 Village Administrative Officer, Perumbakkam, was informed by his Assistant, P.W.2 at about 8.00 a.m. on 25.1.2001 that a dead body of a male was found in the coconut grove.Immediately, P.W.1 accompanied by P.W.2 went to the scene of occurrence.After verification, he proceeded to Auroville Police Station and gave a report, Ex.P1 at about 10.00 a.m. to P.W.10, Sub Inspector of Police, Auroville.On the strength of Ex.P1 report, a case came to be registered in Crime No.38 of 2001 under section 302 I.P.C. The Express F.I.R. Ex.P.10 was immediately sent to Court.(ii) P.W.11, Inspector of Police, Kottakuppam, on receipt of the First Information Report, took up investigation.He proceeded to the spot, made an inspection and prepared the observation mahazar Ex.P.2 and also a drew rough sketch Ex.P11 in the presence of witnesses and panchayatdars.Then, he recovered the blood stained earth and sample earth under Ex.P13 mahazar.He also conducted inquest on the dead body of the deceased in the presence of witnesses and panchayatdars and prepared Ex.P.7, inquest report.Thereafter, the dead body was sent for the purpose of post mortem.4, 5 & 6 blood clot adherent cannot be washed by water.Injuries Nos. 1,2,3,4,5,6, 7 & 8 are ante mortem in nature. "He issued the post mortem certificate, Ex.P16, wherein he has opined that the deceased would appear to have been died of shock and haemorrhage due to injury to brain about 24 to 36 hours prior to post mortem.(iv) While the matter stood thus, P.W.20 Inspector of Police, Muthialpet Police Station investigated a case in Crime No.13 of 2002 on the file of Balapet Police Station.When A1 and A2 were examined, they gave confessional statement, from which, P.W.20 came to know that they have been involved in Crime No.38 of 2001 also.(v) P.W.11, on receipt of the statement of A1 and A2 came to know that one Shankar is the deceased in the case.He took up further investigation.He proceeded to Madurai on 29.3.2002 and examined P.W.17, the mother of the deceased and the father of the deceased and recorded their statement.(vi) P.W.21, Inspector of Police took up further investigation.He registered a case in Crime No.148 of 2002 under section 302 I.P.C. and prepared Ex.P21, the printed F.I.R. and the same was despatched to Court.He met P.W.11 Inspector of Police and recorded his statement and got the files from him.The accused who were in judicial remand in Crime No.13/2002 were arrested by P.W.21 on 29.5.2002 in the Central Prison, Pondicherry and he took them to police custody.The Referred trial has been preferred seeking confirmation of the death sentence passed by the learned II Additional Sessions Judge, Puducherry and the criminal appeal has been preferred under Section 374(2) Cr.P.C. against the judgment of the said Court made in S.C.No.26 of 2006 dated 11.11.2009 For Appellants : Mr.V.Gopinath, Senior Counsel for Mr.The material objects were sent for analysis and Exs.P.13 to P.15 Serological report, Chemical Report and Bone examination report respectively were received.Even though P.W.11 took steps to gather particulars about the dead person, he could not get any information.Hence, on 2.1.2002, he referred the case as undetectable.(iii) P.W.12, doctor attached to Tindivanam Government Hospital, on receipt of the requisition made, conducted autopsy on the dead body and found the following injuries:"External Injuries:A cut injury on the left side of face extending from left nostril to middle of cheek widen above and tapering below it is oblique in nature 5 x 2 x 1 cm nose is cut.2. Cut injury on the right eye brow 4 x 2 x 1 cm.Cut injury (transverse) on the right side of head on parital region 3 x 2 x 1 cm.Abrasion on the left side of face below eye 2 x 1 / 2 cm.Abrasion on the right side neck 3 x 2 cm.Abrasion on the right shoulder 1 x 1 cm.Contusion on the right side neck 4 x 5 cm O/s shows clotted blood which cannot be washed out.Contusion on the Vertex 5 (?) x 5 cm O/s shows clotted blood in wound No.1, 2 & 3 margin is clear, cut and retracted.They gave confessional statement and the same was recorded.The accused took P.W.21 to the scene of occurrence and showed the house where the occurrence had taken place.P.W.21 drew two rough sketches of the scene of occurrence which were marked as Ex.P22 series.P.Ws. 1, 2, 3 and 14 were examined.(vii) On 15.11.2002, P.W.21 examined P.W.7, a Professor of History and Geography, Lycie French College.P.W.7 stated that he knew the first accused.The second accused was introduced by the first accused.On 24.1.2001, A1 and A2 and the deceased came to his house.A1 and A2 beat the deceased and thereafter they took the deceased to the hospital.On the next day, A1 and A2 came to his house and informed him that the boy Shankar died and demanded a sum of Rs.1,25,000/- from him.The statement of P.W.7 was recorded.The photograph was shown to him and he identified that it was Shankar.(viii) Further investigation was done by P.W.22, Deivasigamani.He recorded the statement of other witnesses.On completion of the investigation, on 31.12.2004, he filed a final report for the offence under sections 302 , 201 r/w 34 I.P.C..(ix) The case was committed to the Court of Sessions.Necessary charges were framed.In order to substantiate the charges, the prosecution examined 22 witnesses and relied on 23 exhibits and 3 material objects.On completion of the evidence on the side of the prosecution, the accused were questioned under section 313 Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution and they denied them as false.No defence witness was examined.The trial Court heard the arguments advanced on either side and took the view that the prosecution has proved the case beyond reasonable doubt and awarded the capital punishment of death sentence.For the purpose of confirmation, the R.T.No.1 of 2009 is placed before this Court.Aggrieved by the judgment of the trial Court, the accused/appellants have brought forth the criminal appeal.Advancing the arguments on behalf of the appellants, the learned senior counsel Mr.In the instant case, the prosecution miserably failed to prove the identity of the deceased person.The trial court should not have believed that piece of evidence.The next day morning, the same was brought to the notice of P.W.11, Sub Inspector of Police, by P.W.1,Village Administrative officer and a case was registered under section 302 I.P.C. The investigator went to the scene of occurrence and conducted inquest.After preparation of the inquest report, the dead body was subjected to post mortem.The learned senior counsel would further submit that if really the photograph of the deceased was taken at the time of inquest, there was no impediment in examining the photographer who took the photograph.The photograph was not produced before the Court early.It was marked as Ex.P18 only at the time of examination of P.W.17 and not before that.P.W.21 investigator who took investigation and enquired the matter, agreed that the photograph was in the case bundle of Auorville Police.The prosecution had no explanation to offer regarding non production of the negative and non examination of the photographer.The prosecution has miserably failed to prove the identity of the accused.Added further learned counsel, insofar as the evidence P.W.7 is concerned, the Court should have rejected his evidence for the simple reason, according to P.W.7, he was a Professor of History and Geography and on 24.1.2001, when he was in his house, A1 and A2 came along with the deceased Shankar.They beat Shankar and took him outside stating they wanted to take him to the hospital.Thereafter, on the next day, A1 and A2 came to his house and informed him that the Shankar died and demanded a sum of Rs.1,25,000 lakhs.If to be so, there is no impediment for P.W.7, a professor, to bring the same to the notice of the police immediately, but he has not done so.The cause for the delay was not explained.Under such circumstances, the evidence of P.W.7 cannot be given any evidential value at all.If these pieces of evidence are not available for the prosecution, the prosecution has no further evidence to offer before the trial Court.Under such circumstances, the trial Court should have rejected the case of the prosecution in its entirety but found the accused guilty and awarded death sentence.Hence, the judgment of the trial Court has got to be set aside and the appellants are entitled for acquittal in the hands of this Court.The Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submission made.The gist of the case of the prosecution was that on 24.1.2001, when P.W.7, a Professor was in his house, A1 and A2 came along with the alleged deceased Shankar and beat the deceased and took him outside stating that they would take him for medical treatment.The next day, A1 and A2 informed him that Shankar died.The prosecution placed much reliance on the evidence of P.W.7 as the eye witness to the occurrence and the same has also been accepted by the trial Court.After looking into the materials available and in view of the circumstances attendant, the Court is afraid whether it could act upon the evidence of P.W.7 to render conviction.Admittedly, P.W.7 was a Professor, working in a college and he is well matured.If A1 and A2 have beat the deceased in his house and thereafter he was informed by A1 and A2 that the boy died, one would naturally expect him to go to the police station and report the matter but he had not done so.Till the examination by the police in the month of November 2002 i.e., 18 months from the date of occurrence, he did not reveal it to anybody.Therefore, no evidentiary value could be attached to such a version.Apart from that, P.W.7 has stated that A1 and A2 demanded money, to which course, he was not amenable and he was also threatened by A1 and A2 but the same was not brought to the notice of the police immediately.When they were examined, they came forward to give confessional statement and the Police Officer came to know that they were involved in Crime No.38/2001 of Auroville Police and informed it to Auroville Police.The case papers were also transferred to that Police Station.At that juncture, the Inspector of Police, Auroville who came to know about P.W.7 who is the eye witness, did not examine P.W.7 immediately.He examined P.W.7 only in the month of November, 2002, i.e., after a period of eight months.For the delay in examining P.W.7, the prosecution, has no explanation to offer.Hence, the evidence of P.W.7 should not have been accepted by the trial Court.As rightly pointed out by the learned counsel for the appellants, though the identity of the deceased was questioned, the prosecution never proved the same.The specific charge leveled against the accused by the prosecution was that both the accused murdered Shankar and left the dead body in the coconut grove.When the photograph was shown to P.W.17, mother of the deceased she has categorically stated that it looks like her son.Hence, it cannot be taken as a certain answer.Though the photograph of the deceased was marked, no negative was produced.The photographer should have been examined before the Court but he was not examined.The said photograph was seen by the Court.From the said photograph, one cannot identify a person.The non-production of the negative in respect of the photograph, the non examination of the photographer and the delay in production of the photograph which was produced only at the time of examination of P.W.17, all would go to show that the prosecution failed to prove the identity of the deceased.The prosecution specifically stated that the photograph was shown to P.W.17, mother of the deceased but she has stated that it looks like her son.Therefore, on her statement, it cannot be taken that the identity of the deceased was proved.The prosecution has miserably failed to prove the identity of the deceased and the evidence of P.W.7 cannot be acted upon for the reasons stated above.Hence, it can be well stated that the prosecution has not brought home the guilty of the accused in any manner known to law.The trial Court should have rejected the case of the prosecution and acquitted the accused but the trial court has found the accused guilty of the offence and this Court do not agree with the same.Under such circumstances, the judgment of the trial Court has got to be made undone only by upsetting the same.Hence, the accused/appellants are entitled for acquittal.In the result, the judgment of conviction and sentence imposed on the appellants by the learned II Additional Sessions Judge, Puducherry in S.C.No.26/2006 is set aside.The accused/appellants are acquitted of the charges levelled against them and they are directed to be released forthwith unless their custody is required in connection with any other case.Fine amount, if any paid by the accused, is ordered to be refunded to them.Accordingly, the criminal appeal is allowed and R.T.No.1 of 2009 is rejected.The II Additional Sessions Judge,Puducherry.The Inspector of Police, Grand Bazaar Police Station, Puducherry.The Pubic Prosecutor, High Court, Chennai.
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['Section 302 in The Indian Penal Code', 'Section 201 in The Indian Penal Code']
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Analyze the legal case and identify the corresponding section it comes under.
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35,937 |
The facts necessary for appreciating the point raised can be put in a short compass, A first information was lodged at the Sainthia Police Station on the 16th September, 1971, at about 12.35 hours by one Netai Chandra Bhandari alleging inter alia that at about 1.00 hours in the night when he was sleeping in the veranda of the first floor of his east facing house and his son Anil a student of Class IX, and his two daughters were sleeping in two different rooms on the same floor, some persons called him by his name and an enquiry disclosed their identity as Naxalites.The de facto complainant came down with a lighted lantern on request, and found the accused-applicants along with 4-5 other armed with daggers, gun-like weapons and torches.They requested him to show the way to the river.His son, Anil, who in the meanwhile had come down was asked by the de facto complainant not to come but he was also persuaded to accompany.When they reached the tank called "Sunri Pukur".towards the west of the village, the members of the raiding party suddenly attacked Anil with daggers and when the de facto complainant rushed to his rescue, he was threatened with dire consequences and one of them fired a shot from a gun-like weapon.The consequent hue and cry attracted several villagers to-the spot and the members of the raiding party disappeared shouting slogans.JUDGMENT N.C. Talukdar, J.This is an application for bail on behalf of eight adcused applicants with notice to the State.Anil was found to be dead.The Police on completing the investigation submitted a charge-sheet against all the accused under Sections 148/149/364/302 of the Indian Penal Code.An inquiry under Chapter XVIII of the Criminal Procedure Code, 1898 followed.The accused persons were directed by the learned Enquiring Magistrate to be released on bail as and when they were produced before him and they continued' on such bail for about two years till the order of their committal.The learned Sub-Divisional Judicial Magistrate Suri Sadar.ultimately committed the accused-applicants to the Court of Session to stand their trial on charges under Sections 148, 149/364 and 149/302 of the Indian Penal Code-and they were taken into custody.An application for bail was moved thereafter before the learned Sessions Judge, Suri on the 28th February, 1974 but the same was rejected.A similar prayer made before the High Court was also rejected on the 14th March, 1974, with a direction for expediting the Sessions trial.This closes the first chapter.The Code of Criminal Procedure, 1973 (Act II of 1974), having come into force in the meanwhile on and from the 1st April.1974 and the Sessions trial being delayed till the 1st of July.The evidence of P.W. 1, the only witness examined in the Committal Court, was not available for consideration on the earlier occasion.P.W. 1 admitted that the assailants had their faces covered and he could only suspect about their identity from the physical contour of the persons.The order may go down expeditiously.A.N. Banerjee, J.
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['Section 149 in The Indian Penal Code', 'Section 364 in The Indian Penal Code', 'Section 148 in The Indian Penal Code', 'Section 437 in The Indian Penal Code', 'Section 302 in The Indian Penal Code']
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Analyze the legal case and identify the corresponding section it comes under.
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3,999,785 |
http://www.judis.nic.in 9/12 CRL.O.P.No.ebsi CRL.O.P.No.5770 of 2020 and Crl.M.P.Nos.3262 & 3263 of 2020 16.03.2020 (3/12)http://www.judis.nic.in 12/12This petition has been filed to call for the records of the C.C.No.229 of 2017 on the file of the learned Judicial Magistrate, Ambattur, Chennai and quash the same.The case of the prosecution is that on 14.06.2017 at about 14.00 hours a demonstration was led by the petitioner at Ambattur O.T Bus Stand against the Government of Tamil Nadu due to show a protest for the arrest of Mr.During such demonstration, the petitioner had raised slogans against the Government and they disturbed traffic.On the basis of the above said allegation, the first respondent police registered the complaint and filed a charge sheet against the petitioner and others for the offences under Sections 143 and 188 of IPC in C.C.No.229 of 2017, on the file the learned Judicial Magistrate, Ambattur, Chennai.Further he submitted that the petitioner or any other members had never involved in any unlawful assembly and there is no evidence that the petitioner or others restrained anybody.However, the officials of the respondent police had beaten the petitioner and others.When there was lot of members involved in the protest, the respondent police had registered this case, under Section 143 and 188 of IPC as against the petitioner and others.Therefore, he sought for quashing the proceeding.Therefore, he vehemently opposed the quash petition and prayed for dismissal of the same.Heard Mr.During such demonstration, the petitioner had raised slogans against the Government andhttp://www.judis.nic.in 4/12 CRL.O.P.No. 5770 of 2020 they disturbed traffic, without getting prior permission from the concerned authority.Therefore the respondent police levelled the charges under Sections 143 and 188 of I.P.C. as against the petitioner and others.5770 of 2020In the case on hand, the First Information Report has been registered by the respondent police for the offences under Sections 143 and 188 IPC.He is not a competent person to register FIR for the offences under Section 188 of IPC.As such, the First Information Report or final report is liable to be quashed for the offences under Section 188 of IPC.Further, the complaint does not even state as to how the protest formed by the petitioner and others is an unlawful protest and does not satisfy the requirements of Section 143 of IPC.Therefore, the final report cannot be sustained and it is liable to be quashed.Accordingly, the proceedings in C.C.No.229 of 2017 on the file of the learned Judicial Magistrate, Ambattur, Chennai, is quashed and the Criminal Original Petition is allowed.Consequently, connected miscellaneous petitions are closed.16.03.2020 (3/12) Internet : Yes / No Index : Yes / No Speaking / Non Speaking order ebsihttp://www.judis.nic.in 10/12 CRL.O.P.No.5770 of 2020The Judicial Magistrate, Ambattur, Chennai.The Inspector of Police, T-1 Ambattur Police Station, Ambattur, Chennai.The Public Prosecutor, High Court, Madras.http://www.judis.nic.in 11/12 CRL.O.P.No.5770 of 2020 G.K.ILANTHIRAIYAN, J.
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['Section 188 in The Indian Penal Code', 'Section 143 in The Indian Penal Code']
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Analyze the legal case and identify the corresponding section it comes under.
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3,999,834 |
The appellant and two others were tried by theAdditional Metropolitan Sessions Judge, Hyderabad for theoffences under Sec. 307 & 302 IPC and Sections 3 & 5 of theIndian Explosive Substances Act. Accused Mohammed Sardardied during the pendency of the trial and therefore, thecriminal proceeding stood abated as against him.Theappellant was convicted by the learned Sessions Judge underSection 302 IPC and was sentenced to imprisonment for lifeand also to pay a fine of Rs. 5,000/-, in default to sufferR.I. for two years.He was also sentenced to undergoimprisonment for a period of 10 years and also to pay a fineof Rs. 5000/-, in default to suffer R.I. for two years forthe offence under Sec. 307 IPC and under Sec. 3 of theExplosive Substances Act, he was sentenced to undergo R.I.for ten years and also to pay a fine of Rs. 5,000/-, indefault to suffer R.I. for ten years and also to pay a fineof Rs. 5,000/-, in default to suffer R.I. for three yearsand under Section 5 of the Explosive Substances Act, wassentenced to R.I.for two years.The sentences were orderedto run concurrently.The other accused Mohd. Burhanuddinwas convicted under Section 302/34 IPC and sentenced toimprisonment for life and to pay a fine of Rs.1000/-, indefault to Suffer R.I.for one year and for the offence underSection 307/34, he was sentenced to undergo imprisonment fora period of five years and also to pay a fine of Rs.2000/in default to suffer R.I.for one year and for theoffence under Section 3 of the Explosive Substances Act readwith Section 34 IPC, he was sentenced to imprisonment for aperiod of 10 years and also to pay a fine of Rs.2000/-, indefault to suffer R.I.for two years and for the offenceunder Section 5 of the Explosive Substances Act read withSec 34 IPC, he was sentenced to undergo imprisonment for aperiod of five years and also to pay a fine of Rs.1000/-, indefault to suffer R.I.for one year.Sentences were orderedto run concurrently.On appeal, the High Court of A.P.came to hold that the prosecution has failed to establishthe charges under Sections 3 and 5 of the ExplosiveSubstances Act and accordingly set aside the conviction andsentences thereunder, but affirmed the conviction of theappellant under Section 302 IPC and Section 307 IPC as wellas the sentences passed thereunder and also the convictionand sentences against the accused Md.The appellant preferredthe appeal in this court which was registered as Crl.Appeal No. 587/34 and the co-accused preferred the appealwhich was registered as Crl.AppealNo.375/93 stood dated as the appellant therein died duringthe pendency of this appeal and hence we are concerned withthe present appellant alone.Prosecution case in nutshell is that on 6.7.90 atabout 10.15 AM, the three accused persons came on a scooterwhich was being driven by accused Burhanuddin and thepresent appellant hurled five bombs, causing injury to PW1as well as deceased Gopal Sharma and deceased Kishan RaoKandekar and on account of such injuries received by themGopal Sharma died in the hospital on 10.7.90 at 9 A.M. inOsmania General Hospital.After PW1 was released on bail in the aforesaid caseon 4.5.90 and was running his wine shop at Muslimgunj Bridgeon partnership with one Ranjit Singh and was also doing realestate business at a place opposite to the wine shop, on therelevant date the accused persons came on a scooter andafter getting down from the scooter accused No. 1 (thepresent appellant) who was the pillion rider, took out froma box some bombs and hurled at the office of PW1 whichexploded and there was lot of smoke and it is in thatexplosion, not only PW1 himself was injured but the twopersons as already stated died and accused persons went awaywith the scooter.The two deceased persons were brought tothe Osmania General Hospital in an unconscious condition andPW1 himself was admitted to the hospital.PW 26, another Sub-Inspectorof Police also had received a prior intimation Exhibit P2and had registered the crime case and treated the same to beF.I.R. and took up investigation.On completion ofinvestigation, the police submitted the charge-sheet and onbeing committed, the accused persons stood their trial.Theprosecution examined as many as 28 witnesses and exhibited alarge number of documents.The defence plea was one ofdenial.The learned Sessions Judge and the High Courtrelied upon the evidence of the three eye witnesses PWs 1.6& 7 and convicted the appellant of the charge under Sections302 and 307 as already stated on the basis of the aforesaidevidence.It may be noted that the appellant was not in thepicture and his name also did not find place in the FIR andit is only after the statement of PW6 was recorded on30.7.90, the appellant was brought into the arena of accusedpersons.Mr. U.R.Lalit the learned Senior Counsel, appearingfor the appellant submitted that the prosecution version asunfolded in the FIR was to the effect that one Sayeed, whowas the pillion rider, got down from the scooter took out abomb and threw it towards PW1 and then four other bombs werethrown by him.This earliest version is now being changed incourse of evidence during trial and Sayeed is being replacedby appellant and it is being stated that the appellant threwthe bomb.According to Mr.Lalit, this story as unfoldedthrough prosecution witnesses in court cannot be sustainedin view of the positive statement of Raghunandan PW1 that itwas one Sayeed who got down from the scooter, took the bomband threw it.It is to bbe noticed thatthrough in Exhibit P2, Raghunandan had categorically statedthat Sayeed was siting as a pillion rider and then threwbombs but no charge-sheet was filed against Sayeed andinstead charge-sheet was filed against the present appellantand two others who in the meantime have died.There is no explanation for such delayedexamination of this witness under Section 161 Cr.P.C. Insuch delayed examination by the police, the witness hadcategorically stated that three persons were going on thescooter, whereas in court he stated that the appellant andaccused No.3 were going on the scooter.In his statementunder Section 161 Cr.P.C. he had stated that it isSardar, who got down from the scooter and took out the bombsand threw it into the office of Raghunandan, whereas incourt he stated that it is the appellant who threw the bombsafter getting down from the scooter.PW7, isyet another witness who in his evidence has stated that hewas working in the wine shop of PW1 And when on the day ofoccurrence he heard some sound he found that one person wassitting on a scooter and the other person hurling 3 or 4times some object towards office of PW1 And those areobjects of explosions and he pointed out towards theappellant to be the person who hurled the bombs and hesupposed to have identified them in a test identificationparade.But in his earliest statement to the policerecorded under Section 161 Cr.P.C. he had positivelyasserted that he knows all the brothers and if he reallyknew all the brothers then the fact that he could not nameany and the so-called test identification parade is of noconsequence.Further in his earlier statement which wasduly confronted to him, though he had stated that there werethree accused persons who sped away but in court he changesthe version and restricts it to accused No. 1 and accusedNo.This witness also in his 161 Statement, unequivocally statedthat the three persons came on a scooter and one got downand took out a box and pick up a bomb and threw it to theoffice of the PW1 which exploded loudly and it furtherstated that of the three persons who ran away one among whomwas Sayeed but in court gave a totally different picture andon being confronted with his earlier version makes a cleandenial.
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['Section 302 in The Indian Penal Code', 'Section 34 in The Indian Penal Code', 'Section 307 in The Indian Penal Code']
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Analyze the legal case and identify the corresponding section it comes under.
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399,989 |
Professor Mowar felt annoyed and asked the respondent how he had entered the laboratory room without seeking his permission.The respondent told menacingly that Professor was nobody to ask him, that he had been coming in that fashion and if he was prevented, he would "see" the Professor and if the Professor further said anything the Professor would have to lose his life.The exact words uttered by the respondent were : --^^rqe dkSu gksrs gks iwNus okys eSa blh rjg vkrk gw] ;fn eq>s vkus ls jksdksxs rks eSa rqEgsa ns[k ywxk vkSj vf/kd dqN dgksxs rks rqEgs tku ls gkFk /kksuk iM+sxkA** Assistant Professor Sethi and Lecturer Shrivastava thereupon asked the respondent to go out, whereupon the respondent gave filthy abuses to them and uttering threats left the room.Professor Mowar was totally upset.He was taken by Sethi and Shrivastava to the Principal's room.The prosecution examined, among other witnesses Professor Mowar (P.W.1) Assistant Professor N.K. Sethi (P.W.2) and Lecturer R.D. Shrivastava (P.W.3).JUDGMENT S.K. Chawla, J.The State has filed this appeal challenging the acquittal of the respondent of the offences under Sections 448 and 506, Indian Penal Code.On 18-1-1983 at about 1 p.m. a student of Science College, Shivpuri, named Devendra Kumar Sharma (respondent herein) barged into laboratory class room of his College.The zoology students of B.Sc.Part II were taking practicals in that room under the guidance of Professor S.C. Mower (P.W.1).Assistant Professor N.K. Sethi (P.W.2) and Lecturer R.D. Shrivastava (P.W.3) were also present with Shri Mowar in the laboratory class room.The respondent proceeded and stood amidst the girl students doing the practicals.Some more discrepancies in the evidence of witnesses were noticed.All the same, the learned trial Magistrate held, and rightly, that the prosecution story was established.Still the learned trial Magistrate acquitted the respondent taking the view that Professor Mowar had admitted in his cross-examination that students often gave threats to their Professors.They were attacked by tenants of those fields and other villagers.The police was telephoned and when the police arrived the Professor gave written report.In the result, this appeal is allowed.
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['Section 506 in The Indian Penal Code', 'Section 448 in The Indian Penal Code']
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Analyze the legal case and identify the corresponding section it comes under.
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40,005,447 |
Being aggrieved by the order made in Crl.MP.No.3834 of 2014 in SC No.54 of 2014, dated 23.12.2014, on the file of the learned Principal Sessions Judge, Salem, dismissing the petition, filed under Section 409 CrPC, to transfer the case in SC.No.54 of 2014, to the Mahila Sessions Court, to be tried along with SC.No.98 of 2014, the present revision is filed.2.Material on record discloses that a case in Crime No.97 of 2012, has been registered on 29.03.2012, under Sections 366A, 376, 417 and 506(i) IPC, against one Ganesan, on the complaint made by one Nagaraj, father of victim Nandhini Priya.Ganesan is said to the tuition master.3.Crime No.98 of 2012 has been registered on 30.03.2012 on the file of the same police station.A complaint in Crime No.98 of 2012 has been made by one Sulochana, mother of the deceased Kalavathi, stated to have committed suicide by hanging, on 30.03.2012, due to the inducement of Ganesan, husband of the deceased, Kalavathi and others.5.Insofar as Crime No.98 of 2012 is concerned, the Inspector of Police, Tharamangalam Police Station, has filed a final report under Section 498A and 306 IPC against Ganesan, accused in SC No.54 of 2014 and 5 others.6.In the transfer petition, filed under Section 409 IPC in Crl.MP.No.3834 of 2014 on the file of the learned Principal Sessions Judge, Salem, the Inspector of Police, Tharamangalam Police Station, in his counter affidavit, has stated that the occurrence in both the cases have taken place in different places, on different dates and time and that the witnesses in both the cases are also different.However, he has stated that Kalavathi had committed suicide on account of the fact that Ganesan, accused in both the cases, Ganesan had illicit intimacy with one Nandhini Priya, victim in SC.No.98 of 2014 on the file of the learned Principal Sessions Judge, Salem.Though the Inspector of Police, Tharamangalam Police Station, has stated that there is no necessity, to transfer of SC No.54 of 2014, to be tried along with SC.No.98 of 2014, pending on the file of the learned Mahila Sessions Court, Salem, for the reasons extracted supra, however, at Para 7, he has further stated as follows:7.If the petitioners want to be tried along with SC.No.98 of 2014, there is no bar to transfer the case SC.No.98 of 2014 from Hon'ble Mahila Court to this Hon'ble Principal District and Sessions Court, since the Mahila Court is under this Hon'ble District and Sessions Court.7.Considering the averments made in the counter affidavit and the objection of the learned Additional Public Prosecutor, the learned Principal Sessions Judge, Salem, vide order dated 23.12.2014, has dismissed the transfer petition, as hereunder:4.The case in SC.No.98 of 2014 is for the offences committed by the 1st accused Ganesan and others u/s 376(1), 468, 420, 506(i) IPC.But this case is pending for the alleged offences against the accused that the 1st accused Ganesan tortured his wife Kaladevi along with his relatives and she committed suicide at the crelty of all the petitioners.The occurrence took place in both the cases are in various places and the witnesses were also different people.So no prejudice will be caused to the petitioners in trying the cases in different Courts and there is no chance for pronouncing Judgments in a different manner if both the cases are tried by different cases.5.Considering the facts and circumstances of the case and also the materials available on records, this Court is of the considered opinion that there is no necessity to transfer this case in SC.No.54 of 2014 to the file of the Mahila Sessions Court, Salem, to be tried along with SC.No.98 of 2014 pending therein and no prejudice will be caused to the petitioners in conducting the cases in two different Courts and I do not find any merits in this application and the same is liable to be dismissed.8.Assailing the correctness of the abovesaid order, Mr.Uday, learned counsel for the petitioner submitted that the Court below has failed to consider that Ganesan had alleged to have illicit intimacy with one Nandhini Priya, victim in SC.No.98 of 2014, pending on the file of the learned Mahila Sessions Court, and that was stated to be cause for Kalavathi, Wife of Ganesan, to have committed suicide, and in the abovesaid circumstances, it is just and necessary that both the cases are to be tried together, to find out the real truth.9.Heard the learned counsel for the petitioner and the learned Additional Public Prosecutor for the respondent.10.Material on record discloses that a case in Crime No.97 of 2012 has been registered against one Ganesan on 29.03.2012 on the file of the Inspector of Police, Tharamangalam Police Station, Salem District, under Sections 366A, 376, 417, 506(i) IPC, on the complaint of Nagarajan, father of Nandhini Priya, alleged to have been raped.11.On the complaint of Sulochana, mother of the deceased, a case has been registered on the file of the same Police Station under Section 174 CrPC against Ganesan, on the next day, that his wife Kalavathi has committed suicide.Complaint discloses inducement and abetment caused by the husband Ganesan and others, forcing Kalavathi to commit suicide.13.Though the alleged offences have taken place in different places and that the witnesses are also different, the fact remains that both the cases, relate to offences against women.Mahila Sessions Courts, are constituted to try cases against women.Though the petitioners have sought for a joint trial, the same cannot be ordered, for the reason that offences, are entirely different.As the witnesses are different, place of occurrence and dates are different, joint trial cannot be ordered.However, considering the fact that constitution of Mahila Sessions Court is for trying the offences against women, Sessions Case in SC No.98 of 2014, can be transferred to the learned Mahila Sessions Court, Salem.It is made clear that joint trial is not ordered.With the above directions, this Civil Revision Petition is disposed of.Consequently, connected miscellaneous petition is closed.24.02.2015Index : Yes/NoInternet : Yes/NompsTo1.The Principal Sessions Judge, Salem.2.The Public Prosecutor, High Court of Madras, Chennai.S.MANIKUMAR, J,mpsCRL.R.C.No.142 of 2015andM.P.No.1 of 201524.02.2015
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['Section 506 in The Indian Penal Code', 'Section 306 in The Indian Penal Code', 'Section 376 in The Indian Penal Code', 'Section 417 in The Indian Penal Code', 'Section 366A in The Indian Penal Code', 'Section 498A in The Indian Penal Code', 'Section 468 in The Indian Penal Code', 'Section 420 in The Indian Penal Code', 'Section 409 in The Indian Penal Code']
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Analyze the legal case and identify the corresponding section it comes under.
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400,097 |
ORDER T.K. Chandra Shekhara Das, J.This matter arises out of the issue of process by the Additional Chief Metropolitan Magistrate, Borivli, Bombay in Case No. 58/S/91 filed by the first respondent against the petitioners.It is alleged in the complaint that the petitioners have committed offences under sections 386, 451, 352, 419, 506(II) read with section 34 of the I.P.C. For the purpose of the case I do not think it is necessary to go into the every details contained in the complaint.Along with the complaint the names of 10 witnesses were shown and about 8 items of documents were also produced.It appears that on 6-3-1990 verification was not done.On 15-5-1990 verification was done.But it was stopped abruptly, and it was adjourned to 5-6-1990 for want of time.In the verification he stated that he made a complaint in Borivli Police Station as per Exh. D a zerox copy of which is produced.On 2-2-1991 i.e. after an year the Magistrate made an endorsement that verification statement was perused and directed the complainant to bring evidence.Petition allowed.
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['Section 200 in The Indian Penal Code', 'Section 506 in The Indian Penal Code', 'Section 34 in The Indian Penal Code', 'Section 419 in The Indian Penal Code']
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Analyze the legal case and identify the corresponding section it comes under.
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400,099 |
ORDER Fakhruddin, J.The truck was carrying stone slabs.Several people including the three deceased persons and the injured were sitting on the stone slabs in the truck.Due to rash and negligent driving of the truck by the applicant, near village Khera the truck overturned as a result of which two children named Guddu and Pappu and a lady named Shakuntala who were sitting on the stone slabs in the truck died and one person was injured.First information report was lodged at the Police Station by Ramjan Khan (P.W. 1) on the basis of which Crime No. 22/86 under Section 304A, IPC was registered against the applicant. 'Panchanama1 of the dead bodies was prepared, the dead bodies were sent for post-mortem examination and the injured was sent for medical examination, spot map was prepared and the truck was seized.After usual investigation, the 'chalian' was filed.Applicant abjured the guilt.He pleaded that due to failure of the brake the accident occurred.Prosecution examined 7 witnesses, namely Ramjan Khan Chowkidar (P.W. 1), Dr. R.K. Saxena (P.W. 2), Baburam (P.W. 3), Sarwar Khan (P.W. 4), Jamil Khan (P.W. 5), R.S. Bhadoria (P.W. 6) and Shivlal, Mechanic (P.W. 7).The Trial Court after considering the evidence found the accused guilty, convicted him under Section 304A, IPC and sentenced to imprisonment for one year and a fine of Rs. 2,000/-.In appeal, the Lower Appellate Court again considered the evidence and found that the conviction is well merited but reduced the sentence of imprisonment from one year to nine months and affirmed the fine.Shri Rakesh Saxena, learned counsel appearing for the applicant, contended that the conviction is illegal and contrary to law, whereas Shri P.D. Bidua, learned Panel Lawyer for the State supported the conviction and the sentence.The contention of the learned counsel for the applicant has no force.Though this revision had been admitted on the question of sentence, still this Court has gone through the entire material and evidence on record to satisfy itself about the legality and propriety of the sentence.Dr. R.K. Saxena (P.W. 2) performed the autopsy on the dead bodies of Guddu, Pappu and Shakuntala.Baburam (P.W. 3), Sarwar Khan (P.W. 4) and Jamil Khan (P.W. 5} who were working as labourers and travelling in the truck at the relevant time.The truck was being driven by the applicant.They stated that the truck was carrying stone slabs.They along with the deceased persons and the injured were sitting on the stone slabs in the truck.Near Gura Nala in the night at about 8-9 P.M. the applicant was driving the vehicle rashly and negligently in a high speed.They asked the driver not to drive the vehicle in such an excessive speed, but the driver did not pay any heed with the result that the truck overturned and the lady and the two children were crushed to death under the stone slabs.Nothing has been brought in the cross-examination of these witnesses to rebut the prosecution allegation that the vehicle was being driven rashly and negligently with a high speed.Having thus considered the entire evidence on record, in the opinion of this Court, the conviction under Section 304A, IPC is well merited and needs no interference.Learned counsel for the applicant then contended that the applicant was driving the vehicle steep on the road.If that was the situation, the driver ought to have been much more careful, as it was within his knowledge that the several persons including the two children and the lady who lost their lives in the accident, were sitting on thestoneslabs in the truck.A professional driver pedals the accelerator of the automobile almost throughout its working hours.Criminal Revision dismissed.
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['Section 304A in The Indian Penal Code']
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Analyze the legal case and identify the corresponding section it comes under.
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40,072,909 |
The petitioner is the de facto complainant.Based on the complaint given by the petitioner, the respondent Police registered an FIR in Cr.No.750 of 2013, against the accused persons.After investigation, a final report was also laid before the Court below and the same was taken on file in C.C.No.6973 of 2014, for an offence under Sections 451, 460, 462, 380, 120(b), 506(ii) IPC @ 451, 454, 380, 506(i) r/w 34 IPC.This mistake has crept in right from the FIR, and the petitioner wanted to point out this mistake and therefore sought for further investigation.http://www.judis.nic.in 3The Court below has considered the entire petition and found that no case has been made out for further investigation.If the petitioner wants to rectify the mistake in the date, the petitioner can always state the same at the time of giving evidence before the Court below.A further investigation is not required for this purpose.Accordingly, this criminal original petition is dismissed, and the Court below is directed to complete the proceedings within a period of three months from the date of receipt of a copy of this order.Consequently, the connected miscellaneous petition is closed.2.XVII Metropolitan Magistrate, Saidapet.3.The Public Prosecutor, High Court of Madras,http://www.judis.nic.in Madras.N. ANAND VENKATESH,.KP Crl.OP No.29153 of 2018 07.01.2019http://www.judis.nic.in
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['Section 380 in The Indian Penal Code', 'Section 120 in The Indian Penal Code', 'Section 506 in The Indian Penal Code']
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Analyze the legal case and identify the corresponding section it comes under.
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40,076,996 |
hy Shri Piyush Dharmadhikari, counsel for State of Madhya ad Pradesh through STF Bhopal.M Shri Kapil Sharma, counsel for the objector.Since all of three miscellaneous criminal cases have arisen of from the same Crime No.07/2017 registered by STF Bhopal, rt they have been heard analogously and are being disposed of ou by this common order.In addition thereto, the victim, at the ad behest of Sunil Jain, also paid an amount of Rs.10,50,000/- to the petitioners.He also gave Rs.21,00,000/- in cash to the M petitioners after borrowing the same from his relatives.The of victim was told that he has been made Director of company J S Wisher Apparels Private Limited with 45% share.rt Remaining 45% share would be allotted to Sunil Jain and 10% ou share would be allotted to petitioner Atul Anand.When the C victim inquired about the operations of the company he was taken to Gurapurva, Chhatarpur and was shown machines h ig and work in progress; however, the victim later learnt that H though he was major share holder of the company with 60.86 stakes, petitioners Atul Anand, Sunil Jain and Rajesh Kapoor ran the company arbitrarily without ever consulting him.The victim was never invited to attend any meeting of the company; however, the minutes of the meetings and signatures of the victim on those minutes were forged and the victim was shown present in all the meetings.The petitioners did not purchase any mine and no operations were commenced.The sight that was shown to the victim, belonged to some other person and later, the machines that were shown to him were also taken away.The share holding pattern shows that he is not even the shareholder in the company.The petitioners are prepared C to buy all shares of the victim at the rate of more than Rs.10/- per share.In the alternative, they are also prepared to h ig deposit Rs.15,50,000/- in the Court or with the Investigating H Officer, in cash.They have not made vailable ad minutes of all the meetings held by the company.Statement of one witness Abhishek Malavi, who is associated with M petitioner Sunil Jain in another company, reveals that the of petitioners are part of an organized crime syndicate, which cheats innocent person by getting large sum invested in rt fictitious ventures.After giving initial statement, Abhishek ou Malavi disappeared under threat and is no longer cooperating C with STF.After publication news items regarding the present case, several persons contacted Investigating Officer with h ig similar allegations againsts the present petitioners.The H petitioners have business interest in Dubai.THE HIGH COURT OF MADHYA PRADESH MCRC-19505-2017 sh (RAJESH BALBEER KAPOOR Vs THE STATE OF MADHYA PRADESH) e 2 ad Jabalpur, Dated : 09-11-2017 Pr Shri Manish Datt, Senior Counsel with Shri Sumit Raghuwanshi and Shri Manoj Pandit, Advocates for the a petitioners.Petitioners Atul Anand, Sunil Jain and Rajesh Kapoor are C apprehending arrest in Crime No.07/2017 registered by STF, h Bhopal under sections 120-B, 420, 467, 468 and 471 of the ig Indian Penal Code.H The petitioners were granted interim bail for a period of 15 days by Shri V.A. Raut, Additional Sessions Judge for Borivali Division, Dindoshi, Goregaon East, Bombay in CR.As per the prosecution case, Petitioner Atul Anand was acquainted with victim Sanjay Chouhan.In December, 2011, he introduced Sanjay Chouhan to co-accused petitioner Sunil Jain, who told the victim that they had a company named J. S. Wisher Apparels Private Limited and proposed to diversify into mining business in Madhya Pradesh; therefore, the victim could join that company.Trusting Sunil Jain, victim Sanjay Chouhan invested Rs.5,00,000/- for purchasing shares of the company.As such, the victim suffered a Pr loss of Rs.2,20,000/-.Against aforesaid amount, the a petitioners allotted him shares in the year 2014 at the rate of hy Rs.70/- per share.The company cannot as per law and did not receive any amount in cash from the victim.In spite of several notices to attend the meetings, the victim did not attend any meeting.He was not shown as present in the minutes of the meetings.Therefore, the petitioners demanded their money back.In the result, this Pr first information report has been lodged in order to avoid a making payment.The petitioners are cooperating in the hy investigation.They gave all documents to the Investigating ad Officer including the minutes of the meeting on 15.09.2017, through their counsel Shri Manoj Pandit.The STF which was constituted by a notification published in M. P. Gazette Extraordinary dated 26.12.2008 for the purpose of combating offences relating to antinational, disruptive and unlawful activities of extremists, terrorists, anti-social elements and organized crime syndicate.As such, STF exceeded its jurisdiction by registering FIR in the present case which ought to have been registered and investigated by ordinary police.Even since registration of the e ad offence, the petitioners have locked their office and have gone incommunicado.They were directed to appear before Pr STF and produce documents; however, they are trying to a mislead the STF by filing unwarranted documents and that hy too through their advocate.
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['Section 438 in The Indian Penal Code']
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Analyze the legal case and identify the corresponding section it comes under.
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4,007,903 |
(N.V. RAMANA) ..............................................J. (MOHAN M. SHANTANAGOUDAR) ..............................................N.V. RAMANA, J.The present appeal is directed by the appellantState against the final order dated 06.11.2012, passed by the High Court of Madhya Pradesh (Gwalior Bench) in Criminal Appeal No. 659 of 2011, whereby the High Court partly allowed the appeal filed by the respondentsaccused herein and reduced the sentence awarded by the Trial Court to the period already undergone for the offences under Section 326 of the Indian Penal Code [hereinafter referred toSignature Not VerifiedDigitally signed byGEETA AHUJADate: 2019.10.2216:23:48 ISTReason:as ‘IPC’] read with Section 34 of IPC, and Section 452 of the IPC.The prosecution’s case is that the complainant lodged a report 1 on 15.04.2008 that at around 9 p.m., while he was sitting inside hishouse with three other people, the respondentsaccused barged in,carrying weapons.More specifically, respondent nos. 1 and 3 werecarrying axes, while respondent nos. 2 and 4 were carrying sticks.The respondentsaccused asked the complainant why he had notkept his cow tied, and subsequently, on respondent no. 4’sexhortation, the respondentsaccused attacked the complainant andthe others present at that time resulting in various injuries to them.Respondentsaccused then allegedly threatened the complainantthat if he did not keep his cow confined, he would be killed.The Trial Court tried the respondentsaccused and ultimatelyconvicted them for the offences under Section 326 read with Section34 of IPC as well as the offence under Section 452 of IPC.Therespondentsaccused were sentenced to undergo 3 years rigorousimprisonment and a fine of Rs. 250/ (Rupees Two Hundred andFifty Only) each for the offence under Section 326 read with Section34 of IPC.They were further sentenced to undergo rigorousimprisonment for 1 year with a further fine of Rs. 250/ (Rupees TwoHundred and Fifty Only) each for the offence under Section 452 ofIPC.In case of default of payment of fine, they were to undergofurther rigorous imprisonment for 6 months.All sentences weremade to run concurrently by the Trial Court.Being aggrieved, the respondentsaccused filed an appealbefore the High Court, challenging only the quantum of sentenceimposed on them by the Trial Court.Vide impugned order, the HighCourt partly allowed the appeal and reduced the sentence to theperiod of imprisonment already undergone by them, which was aperiod of 4 days, while enhancing the fine amount imposed uponthem by Rs. 1500/ (Rupees One Thousand Five Hundred Only)each.The respondentsaccused were directed to deposit theenhanced fine within a period of 30 days, failing which they were toundergo simple imprisonment for a period of 30 days.Aggrieved by the impugned order, the State has filed thepresent appeal challenging the order of the High Court reducing thesentence awarded to the respondentsaccused.The learned counselfor the appellantState submitted that the High Court erred in notconsidering the gravity of the offence and the facts andcircumstances of the case, particularly the fact that therespondentsaccused had undergone imprisonment of only 4 days.The respondentsaccused entered the house of thecomplainant, attacked the others present with axes and with sticks.Four people, including the complainant, were injured.The main allegation as against the respondent nos. 1 and 3 is thatthey had used an axe to attack the victim.The respondentgroup was numerically matched with that of the victims and therewere two respondentsaccused within the group carrying lathis.There is a requirementto treat the crime committed herein differently than otherobjectionable situations such as police atrocities etc. [refer toYashwant v. State of Maharashtra, AIR 2018 SC 4067] Havingregard to the fact that the occurrence of the crime is of the year2008 and the respondentsaccused have been, in a way, onlyordered to undergo four days of jail term with a fine of Rs. 1,500/, 8 we need to enhance the same to commensurate with the guilt of therespondentsaccused.Comparatively, having perused certain precedents of thisCourt, we are of the considered opinion and accordingly direct thatfor the commission of the offence under Section 326 of IPC read withSection 34 of IPC, the respondent nos. 1, 2 and 3 are sentenced toserve rigorous imprisonment for 3 months and to pay a fine of Rs.75,000/ (Rupees SeventyFive Thousand Only) each within a periodof 1 month, on default of payment of which they are to suffer simpleimprisonment for 3 months.For the offence under Section 452 ofIPC, the respondent nos. 1, 2 and 3 are sentenced to serve rigorousimprisonment for 3 months and to pay a fine of Rs. 25,000/(Rupees TwentyFive Thousand Only) each within a period of 1month, on default of payment of which they are to suffer simpleimprisonment for 3 months.For the offence under Section 326 of IPC read with Section 34of IPC, the respondent no. 4, who is presently aged around 80 years,is sentenced to serve rigorous imprisonment for 2 months and topay a fine of Rs.50,000/ (Rupees Fifty Thousand Only) within aperiod of 1 month, on default of payment of which he is to suffersimple imprisonment for 1 month.For the offence under Section 452 9 of IPC, respondent no. 4 is sentenced to serve rigorousimprisonment for 2 months and to pay a fine of Rs.15,000/ (RupeesFifteen Thousand Only) within a period of 1 month, on default ofpayment of which he is to suffer simple imprisonment for 1 month.
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['Section 452 in The Indian Penal Code', 'Section 326 in The Indian Penal Code', 'Section 34 in The Indian Penal Code']
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Analyze the legal case and identify the corresponding section it comes under.
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40,084,140 |
16A dated 08.12.2012 was registered on a PCR call regarding rape with a girl by some boys near A-Block, Mangol Puri, Laxmi Dairy.The said DD was handed over to SI Gaurav and thereafter to W/SI Suman Kumari who called official from NGO and got the victim counselled and thereafter, victim was taken to SGM hospital for her medical examination and thereafter, she gave her statement that she is studying in class IX and on 04.12.2012 at about 2.00 p.m., she went to A-Block market to purchase copy where accused Jogender @ chhapri was standing at a shoe shop who was known to her and came to her and asked her to come with him and believing him she went with him in the shoe shop where accused Kuldeep @ Kallu was already present.There they both threatened her and asked her to come to first floor room of that shop which has stairs from the shop itself.Because of their threats, she went to the first floor room with them.Accused Jogender pressed her mouth and accused CRL.LP.478/2018 Page 2 of 12 Kuldeep removed her clothes and thereafter, they raped her despite her resistance and then asked her to leave after wearing the clothes and threatened that if she will tell about this to anyone, they will kill her and her family members.IO ne mere bayaan likhe aur maine uss par sign kiya."During her cross examination she deposed as under:-I do not recollect whether I had stated in Ex.I had not stated in my statement Ex. PW3/A that I knew accused Joginder by his nickname Chhapri.The MLC suggests presence of minimal bleeding but neither any external injuries were found nor hymen was torn.The prosecution has further failed to produce any independent witness to prove the guilt of the accused.Accordingly, reliance placed by learned counsel for the State on the case of Parminder (Supra) is misplaced.Admittedly the incident occurred on 04.12.2012 at about 02:00 pm in a shop which is located in a crowded market having shops all around it.As per the prosecution witnesses there were many persons present in the market at the time of the incident.HON'BLE MS.JUSTICE SANGITA DHINGRA SEHGAL SANGITA DHINGRA SEHGAL, JBy the present Leave Petition filed under Section 378 (1) of the Code of Criminal Procedure, (hereinafter referred as Cr.P.C.) the State seeks leave to appeal against the judgment dated 10.05.2018 passed by the learned Trial Court in Session Case No. 29/13, whereby both the respondents (accused before the Trial Court) were acquitted of the charges punishable under Section 376(G)/506/120B of the Indian Penal Code (hereinafter referred as IPC) and Section 4 & 6 of the POCSO Act.478/2018 Page 1 of 12Because of their threat, she kept silent but today she gathered courage and informed about the incident to her mother.On her statement, present FIR was registered."478/2018 Page 2 of 12To bring home the guilt of the respondents, the prosecution has examined 18 witnesses in all.Statements of both the respondents were recorded under Section 313 of Cr.P.C. by the learned trial court wherein they pleaded not guilty and claimed trial.The respondent chose not to lead any evidence in their defence.Ms. Radhika Kolluru, APP for State contended that the impugned judgment dated 10.05.2018 was based on conjectures and surmises and the same deserves to be set aside, convicting the respondents for the offences punishable under Section 376(G)/506/120B of the IPC and Section 4 & 6 of the POCSO Act. Learned counsel for the State further contended that the statements of the PW-3 (the victim) were consistent and stood corroborated with the testimonies of PW-12 (brother of the victim) and PW-16 (mother of the victim).Learned counsel further contended that the learned trial has placed undue weightage on the minor contradictions and discrepancies in the CRL.LP.He further contended that there are major contradictions and discrepancies in the statements of the prosecution witnesses and the prosecution has miserably failed to establish a case against the respondents, beyond reasonable doubt.We have heard the learned counsel for the parties and perused the material on record.It is a settled principle of law that conviction can be based on the sole testimony of the victim of sexual assault and if the evidence of the prosecutrix inspires confidence, it must be relied upon CRL.LP.478/2018 Page 4 of 12 without seeking corroboration of her statement in material particulars.Coming to the facts of the present case, it is to be seen, whether evidence adduced by the prosecution, particularly the testimonies of PW-3 (the victim) and PW-16 (mother of the victim) are trustworthy, credible, corroborative and worthy of reliance.478/2018 Page 4 of 12The statement of prosecutrix, under Section 164 of the Cr.P.C.(Ex.-PW-3/B) was recorded on 10.12.2012 wherein she deposed that on 04.12.12 around 2:00 of clock noon, when she went to shop to purchase copies, one boy named Chapri called her and forcefully dragged her inside the shop.She further deposed that one more boy was present there and they both dragged her upstairs, in a room.She further deposed that both the boys then raped her and threatened her not to inform anybody otherwise they would kill her and her family.She further deposed that being terrified, she disclosed about the alleged incident to her family members after four days of the incident and thereafter police was informed.The prosecutrix was examined as PW-3 and during her examination-in-chief she deposed as under:-" Mein 4th December, 2012, ko after noon me 02:00 baje mein stationery shop se copy lene gay thi.Uske samne ek shoe shop thi, waha par ek ladka khada tha, jisse maine pehle se dekha hua tha.Mujhe uska naam nahi pata tha.Yeh ladka mujhe school se aane jaane me pehle bhi chedta tha.Uss ladke ne mujhse kaha ke mere dost uppar hai isliye mere sath uppar chalo.Mein uske sath upar chali gayi waha koi bhi nahi tha.478/2018 Page 5 of 12Phir unhone Nanu ko niche dukan me bhej diya.Phir unhone zabardasti uppar ka gate bandh kar diya.Mein bahut ro rahi thi aur apne kapade mang rah thi.Phir Sandeep niche kapade lene chala gaya tha.Phir Nanu uppar aa gaya aur usne bhi mere sath zabardasti galatkam kiya.Unn sabne mere sath balatkar kiya.Kallu aur Chapri ne muje dhamki di ki chupchap kapade pehan kar chali jao aur kissi ko kuch nahi batana nahi toh tujhe aur tere gharwalo ko jaan se mar denge.Phir mein apne ghar chali gayi.Mujhe bahut bleeding ho rahi thi.Maine apne ghar jane ke baad darr ke marre kissi ko bhi kuch nahi bataya tha.Do din baad maine sari baat apni mummy ko batai aur mummy ne bhai ko bata diya, uske baad bhai ne police ko phone kar diya tha.Police mere ghar aa gayi unhone mujhse puchtach ki aur mujhe, meri mummy aur bhai ko police station le gaye.PS me police ne mujhse puchtach kari aur uske baad police mujhe hospital le gayi waha par mera medical hua, phir police mujhe wapas thane me le aayi.I had not stated either in Ex. PW 3/A or Ex. PW 3/B that accused Joginder used to tease me on my way to school prior to the incident.I had not stated in Ex.478/2018 Page 6 of 12PW3/A that on 04.12.2012 accused Joginder called me when I was going to the market and asked me to deny friendship in the presence of his friends.My brother Himanshu had told me later on that Sandeep, the owner of that shoe shop was, the friend of accused Joginder.The same was told to me by my brother after recording; my statement before court but I do not recollect the exact date.Xxxxxx After the incident I did not go to school till two day thereafter I had discolosed the matter to my mother in the morning.After the incident I did not visit that shop again.After coming home on the date of incident I had washed the said clothes.I had made attempt to scream but my mouth was gaged"From the perusal of the testimonies of the prosecutrix, we find that there were many improvements and contradictions in her statements recorded at various stages.a. The prosecutrix in her statement recorded under Section 164 Cr.P.C stated that she was forcefully dragged inside the shop by the accused person, to the contrary in her examination in chief, she deposed that she accompanied the accused without any protest on being called by him to the place of incident, she described the same in these words Uss ladke ne mujhse kaha ke mere dost uppar hai isliye mere sath uppar chalo.Mein uske sath upar chali gayi waha koi bhi nahi tha.478/2018 Page 7 of 12 b. The prosecutrix in her statement recorded under Section 164 Cr.P.C. stated that two boys threatened her and raped her and deposed that one boy named Chapri called her and forcefully dragged her inside the shop and one more boy was present there and they both dragged her upstairs, in a room to the contrary in her examination in chief she involved four persons, including the present two respondents.478/2018 Page 7 of 12c. During the cross examination, when the prosecutrix was confronted with her statement recorded under Section 164 Cr.d. The prosecutrix in her cross-examination deposed that her brother Himanshu (PW-12) had told her the names of the accused persons, whereas to the contrary her brother Himanshu in his cross-examination on 04.10.2016 denied this version.e. According to the prosecutrix she did not attend school for two days consequently after the date of incident.f. During cross examination, the prosecutrix deposed that she attempted to scream but her mouth was gagged by the CRL.LP.478/2018 Page 8 of 12 accused persons to the contrary during the recording of statement recorded under Section 164 Cr.P.C. and examination in chief, she chose to remain silent.478/2018 Page 8 of 12At this stage, it is relevant to examine whether the medical evidence adduced by the prosecution finds support from the testimonies of the prosecution witnesses.Dr. M. Das, CMO, SGM Hospital, Mangol Puri, (PW-14) has examined the victim vide MLC No. 20929 on 08.12.2012 and has proved the MLC report as Ex.PW14/A and has opined that no fresh external injuries were visible at the time of the aforesaid medical examination.Dr. Akanksha, S.R. (Obs. & Gyane) (PW-15) appeared on behalf of Dr. Rachita, S.R.(Gyane), Sanjay Gandhi Memorial Hospital, Mangol Puri, Delhi who examined the victim and deposed that as per the MLC (Ex.478/2018 Page 9 of 12Learned counsel for the State in support of her contention with regard to MLC of the victim relied on the case of Parminder alias Ladka Pola Vs.From the perusal of the Parminder (supra) case, we find that the apex court has upheld the conviction of the accused not only on the ground of corroboration of the testimony of the prosecutrix but also on the ground of positive report of the CFSL.In Parminder (Supra) case, the clothes of the victim were sent for forensic analysis which proved the guilt of the accused person.The CRL.LP.478/2018 Page 10 of 12 prosecution failed to produce even a single public witness to support its case.No feasible explanation came forth from the victim explaining the delay in lodging the complaint.478/2018 Page 10 of 12In the present case, on a cumulative reading and appreciation of the entire evidence on record, we are of the considered view that the evidence of the prosecution has been held to be unworthy of acceptance because the same is found to be replete with infirmities and found to be not supported by the medical evidence itself.It is a settled law that while deciding a leave to appeal petition filed by the State, in case two views are possible, the High Court must not grant leave, if the trial court has taken one of the plausible views, in contrast thereto in an appeal filed against acquittal.The learned trial court has taken a holistic view in the matter and carefully CRL.LP.478/2018 Page 11 of 12 analyzed the evidence of all the witnesses.Accordingly, no ground to interfere with the impugned judgment is made out and the leave petition is dismissed.478/2018 Page 11 of 12SANGITA DHINGRA SEHGAL, J SIDDHARTH MRIDUL, J DECEMBER 13, 2018 gr//*DA CRL.LP.
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['Section 120B in The Indian Penal Code', 'Section 506 in The Indian Penal Code', 'Section 376 in The Indian Penal Code']
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Analyze the legal case and identify the corresponding section it comes under.
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40,085,037 |
Respondent No.2 affirms the contents of her affidavit of 27th November, 2018 filed in support of this petition and submits that the proceedings arising out of the FIR in question be brought to an end.In Gian Singh Vs.Accordingly, FIR No.577/2016, under Sections 323/354B/506/34 IPC, registered at police station Rajouri Garden, Delhi is quashed subject to petitioners depositing cost of 10,000/- with the Prime Ministers National Relief Fund within four weeks from today and after proof of deposit of cost is placed on record within two weeks thereafter.With aforesaid directions, this petition is accordingly disposed of.(SUNIL GAUR) JUDGE DECEMBER 19, 2018 v CRL.M.C. 6204/2018 Page 2 of 2CRL.M.C. 6204/2018 Page 2 of 2
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['Section 506 in The Indian Penal Code', 'Section 323 in The Indian Penal Code', 'Section 34 in The Indian Penal Code']
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Analyze the legal case and identify the corresponding section it comes under.
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40,089,046 |
[Order of the Court was made by C.T.SELVAM, J] Petitioner is the wife of the detenu Karthik S/o.The detenu came to adverse notice in the following cases:-Police Station and Crime No. Sections of Law1.T12 Poonamallee Police Station, Crime No.1824/2017341, 294(b) and 392 IPC2.T12 Poonamallee Police Station, Crime No.84/2018341, 294(b), 392 and 506(ii)3.T9 Pattabiram Police Station, Crime No.356/2018379 IPCThe alleged ground case has been registered against the detenu in Crime No.358 of 2018 on the file of T9 Pattabiram Police Station for offences under sections 341, 294(b), 336, 427, 397 and 506(ii) IPC.Aggrieved by the order of detention, the present writ petition has been filed.Amidst several grounds raised, learned counsel for petitioner submits that the detaining authority while noticing that the detenu is in remand in connection with the case registered in Crime Nos.356 and 358 of 2018 on the file of T9 Pattabiram Police Station and has moved bail application in the ground case and the same is pending and no bail application has been moved in one of the adverse cases i.e. Crime No.356 of 2018, he had informed that the relatives of the detenu were taking efforts to move bail application in such adverse case to take him out on bail and therefore, there was a real possibility of his coming out on bail and if he comes out on bail, he will indulge in further activities which will be prejudicial to the maintenance of public order.Though the detaining authority has informed of an effort by the relatives to move bail petition for the release of the detenu in one of the adverse cases, there is no material to support such contention.We have heard learned Additional Public Prosecutor on the above submissions and also perused the records.Accordingly, the impugned detention order passed by the second respondent, detaining the detenu, namely, Karthik S/o.Selvasekar, made in No.174/BCDFGISSSV/2018 dated 23.03.2018, is quashed and the Habeas Corpus Petition is allowed.The above named detenu is ordered to be set at liberty forthwith, unless his custody is required in connection with any other case.
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['Section 341 in The Indian Penal Code', 'Section 294(b) in The Indian Penal Code', 'Section 336 in The Indian Penal Code', 'Section 506 in The Indian Penal Code', 'Section 427 in The Indian Penal Code', 'Section 397 in The Indian Penal Code']
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Analyze the legal case and identify the corresponding section it comes under.
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40,091 |
Consequently, connected M.Ps. are closed.ggs/ggToThe Petitioner is the sole accused and he has come forward with this petition seeking for the relief of quashing the proceedings pending in C.C.No.82 of 2004 on the the file of the learned Judicial Magistrate No.1, Tiruppur.The learned senior counsel for the petitioner submits that the petitioner has been implicated for the alleged offence under Sections 420 and 506(i) I.P.C. It is further submitted by the learned senior counsel for the petitioner that even if the entire allegations contained in the complaint and other materials available on record taken in its face value, no offence is made out under Sections 420 and 506(1) I.P.C. The learned senior counsel for the petitioner would submit that the entire case is purely of civil nature and even if the allegations contained in the F.I.R. and other materials available on record, there was no criminal transaction between the petitioner and the defacto complainant.The learned senior counsel for the petitioner would further submit that the earlier complaint filed by the defacto complainant was referred as 'mistake of fact' stating that the remedy lies only before the Civil Court in view of the transaction said to have taken between the parties.It is submitted that thereafter the defacto complainant preferred a complaint before the learned Judicial Magistrate and the same was referred under Section 156(3) Cr.P.C. and ultimately F.I.R. was registered and final report was also filed implicating the petitioner herein as stated above.The learned senior counsel for the petitioner once again reiterated that the materials available on record do not constitute offence under Section 420 or 506(i) I.P.C. and the said dispute arises out of commercial transaction and as such remedy lies only before the Civil Court.Heard the learned Additional Public Prosecutor.It is submitted by the learned Additional Public Prosecutor that the materials available on record discloses that there was a commercial transaction between the parties viz., the petitioner and the defacto complainant and the main allegation is that the petitioner owes an amount of Rs.10,23,086/- to the defacto complainant during the course of the commercial transaction.Learned Additional Public Prosecutor would further submit that there is an allegation of criminal intimidation in the F.I.R. and the same was alleged during the examination of witnesses recorded under Section 161 Cr.P.C.I have carefully considered the rival contentions put forward by either side and also perused the impugned complaint and other materials available on record.It is seen that the petitioner is the sole accused and he has been implicated for the alleged offence under Sections 420 and 506(i) I.P.C. The main allegation is to the effect that there was business transaction between the petitioner and the defacto complainant right from the year 1995 and the petitioner owes an amount of Rs.10,23,086/- to the defacto complainant.It is further alleged that when the defacto complainant demanded payment of such amount, the petitioner threatened the defacto complainant with dire consequences.The undisputed fact remains to the effect that there was a business transaction between the petitioner and the defacto complainant, and the main grievance in the complaint is that the petitioner owes an amount of Rs.10,23,086/-.It is crystal clear from the records that the entire dispute arising out of civil dispute and there is absolutely no allegation whatsoever to the effect that there was dishonest intention on the part of the petitioner even at the inception of the transaction.It is pertinent to note that as per the materials available on record, there was a long standing business transaction right from the year 1995 between the petitioner and the defacto complainant and it is also categorically stated by the defacto complainant in the complaint as well as in his statement under Section 161 Cr.P.C. that the petitioner used to pay the amount periodically by cheque as well as by cash.The Judicial Magistrate No.1, Tiruppur.The Inspector of Police, Central Crime Branch, Tiruppur.The Public Prosecutor, High Court, Madras
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['Section 506 in The Indian Penal Code', 'Section 420 in The Indian Penal Code']
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Analyze the legal case and identify the corresponding section it comes under.
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40,094,793 |
Advocates appeared in this case:Mr. N. Hariharan, Sr.with Mr. Varun Deswal, Mr. Siddharth S. Yadav, Mr. Prateek Bhalla & Mr. Sharang Dhulia, Advs.Mr. Sidharth Luthra, Sr.Advocate with Mr. Arjun Dewan, Ms. Anupama Kumar, Mr. Abhishek Kr.The case of the prosecution is that on the intervening night of 13/14.9.1990, Mr. Rohin Mehta (victim/deceased) son of Mr. Ramesh Mehta Crl.A. 68-2000 Page 1 of 56 (Complainant, PW-5) had boarded Indian Airlines flight No. IC 183 at Bombay for Delhi, from where he was supposed to leave for Moscow, the next day, for an Exhibition/Trade Fair along with his two friends viz. Jasjeet Singh (PW-28) and Anil Khanna.Smt. Rekha Mehta (PW 30, mother of the deceased Rohin Mehta) and Sandeep Mehta (cousin of the deceased) had gone with Rohin Mehta to Bombay Airport, to see him off.On 14.09.90 at about 8.00 p.m., when Smt. Rekha Mehta made a telephone call from Bombay to her husband Ramesh Mehta at Delhi, they came to know that neither had Rohin Mehta had met Ramesh Mehta in Delhi, nor did the latter have any clue as to his sons whereabouts; the father immediately rushed to Palam Airport and made enquiries about his son.He did not get any satisfactory response.Worried and concerned, as he was, he went to Police Station Palam Airport and lodged a Missing Persons Report Ex. PW-5/A, on 15.09.90 at 1 am.It was registered as DD No. 33, to the effect that on the night of 13/14-9-90, his son Rohin Mehta had flown to Delhi from Mumbai at 2.20 a.m. in Indian Airlines flight No. IC 183, that he was carrying one big briefcase, a bag and a small brief case (brown colour).The father also described the physical build of his son.On making personal inquiries the father sensed some foul play, therefore, he lodged another typed complaint (Ex. PW-5/B) on 15.09.90, in which he disclosed that his son was carrying Rs. 45,000/- in cash, besides his personal belongings and was to be received by Sumesh Tripathi (Respondent-2) from the Airport.This complaint, was registered as FIR No. 25/90 under section 364 IPC at PS Palam Airport on 15.09.90 at around 10:30 PM.A. 68-2000 Page 1 of 56Meanwhile, a PCR call was received at PS Anand Vihar, on 14.09.1990 that one suitcase was lying unclaimed for the over three hours Crl.He along with Constable Sanjay Kumar (PW-37) reached the spot and seized the said suit case under Section 66 DP Act vide a Seizure Memo Ex. Pw15/A. The seizure memo indicates that the said suit case contained used gents apparels and ladies clothes including undergarments.A. 68-2000 Page 2 of 56As the sequence of events unfolded, on 15.09.90 around 2.00 p.m., PW-28 Anuj Kumar, who was posted as security guard at HML, informed the police officials of PS Sadar, Gurgaon SI, Suraj Bhan (PW-31), HC Hoshiar Singh (PW-18) and Ct.Rajender, who were on VIP duty at IFFCO Chowk of a dead mans body lying near a hillock.The said police officials rushed to the spot and found a partially burnt, dead body of a man.Proceedings under section 174 Cr.P.C. were conducted, photographs of the corpse were taken and the articles lying nearby it, which included some visiting cards, a plastic rope, etc., were seized by SI Surajbhan (PW-31) vide seizure memo Ex. PW-18/A. On 15.09.90 itself the dead body was shifted to Civil Hospital Gurgaon.On 16.9.90, it was shifted to Medical College Rohtak for the purpose of post-mortem.On 17.9.90 at around 9 a.m, Dr. P.K. Paliwal (PW-38) conducted the post-mortem.Meanwhile, on 16.09.1990, on being intimated of this by incidents, PS Sadar, Gurgaon, PW- 5 Ramesh Mehta, reached there and identified the body as his sons.On 17.09.1990, he received the body of the deceased, after the post-mortem had been conducted.The Post Mortem Report Ex -PW-38/A indicated the following injuries:(i) Injury on Scalp by blunt object (ante-mortem & homicidal in nature);It further indicated that the duration between postmortem and death was about 3 days.On 20.09.1990, the IO of the case SI Inderjit (PW-43), searched for Gaurav (Respondent no. - 3) at his house.Inspector Mehtab Singh (PW-44) along with SI Om Prakash (PW-33) and R-3, took the said car to CFSL, where the car was examined by Dr. G.D. Gupta and Dr. V. K. Goel (PW-39) and upon inspection, blood stained earth was detected on the back seat of the car.The said blood stained earth, along with car and its various accessories & articles were seized by PW-44 Inspector Mehtab Singh, vide seizure memo Ex PW-33/A and Ex PW-33/B.The Respondents were arrested by the police on 21.09.90 (though at different times).On the basis of the various disclosure statements given by the respondents, on 21 and 22.09.1990, the police effected various recoveries and prepared various indicative memos at the instance of respondents.Some of the aforesaid recovered articles, including the blood- stained ones, were sent to FSL for examination and a report was received.Meanwhile, one Suresh Rehan (PW-10) came to PS Palam Airport on 22.09.1990, allegedly upon seeing the photograph of the deceased in a newspaper, 2-3 days after the incident.He said that on the fateful night (when deceased was to come to Delhi), he had visited Palam Airport to Crl.A. 68-2000 Page 4 of 56(i) That the deceased Rohin Mehta was to go Moscow after coming to Delhi from Bombay by air.In this regard, court has examined the evidence of PW-22 Vinay Kumar (parking attendant at the relevant time and who admittedly issued the disputed counter foil receipt Ex.PW-9/A), PW-9 Satya Prakash (Parking Supervisor at the relevant time and from the possession of whose the counter foil ticket book Ex.P-20 having in it the counter foil receipt number C- 327029 Ex.Apropos 60(xii) above, it is the case of prosecution that on 23.09.1990, all the three respondents had jointly pointed out (vide pointing memo Ex. PW-32/F) and led the police, to the place in Rishabh Vihar, where they had thrown the suitcase belonging to the deceased.Pathak & Ms. Purnima Raj, Advocates for Respondent No.3 Mr. Siddharth Aggarwal, Mr. Faraz Maqbool, Ms. Rupali Samuel and Mr. Kirat Randhawa, Advocates for complainant.HON'BLE MR. JUSTICE SIDDHARTH MRIDUL HON'BLE MR.A. 68-2000 Page 2 of 56 near Friday Market, Rishabh Vihar Turn, Kiran Vihar.At 5.18 PM, DD No. 14A dated 14.09.1990 was registered and marked to ASI Om Bir Singh (PW-15).After investigation, charge sheet was filed against respondents Manoj Nafri, Sumesh Tripathi and Gaurav Kumar.After the committal of the case, the learned Trial Court framed charges under section under section 120-B IPC and under section 364, 302, 392, 201 all r/w 120-B IPC, against all the respondents, to which they pleaded not guilty and claimed trial.9. To establish its case, the prosecution examined 44 witnesses; statements of the respondents were recorded under section 313 Cr.P.C. by the learned Trial Court wherein, respondents denied the purportedly incriminating evidence against them and alleged that they have been falsely implicated in the case by the police.The learned Trial Court has framed the following eight circumstances, as points for determination:-(ii) That the deceased Rohin Mehta, informed the accused Sumesh Tripathi on telephone from Bombay Airport to receive him from Delhi Airport, as he was carrying Rs.40,000/- and other valuable articles with him.(iii) That car no. DD C 9270, which was registered in the name of the father of the accused Gaurav Kumar, had been parked in the parking lot of Palam Airport on the night intervening 13/14.09.1990, when the deceased was to come to Delhi from Bombay by Air.A. 68-2000 Page 5 of 56(iv) That PW-10 Suren Rohan had seen the accused Sumesh Tripathi and Gaurav Kumar at the parking lot of Palam Airport on the intervening on 13/14.09.1990 and he had also seen the above said car, parked in the parking lot.(v) That all the accused persons, after their arrest, made disclosure statements confessing therein that they entered into criminal conspiracy to rob the deceased and to commit his murder.(vi) That a rope/string was found at the spot near the dead body, it was found to be similar by CFSL to the rope/string which was got recovered through Sumesh Tripathi after his arrest, the scissors also were recovered through him.(viii) That after the arrest of accused person they got the cash and other articles belongings to the deceased recovered.On the appreciation of evidence, the learned Trial Court came to the conclusion that prosecution has been able to prove only the first two, of aforesaid eight circumstances.In effect the chain of proven circumstances was not complete, which could establish or conclusively point towards the guilt of the respondents.Resultantly it acquitted all the respondents of all the charges.After filing of appeal by the State, notices were issued to the respondents.Respondent no. 2 Sumesh Tripathi and respondent no. 3 Manoj Nafri appeared and filed their Written Submissions.However, on various notices issued to respondent no. 1, a report was received to the effect that the he had left his address in India and was residing in the United States of Crl.A. 68-2000 Page 6 of 56 America.Efforts were made by this court to ensure his presence by issuing non-bailable warrants of arrest through Ministry of Home Affairs, Government of India, but the efforts could not fructify and NBW's could not be executed.Subsequent to this also, various efforts were still made to trace the whereabouts of R-1, but he remained untraceable.Finally, an Amicus Curiae was appointed to represent R-1 in this appeal.A. 68-2000 Page 6 of 56We have heard the arguments and perused entire records.The appellant State has assailed the impugned judgment, inter-alia on the grounds, (i) that learned Trial Court has erred in appreciating the evidence on record properly; it has wrongly rejected the evidence of PW-10 Suren Rehan as being doubtful, whereas his testimony was cogent and reliable; the Trial Court has not considered in proper light the most important piece of "last seen" evidence, tendered by prosecution, (ii) that the Trial Court has erred in not appreciating the flip-flop testimony of the hostile witness PW-22 Vinay Kumar properly and erred in discarding the parking ticket Ex.PW- 9/A, on the ground that a handwriting expert had not been produced, whereas the original receipt Ex.PW-9/A is itself clearly legible and establishes that the car no. DDC 9270 (owned by father of R-3) was parked at the parking of Palam Airport on the fateful night; that this piece of evidence coupled with the last seen evidence of PW-10 Suresh Rehan, clearly establishes the fact that the deceased was last seen in the company of respondents and had left the airport with them in car no.It is argued for that the trial court finding are liable to be reversed and respondents be convicted for the offices charged and be punished accordingly.A. 68-2000 Page 7 of 56A. 68-2000 Page 12 of 56The Post-Mortem Report (PMR) Ex PW-38/A, and evidence of PW-38 Dr. P. K. Paliwal, in this regard has gone unrebutted.They mentions the following injuries on the body of the deceased:(i) A lacerated wound on the left side of scalp in coronal bylone and a depressed fracture of scalp in parietal reason (ante-mortem & homicidal in nature).(ii) There was a fracture of greater corner of hyoid bone at the right Crl.A. 68-2000 Page 13 of 56 side with infiltration of blood (ante-mortem & homicidal in nature).A. 68-2000 Page 13 of 56(iii) Both forearms and legs and toes were were having burns (post- mortem in nature).In the present case, the prosecution has tried to establish its case mainly on the following four evidences/circumstances:-(i) Last seen evidencePW-3/A regarding flight no. IC 83 to the police and stated that the said passenger manifest discloses that one Rohin Mehta was allotted seat no.10G in the said flight from Bombay to Delhi.A. 68-2000 Page 16 of 56A. 68-2000 Page 17 of 56 the counsel in appeal, that the flight was only delayed and that it departed from Bombay airport only after midnight.Nevertheless, the court is also not inclined to discard the clear testimony of PW-30, PW-29 and PW-5 and by merely relying upon Ex.Another reason not to hold that the deceased departed from Mumbai at 08.50 p.m. on 14.09.1990 by the aforesaid flight is that, apart from the testimony of PW-5 and PW-30, in this regard (as discussed above), the post-mortem report of deceased also points towards the time of death of deceased as somewhere in the morning hours of 14.09.1990 and therefore, it is not possible that the deceased departed at 08.50 p.m on 14.09.1990 from Bombay for Delhi by flight.A. 68-2000 Page 17 of 56A. 68-2000 Page 18 of 56 with R-2 on telephone from Bombay Airport and requested R-2 to arrive at Delhi airport to receive him, as the deceased was in possession of cash and other goods.The learned Trial Court further noted that similar statement was made by PW-5 Ramesh Mehta, who stated that his wife (PW-30) had told him on telephone that the accused no.2 was to receive their son Rohin Mehta at Delhi Airport.The Trial Court further noted that the complainant PW-5, in his complaint Ex.PW-5/B lodged on 15.09.1990 had categorically stated, that according to his information, his son Rohin Mehta was to be received by Sumesh Tripathi .Though, the Trial Court noticed various improvements in the testimony of PW-5 Ramesh Mehta in this regard, but concluded that since, PW-5 Ramesh Mehta and PW-30 Rekha Mehta, who are father and mother of the deceased respectively, and were not having any sort of animosity with the respondent, they were not to gain anything by deposing falsely against the said respondent.A. 68-2000 Page 18 of 56The respondents have tried to assail the aforesaid finding of the Trial Court by arguing (i) that Trial Court has erred in placing reliance upon the testimony of the aforesaid witness to conclude that deceased made a call from Bombay Airport to R2, because PW-30 Rekha Mehta at best could have been the witness of the fact that deceased was talking with somebody over the phone, but she could never have known or deposed as witness that the person on the other end of the phone call was respondent-Sumesh Tripathi only; (ii) That during investigation, the police neither collected the call detail records of telephone booth located at Bombay Airport from which the deceased had allegedly made the call to R2 nor did the police collect details of the phone installed at Sumesh Tripathis residence; (iii) The prosecution did not make the cousin of deceased a witness in this case, who Crl.A. 68-2000 Page 19 of 56 allegedly had accompanied the deceased to Bombay Airport to see him off, as he could have deposed about the fact of a telephonic conversation of the deceased with the respondents; (iv) The evidence of PW-5 Ramesh Mehta regarding the fact that deceased had a conversation with Sumesh Tripathi over phone from Bombay airport is merely hearsay, as he himself admitted that his wife Rekha Mehta PW-30 told him about this fact.Whereas the statement of PW-30 Rekha Mehta in this regard has been recorded by the investigating officer as late as 05.12.1990 so as to create the evidence at later stage, despite the fact that PW-30 in her evidence has clearly stated that she stayed in her parents house situated at Defence Colony, Delhi for almost two months after the demise of her son, and during this period police used to regularly visit their house in respect to this case; (v) that the testimony of PW-5 further reveals that the maternal grand parents and paternal uncle of the deceased used to stay in Delhi at the relevant time, therefore, the deceased could very well have called them to receive him from Delhi airport and there was no need for him to call Sumesh for this purpose.A. 68-2000 Page 19 of 56On the basis of evidence on record and in the light of aforesaid arguments, the court is of the view that the only witness examined by prosecution to establish that the deceased did make a call to accused Sumesh Tripathi from Bombay airport and requested the respondent to receive him, is PW-30 Rekha Mehta, who has deposed about this fact.PW-5 Ramesh Mehta also deposed that his wife told him over the phone, that R-2 was to receive the deceased from Delhi airport.Though, the police has recorded the statement of PW-30 belatedly, this information about receiving of deceased by R-2, was given in writing by PW-5 to police as early as 15.09.1990, through his complaint Ex.PW-5/B, and the only source of this information Crl.A. 68-2000 Page 20 of 56 with PW-5 to get it so recorded was information given to him by PW-30 over phone.Also, as rightly recorded by the learned Trial Court that the parents of the deceased i.e. PW-5 and PW-30 were not having any animosity with the R2 to falsely implicate him in this case and therefore, the recording of this fact in Ex. PW-5/B in his written complaint lodged with the police on 15.05.1990 renders credence to the testimony of PW-30 and PW-5 in this regard.To reach the aforesaid findings, the Trial Court has indicated that the main witness PW-22 Vinay Kumar, parking attendant at the relevant time, has not supported the case of prosecution.Moreover, though the specimen handwriting of this witness was obtained during his evidence, but the prosecution has failed to examine any handwriting expert on that aspect and therefore, adverse inference has to be drawn on this count.Further, on its own examination, the Trial Court found that car no. ADI 9240 has been written on the counter foil receipt Ex.PW-9/A is in the handwriting of PW-22 or not, as PW-22 himself admitted, that the car number written on Ex.PW-9/A is in his own handwriting only.Moreover, it is also submitted that a mere look at the aforesaid counter foil Ex.PW-9/A was seized), PW-34 Vinod Kumar (Employee in RTO) Crl.A. 68-2000 Page 22 of 56 and also the counter foil receipt Ex.A. 68-2000 Page 22 of 56Regarding the fact of parking of the said car on the intervening night of 13/14.09.1990 at Palam Airport, PW-9 Satya Prakash in his testimony, has clearly deposed about handing over of the counter foil ticket book Ex.P-20 and the said counter foil receipt Ex.PW-9/A to the police and has also stated that there are instructions, that after 12.00 o'clock in the night, the date is to be changed and hence the date 13.09.1990 has been changed to 14.09.1990, because as per counter foil Ex. PW-9/A, the car had come in the parking at 01.50 a.m. Though, PW-22 Vinay Kumar has turned hostile in his testimony before the court.However, on the cross examination on behalf of State, he admitted that 'it is correct that I had stated in my statement before the magistrate that car no. DDC 9270 had arrived in the parking lot about 01.50 AM and I had issued a parking ticket.' Even the Trial Court at para 13, page 19 of its impugned judgment has noted "however, this witness (PW-22) further admitted that he has stated before the magistrate that car no.DDC 9270 had arrived in the parking lot at about 1.50 AM and he had issued the parking ticket"; but then recorded its inference from this statement as -"In this manner, this witness has only admitted that he had made this statement before the The learned Magistrate.However, this witness has nowhere admitted that as a matter of fact car no.DDC 9720 was parked in the parking of Palam Airport on that night".But in view of this court, once the Trial Court acted upon this admission of PW-22, that he had stated before the magistrate that car no. DDC 9270 had arrived in the parking lot at about 1.50 a.m. and he had issued the parking ticket, the only logical conclusion Crl.A. 68-2000 Page 23 of 56 from the aforesaid fact is that the car was actually parked at Palam Airport on that night.Because it is quite improbable that one would come in the car parking with a car and after taking the parking ticket, he will leave the place without parking the car in the parking.A. 68-2000 Page 23 of 56Therefore, the Trial Court has failed to appreciate the evidence on this aspect properly.Though, the witness PW-22 Vinay Kumar has turned hostile, but it is also the settled position of law that the testimony of the hostile witness cannot be disregarded in totality and the part of his testimony, which is corroborated by other prosecution evidence on record can be considered.PW-22 has clearly admitted the correctness of his statement under Section 164 Cr.P.C. given to the Magistrate, wherein he has stated that car no.DDC 9270 arrived in the parking lot at about 01.50 a.m. and he had issued the parking ticket.Further, this court has also independently examined the disputed counter foil receipt Ex.PW-9/A and is of the opinion that DDC 9270 is written on it instead of ADI 9240 (differing with the observation of the Trial Court in this regard).We have even compared the specimen handwriting Ex. PW-22/C of PW-22 (wherein PW-22 was made to write DDC 9270 several time during evidence before the Trial Court) with the handwriting in Ex. PW-9/A. In our opinion, the shapes of letters 'DDC 9270' written in row number 4 of Ex. PW-22/C is quite similar to the car number written on Ex. PW-9/A. In Ex. PW-22/C the perpendicular line of the numeral '7' has a hash sign across it.The learned counsel for the respondents have submitted that there is a cutting in Ex.PW-9/A and by this cut date 13/09 has been replaced by a new date 14/9 and though, PW-22 has admitted the number of car written on this Crl.A. 68-2000 Page 24 of 56 counter foil as his own handwriting, but he has denied this cutting being done by him and therefore, only to falsely implicate the respondents, the police had tried to create false evidence against them, therefore, this evidence cannot be relied upon.This Court is not persuaded by this argument, because as indicated above, in his testimony, PW-9 Satya Prakash has clarified about this cutting by deposing that there were instructions, whereunder after midnight, the date is required to be changed.Thus, 13/9 has been cut to make it 14/09 because entered the parking at 01.50 a.m.A. 68-2000 Page 24 of 56In view of the testimony of PW-9 and PW-22 and on the careful examination of Ex.PW-9/A on its own and also comparing it with the specimen handwriting Ex. PW-22/C, this court is of the view that car no.The learned Trial Court rejected his testimony merely by holding this witness as a chance witness, who had approached the police very late to give his statement, and also doubting the testimony of this witness, by saying that no Test Identification Parade was conducted by the police during investigation.However, as per the appellant, this witness was not a chance witness, as he has explained his presence at the airport very Crl.A. 68-2000 Page 25 of 56 clearly.He further submits that, just because Test Identification Parade was not conducted, it cannot be taken as a ground to reject the credible testimony of this witness, because TIP is essentially an investigating device and identification made by the witness in court, is a substantial piece of evidence.The learned counsel further submitted that the witness has also explained the delay in approaching police for recording of his statement by saying that he was fearful of danger to his life, and the said fact was also got recorded by him in his statement under section 164 Cr.P.C. given to the learned Magistrate.A. 68-2000 Page 25 of 56On the other hand, the learned Counsels for the respondents have supported the finding of the Trial Court and submitted that no fault can be found with the said finding as the entire testimony of PW-10 only reveals, that there are various loopholes in his testimony and he could not explain his presence on the airport on the relevant date at all and he is just an implanted witness on behalf of the police, so as to falsely implicate the respondents.It has been further submitted that even going by the version of this witness, he could not be said to have any opportunity to see the respondents at that time and also submitted that the conduct of witness in remembering the full registration number of a car with which he had no concern, but at the same time, not remembering the full registration of any other vehicle, itself raises lots of doubt over the credit-worthiness of this witness.(Though, in leading questions put by APP to this witness with the permission of the court, he clarified that the statement made by him before the Magistrate that he went to the Palam Airport in the intervening night of 13/14.09.1990, is Crl.A. 68-2000 Page 26 of 56 correct and attributed this mistake on account of memory lapse due to passage of time), he went to take a parcel of medicines, which was to come by flight no.He further stated that the flight was delayed and not on schedule and he was standing at the Palam Airport with a tag of his name in his hand, as the person who was to come with parcel did not know him and he also did not know that passenger, who was to bring the parcel for him.While the passengers came out, he saw deceased Rohin Mehta who was a customer of his shop, coming out with a fat boy (As per prosecution, this other fat boy was R-1).PW-10 further stated, that thereafter, as he himself started looking for conveyance, he saw deceased alongwith three other boys (allegedly the respondents) putting luggage in Fiat car no.DDC 9270 in parking space opposite exit gate.He also thought of taking the lift from the deceased (as he knew that deceased was a resident of Rajouri Garden), but by the time he took decision about that, the deceased alongwith the three boys sat in the car and drove away.A. 68-2000 Page 26 of 56However, a close look at the entire testimony of this witness, raises many doubts over its credit-worthiness and the reliability of this witness.Firstly, though this witness tried to clarify his chance presence at the Palam Airport on the fateful night by saying that he had gone to collect his parcel of medicines, but he has failed to provide any definite details of the person who was supposed deliver the parcel to him.He also could not tell the number on which he had made the call to Sonia Medicose (Mumbai); PW-10 also stated that he received a telephone call from Mr. Rajesh from Bombay but Mr. Rajesh did not disclose his telephone number; IO also did not collect any call detail record of telephone number of this witness or the Crl.A. 68-2000 Page 27 of 56 vendor in Mumbai in this regard; police did not even make the vendor (which, as per PW-10, was supposed to dispatch that parcel) as a witness in this case, which could have clarified the that PW-10 was to actually receive any such parcel or not.The presence of this witness at the palam Aiport further becomes doubtful, as admittedly, PW-10 did not receive any parcel from any of the passenger on the said night and no reason whatsoever was given by this witness of not receiving the same.If any such parcel was actually to be delivered to PW-10, but which could not reach on the relevant date, then he must have inquired with the vendor for not dispatching the same.Therefore, this witness could not establish the probability of his presence at Delhi airport on the fateful night.Though it has also come to fore in the testimony of PW-5 & PW-30 that the deceased used to visit Delhi and reside in his maternal grandparents' house situated at Defence Colony and at times also in his uncle's Rajouri Garden situated house (where PW-10 was allegedly carrying medicine business), but still it makes it improbable that the deceased, very often, would be visiting PW-10's store to purchase medicines.Moreover, Crl.A. 68-2000 Page 28 of 56 PW-10 has clearly admitted this fact that he neither knows the name and address of the deceased nor any of the family members of the deceased and he only knew the deceased by face.A. 68-2000 Page 28 of 56Thirdly, as rightly pointed out by the Trial Court that this witness could remember the car registration number and make of an unknown car (i.e. Fiat car bearing no. DDC 9270, in which the deceased allegedly left with the respondents) with certainty, despite the fact that he had no concern, whatsoever, with the said car.But at the same time, he failed to give correct number of any other vehicle, while going to airport or while coming back from the airport, as also the vehicle number of conveyance by which he had come to court for giving his testimony on the day of recording of his evidence before the Trial Court.Fourthly, as pointed out by the learned counsel for the respondents that this person also did not have any opportunity to see and remember the faces of the respondents, because he had allegedly seen the respondents alongwith deceased while they were putting the luggage in the trunk of the car in the parking and while the witness was standing at the exit gate of airport.So if this witness was facing the front side of the car, then obviously he could not have seen the faces of the respondents, as their faces would have been blocked by the boot compartment of the car.Whereas, if he was facing the backside of the car, then the witness again would not have any opportunity to see the faces of the respondents, because from the back, he would have seen only the back side of the deceased alongwith the respondents.Finally, if he was facing the sideways of the car, then he would have seen the respondents from one side only which would have made it difficult for him to distinctly carve out the physical description of the Crl.A. 68-2000 Page 29 of 56 respondents in his mind, standing at 20-30 feet away from them at the night time and that too when he had only little time to see them.The Court does find force in the aforesaid arguments advanced on behalf of the respondents.Counsel for appellant state has also argued that TIP was not conducted by IO in this case, because the present case was a sensational one, which received wide media coverage at that time; and by the time, this witness PW-10 came forward to the police to make the statement, the faces of deceased alongwith those of accused were splashed all across the media, Crl.A. 68-2000 Page 30 of 56 therefore, in such circumstances (when a witness had already seen photographs of the accused person), if an investigating officer decided not to conduct Test Identification Parade, then it can affect the case of prosecution as TIP by such a witness would have hardly been of any use.(II) Discovery of various relevant facts on account of various recoveries effected during InvestigationAs per the prosecution, after the arrest of respondents on 21.09.1990 (though at different times), R-3 made three disclosure statements, two on 21.09.1990 & one on 22.09.1990 and the same were recorded vide disclosure memo Ex. PW-14/B, Ex. PW-14/C and Ex. PW-33/DB respectively.Whereas R-1 & R-2 made their disclosure statements on 22.09.1990 (though at different points of time) which were recorded vide disclosure memo Ex. PW-33/C & Ex. PW-33/DX respectively.It is also the case of prosecution (as is clear from testimony of PW-43 IO SI Inderjeet in this regard) that firstly, all the three disclosure statements of R-3 were recorded, then the disclosure statement of R-1 and at the end, disclosure statement of R-2 was recorded.The evidence led by prosecution on the aspect of recovery may be listed point-wise as follows -(i) Recovery of blood-stained earth from the the back seat of Car no. DDC 9240, belonging to father of R-3, on 20.09.1990 seized vide seizure memo Ex. PW-33/A (prior to the arrest of and disclosure by R-3).(ii) Recovery of scissors and two pieces of rope at the instance of R-2 from his house at 9, Janpath, New Delhi on 22.09.1990, seized vide recovery memo Ex PW-33/D.(iii) Recovery of a screw driver at the instance of R-2 from house no. B-A. 68-2000 Page 32 of 56(iv) Recovery of a 5 Ltr.(v) Recovery of 5 litre plastic container, at the instance of R-1, from house D-1/81, Ravinder Nagar and recovery of broken pieces of windscreen of the car from the garage, situate nearby the said house.All of which were seized vide seizure memo PW-32/C & PW-32/D respectively.(ix) Recovery of Rs. 13,000/- from Pankaj Bakolia (PW-19) at the instance of R-1, seized vide seizure memo Ex.The Trial Court has also discussed the evidence related to aforesaid Crl.A. 68-2000 Page 33 of 56 recoveries, after framing 'Circumstance no. 6, 7 & 8' in this regard and held that the recoveries/seizure made and pointing out memos prepared by the police during investigation does not inspire confidence and are quite unreliable and prosecution has failed to prove aforesaid recoveries beyond reasonable doubt.Therefore, it held that the same cannot be of any help to the prosecution for connecting the respondents with the alleged crime.A. 68-2000 Page 33 of 56Secondly, the Trial Court has doubted the above-said recoveries, mainly on the ground, that the police did not join any independent public witness, whereas joining of an independent public witness is not a requirement of law.He further contends that the learned Trial Court has failed to appreciate that PW-32 Harchet Singh was an independent public witness & Trial Court fell in error by holding him as an interested witness, just because he had worked under PW-5 Ramesh Mehta (father of the deceased).The learned Counsel further submitted that the Trial Court fell, both in error of fact and law, in rejecting the evidence of pointing out the place in Rishabh Vihar (the place where the respondents have allegedly thrown the suitcase belonging to the deceased after killing him), by the respondents pursuant to their disclosure statement in this regard.On the other hand, the learned counsel for the respondents have made detailed submissions on this point and supported the Trial Court finding in Crl.A. 68-2000 Page 34 of 56 this regard.A. 68-2000 Page 34 of 56Before dealing the prosecution evidence on the seizure/recoveries effected by police during investigation, it will be pertinent to clarify few legal aspects (pertinent for adjudication of this appeal on merit) regarding the relevancy of discovery of facts under section 27 Indian Evidence Act -To make the information admissible, it must further be shown by other evidence that the articles discovered were connected with the offence charged and hence points towards the guilt of the accused.Now in the light of aforesaid legal principles, we will discuss the evidence regarding various recoveries/seizures indicated at point 57 above.Therefore, the same in our view, cannot be held to be a discovery of fact under section 27 Indian Evidence Act and Crl.A. 68-2000 Page 35 of 56I have not Crl.A. 68-2000 Page 36 of 56 given any pathological reason for holding it a case of manual strangulation except the fracture of greater cornoea of hyoid bone which is characterstic of manual strangulation and found rarely in case of either hanging or strangulation by means of a rope or other like material.PW-38 was never re-examined on this aspect.So when an expert is examined on behalf of the State, who had the opportunity to observe and examine the deceased body and ascertain the cause of death in detail, and had arrived at a conclusion in the particular facts and Crl.So the ropes were found similar only on the basis of their physical characteristics but then too, no opinion could be given regarding the cut loose-ends of the rope.As regards point 60 (iii) above, it is the prosecutions case that the screwdriver recovered at the instance of R-2, was allegedly used by respondents to break open the suitcases of the deceased.But without going into detailed discussion regarding reliability of this recovery, we are again of the opinion that prosecution has failed to connect the screwdriver with the Crl.A. 68-2000 Page 38 of 56 alleged crime, because the FSL report Ex. PW-42/A is again very clear on this aspect.It indicates that though the tool marks were found present on two of the recovered suitcases, but no opinion could be given whether the tool marks were caused by the said screwdriver.A. 68-2000 Page 38 of 56As far as recoveries mentioned at 60 (iv) and 60 (v) are concerned, these also in no way connect the respondents with crime.As far as the recovery of broken pieces of windscreen at this instance of R-1 is concerned, then as per prosecution case only, the same were recovered from an open space which was accessible and visible to the public.Therefore this recovery also losses relevancy on this ground alone.Even otherwise, the mere recovery of broken pieces of windscreen, without any other evidence in this regard, does not connect the respondents with the crime.A. 68-2000 Page 39 of 56The learned counsel for the respondents have also supported this finding of the learned Trial Court on various grounds, such as: (i) that the witnesses from whom the money was seized, turned hostile; (ii) that there are glaring inconsistencies in the deposition of witnesses apropos these recoveries; (iii) the recoveries were being effected without a preceding disclosure and some of these were not at the instance of the respondents; (iv) that the recoveries do not pointing towards the guilt of the respondents; (v) that seized money was never produced in the court; (vi) that Malkhana Moharrir was not examined by prosecution, etc.It may not be necessary for us to deal with all the arguments advanced on behalf of the respondents, which do carry force (some of which have been dealt with and relied by the learned Trial Court also), we propose to examine the only fundamental aspect i.e. whether the prosecution could establish that the said amount of money, allegedly recovered at the instance of respondents, was indeed the proceeds of alleged crime.While discussing 'Circumstance no. 2' the Trial Court has found the version of prosecution credible that the deceased was carrying an amount of Crl.We find that, though a different view on this aspect is possible, looking at the cumulative testimony of prosecution witnesses (particularly PW-5, PW-29, PW-30) & other evidence led on behalf of prosecution; but going by the mandate of law in this regard (as discussed by us in para 9 & 10 above), we, sitting in appeal, are not inclined to disburb the aforesaid finding of learned Trial Court, just because a different view is also possible.A. 68-2000 Page 42 of 56 Rs. 500/- each and two notes of Rs. 100/- each.Therefore, the alleged disclosure statement of respondent contained different denomination of currency notes, than what was recovered in this recovery and hence this particular recovery is not even matching with the disclosure of the respondent.Further, PW-13 Mohan deposed that R-3 gave him Rs. 1,500/- (Rs. 750/- for him & Rs. 750- for Bhola) out of which he handed over Rs. 750/- to Bhola and when police came to him along with R-3 to recover the amount he himself gave the entire amount of Rs. 1,500/-, as Bhola was not available then.This fact itself suggests that the money handed over by PW- 13 to the police was not the same money which was handed over by R-3 to him.A. 68-2000 Page 42 of 56In view of the aforesaid discussion, it can not be said that, the money seized by the police from various persons (allegedly paid by respondents to those persons out of proceeds of crime), was the same money, which the respondents allegedly looted from the deceased.Therefore, the aforesaid recoveries also do not help the case of the prosecution and it in no way connects the respondents with the alleged crime.Apropos to point 60 (xi), it is the case of prosecution that blood stained car mats, carpets etc, were recovered from the shop of PW-11 Qadir at the instance of R-3, seized vide seizure memo Ex. PW-11/B dated 23.09.1990 and the blood found on these carpets, mats, etc., is of same group as that of the deceased (i.e. blood group 'A').After going through the evidence on record, this recovery also does not inspire confidence due to various reasons.Firstly, entries in cash book Ex. P-55 are questionable (in which the entry of car no. DDC 9270 is Crl.A. 68-2000 Page 43 of 56 indicated at receipt no. 217 dated 18.09.1990) because as per shopkeeper PW-11 Qadir, they do not note down the car number in the cash book in every case, and admittedly, there is cutting in some of the entries and some of the receipts are not even signed by maker thereof.Secondly, PW-11 also stated that they keep all old articles taken out from the cars, at one place and these articles remain mixed up.He further stated that they do not give any separate identification mark for identifying which article was taken out from which car.This testimony of PW-11 reveals that the said mats and carpets were handed over to the police after taking the same out from the place, where all old articles remain mixed up.Thirdly, PW-11 could not identify in the court that the articles (carpets, mats, etc., seized vide seizure memo Ex. PW-11/B) produced in the court as being the same articles which were seized by the police from him.Fourthly, it is quite unbelievable that an accused, after having committed the ghastly act of murdering somebody, will not throw the same away and will allow the blood-stained mats, carpets etc. to be kept by shopkeeper at the time of replacement of the same.A. 68-2000 Page 43 of 56Apart from it, the said recovery also does not connect R-3 with the alleged crime as the only connecting link, as per prosecution, is that the blood found on these carpets, mats, etc., is of same group as that of the deceased (i.e. blood group 'A').Without going into the details, whether the prosecution could prove that the blood group of deceased was group 'A' (as contended by learned counsel of the respondents), a look at the CFSL report Ex. PW-39/B, shows the presence of two blood groups on the said carpets and mats i.e. Group 'A' & Group 'AB'.The prosecution failed to render any explanation on record as to whom the blood group 'AB' belonged, as it is not the case of the Crl.A. 68-2000 Page 44 of 56 prosecution that any of the respondents had that group and any one of them received any injuries in the incident, causing the possibility of two blood groups to appear on these items.Further, the Supreme Court in Shankarlal Gayarasilal Dixit Vs.State of Maharashtra (1981) 2 SCC 35 observed as under -A. 68-2000 Page 44 of 56"The discovery of a blood stain of the 'B' Group measuring 0.5 cm.in diameter on the appellant's pant and of a dried stain of semen on his under-pant are circumstances far too feeble to establish that the appellant raped or murdered Sunita. 'B' Group is not an uncommon group of blood and no effort was made to exclude the possibility that the blood of the appellant belonged to the same group".In view of aforesaid judgment of the Supreme Court, we hold that it was incumbent upon the prosecution, not only to prove that the blood group was of the deceased, but also to rule out the possibility that the said blood group (i.e. blood group 'A') was not of any of the respondents either.The prosecution has failed to establish any connection of the said recovery with the alleged crime.Interestingly, though nothing could be discovered from that place, because on 14.09.1990 officials from PS Anand Vihar, after receiving a PCR call, had reached to the aforesaid place and seized the suitcase and things inside it under section 66 DP Act. The DD Entry and Seizure memo in this regard are Ex. PW-15/A & PW-15/B. It is also the case of prosecution that on 25.09.1990, the said Crl.A. 68-2000 Page 45 of 56 suitcase and various articles in it were identified (vide identification memo Ex. PW-5/DB) by PW-5 Ramesh Mehta (father of the deceased) as belonging to the deceased.A. 68-2000 Page 45 of 56The learned Trial Court recorded that the pointing out of the place in Rishabh Vihar is of no consequence as the jurisdictional police had already visited the said place.The learned counsel for the State submitted that the learned Trial Court erred on fact, in holding that the police had already visited the place.Whereas the facts on record state that the investigation was being carried out by officials of PS Palam Vihar in this case, however, the said suitcase was seized on 14.09.1990 under section 66 DP Act by officials of PS Anand Vihar.Therefore, till the said place was jointly pointed out by the respondents on 23.09.1990, the police had no information of and had not visited, the said place in relation to investigation in this case.Furthermore, after reaching the spot, on pointing out by the respondents, the police made inquiries from a resident of the area, namely Sandeep (as indicated in pointing out memo Ex. PW-32/F), and the investigating team discovered that officials of PS Anand Vihar had already recovered the article from the said spot; the latter had seized it, without having any information about the present case at that time.The learned counsel also submitted that prior to 23.09.1990, PS Palam Vihar had no information, whatsoever, about the said recovery by PS Anand Vihar.No suggestion was extended to relevant witnesses PW-15 ASI Om Bir Singh and PW-37 Ct Sanjay Singh, on behalf of respondents, that they had shared this information with PS Palam.On the other hand, the learned counsels for the respondents submitted that the learned Trial Court was correct in its reasoning.The fact of pointing Crl.Therefore, the officials of PS Anand Vihar were evidently aware about this case and they must have shared the information about recovery with PS Palam immediately.They also submitted that the pointing out memo itself is not relevant, unless any recovery is effected pursuant to the disclosure by the accused persons and in this case, admittedly, the recovery had taken prior to the disclosure by PS Anand Vihar.Therefore, same facts can not be discovered again by PS Palam Vihar.They further contended that the prosecution has failed even to prove that the articles recovered from the said place, actually belonged to the deceased, as the identification by and testimony of PW-5-the father regarding it are not reliable.Furthermore, the police has not recorded the statement of PW-30-the mother, who could have been the best person to identify the same during investigation.A. 68-2000 Page 46 of 56The appellant further contended that irrespective of relevancy under section 27 Indian Evidence, such fact of pointing out of the place still remains relevant under section 8 of Crl.A. 68-2000 Page 47 of 56 Indian Evidence Act apropos the conduct of the respondents.A. 68-2000 Page 47 of 56We have examined the evidence on record, it indicates various discrepancies.Firstly, the said pointing out memo Ex. PW-32/F dated 23.09.1990 is said to have been prepared at the instance of all the respondents; PW-43 IO SI Indrajeet Singh and PW-33 SI Om Prakash have unequivocally submitted that the said place in Rishabh Vihar was pointed out by all the respondents jointly, but a perusal of pointing out memo Ex. PW-32/F dated 23.09.1990 shows only the signature of respondent No. 1 on it; there is no explanation, on record, as to why, when all the respondents were present at the spot and the place was also pointed out by them jointly, the signatures of only respondent No. 1 were obtained.Though there is no mandate of law that the disclosure or pointing out memo should be signed by the accused/respondent, but in present case when the signatures of one of the respondents were obtained, while all of the respondents were allegedly present at the spot, then not obtaining the signatures of other respondents raises doubt over the authenticity of such proceedings.Secondly, no public witness was joined by the Investigating Officer for preparation of said pointing out memo Ex. PW-32/F. In this regard, PW- 33 SI Om Prakash, PW-43 IO SI Indrajeet Singh and PW-44 Mehtab Singh have clearly stated in his cross-examination that no public persons were joined at the time of any recovery from any of the accused/respondents, while not disputing the presence of public witnesses at the spot.In the Crl.A. 68-2000 Page 48 of 56 present case, it is indicated in the pointing out memo Ex. PW-32/F itself, that police enquired about the suitcase and other articles, from resident of House No. 137, Rishabh Vihar viz. Mr. Sandeep Kumar, who told the police that the same had already been taken away by PS Anand Vihar.Therefore, though the police made enquiries from said witness Mr. Sandeep Kumar but still, he was not made a witness to the seizure memo.He was examined as a witness by the prosecution.A. 68-2000 Page 48 of 56The records do not reveal that the IO made any efforts, whatsoever, to join any public witness in the recovery proceedings.Nor is there any explanation, on record, for not joining the public witnesses, despite the fact that there were many public witnesses available at the spot at the time of preparing the said pointing out memo Ex. PW-32/F.Further, PW-15 ASI Ombir has stated in his evidence that after receiving a PCR call, they proceeded to the place in Rishabh Vihar and effected, the recovery of suit case and other articles therefrom and seized the same vide seizure memo Ex. PW-15/A. The seized articles were deposited Crl.A. 68-2000 Page 49 of 56 with In-charge of Malkhana Moharrir at PS Anand Vihar along with original recovery memo.In this regard, PW-5 Ramesh Mehta has also stated that when on 25.09.1990, he had gone to PS Palam Vihar to inquire about further progress in this case, he was taken to the Malkhana and there he was asked to identify the suitcase and other articles belonging to the deceased, he identified the three suitcases lying there, as belonging to his deceased son (vide identification memo Ex. PW-5/DB).It is also the case of prosecution that before 23.09.1990, PS Palam Vihar had no information about the seizure of the said suitcase at the instance of PS Anand Vihar.A. 68-2000 Page 49 of 56Therefore, as per the case of prosecution, officials of PS Palam Vihar must have visited PS Anand Vihar between 23.09.1990 to 25.09.1990 to collect the said articles, because admittedly, the PW-5 had identified the said articles in PS Palam Vihar on 25.09.1990 vide identification Memo PW-5/B and before 23.09.1990, PS Palam Vihar had no information about the said articles.Now, in this context, PW-33 SI Om Prakash has stated during his examination-in-chief that after preparation of pointing out memo Ex. PW- 32/F on 23.09.1990 and after recording of the statement of Sandeep, they went to PS Anand Vihar, but Malkhana Moharrir was not present there, therefore, they went to place of occurrence.Whereas PW-44 Mehtab Singh, during his cross-examination had clearly stated that, on 23.09.1990, he had not gone to PS Anand Vihar and also did not depute anyone to go there.Therefore, there is clear contradiction between the statement of PW-33 and PW-44 as far as visiting to PS Anand Vihar is concerned.Furthermore, none of the prosecution witnesses Crl.A. 68-2000 Page 50 of 56 including PW-43 IO Indrajeet Singh, PW-44 Mehtab Singh and PW-33 SI Om Prakash, have said a word about the fact, that how the said articles lying in Malkhana of PS Anand Vihar had been brought to PS Palam Vihar.In this regard, PW-15 ASI Om Bir Singh has only stated that SI Indrajeet Singh from PS Palam Vihar had come to PS Anand Vihar and recorded his statement.He further stated that he also handed over the copy of seizure memo and DD entry recorded by him in respect to the aforesaid articles.But this witness also did not whisper anything about the handing over of the said articles to PS Palam Vihar.This mystery remains unsolved.A. 68-2000 Page 50 of 56Therefore, a vital link is missing as to how the property seized by PS Anand Vihar has come to PS Palam Vihar.The prosecution has not examined even the Malkhana Moharrir of PS Anand Vihar, who could have given some explanation in this regard.Interestingly, even the identification memo PW-5/DB dated 25.09.1990, mentions about the identification of three suitcases only, by PW-5 Ramesh Mehta.There is nothing in the said identification memo, that PW-5 or any other witness identified any other article except the three suitcases; whereas there is a long list of articles seized by PS Anand Vihar vide seizure memo Ex. PW-15/A dated 14.09.1990, allegedly from Rishabh Vihar.All these articles were produced from PS Palam Vihar during the evidence before Trial Court.The sequence of event raises a strong doubt over as whether any of the articles were seized by PS Anand Vihar and if at all the same were seized, then when were the articles handed over to PS Palam Vihar.Furthermore, as discussed hereinabove, it is doubtful whether prior to 23.09.1990, PS Palam Vihar did not have any information about the said seizure of articles at the instance of PS Anand Vihar and whether the officials of PS Palam Vihar could come to Crl.A. 68-2000 Page 51 of 56As stated above, the said witness Sandeep Kumar (mentioned in Pointing out memo Ex. PW-32/F and who told the officers of PS Palam Vihar that the articles had already been taken away by PS Anand Vihar) was never examined as a prosecution witness, who could have deposed about his telling the officials of PS Palam Vihar about this fact and how he came to know that the said articles had already been seized by PS Anand Vihar.Further, as discussed, neither the Malkhana Moharrir of PS Anand Vihar nor the Malkhana Moharrir of PS Palam vihar were examined, who could have deposed about when the said articles were exchanged amongst both police stations and could have proved the relevant entries of Malkhan registers in this regard (which would have been very relevant to prove the factum of seizure by PS Anand Vihar as also the fact that the information was not shared with PS Palam Vihar before 23.09.1990, atleast as per written available record).Therefore, an adverse inference has to be raised against prosecution under section 114 of Indian Evidence Act, for withholding the best piece of evidence in this regard.Furthermore, prosecution has examined PW-5 & PW-30 so as to establish the identity of the said articles in the court, as the belonging of the deceased.But in this context, PW-5 in his examination-in-chief has identified before the court only some of the articles seized vide seizure memo PW-15/A and in respect of some articles, he has only stated that these articles are the same which he has seen in PS Palam Vihar on 25.09.1990 and did not state anything that the same were in any way connected with the deceased.Also, as stated above, the identification memo Ex. PW-5/DB Crl.A. 68-2000 Page 52 of 56In view of the aforesaid discussion, the prosecution has failed to establish the relevance of this pointing out memo.There are evident discrepancies in the prosecutions case.Firstly, over the alleged seizure at the instance of PS Anand Vihar.Thirdly, over the details of exchange of articles between these two police station.Lastly, apropos the identification of the articles as belonging to the deceased and hence, the alleged crime by the respondents.Therefore, no reliance can be placed upon the said pointing out memo Ex. PW-32/F and alleged recoveries made by PS Anand Vihar.Since we have found this piece of evidence as unreliable in the particular facts and circumstances of the case, we do not consider it necessary to deal with the argument on point of law, advanced by the counsel of the State, that such pointing out memos are relevant u/s 27 r/w section 8 of Indian Evidence Act. (III) & (IV) MOTIVE AND CONSPIRACYIt is the case of the prosecution that the respondents indulged in a criminal conspiracy to murder the deceased with the purpose to loot the hefty amount, that was being carried by the deceased on the fateful night.The fact of the car Crl.Then respondent no. 2 rang up respondent no. 3 and asked him to come at his house, and at the house of respondent no. 2 they made a plan to murder the deceased for looting his money.Despite this disclosure, the IO had made no attempt to collect the call detail record of telephone numbers installed at the house of respondent nos. 2 and 3, which could have pointed out towards the truth of statements contained in disclosures of the accused and could have supplied an important missing link in establishing some connection amongst the respondents.As concluded hereinabove, the prosecution has failed to prove the last seen evidence, and of all the recoveries effected at the instance of respondents, therefore, no inference can be drawn that respondents were quite hand in glove and had any pre-meditated plan to loot and kill the Crl.A. 68-2000 Page 55 of 56 deceased.Also, in absence of any other evidence, the disclosure statements (confessional in nature), in themselves, are not admissible in evidence, for the purpose of proving any meeting of mind or conspiracy between respondents, due to the bar against self-incriminatory confessions or statements made to police officials in sections 25 and 26 of Indian Evidence Act (as rightly held by the learned Trial Court, while dealing with 'Circumstance 5').A. 68-2000 Page 55 of 56
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['Section 120B in The Indian Penal Code', 'Section 201 in The Indian Penal Code', 'Section 392 in The Indian Penal Code', 'Section 302 in The Indian Penal Code', 'Section 364 in The Indian Penal Code']
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Analyze the legal case and identify the corresponding section it comes under.
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40,097,723 |
The facts of the case lie in a narrow compass.The deceased, Mohd. Usman was the cousin brother of the appellant.They and their families were living next doors to each other.The prosecution version is that the appellant was jobless.As the house of the deceased was visible from the window of the appellants house, the latter used to constantly peep into the house of the deceased and stare at his three young nieces.Despite repeated requests made to the appellant to forbear from peeping into the house of the deceased, he did not pay any heed.On the fateful day, i.e., on 20.08.1999 at about 6:45 AM, when the deceased was getting ready to proceed to his shop at Sadar Bazar, he found the appellant yet again standing at his window.When the deceased asked the appellant to move away, the latter started abusing him and exhorted him that if he had the guts, he should come down.At this, the deceased rushed downstairs and simultaneously, the appellant came downstairs from his house armed with a gupti (thin knife).The appellant assaulted the deceased by giving him 3-4 blows on his chest with the gupti.On hearing the screams of the deceased, his brother, Mohd. Arfin, who happens to be the maker of the FIR, rushed downstairs and tried to save his brother.At this, the appellant also tried to unsuccessfully assault him with the gupti but in the meantime, the neighbours gathered at the spot.Mohd. Arfin rushed his brother to St. CRL.A. 466/2004 Page 2 of 19 Stephens Hospital in a TSR, where he was declared as brought dead.The wheels of criminal justice were set into motion on recording of DD No.2A.CRL.A. 466/2004 Page 2 of 19The police rushed to the scene of crime, where the appellant was found present still holding the blood stained gupti in his hand.Public persons who apprehended him, handed him over to the police.The prosecution examined 16 witnesses in all to bring home the guilt of the appellant.The prime public witnesses in the instant case were Mohd. Arfin (PW-14) and Mohd. Raisuddin (PW-10).Mohd. Arfin (PW-14), brother of the deceased, Mohd. Usman at whose instance the FIR was registered, is an eye witness to the incident.He deposed that on 20.08.1999, in the early hours, at 7:45 AM, his brother, Mohd. Usman was getting ready to go to his shop situated at Subzi Mandi when he saw the appellant standing at the window of his house that overlooks their house.When his brother objected to the appellant standing and staring from his window, the latter started abusing him and challenged him that if he had the guts, he should come down.At this, Mohd. Usman rushed downstairs and so did the appellant.The appellant immediately attacked Mohd. Usman with a gupti and gave him 3-4 blows on his chest.On hearing the cries of Mohd. Usman, PW-14 CRL.A. 466/2004 Page 3 of 19 rushed downstairs to save his brother.At this, the appellant started assaulting him as well but he managed to avoid the gupti blows.He stated that in the meanwhile, the people in the locality gathered at the spot.With the help of his neighbours, PW-14 rushed his brother in a TSR to St. Stephens Hospital.His statement as recorded by the police is marked as Ex.PW14/A. He deposed that a sketch of the blood stained gupti (Ex.PW13/B) was prepared in his presence and the weapon was seized vide seizure memo (Ex.PW10/A).CRL.A. 466/2004 Page 3 of 19The second public witness is Mohd. Riazuddin who appeared as PW-He deposed that he was related to both, the appellant and the deceased, who were the sons of his wifes paternal uncle; that he was residing alongwith the appellant in the same building.While the appellant was occupying the first floor, he was residing on the ground floor.He stated that on 20.08.1999, he had witnessed the deceased catching hold of the left wrist of the appellant, who had a gupti in his right hand; that the appellant was unable to free his wrist from the clutches of the deceased; that he had seen all this happening while standing in the staircase of their house; that in the meantime, the police reached the spot and overpowered the appellant, extricated the gupti from his hand and took it in their possession.Time since death is about 7-8 hours approx.Blood samples are preserved and handed over to police IO in person.My report is Ex.PW11/A and bears my signature at point A."7. PW-11 also proved the report regarding the weapon of offence i.e., the gupti described as a sharp edge elongated weapon with two edges as CRL.A. 466/2004 Page 5 of 19 Ex.PW11/B wherein he opined that injuries No.1, 2 and 3 mentioned in the post mortem report were possible with the said weapon or a similar weapon.The scientific evidence in the shape of the FSL report dated 29.10.1999 revealed that the human blood found on the clothes of the appellant matched with the blood group of the deceased, i.e., Group B.CRL.A. 466/2004 Page 5 of 19PW2/A and copy of DD Entry No.6A was proved as Ex.PW2/A.The I.O., Inspector Raj Beer Malik (PW-16) deposed that on receiving information from the hospital that the injured was declared as brought dead, he arrived there and found that ASI Ratan Lal was already present alongwith SI Shiv Raj (PW-15).After giving necessary instructions to ASI Ratan Lal (PW-13), the IO went to the scene of crime alongwith his staff, where SI Shiv Raj (PW-15) and another police personnel were present alongwith the appellant.He stated that the Crime Team had also reached the spot for inspection and tried to lift chance prints from the handle of the weapon of offence, gupti but no chance prints were found.Photographs of the spot were taken.The IO said that he took the gupti (Ex.P-1) from the CRL.A. 466/2004 Page 6 of 19 appellant, prepared its scaled plan (Ex.PW13/B) and sealed it in a parcel vide seizure memo (Ex.PW10/A), duly witnessed by a public witness and SI Shiv Raj (PW-15).The exhibits from the spot including blood stained earth, earth control, blood stained cotton etc. were seized vide seizure memos (Ex.PW10/B and PW14/B).The appellant was sent with SI Shiv Raj (PW-CRL.A. 466/2004 Page 6 of 1915) to Hindu Rao Hospital for collecting his blood sample and preserving his blood stained clothes.The IO deposed that he conducted proceedings under Section 174 Cr.P.C. (Ex.PW16/A) and later on, arrested the appellant; that the blood stained clothes of the appellant and his blood samples were seized vide seizure memo (Ex.PW5/A); that a scaled site plan of the spot was prepared by the Draftsman, SI Mahesh Kumar (PW-5) and marked as Ex.PW16/B; that the post mortem of the body of the deceased was conducted at the Mortuary, Subzi Mandi and the clothes of the deceased and other samples were seized vide seizure memos (Ex.The appellant has preferred the present appeal against the judgment dated 27.03.2004 passed by the court of the learned Additional Sessions Judge, Delhi in SC No.4/099, arising from FIR No.172/1999, registered at Police Station: Bara Hindu Rao, whereunder he has been convicted under Section 302 IPC for having murdered his cousin, Mohd. Usman.Vide order on sentence dated 27.03.2004, the appellant has been sentenced to undergo rigorous imprisonment for life and pay a fine of Rs.5,000/- and in default thereof, suffer simple imprisonment for a period of three years.CRL.A. 466/2004 Page 1 of 19The investigation was conducted by Inspector Raj Beer Malik, Additional SHO, PS: Bara Hindu Rao and on completing the investigation, a challan was filed in the Court.Vide order dated 11.01.2000, the appellant was charged for committing an offence punishable under Section 302 IPC to which he pleaded not guilty and claimed trial.Blood stained earth was also seized by the IO in his presence vide seizure memo (Ex.PW14/B).The sketch of the gupti was prepared by the police officers in his presence and it was seized vide seizure memo (Ex.PW10/A).The blood stained earth and earth control were also seized from the spot in his presence vide seizure memo (Ex.PW10/B).PW-10 was also a witness to the personal search of the CRL.A. 466/2004 Page 4 of 19 appellant conducted vide search memo (Ex.PW10/C).CRL.A. 466/2004 Page 4 of 19MEDICAL AND SCIENTIFIC EVIDENCEComing next to the medical evidence, Dr. Manish Kulshreshtha (PW-7), Senior Resident, Department of Surgery, Hindu Rao Hospital, who had examined the appellant on 20.08.1999, proved the MLC of the deceased marked as Ex.PW7/A. Dr. Rishi Kant (PW-8), Senior House Officer (Pediatric), St. Stephens Hospital, Delhi, who was working as the Casualty Medical Officer on the relevant date, deposed that he had medically examined the deceased who was brought to the hospital by his relatives and had declared him as brought dead vide Ex.PW8/A. Dr.Sarvesh Tandon (PW-11), posted as Senior Resident in the Mortuary, Subzi Mandi, had conducted the post mortem on the body of the deceased and proved the post mortem report as Ex.PW11/A. The said doctor opined as follows:-"Opinion:- Cause of death is hemorrhagic shock due to injury to right lung and liver by sharp edge weapon by other party.All the injuries are ante mortem in nature.All the injuries are singularly and collectively fatal and sufficient to cause death in ordinary course of nature.W/SI Bhupinder Kaur (PW-2), posted as the Duty Officer at Police Station: Bara Hindu Rao on the relevant date, deposed that Ct.She had also recorded DD Entry No.6A regarding registration of the FIR and of sending intimation of the incident to senior police officers and the area Magistrate.Copy of the FIR was proved by her as Ex.All the case property was deposited with the MHC(M), HC Partap Singh (PW-3).HC Partap Singh (PW-3) the Record Keeper posted at Police Station: Bara Hindu Rao, deposed about receiving various case exhibits in sealed parcels from the IO, Inspector Raj Beer Malik (PW-16) and of handing over some of the parcels for obtaining reports from the Mortuary, Subzi Mandi and the CFSL.The said witness also produced the original Register, wherein the movement of the case exhibits was entered.The said entries are marked as Ex.PW3/A. The witness deposed that as long as the case CRL.A. 466/2004 Page 7 of 19 property had remained in his custody, the same was intact.SI Mahesh Kumar (PW-5), the Draftsman was posted at the Crime Branch, Delhi proved the scaled site plan prepared by him at the instance of the IO and marked as Ex.PW5/A. Ct.Pradeep Singh (PW-6) posted at Police Station: Bara Hindu Rao, deposed that he was handed over the reports by W/SI Bhupinder Kaur (PW-2) for delivering the same to the area Magistrate and senior police officers.HC D.K. Tyagi (PW-9) had collected the case property from the Record Keeper and deposited the same with the FSL, Malviya Nagar for obtaining a report.Ranjeet (PW-12) stated that he had gone to FSL, Malviya Nagar to collect the FSL report and the case property, which he deposited in the Malkhana and handed over the report to the SHO (Ex.PX).The remaining police witnesses, namely, Ct.Jaibir (PW-CRL.A. 466/2004 Page 7 of 194), ASI Ratan Lal (PW-13) and SI Shiv Raj (PW-15) deposed about the investigation on the same lines as the IO, Inspector Raj Beer Malik (PW-16).On completion of the prosecution evidence, an opportunity was afforded to the appellant to lead evidence but he declined to do so.His statement was recorded under Section 313 Cr.P.C., wherein he stated that he was innocent and he had been falsely implicated in the case by the police and that he had no concern with the case.After examining the evidence brought on record including the ocular evidence of the eye witnesses, the medical evidence including the MLC and the post mortem report of the deceased and the scientific evidence, the learned ASJ held that the prosecution had been successful in proving CRL.A. 466/2004 Page 8 of 19 through the sequence of circumstances duly corroborated by the eye witnesses that it was the appellant who had murdered the deceased.Resultantly, he was convicted under Section 302 IPC.CRL.A. 466/2004 Page 8 of 19When the deceased was coming downstairs, in the heat of the moment, the appellant had grabbed a gupti lying in his house and had also rushed downstairs.This sudden quarrel was not pre-mediated and the act of the appellant of inflicting three injuries on the chest of the deceased was done in the heat of passion, whereafter he remained rooted at the spot and did not take any undue advantage or act in a cruel manner.It was thus submitted that the appellant is entitled to the benefit of Exception 4 CRL.A. 466/2004 Page 9 of 19 to Section 300 of the IPC.In support of his submission, learned counsel cited the following decisions:-It was the appellant, who had exhorted the deceased and challenged him to come downstairs.When the deceased did descend, the appellant rushed out from his house with a gupti in his hand and gave three fatal blows on the vital parts of the body of the deceased, i.e., the chest region, which the doctor opined in the post mortem report, "were singularly and collectively fatal and sufficient to cause death in the ordinary course of nature".She stated that not only the ocular and the medical evidence, even the scientific evidence went against the appellant, who is not entitled to any relief.ANALYSIS & DISCUSSIONWe have given our thoughtful consideration to the arguments advanced by learned counsels for the parties, critically examined the testimony of the witnesses as also the medical and scientific evidence brought on record.CRL.A. 466/2004 Page 10 of 19The sequence of events reveal that on seeing the appellant standing at his window, the deceased had got annoyed CRL.A. 466/2004 Page 16 of 19 and ticked him off by asking him to remove himself from there, which had in turn had enraged the appellant.Moreover, it was the deceased who had CRL.A. 466/2004 Page 17 of 19 called out the appellant, thus provoking him.While rushing downstairs, he grabbed the weapon of offence and on seeing the deceased, stabbed him thrice.At the same time, having regard to the fact that the appellant used a double edged weapon like a gupti and used it to give three blows on the vital parts of the body of the deceased i.e., the chest, it cannot be denied that he had the intention of causing such bodily injury as he knew would be likely to cause the death of the deceased.The appellant is presently 47 years old.He is earning a livelihood as a vegetable vendor.He is married and the sole bread earner in the family.He has no criminal CRL.A. 466/2004 Page 18 of 19 background and his conduct while in jail, was reported to be satisfactory.In our opinion, having regard to the time lag of two decades, the incident in question having taken place in the year 1999, we are of the view that ends of justice would be adequately met if the appellant is sentenced to undergo rigorous imprisonment for a period of seven years and pay a fine of Rs.5,000/- and in default of payment of fine, undergo rigorous imprisonment for a period of six months.The order of sentence is accordingly modified as above.CRL.A. 466/2004 Page 18 of 19The appellants Bail Bonds are cancelled.He is directed to surrender before the court concerned/Superintendent Jail within two weeks from today to serve the remaining part of his sentence.The appeal is partly allowed and disposed of on the above terms.Trial court record be released forthwith alongwith a copy of the judgment.(HIMA KOHLI) JUDGE , (VINOD GOEL) JUDGE JULY 08, 2019 rkb/ap/NA CRL.A. 466/2004 Page 19 of 19CRL.A. 466/2004 Page 19 of 19
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['Section 300 in The Indian Penal Code', 'Section 304 in The Indian Penal Code', 'Section 302 in The Indian Penal Code', 'Section 299 in The Indian Penal Code', 'Section 338 in The Indian Penal Code', 'Section 304A in The Indian Penal Code']
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Analyze the legal case and identify the corresponding section it comes under.
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4,010,385 |
Certified copy as per rules.(VISHAL MISHRA) JUDGE AK/-ANAND Digitally signed by ANAND KUMAR DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, ou=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, postalCode=474011, st=Madhya Pradesh, KUMAR 2.5.4.20=30e7e141a48595a044fe14fab9779154e89 774736eaa1155f0b38df9b11ed48f, cn=ANAND KUMAR Date: 2020.02.26 13:12:05 +05'30'3 MCRC-7956-2020The applicant shall mark his presence before the concerning Police Station in the first week of every month till conclusion of investigation (pending if any) and if charge sheet is being filed, he will mark his presence as per the directions issued by the concerning trial Court.
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['Section 294 in The Indian Penal Code', 'Section 498A in The Indian Penal Code', 'Section 34 in The Indian Penal Code', 'Section 323 in The Indian Penal Code', 'Section 506 in The Indian Penal Code']
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Analyze the legal case and identify the corresponding section it comes under.
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40,105,707 |
This is first application under Section 439 of CrPC for grant of bail.The applicants have been arrested on 17/12/2018 in connection with Crime No.441/2018 registered at Police Station Porsa, District Morena for the offences punishable under Sections 327, 452, 323, 427, 506-B and 34 of the IPC.It is submitted by the counsel for the applicants that the applicants have been falsely implicated.There is a cross-case at Crime No.442/2018 registered by the applicants.In fact the complainant committed marpeet with the applicants and on his own broke the glass of the shop and registered false FIR against the applicants.A copy of this order be sent to the Court concerned for compliance.Certified copy as per rules.
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['Section 452 in The Indian Penal Code', 'Section 34 in The Indian Penal Code', 'Section 323 in The Indian Penal Code', 'Section 427 in The Indian Penal Code']
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Analyze the legal case and identify the corresponding section it comes under.
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883,099 |
The present appeal is at the behest of Mst.Gunwanta Bai alias Munnibai against her conviction in Sessions Trial No. 30/86 vide judgment and order dated 12th January, 1987 passed by the Sessions Judge, Balaghat.She was convicted for the commission of offence punishable Under Section 302, Indian Penal Code with the aid of Section 34 and was sentenced to imprisonment for life as well as for commission of offence punishable Under Section 392/397, Indian Penal Code and was sentenced to seven years' R. I. The sentences so awarded were made to run concurrently.She was tried for committing the murder of Parwata Bai wife of Fattanlal whose murder took place at about 4.30 P.M. in the evening of 22-3-1985 in village Banna, P. S. Baihar, District Balaghat, in regard to which, the Crime No. 42/85 was registered.Accused Gunwanti Bai produced in custody.Judgment in S. T. No. 31/86, State v. Jeewan Lal pronounced by which this Sessions Trial No. 30/86, State v. Gunwanti Bai has been ordered to be started.Shri S. A. Siddiqui, A.P.P. filed an application Under Section 308, Criminal Procedure Code for trial of this case.For trial programme.Accused be remanded back.Put up on 1-1-1987."
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['Section 308 in The Indian Penal Code', 'Section 302 in The Indian Penal Code', 'Section 337 in The Indian Penal Code', 'Section 34 in The Indian Penal Code', 'Section 397 in The Indian Penal Code', 'Section 306 in The Indian Penal Code', 'Section 392 in The Indian Penal Code', 'Section 164 in The Indian Penal Code', 'Section 338 in The Indian Penal Code', 'Section 307 in The Indian Penal Code']
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Analyze the legal case and identify the corresponding section it comes under.
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88,317,709 |
Heard Sri Gopal Misra, learned counsel for the petitioner and Sri H.C. Pathak, learned Standing Counsel for the State.Supplementary affidavit filed by the petitioner today is taken on record.The moot question which falls for consideration in this case is as to whether the Senior Superintendent of Police, Muzaffar Nagar was empowered to withhold the payment of gratuity to the petitioner, temporarily, on account of the pendency of a criminal case against him, if so, whether the exercise of such power was valid.The petitioner herein retired from Government Service as Sub Inspector in the U.P. Police Department.While in service an FIR was lodged on 28.05.1999 under Section 392 IPC against two unknown persons.Subsequently, an investigation in the matter was ordered by the Circle Officer, who is said to have submitted a report exonerating the petitioner from any involvement in the incident relating to the said FIR.
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['Section 392 in The Indian Penal Code']
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Analyze the legal case and identify the corresponding section it comes under.
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88,323,624 |
Sometimes in the year 2015, applicant came back to Indore and proposed to marry the prosecutrix.Initially, she declined but on the persuasion of the applicant, she ultimately agreed.( 07/03/2019) The applicant/accused has preferred this petition under Section 482 of CR.P.C. for quashing the FIR bearing crime No. 163/2017 registered at Police Station- Mahila Thana, Indore, District Indore for the offence punishable under Section 376(2)(n) and 506 of I.P.C. and consequential proceedings relating to aforesaid FIR.(2).The facts of the case are that prosecutrix made a written complainant at police Station- Mahila Thana, Indore alleging that in the year 2011 she and applicant was working together in the insurance company.Thereafter, they got acquainted, developed intimacy and started roaming together here and there.At one point of time, the applicant shifted to Delhi, however, during his stay at Delhi, applicant kept in touch with the 2 prosecutrix telephonically.Thereafter on 02.08.2017, the applicant had physical relationship with the prosecutrix in a hotel at Indore and thereafter, when he came to Indore, then he made physical relationship with the prosecutrix regularly.However, in the year 2017 he declined to marry with her.On the basis of aforesaid complaint, F.I.R. bearing Crime No.163/2017 was registered at Police Station- Mahila Thana for the offence punishable under Section 376(2)(n) and 506 of I.P.C.(3).Learned counsel for the applicant has submitted that prosecutrix herself stated in the complaint that she was acquainted with the applicant from the year 2011 and they were friends and had also grown intimate.The prosecutrix is consenting party to the acts committed between herself and the accused., therefore, no offence is made out against the applicant for the offence under Section 376(2)(n) and 506 of I.P.C. and prays that FIR bearing Crime No.163 registered at Police Station- Mahila Thana, Indore, District Indore for the offence punishable under Section 376(2)(n) and 506 of I.P.C. and all consequential proceedings relating to the aforesaid FIR may be quashed.(4).I have heard learned counsel for the parties and perused the record.In the present case, the prosecutrix is a major lady and she was working with the applicant and after that both of them made physical relationship, which disclosed that she was the consenting party.She had an inclination towards the accused.The accused had been giving her assurances of the fact 7 that he would get married to her.The prosecutrix, therefore, left her home voluntarily and of her own free will to go with the accused to get married to him.She called the accused on a phone number given to her by him, to ask him why he had not met her at the place that had been pre-decided by them.She also waited for him for a long time, and when he finally arrived, she when with him to a place called Karna Lake where they indulged in sexual intercourse.She did not raise any objection at that stage and made no complaints to anyone.Thereafter, she went to Kurukshetra with the accused, where she lived with his relatives.
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['Section 506 in The Indian Penal Code', 'Section 376(2) in The Indian Penal Code', 'Section 376 in The Indian Penal Code', 'Section 375 in The Indian Penal Code']
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Analyze the legal case and identify the corresponding section it comes under.
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88,327,776 |
Hon'ble Umesh Chandra Tripathi,J.[Delivered by Umesh Chandra Tripathi, J.] [1].By way of instant criminal appeals, the appellants have challenged the legality and sustainability of the judgment and order dated 04.9.2006 passed by Additional Sessions Judge/Fast Track Court No. 1, Ballia in Sessions Trial No. 295 of 1998 (State of Uttar Pradesh v. Chunnu alias Om Prakash Upadhyaya and others), arising out of Crime No. 180 of 1997, under Sections 147, 148, 149, 302 and 323 of the Indian Penal Code, 1860 (hereinafter referred to as 'IPC'), Police Station - Gadwar, District - Ballia, whereby :-(a) Accused-appellant - Ved Prakash Upadhyaya was convicted and sentenced as follows :(i) Rigorous imprisonment for three years, under Section 148 of IPC;(ii) Imprisonment for life and to pay fine of Rs. 5,000/- under Section 302 of IPC; and(iii) Imprisonment for one year, under Section 323 read with 149 of IPC.In case of default in payment of fine, the appellant shall have undergo additional imprisonment for five months.(b) Accused-appellants - Chunnu alias Om Prakash Upadhyaya, Vimal Kumar Upadhyaya alias Vimal Kumar, Ganesh Upadhyaya, Harendra Upadhyaya, Rikhidev, Baliram and Dhirendra Kumar were convicted and sentenced as follows :(i) Rigorous imprisonment for two years each, under Section 147 of IPC;(ii) Imprisonment for life and to pay fine of Rs. 5,000/- each, under Section 302 read with 149 of IPC; and(iii) Imprisonment for one year, under Section 323 of IPC.In case of default in payment of fine, the appellants shall have to undergo additional imprisonment for five months each.[2].[3].Succinctly, facts relevant for adjudication of these appeals, as discernible from perusal of record, appear to be that on 08.06.1997, informant Kamla Upadhyaya s/o Kamal Dev Upadhyaya r/o Village Barabandh, Police Station - Gadwar, District - Ballia, along with his family members, was constructing a wall near his cattle shed ('charan').At about 09.00 A.M., accused Ved Prakash Upadhyaya and Chunnu alias Om Prakash Upadhyaya, sons of Sacchidanand Upadhyaya, Vimal Kumar Upadhyaya s/o Naradmuni, Ganesh Upadhyaya s/o Rishimuni, Rikhidev Upadhyaya s/o Musafir, Harendra Upadhyaya s/o Jainath and Baliram Upadhyaya s/o Ram Ekbal, all residents of Village Barabandh, Police Station - Gadwar and relative of Ved Prakash Upadhyaya - Dhirendra Prakash Shukla s/o Umashankar resident of Village Karnai, Police Station - Sukhpura, District - Ballia, armed with 'lathi danda' (bamboo stick) suddenly came on the spot and attacked the informant and his family members.Accused Ved Prakash started doing indiscriminate firing on them, due to which Hari Shankar Upadhyaya and Rambha Devi w/o Jai Shankar, both son and daughter-in-law, respectively of the informant, received gunshot injuries.Jai Shankar and Narendra, both sons of the informant and Sharda Nand Upadhyaya and Shyama Upadhyaya, brothers of the informant also sustained injuries.It came to light that there was dispute for partition of land between informant Kamla Upadhyay and one Sacchidanand Upadhyay.One day prior to that of the occurrence, that is to say, on 07.06.1997, mediation between the parties had taken place in the village panchayat through their relatives.The informant took his daughter-in-law injured Rambha Devi to Government Hospital, Gadwar where he came to know that she had succumbed to her injuries.Injured Jai Shankar, Narendra and Hari Shankar were send to District Hospital, Ballia.It was requested that report be lodged and appropriate action be taken.The written report is on record and marked as Ex.[4].Contents of the written report were taken down by Head Constable Amiuddin Khan (scribe) in chik first information report at Case Crime No. 180 of 1997 under Sections 147, 148, 149, 302 and 323 of IPC at Police Station - Gadwar, District - Ballia on 08.06.1997 at 09.00 A.M. The FIR is on record and is marked as Ex.He also prepared relevant papers viz. letter to RI, letter to CMO, two police form 13, photo lash and sample seal, which are on record and marked as Ex.Ka.13 to Ex.Thereafter, he reached on the place of occurrence, where on the pointing out of the informant, he inspected the spot and prepared its site plan.The site plan is on record and marked as Ex.He thereafter also took sample of simple and blood-stained earth and prepared recovery memo of the same.He also took into possession five empty cartridges of 12-bore from the spot and prepared recovery memo of the same.The recovery memo of sample of simple and blood-stained earth as well as empty cartridges is on record and is marked as Ex.[6].On the same day, injured Hari Shankar Upadhyaya also succumbed to his injuries at Distrisct Hospital, Ballia.SI Shobhnath Pandey In-charge of Police Station - Sadar Ballia, Police Chowki - Satani Sarai, District - Ballia, after selecting inquest witnesses, held inquest on the body of deceased Hari Shankar Upadhyaya and prepared inquest report, which is on record and marked as Ex.Thereafter, the dead body of deceased was sealed and sample seal was prepared in that regard.Several relevant papers viz. sample seal, police form 13, report RI, photo lash and report CMS, were prepared, which are on record and marked as Ex.Ka.22 to Ex.[7].Accused Om Prakash alias Chunnu, Vimal Kumar, Dhirendra Kumar and Ganesh were arrested from the residence of Sacchidanand Upadhyaya and one SBBL gun bearing number 46018 and two live cartridges of accused Ved Prakash Upadhyay were recovered from the residence.The I.O. prepared recovery memo of the same, which is on record and marked as Ex.No visible injury.[9].Colour reddish blue.Complain of pain over left leg.But no visible injury seen.[11].The injury reports of injured Sharada Nand Upadhyaya and Shyama Upadhyaya are on record and marked as Ex.Ka.8 and Ex.Ka.9, respectively.[12].Margins inverted.As soon as she reached near Hari Shankar Upadhyaya, Ved Prakash Upadhyaya shot at her, due to which she also fell on the ground and later on, both of them died due to the fatal injuries sustained by them.Accordingly, when appellant Ved Prakash had fired on Hari Shankar Upadhyaya and Rambha Devi, other co-accused were neither present there with accused Ved Prakash nor they were members of unlawful assembly with Ved Prakash.After causing assault by accused Chunnu alias Om Prakash, Vimal Kumar, Ganesh Upadhyaya, Harendra Upadhyaya, Rikhidev, Baliram and Dhirendra, by blunt object to injured, accused-appellant Ved Prakash went to his residence, took his licensee gun and fired on deceased.All the sentences were directed to run concurrently.On the basis of entry so made in the FIR, relevant entry was made in the general diary and a case was registered against all the accused at the aforesaid case crime number under the aforesaid sections.Thereafter, he went to PHC Gadwar and prepared inquest report ('panchayatnama') of the dead body of deceased Rambha Devi.The inquest report is on record and marked as Ex.He also recorded the statements of the accused on the spot.[8].On 08.06.1997, injured Narendra Kumar Upadhyaya and Jai Shankar Upadhyaya were medically examined by Dr. C.I. Raza at District Hospital, Ballia at 12.25 P.M. and 12.40 P.M., respectively, wherein the following injuries were noted on their persons :-(a) Injuries on the person of injured Narendra Kumar Upadhyaya :-Lacerated wound 1 cm.x 0.25 cm.x ½ cm.scalp deep on the left parietal area of scalp 4 cm.above left eyebrow.Deep red clotted blood.Lacerated wound 1.5 cm.x 0.25 cm.x ½ cm.scalp deep on the right parietal area of the scalp.Deep red clotted blood.Lacerated wound 1 cm.x 0.25 cm.x ½ cm.scalp deep over the left occipital region.Complain of pain on the left shoulder.Complain of pain on the left hand.Complain of pain in the root of index finger of right hand.Complain of pain on the right shoulder.Complain of pain on the upper part of back.Complain of pain on both thighs.(b) Injuries on the person of injured Jai Shankar Upadhyaya :-Lacerated wound 0.4 cm.x 0.2 cm.on the front (middle) of the lateral nasal septum deep red clotted blood.2. Clotted blood present in both nostrils.Bruise 8 cm.x 7.5 cm.on the lateral part of the abdomen present adjacent to the illiac crest.Complain of pain on the left chest.Complain of pain on the left forearm.Complain of pain on the left thigh.The injury reports of injured Narendra Kumar Upadhyaya and Jai Shankar Upadhyaya are on record and marked as Ex.Ka.9 and Ex.Ka.10, respectively.[10].On the same day, injured Sharada Nand Upadhyaya and Shyama Upadhyaya were also medically examined by Dr. R.S. Ram at Primary Health Center, Gadwar, Ballia at 05.20 and 07.45 P.M., respectively, wherein the following injuries were noted on their persons :-(a) Injuries on the person of injured Sharada Nand Upadhyaya :-Lacerated wound 4 cm.x 0.5 cm.x scalp deep present over frontal head, 6 cm.above from root of nose.Bleeds on cleaning.Contusion 4 cm.x 2 cm.present over right scapular region 15 cm.above from lower angle of right scapula.Colour read.Contusion 15 cm.x 2 cm.present over right scapular region 0.3 cm.Colour red.Abraded contusion 5 cm.x 2.5 cm.present over anterior aspect of deltoid region of left arm 4 cm.below from left shoulder joint.Colour red.Contusion 7 cm.x 3 cm.present over anterior aspect of deltoid region of left arm 0.3 cm.Colour red.Contusion 3 cm.x 2.5 cm.present over posterior aspect of left deltoid region of arm 7 cm.below from shoulder joint.Colour red.Abraded contusion 2.5 cm.x 2 cm.present over posterior aspect of left elbow.Colour red.Abrasion 2.5 cm.x 1 cm.present over posterior aspect of left forearm 5 cm.below from left elbow.Contusion 5 cm.x 2 cm.present over posterior aspect of left forearm 4.5 cm.above from left wrist.Colour red.Contusion 9 cm.x 2 cm.present over lateral aspect of left thigh 24 cm.above from left knee.Contusion 7 cm.x 3 cm.present over lateral aspect of left leg 12 cm.above from left lateral malleolus.Colour red.Complain of pain over left side chest.But no visible injury seen.(b) Injuries on the person of injured Shyama Upadhyaya :-Contusion 9 cm.x 5 cm.present over posterior aspect of left forearm just below left elbow.Colour reddish blue.2. Contusion 5 cm.x 3 cm.present over lateral aspect of left side thigh 10 cm.above from left knee joint.All the injuries caused to all the injured were fresh, caused by blunt object and were simple in nature.Accordingly, these injuries might have been caused to the injured Narendra Kumar Upadhyaya, Jai Shankar Upadhyaya, Sharda Nand Upadhyaya and Shyama Upadhyaya on 08.06.1997 at about 09.00 A.M. by blunt object 'lathi danda' and iron rod.[13].On 09.06.1997, dead body of deceased Hari Shankar Upadhyaya and Rambha Devi was brought to District Hospital, Ballia by Constables - Raj Nath Yadav and Mangu Yadav of Police Station - Kotwali, District - Ballia and that of deceased Rambha Devi by Constables - Ram Janam Saroj and Ram Milan of Police Station - Gadwar, District - Ballia for autopsy.Post-mortem examination on the cadaver of both the deceased was conducted on the same day at 03.30 and 04.30 P.M., respectively by Dr. P.K. Singh, the then Medical Officer, District Hospital, Ballia, who noted the following ante-mortem injuries on the cadaver of the deceased :(a) Post-mortem examination on the cadaver of deceased Hari Shankar Upadhyaya :-Multiple firearm wound of entry in area covering uppermost part, front of both side chest including both front shoulder uppermost and front of neck and right side of face below right eye, and also left side of face each measuring about 0.25 x 0.2 cm.in diameter, depth is muscle to chest cavity deep, margins are inverted, collar of abrasion present.No blackening, tattooing or singeing seen.On internal examination, ten small metallic bullets were recovered from chest cavity of the deceased.(b) Post-mortem examination on the cadaver of deceased Rambha Devi :-Multiple firearm wound of entry extending from lower part of right side of abdomen and front of both side chest cavity whole breast of right side, medial half left breast, diameter measuring of each wound 0.25 cm.x 0.2 cm.muscle to abdomen and chest cavity deep.Margins inverted.Abraded collar present.No blackening, tattooing and singeing seen.Four firearm wound of entry seen at right anterior aspect of forearm 2.5 cm.above from right wrist joint, skin to muscle deep measuring 0.25 cm.x 2 cm.No blackening, tattooing, singeing seen.Ten small metallic bullets were also recovered from the body of the deceased.[14].Duration of death of both the deceased - Hari Shankar Upadhyaya and Rambha Devi was about 1¼ day.In the opinion of the doctor, cause of death of both the deceased was shock and haemorrhage as a result of ante-mortem injuries.The doctor also opined that both the deceased might have died on 08.06.1997 in between 9-10 A.M.[15].The post-mortem reports of deceased Hari Shankar Upadhyay and Rambha Devi are on record and are marked as Ex.Ka.5 and Ex.Ka.6, respectively.[16].Sample of recovered simple and blood-stained clothes of the deceased, empty cartridges and SBBL gun were send to Forensic Science Laboratory, Lucknow for chemical examination.As per chemical examination report (Ex.Ka.31) dated 23.08.1997, human blood was found on the clothes of the deceased.The origin of blood found in the sample of the blood-stained soil could not be determined as the blood was disintegrated.From this report, it could not be ascertained whether other four empty cartridges were fired by SBBL gun no. 46018 or not, due to the absence of specification on the empty cartridge for comparative study.[17].After completion of investigation, charge-sheet against the aforesaid accused was send to Chief Judicial Magistrate, Ballia for consideration, which is on record and marked as Ex.Ka.20.[18].Pursuant thereto, the learned Magistrate took cognizance against the accused.After complying with the provisions contained in Section 207 of the Code of Criminal Procedure, 1973 (in short 'Code') he found case against the accused to be prima facie apposite for committing it to the Sessions Court.[19].Thereafter, committal proceedings took place and the case was committed to the Court of Sessions, where it was registered as Sessions Trial No. 295 of 1998 (State of Uttar Pradesh v. Chunnu alias Om Prakash Upadhyay and others).From there, it was made over for trial and disposal to the court of Additional Sessions Judge/Fast Track Court No. 1, Ballia.Accused were heard on point of charge and the trial court was prima facie satisfied with the case against them, therefore, it framed charges against accused Ved Prakash Upadhyay under Sections 148, 302 and 323 read with 149 IPC, and against accused - Chunnu alias Om Prakash, Vimal Kumar, Ganesh Upadhyaya, Rikhi Deo, Harendra Upadhyaya, Baliram and Dhirendra Kumar under Sections 147, 302 read with 149 and 323 of IPC.Charges were read over and explained to the accused, who pleaded not guilty and claimed to be tried.[20].The prosecution, in order to prove the guilt of the accused and substantiate charge against them, examined as many as thirteen prosecution witnesses, out of whom, P.W.1 Kamla Upadhyaya (informant), P.W.2 Jai Shankar Upadhyay, P.W.3 Narendra Kumar Upadhyaya and P.W.4 Sharda Nand were examined as witnesses of fact, whereas P.W.5 Sudhakar Prasad, P.W.6 Dr. P.K. Singh, P.W.7 Pharmacist R.S. Tripathi, P.W.8 Dr. C.I. Razza, P.W.9 Constable Aminuddin Khan, P.W.10 S.I. Vijay Nath Tiwari (I.O.), P.W.11 S.I. Shobhnath Pandey, P.W.12 Constable Shambhu Prasad and P.W.13 S.I. Shaukat Ali were examined as formal witnesses.[21].Except as above, no other testimony was adduced, therefore, evidence for the prosecution was closed and the statements of the accused were recorded under Section 313 of the Code, wherein they claimed to have been falsely implicated in the present case on account of enmity.Accused Ved Prakash, Rikhi Deo, Chunnu alias Om Prakash and Ganesh Updhayaya claimed that they were neither present on the spot nor in the village at the time of the occurrence.[22].In turn, the defence examined D.W.1 Vachaspati Pandey as defence witness.He stated before the court that at the time of the occurrence, accused-appellant Ganesh Upadhyaya was present at Village Veer Basti, Post - Jeera Basti, Police Station - Sukhpura, District - Ballia, which is at a distance of about 25 kilometers from the place of occurrence.[23].The learned trial Judge after considering the case on its merit, passed the impugned judgment and order.[24].Feeling aggrieved by the order of learned trial Judge, the appellants have preferred these appeals.[25].Heard Sri V.P. Srivastava, learned Senior Advocate assisted by Sri Shashi Bhushan Kunwar, learned counsel for the appellants, Sri Virendra Singh, learned counsel for the complainant and Sri Rajesh Mishra, learned Additional Government Advocate for the State of Uttar Pradesh.[26].Learned counsel for the appellants contended that as per evidence and allegation of the prosecution, Chunnu alias Om Prakash, Vimal Kumar, Ganesh Upadhyaya, Harendra Upadhyaya, Rikhidev, Baliram and Dhirendra Kumar were not members of unlawful assembly with co-accused Ved Prakash Upadhyaya, when Ved Prakash Upadhyaya fired on deceased Rambha Devi and Hari Shankar Upadhyaya.No independent witness has been examined from the side of the prosecution.The appellants have right to defend their body and property.There are major contradictions in the statements of the witnesses.The learned trial court without considering all these facts and circumstances of the case and without properly appreciating the evidence brought on record, has passed the impugned order of conviction, which is not sustainable and liable to set aside and as such, the appeals deserve to be allowed.[27].Per contra, learned A.G.A. contended that P.W.2 Jai Shankar Upadhyaya, P.W.3 Narendra Kumar Upadhyaya and P.W.4 Sharada Nand are injured witnesses.Their presence on the spot at the time of the occurrence cannot be doubted.The learned trial court has passed the impugned order on the basis of their statements.There is no illegality or perversity in the well-reasoned and well-discussed order of conviction passed by the trial court and the same needs no interference, as such, the appeals are liable to be dismissed.[28].It is a case of broad daylight murder in which two persons died.The FIR had been lodged on the same day, just after one hour ten minutes of the occurrence, without occasioning any inordinate delay.Injured Narendra Kumar, Jai Shankar Upadhyaya, Sharda Nand and Shyama Upadhyaya were examined on the same day at 12.25 P.M., 12.40 P.M., 5.20 P.M. and 7.45 P.M., respectively at District Hospital, Ballia and PHC, Gadwar, Ballia.Narendra Kumar Upadhyaya was so seriously injured that he was admitted to the hospital and referred to the ortho surgeon for further management.Presence of informant Kamla Upadhyay and injured Jai Shankar Upadhyaya, Narendra Kumar and Sharda Nand on the spot cannot be doubted.They stated before the court that at the time of the occurrence, accused-appellants came suddenly on the spot and assaulted Jai Shankar Upadhyaya, Narendra Kumar, Sharda Nand and Shyama Upadhyaya with lathi danda and iron rod, due to which, they sustained injuries.Appellant Ved Prakash Upadhyaya fired on Rambha Devi and Hari Shankar Upadhyaya, due to which they sustained fatal injuries.There is no material contradiction in their statements on the basis of which their testimonies may be discarded.[29].All the witnesses of fact stated before the court that there was some dispute regarding construction of wall.Just a day before the occurrence, mediation had taken place between the parties through their relatives and the accused had constructed the wall.It was agreed that the informant and his family members shall construct their wall at a distance of one feet from the wall of the accused.Accordingly, the informant and his family members were constructing their wall.Suddenly the accused came there and assaulted them.[30].From the deposition of all the witnesses of fact, it is evident that they were constructing wall in their own land, which is situated in the west of 'khapdail' - residence of Sacchidanand and south of small room of Sacchidanand and east of boundary of informant Kamla Upadhyay's house.It is not case of the accused-appellants that informant and his family members were constructing wall in the land belonging to the appellants.Although in the FIR or in the statement of P.W.1 Kamla Upadhyay, the place of causing firearm injury to deceased Smt. Rambha Devi and Hari Shankar Upadhyaya was not specified.[31].P.W.1 informant Kamla Upadhyaya has stated in his cross-examination as follows :".....घटना के दिन जिस मेरी जमीन पर मेरा निर्माण हो रहा था उस जमीन के लिये घटना के पहले कभी कोई मुल्जिम दावेदार नहीं हुआ। जहाँ मैं दीवाल जुड़वा रहा था वहाँ घटना के दिन मेरे अलावा नरेन्द्र, जयशंकर, श्यामा, शारदा और हरिशंकर थे। राम जी कही दूसरी जगह गये थे पता नहीं कहाँ गये थे। उस समय हम लोग सचितानन्द उपाध्याय कि छोटी कोठरी के दखिन जो चरन स्थित है उसके पश्चिम थे। उस समय चरन से सटकर दखिन दीवाल बन रही थी। सभी मुल्जिम जहाँ हमलोग थे वहीं आ गये। मुल्जिमान आने पर पहले लाठी डंडा चलाये खुद कहा कि आये लोग दीवाल उजाड़ने लगे तथा मारने लगे। मजदूर मिस्त्री को किसी ने नहीं मारा। जब मार होने लगी तो दखिन तरफ खेत होते हुए भाग गये। मजदूरों के भाग जाने के बाद बन्दूक लाकर फायर किया गया। वेद प्रकाश अपने रहायसी मकान के दरवाजे पर से फायर कर रहे थे। मैंनें वेद प्रकाश को तीन फायर करते देखा था। मैंनें रिपोर्ट में लिखा दिया था। कि वेद प्रकाश अपने दरवाजे पर से फायर कर रहे थे। सचितानन्द की छोटी कोठरी से पूरब वह दरवाजा है जहाँ खड़े होकर वेद प्रकाश ने फायर किया। वेद प्रकाश अपने दरवाजे से सटे खड़े होकर फायर कर रहे थे। वेद प्रकाश पर जब से मेरी नजर पड़ी तब से जब तक फायरिंग होती रही तब तक वेद प्रकाश ने अपने ही दरवाजे पर ही खड़ा देखा। खुद कहा कि और तरफ भी देखता रहा। जहाँ से फायर किया तथा जहाँ वे लोग गिरे थे उस तथ्य को मैंने अपने रिपोर्ट में लिखा दिया। अंधाधुंध फायर चरन के पास नहीं हुई थी। चरन के पास किसी प्रकार का कोई फायर नहीं हुआ। ....."[32].P.W.2 Jai Shankar Upadhyaya stated as follows :"....घटना स्थल से कोई फायर नहीं किया गया था बल्कि वेद प्रकाश ने अपने दरवाजे से फायर किये थे।...."[33].P.W.3 Narendra Kumar has also stated that :"....चरन के पास जहां निर्माण हो रहा था वहाँ कोई फायरिंग नहीं हुई।...."[34].P.W.4 Sharda Nand has stated in his examination-in-chief as under :"....ये लोग एकाएक आये और हमलोगों के बीच जयशंकर से कुछ कहे और उसके बाद मारना शुरू किये। तब हरिशंकर अपने घर की ओर भागे उनका पीछा वेद प्रकाश किये। जब हरिशंकर अपने घर के कोने पर पहुंचे तो पीछे मुड़कर देखा तब तक वेद प्रकाश ने अपने घर के दरवाजे से हरिशंकर पर फायर कर दिया हरिशंकर चोट खाकर गिर पड़े। घर के अन्दर से रम्भा देवी तुरन्त ही उन्हें उठाने के लिए आयी तब तक वेद प्रकाश ने रम्भा देवी के ऊपर फायर कर दिया। तथा वही मौका पर ही वह मर गयी।....."[35].In his cross-examination, P.W.4 further stated that :".....मुल्जिम वेद प्रकाश ने चरनी के पास फायर नहीं किया बल्कि अपने दरवाजे के पास से फायर किया। चरनी के पास से फायर करने की बात गलत है....."[36].From the deposition of all these witnesses, it is evident that all the accused armed with lathi danda and iron rod came on the spot, where informant and his family members were constructing wall and attacked on them with lathi danda and iron rod, due to which Jai Shankar Upadhyaya, Narendra Kumar, Sharda Nand and Shyama Upadhyaya sustained simple injuries.During assault, the labourer and mansion, who were working there, fled away from the spot.After their fleeing away, accused Ved Prakash took his licensee gun and fired from his door at Hari Shankar Upadhyaya, who was at road ('khadanja').While fleeing towards his residence, Hari Shankar Upadhyaya fell on the ground after sustaining firearm injury.On his shrieking, Rambha Devi came out from her house and proceeded towards Hari Shankar.Accordingly, accused-appellants Chunnu alias Om Prakash, Vimal Kumar, Ganesh Upadhyaya, Harendra Upadhyaya, Rikhidev, Baliram and Dhirendra had no knowledge that accused Ved Prakash would commit murder of the deceased.Firing by accused-appellant Ved Prakash on Hari Shankar Upadhyaya and Rambha Devi was his individual act and he is only responsible for it.In Dalip Singh and Ors.[41].In forensic science laboratory report (Ex.[42].I.O. Sub-Inspector Vijay Nath Tiwari stated before the court that witness Narendra Kumar and Sharda Nand had made statement under Section 161 of the Code that accused Harendra had fired with country-made pistol ('katta').Witnesses of fact Narendra Kumar and Sharda Nand have specifically denied that they had made any such statement to the I.O. Even in the FIR, it is not mentioned that accused Harendra had 'katta' or made any fire with 'katta'.It is consistent version of all the witnesses of fact that only appellant Ved Prakash Upadhyaya fired on Rambha Devi and Hari Shankar.There was no reason for witnesses of fact to narrate before the IO that accused Harendra had also fired by 'katta'.From these facts, it appears that the IO had mentioned this fact in the statement of witnesses of fact only to create a doubt on the prosecution version.Accordingly, he may procure empty cartridge fired by 'katta'.From the perusal of forensic science laboratory (Ex.Ka.19) it cannot be said that other four recovered empty cartridges were not fired by the licensee gun no. 46018 as there was no specification on those cartridges for comparative study.Forensic science laboratory report is not corroborative to the prosecution version, but on the basis of this report, the prosecution version cannot be doubted.[43].P.W.1 Narendra Kumar and P.W.4 Sharda Nand stated that they had not made any statement to the IO that appellant Harendra had fired on the deceased by 'katta'.However, IO SI Vijay Nath Tiwari stated that such a statement has been made by both the witnesses.As discussed above, this is not a contradiction.As observed above that there was no reason for Narendra Kumar and Sharda Nand to make such statement.[44].From the perusal of record, it appears that accused-appellants Chunnu alias Om Prakash, Vimal Kumar, Ganesh Upadhyaya, Harendra Upadhyaya, Rikhidev, Baliram and Dhirendra were in custody from 09.06.1997 to 07.08.1997 and from 05.09.2006 to 25.09.2006 in this case.Accordingly, they have undergone more than 2 and half months of detention during investigation, trial and appeal.As per prosecution version, there was land dispute between the parties.Considering the facts and circumstances of the case, ends of justice would be met if the sentence of accused-appellants Chunnu alias Om Prakash, Vimal Kumar, Ganesh Upadhyay, Harendra Upadhyay, Rikhidev, Baliram and Dhirendra under Section 147 and Section 323 read with 149 of IPC is reduced to the period already undergone.[45].In the result,(i) Criminal Appeal No. 5376 of 2006 (Chunnu alias Om Prakash and others) partly succeeds and the same stands allowed in part.The lower court's record is directed to be remitted back to the court concerned.Order Date :- 30.11.2018 I. Batabyal [Umesh Chandra Tripathi,J.] [Vipin Sinha,J.] *************
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['Section 302 in The Indian Penal Code', 'Section 323 in The Indian Penal Code', 'Section 147 in The Indian Penal Code', 'Section 148 in The Indian Penal Code', 'Section 313 in The Indian Penal Code', 'Section 149 in The Indian Penal Code', 'Section 161 in The Indian Penal Code']
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Analyze the legal case and identify the corresponding section it comes under.
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88,329,415 |
The detenu, namely, Narendiran, S/o.Selvaraj, aged about 23 years, is directed to be released forthwith unless his detention is required in connection with any other case.(M.M.S.,J.) (T.K.R.,J.) 09.09.2019 Index : Yes / No mmi/ssm Page 5 of 7http://www.judis.nic.in HCP No 1274 of 2019 ToPage 5 of 71.The Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Fort St.3.The Superintendent, Central Prison,Vellore.Page 6 of 7http://www.judis.nic.in HCP No 1274 of 2019 M.M.SUNDRESH, J.Page 6 of 7and RMT.Selvaraj, aged about 23 years.The said order is under challenge in this Habeas Corpus Petition.2.We have heard the learned counsel appearing for the petitioner and the learned Government Advocate appearing for the respondents.We have perused the materials available on record.Page 2 of 74.The Public Prosecutor, High Court, Madras.
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['Section 506 in The Indian Penal Code', 'Section 148 in The Indian Penal Code', 'Section 302 in The Indian Penal Code', 'Section 147 in The Indian Penal Code']
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Analyze the legal case and identify the corresponding section it comes under.
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88,329,847 |
(g) and 376(2)(g) of IPC.It may be stated here that originalaccused no.3 - Naresh R. Modhiya expired during thependency of the trial.4 The prosecution case, briefly stated, is as under:(I) The accused nos.1 to 12 were all residents of villageRandhikpur, District Dahod in the State of Gujarat.Randhikpur is also known as "Singwad".PW 24 Abdul IssaGhachi was the father of the prosecutrix who is PW 1 Bilkis.Abdul Issa Ghachi was residing with his family at villageRandhikpur.He was residing in village Randhikpur along ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:47 ::: 11 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docwith his two daughters Munni and Mumtaz, three sons i.e.Iqbal, Irfan (deceased) and Aslam (deceased) and his wifeHalima alias Alima (deceased).The prosecutrix was marriedto Yakub Rasool Patel resident of Baria in District Dahod.She had a minor daughter Saleha who was about 3 and halfyears of age at the time of the incident.Though aftermarriage, the prosecutrix started residing with her husbandat Devgad Baria as her father PW 24 Abdul Issa Ghachi wasdealing in buffalos and dairy, she started residing with herfather at village Randhikpur 4 to 5 months after her marriage.Some days prior to the incident, there was "Bakri-Eid", hence,the prosecutrix had gone to her husband's house at DevgadBaria and on the next day, returned back to her father'shome in Randhikpur.Her daughter Saleha and her husbandcame with her to Randhikpur.At that time, She waspregnant.(II) On 27.2.2002, death of large number of "Hindu KarSevaks" took place on account of burning of "SabarmatiExpress" at Godhra Railway Station allegedly by members of ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:47 ::: 12 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docthe Muslim community.On account of this, large scale riotserupted in the State of Gujarat.A large number of lives werelost in the communal riots which ensued.Randhikpur whichis a small village in Taluka Limkheda in Dahod District inGujarat, also experienced outbreak of riots.There wereincidents of arson and looting in village Randhikpur from themorning of 28.2.2002 and consequently, there was exodus ofMuslims from the village in search of safety.The prosecutrixalong with some members of her family fled from Randhikpur.After leaving Randhikpur, the prosecutrix and othersincluding some of her family members, went from village tovillage.One of the persons who was in the group ofprosecutrix, was her cousin sister Shamim.Shamim waspregnant and about to deliver a child.In the night of28.2.2002, they stopped at village Kuwajer.There Shamimdelivered a baby girl.Next day morning, they left Kuwajer.They stayed in the house of PW 20 Nayak for two days.Theywere informed that there is danger, hence, on 3.3.2002 earlyin the morning before sunrise, they started proceeding ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:47 ::: 13 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doctowards village Sarjumi via Pannivel.When they were nearPannivel, two white vehicles in which there were about 25people, came from Chhaparwad side towards Pannivel.Whenthey saw the group of prosecutrix, they stopped theirvehicles.They started shouting "Musalmanoko Maro" andran towards the group of prosecutrix.These persons whocame in the two white vehicles, were carrying swords, lathisand sickles in their hands.From the group of persons whoattacked them, the prosecutrix identified accused nos.1 toAccused no.4 - Shailesh Chimanlal Bhatt pulled Saleha thedaughter of prosecutrix, from her arms and smashed her onthe ground due to which Saleha died.Accused no.1Jaswantbhai Chaturbhai Nai who was holding a sword, wasgoing to assault the prosecutrix with a sword, however, sheheld out her hand to ward-off the blow, due to which, shereceived injury on her left hand.Accused nos.1, 2 and 3forcibly removed the clothes of the prosecutrix andcommitted rape on her.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:47 :::14 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docGovindbhai Nai and thereafter by accused no.3 NareshModhiya.The other accused persons i.e. accused nos. 5 to12 in the meanwhile, tore off the clothes of the other femalesin the group and committed rape on them and assaulted themale members in their group.In the meanwhile, on accountof rape, the prosecutrix became unconscious.She wasunconscious for many hours.When she regainedconsciousness, she found her relatives lying dead includingShamim's baby.Out of them, one was DW 2 Vanraj Dhingra andanother was PW 27 Natwar.She immediately ran upto themand requested them to take her to a safe place as she was indanger and her people had been murdered.The prosecutrix ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:47 ::: 15 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docwas brought to Limkheda Police Station where her F.I.R.(Exh.56) was recorded by accused no. 17 who is sincedeceased.Her F.I.R. was not correctly recorded.The factthat she was raped was not stated in the F.I.R. (Exh.56).It is the prosecution case that though the prosecutrixstated the names of the accused, in the F.I.R., it wasstated that she did not know any of the persons whocommitted rape on them, and murdered her relatives.Theoffence was registered as C.R. 59 of 2002 of Limkheda PoliceStation against unknown persons.The prosecutrix was sentfor medical examination to CHC Limkheda.Meanwhile on5.3.2002, the police carried out the inquest panchnama on 7bodies though according to the prosecution, 14 people died inthe incident.Though theprosecutrix was available, she was not taken to the spot.Investigation was carried out by Limkheda Police.On ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:48 ::: 16 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc5.3.2002, the prosecutrix was taken to Godhra Relief Camp.Godhra Relief / Refugee Camp was visited by DistrictMagistrate and Collector PW 18 Jayanti Ravi along withExecutive Magistrate, PW 23 Govindbhai.The prosecutrixnarrated what had happened to her and her group on3.3.2002 to Jayanti Ravi.Jayanti Ravi told PW 23 Govindbhaito record the statement of the prosecutrix.In her statement Exh. 277 the prosecutrix stated thatas mob had started burning houses in Randhikpur on 28 thshe along with others ran from village Randhikpur andreached Chundadi village.They stayed at Kuwajar.The nextmorning, they started for Khudra and stayed in Khudravillage for two days.After that in the morning at 4.00a.m.they started their onward journey.On the way, therewas a kachha road at Panivela village.When they reachedat that place, about 20 people came in white cars andattacked them.They stripped her, her sisters, her two aunts,daughters of paternal aunts and raped them.They also ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:48 ::: 17 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.dockilled some of the persons in the group.She lay on theground as if she was dead.The attackers thereafter left.When she gained consciousness, she went up the hill and hid.The prosecutrix named accused nos. 1 to 12 as some of thepersons from the mob who attacked them.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:48 :::She gave history to Dr. Katti thatthey ran from their village to 2 to 3 villages, thereafter, mobattacked them on kachha road leading to Pannivel.Theykilled her daughter and relatives and she was raped by threeof them from the mob that is accused nos. 1 to 3.Meanwhile PW 18 District Magistrate Jayanti Ravi addressed aletter to the Superintendent of Police Dahod for takingimmediate appropriate action in the matter of theprosecutrix.The C.B.I. conducted detailed investigation.During investigation, the photographs of the dead bodies atthe spot Exhibit 59/1 to 59/17 and the camera (Article 3)were seized under the seizure panchanamas.59/1 to 59/8 with negatives were seized from PW 28Bhavin Patel by PW 68 A.S. Tariyad under panchnama Exh.The case in fact suffers at the startingpoint with the first major flaw of dishonest investigation.First we would like to discuss the evidence of the prosecutrix.8 The prosecutrix in her evidence has stated that 5to 6 years prior to the incident, she was married with YakubRasool Patel, a resident of Devgad Bariya.At the time ofGodhra riot, she was staying with her father at Randhikpuralong with her parents, sisters and brothers.Saleha 3½year old daughter of the prosecutrix was also staying with ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:49 ::: 23 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docher at Randhikpur.The prosecutrix was 5 months pregnantat the time of the incident.On the next day of Godhraincident, arson and looting took place in village Randhikpurand she was informed by her maternal aunt Bibi to leave thevillage.So she left her village along with her relatives andwent to house of Kadkiyabhai, the village Sarpanch.However, they found it unsafe there and so they moved tovillage Chundadi.There Bijalbhai Damor (PW 33) providedthem food and water.There,her cousin Shamim delivered a baby girl at the house of mid-wife PW 6 Zaitoon Atila.Thereafter, in the noon, on the nextday, i.e., on 1st March, they went to village Khudra.Therethey stayed for two days with PW 20 Nanjibhai Nayak.Then,according to the prosecutrix including new born baby ofShamim, they were 17 persons.Then, while going toSarjumi, via village Chapparwad, they took kachha roadleading to Panivel.At that time, 2 white vehicles arrivedthere from Chapparwad side.Nearly 25 to 30 male persons ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:49 ::: 24 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docwere in the vehicles.They were armed with weapons likesword, sickle and sticks.They were giving slogans againstMuslims and they attacked this group of 17 persons.Shehas stated that they were from Randhikpur and sheidentified some of them.She took names of the accusedNos.1 to 12 as the assailants.She stated that Shailesh Bhatt(accused No.4) snatched her daughter Saleha and smashedher on the rocky ground.Accused No.1 JaswantbhaiChaturbhai Nai, accused No.2 Govindbhai Nai and accusedNo.3 Nareshkumar Ramanlal Modhiya caught her & took herbeneath a tree.Jaswant Nai was carrying sword.When hewas about to hit her, she tried to ward off the blow due towhich she received injury on her left hand.Shebecame unconscious.When she regained consciousness,she found dead bodies of her family members.She foundher petticoat, wore it and then climbed the hillock.Shespent that day and night on the hillock and next day morningi.e., on 4th, she went to other side of hill and descended the ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:49 ::: 25 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docsame.She met one Adivasi lady PW 11 Sumaliben.However, she was hostile to the prosecutrix and wanted toassault her.So the prosecutrix told her not to assault andrequested to provide some clothes.According to theevidence of the prosecutrix, the lady provided blouse andodni to her.The prosecutrix went and drank water fromhand pump.At that time, she saw a person (DW 2Vanrajsingh Dhingra) standing in police uniform near onevehicle on kachha road.So, she went to him and requestedhim to save her.She told that her family members and herdaughter was killed and she was raped.He took her toLimkheda police station in the vehicle.One more person wasin the vehicle i.e., Natwarbhai Bamnia, Homeguard (PW 27).At the police station, she met PW 7 Madina Patel & PW 19Firoz Abdul Sattar Ghachi.She informed the police atLimkheda police station that her family members includingdaughter were killed and she and the ladies with her wereraped.It is the case of PW 1 prosecutrix that when she ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:49 ::: 26 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docdisclosed the names of the offenders, the police objected tothe disclosure of the names and also threatened that shewould be given a poisonous injection at the hospital if shespeaks out the names and she was warned to keep mum.After one day, police came and rescued her.Shehas further stated that there was no progress in her case,hence, one Mukhtiyarbhai, who was an activist made anapplication for her to the Supreme Court that theinvestigation be transferred to CBI.She has deposed that herstatements were subsequently recorded by CBI.Accused Nos.13 to 18 are the police personnelfrom Limkheda police station.Thereafter her statement was recorded on 6 th March, 2002 byPW 23 Govindbhai Patel and the said statement is marked asExhibit 277 collectively, because it was not recorded by thepolice under section 161 of Cr.P.C. Exhibit 57 is a faxsupposedly sent by her on 7 th March, 2002 which is broughton record as her previous statement by the defence.At differenttimes, questions were put to her on the contents in Exhibit57, however, she has denied throughout that she had eversent fax Exhibit 57 to the District Magistrate.On 7 th March,2002 PW 42 Mr.Pawar, who is from Godhra Police Station,recorded her statement.On 13th March, accused No.16inspector of Limkheda police station had recorded herstatement.Thus, thespan of investigation is from 4th March, 2002 till April, 2004.25 The first statement of the prosecutrix is her FIR.As per theevidence of the prosecutrix, when she was narrating the FIRto the police, Abdul Sattar Ghachi, PW 7 Madina & PW 19Firoz Ghachi were present.Out of these three persons,Madina and Firoz were examined by the prosecution.The contents in the FIR Exh. 56 are not admittedby the prosecutrix.She has stated that when she went toLimkheda police station on 4.3.2002 she informed about theincident of killing of her relatives and rape on her and theladies in her group.This information has set the criminallaw in motion.However, it appears that the investigation didnot take place immediately as it was expected.In this case, the truthand falsehood are mixed up in such a manner that at everystage of the evidence, the truth is hidden under layers of ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:51 ::: 46 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docintentional laxity, omissions, contradictions and falsehoodand the truth is required to be unearthed.The prosecutrix was inLimkheda Police Station on 4th and 5th March, 2002.Thereafter she was taken to Godhra Relief Camp.Learned Counsel Mr. Venegavkar while arguingthe admissibility of secondary evidence of the statement(exh.277) pointed out how CBI inspite of their best effortscould not procure the original document hence, office copy ofthe statement is produced.The prosecution examined ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:54 ::: 71 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docwitnesses and relied on correspondence to establish the factthat the original document i.e., statement dated 6.3.2002was not traced in spite of bonafide endeavour of theinvestigating agency.The said statement of the prosecutrixdated 6.3.2002, recorded by Executive Magistrate PW23Govindbhai was submitted by him to PW 18 DistrictMagistrate Jayanti Ravi and then, PW 18 along with acovering letter sent that statement on the next day i.e.,7.3.2002 to SP, Dahod, who further sent that letter to Dy.The entries to that effect weremade in the outward and inward register of Dahod andLimkheda police station.76 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc57 It is the consistent case of the prosecutrix that atthe time of recording of FIR Exh.56, she informed that shewas raped by accused nos.1 to 3, the ladies in her group wereraped by the mob of 20-25 persons and her relationsincluding daughter was killed.She had specifically namedaccused nos.1 to 12 from Randhikpur as being part of thatmob.The next morning, they started for Khudraand stayed in Khudra village for two days.After that in themorning at 4.00 a.m. they started their onward journey.Onthe way, there was a kachha road at Panivela village.Whenthey reached on the spot, about 20 people came in white carsand attacked them.63 Mr.Venegavkar, per contra, has submitted that thisdocument i.e. Fax Ex. 57 was never sent by the prosecutrixand it was never relied upon by the prosecution and in fact,the prosecutrix has categorically denied it.He submittedthat she is an illiterate woman.She has given her FIR (Exh.On 4.3.2002 and 5.3.2002 the prosecutrixwas in Limkheda police station.On6.3.2002, her statement Exh. 277 was recorded by PW 23Govindbhai G. Patel, Mamlatdar (Executive Magistrate),wherein she has specifically mentioned that a group of 20 -25 persons attacked her and her group.Fax (Exh. 57) was received on 7.3.2002 at 5.56 p.m. inthe office of District Magistrate, Dahod by DW 10 Mr.Shamjibhai Kunjadia who was P.A. to District MagistrateDahod.Venegavkar submitted that there was no opportunity for theprosecutrix to send this fax, hence, the prosecutrix cannot bethe author of Fax.After theincident, the prosecutrix climbed up the hill and hid there tillthe next morning.On the next morning, she came down fromthe hill where she met DW 2 Vanrajsingh Dhingra.Theevidence of DW 2 Vanrajsingh Dhingra shows that he met theprosecutrix on 4.3.2002 and thereafter he took her toLimkheda police station.The evidence of PW 35 Ranjeetsingh showsthat on 4.3.2003, the prosecutrix stayed overnight at thepolice station.On 3.3.2002, theymoved from Khudra to go to village Sarjumi and when theywere proceeding via Chapparwad, they took one kachha roadleading to village Panivel.She has stated that kachha roadwas running through agricultural fields on one side and onthe other side there was a jungle and hillocks.After walking acertain distance, two vehicles came from village Chapparwadside and the incident took place.Naturally, the dead bodiesshould have been found or ought to have been found onkachha road leading to Panivel, however, as per the case ofthe prosecution, the dead bodies were not found on kachharoad but 7 bodies were found in the ravine which is nearly 2kms.It wasa case of murder and rape which was reported to the policestation by the prosecutrix (Exhibit 56), yet, the police did notdraw spot panchanama or inquest panchnama on 4.3.2002.However, they went to the spot on the same day and tookphotographs of the dead bodies with the help of PW 28Bhavinkumar.He turned hostile.We have alsocarefully read the evidence of PW 52 Vohaniya and PW 68A.S. Tariyal, the police officers, who have recordedstatements of PW 10 and 28 respectively.The learnedProsecutor for the CBI had cross-examined PW 10 and PW 28at length and had contradicted both the witnesses on thebasis of their respective statements recorded by the policeofficers.The omissions from theirevidence are brought on record.It is not true that the policemen had broughtpetromax lantern at the said place.He is not a panch witness, in suchcircumstances, there was no occasion for him to remainpresent at a far away spot in the jungle on 5.3.2002 exceptfor the fact that he had gone there to take out photographs.PW 28Bhavin has also admitted that his dated signatures are thereat the back of the photos Exh. 59/1 to 59/8 and the seizurememo bears his signature.Exh 337/116 to337/119 are also photographs of combing operations by CBI.Exh.The prosecutrix was along with her relatives andwas going on foot via Panivel to Sarjumi on kachha road.Shehas stated that two jeeps arrived in which there were 25 to30 persons, who alighted and they were armed with sharp ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:03 ::: 164 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docedged weapons like sword, sickles and sticks.They startedassaulting them.They were shouting "Aa Raye Musalmano.Emne Maro, Kapo" its verbatim translation is that "See theseare Muslims, assault them, cut them".She stated that thosepersons were from village Randhikpur and she identifiedthem by name as accused Nos.1 Jaswantbhai Chaturbhai Nai,accused No.2 Govindbhai Nai, accused No.3 NareshkumarRamanlal Modhiya, accused No.4 Shailesh Chimanlal Bhatt,accused No.5 Radheshyam Bhagwandas Shah @ Lala Vakil,accused No.6 Bipinchandra Kanaiyalal Joshi @ Lala Doctor,accused No.7 Kesharbhai Khimabhai Vohania, accused No.8Pradip Ramanlal Modhiya, accused No.9 Bakabhai KhimabhaiVohania, accused No.10 Rajubhai Babulal Soni, accusedNo.11 Mitesh Chimanlal Bhatt and accused No.12 RameshRupabhai Chandana.Apart from these 12 accused, therewere also others and she stated that she might be able toidentify others.Thereafter, the prosecutrix and other personsin her group started running.Saleha, her 3½ year olddaughter was with her.According to her, Shailesh Bhatt ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:04 ::: 165 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc(accused No.4), snatched Saleha and smashed her on therocky ground.Thereafter, accused No.1 Jaswant Nai, accusedNo.2 Govindbhai Nai and accused No.3 NareshkumarRamanlal Modhiya caught her.They tore her clothes.Theytook her beneath a tree.Jaswant Nai was carrying a sword.He hit her but she tried to ward off the blow of sword due towhich she got injury on her left palm.Govind Nai and NareshModhiya caught hold of her hands and Govind Nai was aboutto put his leg on her neck.At that time, she found thatnobody was there to save her because her family memberswere being assaulted.Their clothes were torn off.At thattime, she was pregnant.Godhra incident, there was arson and looting in their village,hence, they all left their residence and started running.Shesaw houses being burnt.This was the reason for theprosecutrix to leave village Randhikpur.That arson andlooting took place is corroborated by the evidence of PW 2Pinjara, PW 4 Salim Ghachi, PW 19 Phiroz Ghachi, PW 25 SirajGhachi, PW 26 Imtiyaz Ghachi, PW 31 Rasul Umer, PW 45Sayyad Salam, PW 46 Salim Ghanchi and PW 47 SattarGhanchi.136 The first set of witnesses speak about riots taking ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:04 ::: 169 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docplace in village Randhikpur on the next day of the Godhratrain burning incident due to which Muslim people fromvillage Randhikpur fled from the village.PW 2 Faruqbhai andPW 4 Salim state about riots which took place on the nextday of Godhra train burning incident.They also speak aboutpeople running away from the village.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:04 :::137 PW 19 Phiroz Ghachi has stated that he was aresident of Randhikpur.He has stated that the next dayafter Godhra riots at around 10.30 a.m., there was stonethrowing on his residence.He noticed accused No. 8Pradipbhai Modhiya in the mob (identification of the accusedis not disputed by the defence).He also mentioned thatthere were other persons in the mob who were throwingstones.On account of this, he and his family fled from theirresidence.170 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc138 PW 25 Siraj Ghachi has stated that he and hisfamily were residing at village Randhikpur.On the next dayof Godhra train burning incident, at about 10.15 a.m., mobwas giving slogans in Gujrati, 'Cut Muslims, kill Muslims'.Hesaw accused No. 4 Shailesh Bhat and accused No. 9 BakabhaiVohania in the mob.On seeing this, he ran away from hisresidence with his family to village Chundadi.At Chundadi,they boarded police van and were taken to Police Station andthereafter to Godhra Relief Camp.He has further stated thathis house at village Randhikpur was burnt down and hisbelongings were looted.139 PW 26 Imtiyaz Ghachi has stated that he wasresiding in Randhikpur.Next day following the Godhra trainburning incident, mob came to their village.He saw accusedNo.3 Naresh Modhiya, accused No. 8 Pradeep Modhiya andothers in the mob (identification is not disputed).Some ofthe people in the mob were shouting, "Kill", hence, he alongwith his mother and sister fled from their residence.They ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:04 ::: 171 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docstayed in the residence of one Parmar for two days.Thereafter, they went to Police Station in a police van.140 PW 31 Rasool has stated that he was a resident ofvillage Randhikpur.Riots broke out in village Randhikpur onthe next day following the Godhra train burning incident.Mob armed with weapons and articles for arson was seenmoving through the village.They were shouting slogans,"Cut and kill Muslims".They started burning the houses.Heidentified accused No. 11 Mitesh Bhatt and accused No. 12Rameshbhai Chandana as being part of the mob(identification of the accused is not disputed).To savehimself, he ran towards the jungle.Then he went to villagePipliya.He stayed there for three days.Thereafter, he wastaken in a police vehicle to Police Station.Thereafter, he wastaken to Godhra Relief Camp.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:04 :::172 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc141 PW 45 Sayyed Salam has stated that he was fromRandhikpur.On the day following Godhra train burningincident, riots broke out in village Randhikpur.A mob of 100to 150 persons collected in village Randhikpur at around 10-11 a.m. He saw accused No. 7 Kesar Vohania who was partof the mob.The mob was shouting, "Kill Muslims".Petrolwas spread on his residence and one person from the mob lithis residence.As a result, his residence was burnt down.Heran away from Randhikpur.142 PW 46 Salim Ghanchi has stated that he was aresident of Randhikpur.On the day following Godhra trainburning incident, riots broke out in village Randhikpur.Hesaw mob of 50 to 60 persons who were Hindus were involvedin riots.This was at about 10 to 10.30 a.m. They wereshouting, "Kill the Muslims".He identified accused No. 8Pradeepbhai Modhiya as being part of the mob.He rantowards his residence.Thereafter, he and his family ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:04 ::: 173 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docmembers left their home.They stayed in the house of oneperson for 7 to 8 days.Thereafter, they were taken to PoliceStation and thereafter to Godhra Relief Camp.143 PW 47 Sattar Ghanchi has stated that he was aresident of Randhikpur.On the day following Godhra trainburning, riots broke out in village Randhikpur around 10 to10.30 a.m. He saw mob of 100 to 150 persons approachinghis residence.They were shouting slogans, "Kill, loot andburn Muslims".He saw that accused No. 1 Jasvantbhai Naiand accused No. 2 Govindbhai Nai were part of the mob.Themob was throwing fire balls on their residence.He, therefore,left his residence and went to village Piplia.Thereafter, hewent in a police van to the Police Station.144 Thus, the evidence of the above witnessescorroborates the story of the prosecutrix that on the dayfollowing Godhra train burning incident, riots took place in ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:04 ::: 174 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docvillage Randhikpur.A huge mob collected, they wereshouting slogans against Muslims and they were burninghouses.It was on account of this that the prosecutrix alsofled from her residence along with some of her relatives.These witnesses undoubtedly arethe victims of riot.They were all residents of Randhikpur butlost their houses in the riot.Their houses were burnt or ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:05 ::: 177 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docdestroyed by the violent mob in Randhikpur.The apprehension and fear in theminds of these witnesses was not imaginary but it wassupported by the physical fact of their running away fromtheir village in great haste as the houses of Muslims were ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:05 ::: 178 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docbeing burned down.We do not find anything illegal in theappeal made by CBI to the residents in Rahimatbaug Colonyto come forward and give statement in respect of incident ofriot and the prosecutrix.The police have power to appeal tothe people to give information to them in respect of incidentwhich had occurred earlier.148 Group 2 consists of persons whom the prosecutrixmet during her journey from Randhikpur from 28 th February,2002 till 3.3.2002 i.e., the persons whom she met prior to theincident of assault.On 3.3.2002 after the incident, the ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:05 ::: 179 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docprosecutrix met nobody but she was hiding between boulderson top of the hill.The prosecutrix and her family membersstarted from Randhikpur, i.e. the village where they wereresiding.They went to Kadakiyabhai, who was Sarpanch ofRandhikpur.From Bijalbhai's house theywent to Kuwajar.At Kuwajar Shamim started having labourpain.There they met PW 21 Salim who took them to thehouse of midwife PW 6 Zaitoon where Shamim delivered ababy girl.Thereafter they went to Khudra.There they metPW 20 Nanjibhai Nayak.They stayed there for two days, tookclothes from Nanjibhai Nayak and left for Sarjumi viaChapparwad and were going by kachha road via Panivel whenthe incident occurred.He has corroborated Zaitoon on the pointthat one pregnant lady was there and Zaitoon had attendedher.190 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docThe omissions in the evidence of PW 21 are insignificant andwe are of the opinion that evidence of PW 21 Salimcorroborates PW 6 Zaitoon in all material particulars.158 Thereafter the prosecutrix and her group went toKhudra and stayed in the house of PW 20 Nanjibhai Nayak.Thus, he submitted that if the evidence of Nanjibhai is testedit does not corroborate the evidence of the prosecutrix.159 As far as PW 20 Nanjibhai is concerned, he hasstated that about 16 to 17 persons were seen by him runninghelter skelter.They were from Randhikpur.Thiscorroborates the prosecutrix.Nanjibhai further stated that hegave them food, water and clothes.In paragraph 8, he hasstated that four women, one girl and one recently born babyand rest were males in that group.This in fact fullycorroborates the evidence of the prosecutrix that they stayed ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:06 ::: 192 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docat the house of PW 20 Nayak.The prosecutrix has narrated certainimportant incidents which had taken place when the groupwas running away from Randhikpur after Godhra riots.Inpararaph 40, in her examination in chief, she has given thenames of all the persons, who have moved along with her.This silence ofthe prosecutrix shows that she never met PW 11 Sumalibenand no such incident occurred.Sumaliben also did not support the statementof the prosecutrix that she was semi nude and whenSumaliben met the prosecutrix, she provided clothes to her.165 It is to be noted that Sumaliben is a hostilewitness.197 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc166 The prosecutrix has stated that after she metSumaliben, she drank water from hand-pump and washed herface.She then saw one person in uniform (DW 2 Vanraj)standing near one vehicle on kachcha road.He was in policeuniform.She ran to him.She asked him to save her and toldhim that her family including her daughter was killed and shewas raped.He took her to Limkheda Police Station in avehicle.PW 27 Natwarbhai was with DW 1 (Vanraj).When theywere proceeding towards village Randhikpur, on the way theylearnt that riot took place and corpses were lying inKesharpur-Panivela hills, hence, they proceeded towards thatplace.When they came near Kachcha road, they left thejeep and made search for the corpses but could not locatethem.He and home-guards went up the hill.CommandantVanraj remained at the bottom of the hill.When he camedown from the hill, he saw one woman standing near the jeepand commandant Vanraj was there but he could not know ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:07 ::: 198 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docwhat was the talk between Vanraj and the lady.There he found one lady nearthe vehicle.She gave her name as "Bilkis".If a mob of500 persons would have attacked group of 16 to 17 people ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:08 ::: 207 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docwith full of emotions of communal vengeance, the prosecutrixwould not have been spared and she would also have beenkilled or terribly injured.However, it was not so.As per the case of the prosecution,after meeting Sumaliben, she met DW 2 Vanraj and PW 27Natwarbhai, none of whom supported the case of theprosecution.No doubt after the incident the prosecutrix firstmet PW 11 Sumaliben, DW 2 Vanraj and PW 27 Natwarbhaiand their evidence does not corroborate her evidence butthere are 9 witnesses who the prosecutrix met from 4.3.2002to 7.3.2002 who fully corroborate her testimony.The first is ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:09 ::: 218 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docPW 7 Madina.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:09 :::183 The first persons the prosecutrix met at LimkhedaPolice Station were PW 7 Madina and PW 19 Phiroz.Inrelation to them, the prosecutrix has stated that when shereached Limkheda Police Station, she found Abdul SattarGhachi, PW 7 Madina, PW 19 Phiroz at Limkheda PoliceStation.She disclosed the facts to Limkheda Police Stationthat her family members including her daughter was killedand she was raped.She disclosed the names of theoffenders.The police told her why she was disclosing thenames of the offenders and the facts concerning rape on herand if she was taken to the hospital for examination, shewould be given poisonous injection at the hospital.184 PW 7 Madina has stated that on the next day ofher coming to Limkheda police station, the prosecutrix cameto Limkheda Police Station.Police told her that a girl fromRandhikpur was at the Police Station and whether she could ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:09 ::: 219 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docidentify that girl.Madina identified her as Bilkis, daughter ofAbdul Isa of Randhikpur.Madina has stated that theprosecutrix gave her complaint at Limkheda Police Station inher presence.The prosecutrix narrated that her family wasmurdered and she was raped by Jaswantbhai Nai, GovindbhaiNai and Nareshkumar Modhiya i.e accused Nos. 1 to 3.Madina has further stated that at that time PW 19 Phiroz andSattar were with her when this narration was made by theprosecutrix to the police.On such narration made by theprosecutrix, the police gave abuses and asked them to goout.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:09 :::185 Thus, PW 7 Madina Patel spoke about she meetingthe prosecutrix at Limkheda police station.She supportedthe prosecution.She spoke about the prosecutrix disclosingabout the murder of her relatives and also about rape on herand others.220 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc186 As per the evidence of the prosecutrix, she wastaken to Limkheda police station on 4.3.2002 by DW2 Vanraj.There, she first met Madina, who was present at the policestation and as she was also a riot affected person and hailedfrom Randhikpur, the police from Limkheda police station toldMadina that there was a girl from Randhikpur at the policestation and whether she could identify that girl.PW 7 Madinawas therefore confronted with the prosecutrix at the policestation and she identified the prosecutrix as daughter ofAbdul Issa Ghachi from Randhikpur.According to theprosecutrix, thereafter her FIR was recorded by Limkhedapolice station.This FIR was recorded by accused No.17Somabhai Gori, DW 1 Budhasingh and DW 6 Tariyad.However, her FIR was not read over to her and thecontents in the FIR were not taken down as per her narration.Madina has also stated that the prosecutrix was threatenedby police that if she disclosed the names of the offenders andthe facts concerning rape on her then, when she was taken ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:09 ::: 221 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docto hospital, she would be given a poisonous injection in thehospital.So, the prosecutrix was frightened.The FIR was notread over to her and the police forcibly obtained her thumbimpression.The prosecutrix has stated that at the time ofnarrating these facts, she was not alone but she told thesefacts in the presence of Abdul Sattar Ghachi, PW 19 FirozGhachi and PW 7 Madina who were sitting near her.Phirozhas stated that he is a resident of Randhikpur.There wasstone throwing at his residence.Thereupon, he fled to thejungle along with his family members to save themselves dueto Godhra riots.This position is true.It isnoticed that there was a specific reason for both Madina andPhiroz to be present at the Limkheda police station.Bothwere from Randhikpur and were victims of riot and thereforethey were together.196 About PW 3 Sugra, the prosecutrix has stated thatat the Relief Camp, she met her aunt Sugra (PW 3).Sugraasked her why she was sitting alone and not talking withthem.The prosecutrix then disclosed all the facts to her.Shealso disclosed to Sugra the names of the offenders.Theprosecutrix also met Latifaben and Sharifa (PW 5) at thecamp and she disclosed the facts to them.197 PW 3 Sugra was a resident of Randhikpur and auntof the prosecutrix.She also left Randhikpur on the next dayof train burning incident.She has stated that she met theprosecutrix at Godhra Refugee Camp and there theprosecutrix disclosed to her that accused Nos.1 to 3 i.e.,Jaswant Nai, Govindbhai Nai and Naresh Modhiya raped herand one Shailesh Bhatt, accused No.4, killed her daughter bysmashing her on the ground and other 7 to 8 persons from ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:10 ::: 232 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docRandhikpur had killed her relatives.At that time, theprosecutrix handed over her clothes which were on herperson to PW 3 Sugra and the prosecutrix wore clothes givento her at the camp.The prosecutrix also told that the clotheswere given to her by an adivasi lady.Sugra kept thoseclothes with her in anticipation that the adivasi woman whohad given those clothes to the prosecutrix may come and theclothes would be handed over to the said lady.The clothesremained with Sugra and when the CBI asked her she handedover those clothes which were collected under memorandumexhibit 72 dated 20.1.2004 drawn by PW 72 theInvestigating Officer Dy.SP, CBI Mr.Sinha.Firstof all such registers are not prepared at midnight.Theregister must have been prepared sometime in the day bywhich time the prosecutrix may not have reached the camp.Another person PW 23 Govindbhai Patel whoaccompanied PW 18 made record (Exh. 277) of the narrationof the prosecutrix.The said record was read over to theprosecutrix.It was a faithful record of her narration.In thisconnection, PW 18 Ms. Jayanti Ravi has stated that she wasDistrict Magistrate and Collector, Godhra, Gujarat.Relief campswere set up at various places including Godhra.When she became conscious she climbed up the hill andhid herself between some boulders.She came down the nextday.He read the relevant paragraphs in the evidence ofthese witnesses along with the cross-examination andsubmitted that the omissions and contradictions which thedefence tried to bring on record, they are insignificant.Hesubmitted that in fact, all these witnesses have corroboratedthe prosecutrix.They all are residents of Randhikpur but lost their houses inthe riot.She has mentioned thenames of Saddam so also Mumtaz, though she has statedthat her father PW 24 Abdul also left Randhikpur with them.After going through the evidence of PW 24, it is found thatthough he left Randhikpur with the prosecutrix, he returnedback and he did not move alongwith the prosecutrix on thesame day.He stayed back to look after his cattle.222 The prosecutrix in para 40 of her evidence hasspecifically mentioned about the persons who left Randhikpurand moved from one place to another.She has stated asfollows:223 In para 3 of her evidence, the prosecutrix hasstated that her maternal aunt Bibi came to her and sheadvised them to leave the residence immediately in view ofthe violent developments in the village.This shows that all the members of herfamily had left home and some of the members in her groupformed one group, who proceeded in one direction.So, atthe time of the incident, he was hardly 8/9 years old.Considering his age, he was capable of remembering theincident.He has stated that he was residing in Randhikpur.He left the house because all Hindus were burning the housesof Muslims.Then, he alongwith the prosecutrix, his motherAkli and other family members left Randhikpur.2-3 daysafter they left Randhikpur, two white colour vehicles arrived.The people in the vehicles were giving slogans.He has stated that there was no jungle at the place where hewas hit with stone.He gave admission that a big stone waskept on his stomach, however, he removed the stone and heran away.He submitted that Saddamalong with Mohsin/Hussain was at CHC, Limkheda on 2 ndMarch, and this falsifies the presence of Saddam at the spotand thus, his evidence is not to be relied upon.The injuriessustained by him were very minor which is possible by somefall.Mr. Ponda discussed the evidence of medical record ofSaddam, Mohsin and the prosecutrix which is maintained byCommunity Health Centre, Limkheda.He pointed out thatthe Medical Legal Case (MLC) register Article 38 and OPDregister of CHC Limkheda (Article 37) are produced by theprosecution.Mr. Ponda pointed out that both the registersare not maintained in regular course of business.He has statedthat erroneously the date is shown as 4th February, 2002 butthis discrepancy is explained by witness PW 9 Dr.Therefore, Saddam corroborates the prosecutrixon the point of moving with the group and on that particularday i.e., on 3.3.2002 some persons in white vehicles arrivedat kachcha road and they attacked the prosecutrix and alsoSaddam and other persons.247 However, as far as Saddam is concerned, in his ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:16 ::: 284 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docevidence, he has not deposed about the prosecutrix or anyof her relatives being raped or killed.He has only stated thathis mother was killed and he received injury on account ofstone being thrown at him, hence, his testimony is of limiteduse to prosecution.There are blank pages in MLC register.OPDand MLC registers are the important documents which couldplace contemporaneous record before the Court.Thus, theprosecution had an opportunity to place suchcontemporaneous record, however, it is evident from therecord that PW 9 Dr. Mahto and other doctors and staff atCHC Limkheda did not bother to maintain these registersmeticulously, though it is expected to maintain the registersmeticulously in the regular course of business.These beingthe documents which are supposed to be maintained in theregular course of business, the documents are rightlyadmitted in the evidence as Articles 37 and 38 however theyare not maintained properly in relation to dates is a factwhich is believed by us.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:17 :::263 However, as per the evidence of PW9 Dr.Mahto, hehad attended 3 patients, i.e., Saddam and Mohsin on thenight intervening 3rd March and 4th March, 2002 and ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:17 ::: 299 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docthereafter the prosecutrix on 5th March, 2002 at CommunityHealth Centre.264 The prosecutrix was subjected to medicalexamination twice.First, on 5.3.2002 by PW 9 Dr.Mahto atCHC Limkheda and thereafter on 7.3.2002 at Godhra civilhospital, Godhra by PW 17 Dr.Rohini Katti and DW 3 Dr.PW 17 Dr.Rohini Katti is a resident of MadhyaPradesh and M.S. in Gynaecology.DW 3 Dr.Geeta Pisagar isa resident of Gujarat.DW 3 Dr.Geeta Pisagar was M.D. inGynaecology.On 7.3.2002, the prosecutrix was brought toGodhra civil hospital and PW 17 Dr.Rohini Katti was informed ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:18 ::: 300 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docby persons who produced her that it was a case of rape.Thereafter, she examined the prosecutrix along with DW3 Dr.Geeta Pisagar, who was her senior.The case papers of theprosecutrix were prepared (Exh. 138, 138A and 143).Afterexamination by the two Doctors, PW17 Dr. Rohini Katti sent awritten report to the police in writing.The said report dated7.3.2002 is in her hand-writing (exhibit 137).Dr. Katti statedthat the prosecutrix disclosed to her that she along with herrelatives left Randhikpur due to riots and when she was onroad leading to Panivel along with her relations, a mobattacked them and killed her relations and she was raped bythree persons.She disclosed the names of rapists that isaccused nos.1 to 3 which was mentioned in the medicalhistory.He has statedthat he was taken to Kottar i.e., the ravine at around12.30pm.There, he found two Doctors - one male andanother female and others.He found 7 bodies lying including ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:21 ::: 329 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc4 female and three children.He went alongwith the police.He dug a waist deep pit and all dead bodies were buried inthe pit.320 In the case of Sevaka Perumal (supra), theaccused were involved in the purchase and sale of ganja.APPEAL AGAINST ACQUITTAL328 Accused Nos.1 to 12 were prosecuted for theoffences punishable under sections 120B, 143, 147, 148, 302read with 149 /34, 376(2)(e) & (g) & 376(2)(g) of the IndianPenal Code.Accused Nos. 13 to 20 were prosecuted for theoffences under Sections 120B, 201 r/w 34 of IPC and 217 &218 r/w 34 of IPC.The trial Court by its judgment and orderdated 21.1.2008 convicted accused Nos.1 to 12 and 17 under ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:25 ::: 375 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docvarious sections as under:328 Accused Nos.1 to 12 were prosecuted for the::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:25 :::(i) accused Nos.1 to 12 are convicted for the offence punishable under sections 302 r/w 149 and sentenced to suffer R.I. for life and fine.330 Mr. Venegavkar has submitted that the learnedJudge has erred in acquitting all these accused.He arguedthat the Trial Court has discussed the evidence against theaccused Nos.13 to 16 and accused Nos.18 to 20 only inparagraphs 434, 435 and 436 of the judgment.There are manipulations.Briefly stated her evidenceshows that though she disclosed the names of the offenders,the police of Limkheda Police Station asked her why shedisclosed the names of the offenders and the factsconcerning rape on her and if she would be taken to hospitalfor examination in that regard, she would be given poisonousinjection at the hospital, so she was frightened.However, she was leftout because she informed that she was pregnant and whenshe regained consciousness, she saw the dead bodies of herrelatives and she was frightened, so she went up the hill andhid there.She stayed there for entire day and night and thenshe came down.She drank water at hand pump.These omissions are in relation towhat was stated by the prosecutrix.These omissions areportion marked A and omission about taking photographs of7 dead bodies by PW 10 Soni on 5.3.2002 is marked B in thesaid statement.Onidentification of corpses, PW 34 Amrutsingh Khant has statedthat one Abdul Sattar had come to the spot, identified onecorpse i.e., of Aminaben and after conducting the post-mortem by accused No.19 and 20, the corpses were buried atthe site.He has stated that he got the labourers at theinstance of accused No.13 Narpatsing.Ponda argued that the letters at exhibits 147to 150 collectively, i.e., the correspondence between PW 18Jayanti Ravi, District Magistrate and Collector, Godhra and ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:29 ::: 407 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docShri Jadeja, SP, Dahod, disclose that the progress in theinvestigation was communicated by the police officers ofLimkheda police station to the higher authority and Mr.Jadejawas personally supervising the entire investigation.(ii) In Exh. 148A collectively, there is another letterwritten by PW 18 District Magistrate, Panch Mahal Godhra tothe District Superintendent of Police, Dahod dated 11.3.2002in which she has requested to inform progress in the case;(iv) Exh. 148C is another letter dated 3.5.2002 writtenby PW 18 Jayanti Ravi to Mr.A.K. Jadeja, the Superintendentof Police, Dahod, where she has referred to his report dated11.4.2002 which showed that nobody was arrested from thepersons named in the complaint and she requested thatmatter be taken seriously and the report of action taken byhim to be sent to her and National Commission for Women,Delhi.(v) Exh. 148D is a letter dated 27.6.2002 written byPW18 Jayanti Ravi to the District Superintendent of Police,Dahod.She informed that immediate legal action be takenagainst offenders as report of the proceedings is to be sentto the Government and she sent the copy of the same to theAdditional Chief Secretary, Home Department.In this letter,she specifically stated "Till today no report of proceeding isreceived from you".(vii) Exhibit 149 is a letter dated 8.7.2002 written byPW 18 District Magistrate, Panch Mahal, Godhra to theAdditional Chief Secretary, Home Department, Sachivalaya,Gandhinagar.In the present case, in the inquest panchanama, theDoctors have only mentioned injury to private part of onedeceased.On perusal of the photographs, one can easilymake out that the females were sexually abused when theywere put to death.It was not one incident of rape but as perthe case of prosecution, nearly 3 to 4 females were raped.4bodies of females were found.She was wearing a red colour blouse, cream colour red design saree and a petticoat.However, her petticoat is over the waist portion.The lower portion is naked.The medical officers are independent persons; they have to carry out postmortem independently as they are experts and write true and correct facts in respect of injuries and the cause of death.367 The postmortem reports are at Exhibits 282A, 282B, 282C, 282D, 282E, 282F and 282G. The brief details of the post mortem reports are as under:postmortem and postmortem notes of all the bodies are allimportant documents which are required to be looked into todecide how the investigation by the police and thepostmortem conducted by the Doctors were perfunctory andmanipulated and done in order to cause disappearance ofevidence and to screen the offenders i.e. accused nos.1 to12.369 The police officer is supposed to send a report (asper the procedure in Gujarat) to the Doctor to conductpostmortem.As per the case of the police, they wentalongwith Doctors for the first time on 5.3.2002 on the spotwhere 7 bodies were lying and the postmortem wasconducted on the spot on the same day.On5.3.2002, all the medical reports were written there at 10.10am.In all the medical reports, the clauses are filled in.427 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docHowever, the inquest was conducted between 10 am to 12noon.That means the reports Exh. D105(1) to D105(7) wereprepared prior to inquest.JUDGMENT [PER SMT.V.K. TAHILRAMANI, J.] :Original accused no. 17 - Somabhai Koyabhai Goriexpired during the pendency of the appeal, hence, the appealstands abated in relation to him.He was convicted for theoffence under Sections 217 and 218 of IPC.Criminal AppealNo.1023 of 2009 is preferred by KesharbhaiKhimabhai Vohania, Pradip Ramanlal Modhiya and BakabhaiKhimabhai Vohania who are original accused nos. 7, 8 and 9.Criminal Appeal No. 487 of 2010 is preferred by RadheshyamBhagwandas Shah who is original accused no. 5.2 The appeals have been preferred by accused nos. 1, 2and 4 to 12 against their conviction and sentence under ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:47 ::: 8 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docSections 143, 147, 302 read with Section 149, 376(2) (e) &::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:47 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:47 :::For the offence under Section 143 ofIPC, the accused nos. 1, 2 and 4 to 12 have been sentencedto rigorous imprisonment (R.I.) for six months.For theoffence under Section 147 of IPC, they have been sentencedto R.I. for two years.For the offence under Section 302 readwith Section 149 of IPC, they have been sentenced toimprisonment for life and fine of Rs.2000/- on each count ofmurder and in default of payment of fine, to suffer R.I. for afurther period of two years.For the offence under Section376(2)(e) & (g) of IPC, they have been sentenced to lifeimprisonment and fine of Rs.2000/- each in default to sufferR.I. for a further period of two years for having committedgang-rape on the prosecutrix i.e. Bilkis Yakub Rasul Patel whowas pregnant at the time of the incident.For the offenceunder Section 376(2)(g), they have been sentenced to R.I. forten years and fine of Rs.2000/- each in default, R.I. for a ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:47 ::: 9 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docfurther period of two years for having committed gang-rapeon Halima Abdul Issa Ghachi and Shamim Musa Patel.Inaddition, accused No. 1 has assailed his conviction underSection 148 of IPC for which he was sentenced to R.I. forthree years.The trial Court directed the sentences ofimprisonment to run concurrently.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:47 :::3 Criminal Appeal No. 271 of 2011 has been preferred byCentral Bureau of Investigation (C.B.I.) for enhancement ofsentence imposed on original accused no. 1- JaswantbhaiChaturbhai Nai, accused no. 2- Govindbhai Nai and accusedno.4 Shailesh Chimanlal Bhatt.Criminal Appeal No. 194 of2011 has been preferred by C.B.I. against acquittal underSections 201, 217 and 218 IPC of original accused nos. 13 to20 i.e. accused no.13 - Narpatsingh Ranchodbhai Patel,accused no. -14 Idris Abdul Saiyed, accused no. 15-Bhikhabai Ramjibhai Patel, accused no.16 Ramsingh MitlibhaiBhabhor, accused no. 17- Somabhai Koyabhai Gori, accusedno.18 - R.S. @ Ramabhai Bhagora, accused no. 19 - Dr. ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:47 ::: 10 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docArunkumar Ramkishan Prasad and accused no.20 - Dr.Sangeeta Arunkumar Prasad.As stated earlier, accused No.17 expired during pendency of the appeal, hence, the appealabates as far as he is concerned.As all these appeals havebeen preferred against the judgment and order dated21.1.2008 passed by the learned Special Judge, GreaterMumbai in Sessions Case No. 634 of 2004, we have heard allthe appeals together and they are being disposed of by thiscommon judgment.For the sake of convenience, the accusedare being referred to as they were referred before the trialCourt.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:47 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:47 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:47 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:47 :::First she was raped by accused no.1- Jaswantbhai Chaturbhai Nai, then by accused no. 2 - ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:47 :::The prosecutrix was totally naked.Shefound one petticoat (Lengah) nearby.She wore the same andcrawled upto the hill-top and hid there.The next daymorning, she came down on the other side of the hill.Thereshe met one woman i.e PW 11 Sumaliben who gave her someclothes.The prosecutrix drank water from the hand-pumpwhich was nearby.She saw a jeep with some persons inuniform.Accordingly, herecorded the statement of the prosecutrix which is at Exh.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:47 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:48 :::Original statement of the prosecutrix recordedby PW 23 Executive Magistrate was also sent to ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:48 ::: 18 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docSuperintendent of Police Dahod along with letter of PW 18Jayanti Ravi.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:48 :::(IV) On 6th November, 2002, accused no. 18 R.S. @Rambhai Bhagora submitted "A" Summary report statingthat the case was true but undetected and the culprits werenot found and requested for closure of the case, however,the Court did not accept the closure report and directed tocontinue investigation.In February, 2003 Limkheda Policeresubmitted "A" Summary report requesting for closure ofthe case which came to be accepted by the Court.Thereafter, the prosecutrix supported by human rightsactivists filed Criminal Writ Petition No. 118 of 2003 (Exh.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:48 :::Thesepanchnamas were drawn in the presence of the witnesses PW28 Bhavin Patel, PW 10 Soni and PW 32 Vinodbhairespectively.The CBI recorded the statements of thesewitnesses so also a number of witnesses including theprosecutrix.The scene of offence panchnama i.e. spotpanchnama Exh. 131 was drawn on 13.3.2004 by CBI in thepresence of PW 73 Somabai Chauhan.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:48 :::5 Charge came to be framed against originalaccused Nos. 1 to 20 under Section 120B of IPC.Furthercharge came to be framed against accused Nos. 1 to 12 andother unknown persons under Sections 143, 147, 148, 302r/w 34 alternatively under Section 302 r/w 149 of IPC; 376(2)(e) & (g) and 376 (2)(g) of IPC.Further charge came to beframed against accused Nos. 13 to 20 and other unknownpersons under Section 201 r/w 34 of IPC.Further chargecame to be framed against accused Nos. 13 to 20 underSections 217 and 218 r/w 34 of IPC.All the accused pleadednot guilty to the said charge and claimed to be tried.Thedefence of the accused is that of total denial and false ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:48 ::: 21 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docimplication.After going through the evidence adduced in thepresent case, the learned Sessions Judge convicted andsentenced some of the accused and acquitted some of theaccused as stated in the earlier paragraphs.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:48 :::6 We have heard the learned counsel for therespective parties.After giving our anxious consideration tothe facts and circumstances of the case, arguments advancedby the learned counsel for the parties, the judgmentdelivered by the learned Judge and the evidence on record,for the below mentioned reasons, we are of the opinion thatin so far as accused nos. 1, 2 and 4 to 12 is concerned, nointerference is called for as far as their conviction andsentence as imposed by the learned Trial Judge is concerned.Accused no.3 had expired pending trial, hence, the caseagainst him stood abated.The case against accused no.17also stands abated.As far as accused nos. 13 to 16 and 18to 20 are concerned, for below mentioned reasons, we are ofthe considered opinion that their acquittal under Sections 201 ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:48 ::: 22 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docand 218 IPC deserves to be set aside.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:48 :::EVIDENCE OF THE PROSECUTRIX:7 Evidence of the prosecutrix (PW 1) is the heart ofthe case, though PW 8 Saddam is examined to corroboratethe fact of attack and assault, however, the prosecutrix is theonly witness on whose evidence the entire case of theprosecution stands.There are many aspects to her evidence.The police took down her statement but it was not read overto her.The police forcibly obtained her thumb impression.Then, she was taken for examination to civil hospital alongwith PW 7 Madina and one lady constable i.e., UshabenKishori (DW 7).She narrated the facts to the medical officeri.e, PW 9 Dr.Rakeshkumar Mahato.Thereafter, when shecame back to the police station from the hospital, she metAbdul Sattar Ghachi, who had been taken to the spot ofoffence and he informed that all her family members weredead.The next day, she was removed to Godhra RefugeeCamp.There, she met her aunt Sugra Issa (PW 3) and alsotwo social workers, namely, Lateefaben and PW 5 SharifaAbdul Razzak Umarjee.She had handed over the clothesworn by her to her aunt Sugra as she was wearing theclothes given to her at the Camp.Then, she was taken to ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:49 ::: 27 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docGodhra hospital on 7.3.2002 where she was examined by PW17 Dr. Rohini Katti.She disclosed to Dr.In the saidExhibit, it is mentioned that alleged history of rape five daysback by three persons viz. Jaswantbhai Nai, Govindbhai Naiand Naresh Modhiya (accused nos. 1 to 3), patient was at herresidence at Randhikpur on 28.2.2002, she along with herfamily members ran away from Randhikpur to Chapparwadvillage and then to Kuwajar village and then finally reachedPanivel.On the way to Panivel, a mob killed her relatives andraped her.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:49 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:49 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:49 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:49 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:49 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:49 :::Accused No.19 and 20 are theDoctors, who performed the post-mortem on the 7 deadbodies.Whether the accused Nos.1 to 12 were the assailantsor not will be tested on the basis of truthfulness and credenceof the evidence of the prosecutrix.IDENTIFICATION OF ACCUSED NOS.1 TO 12 BY THEPROSECUTRIX:10 On identification of the accused, the prosecutrixhas stated in examination in chief that she knew the accusednos.1 to 12 as they are the residents of Randhikpur.Inparagraph 123 in the cross, she has deposed that she knewfather of accused no. 5 Lala Vakil and accused no. 6 Laladoctor.11 Specific defence was taken by the accused inparagraphs 339 to 350 in the cross-examination of theprosecutrix.Specific suggestion was made about ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:49 ::: 29 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doceach accused that there was some grudge or grievanceagainst these accused in the mind of the prosecutrix and herfamily members and, therefore, she took opportunity to settlethe score.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:49 :::12 A suggestion was given that accused no.3 NareshkumarRamanlal Modhiya was running hotel and drainage water ofthe hotel was running into the courtyard of the house of herfather.Though the prosecutrix has denied the fact of flowingof drainage water, she expressed that she had knowledgethat accused no. 3 was having a hotel at Randhikpur.Accused no. 4 has raised defence that he had taken initiativein demolishing the illegal structures of the shops whichbelonged to some Muslims and therefore, he is falselyimplicated.Similarly, accused no.12 Ramesh Chandana tookthe defence that in the elections he worked in rival groupagainst Kadkiyabhai.In paragraph 345 suggestion was giventhat accused nos. 4 and 11 had house near Randhikpurmosque.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:49 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:49 :::30 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc13 In paragraphs 346 and 347, she admitted that herfather was a patient of accused Lala doctor.It was suggestedthat her father did not make payment of medicines.Suggestion was given that Lala doctor is handicapped since1993 which she has rejected.Suggestion was givenregarding accused no.8 Pradip Ramanlal Modhiya that he wasrunning shop at Mosque, however, he had to close down theshop.14 From the examination in chief of prosecutrix, it is foundthat she knew the accused Nos.1 to 12 by face as they allwere residents of her village Randhikpur.From the questionsput and the suggestions given in the cross-examination of theprosecutrix, it can be gathered that the fact of identificationof these accused persons by the prosecutrix was not an issueof challenge.15 As regards the other accused i.e., accused Nos.13to 18 being police personnel and the charges they are facing, ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:49 ::: 31 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docthere is no question of identification of these accused by theprosecutrix.Same is the case with accused Nos.19 and 20,i.e.the Doctor couple who had signed the post-mortem reportExhs.411A and B to Exh. 417 A & B and who were admittedlypresent on 5.3.2002 on the spot and conducted the post-mortem.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:49 :::THE FIR (EXHIBIT 56)16 Mr.Ponda, the learned Counsel for the appellants,submitted that the prosecutrix did not take the names ofaccused Nos.1 to 12 in the FIR Exhibit 56 when her FIR wasrecorded at Limkheda police station.She did not sayanything about the killing of her daughter while giving theFIR.So also she has not stated anything about rape on herby accused nos. 1 to 3 in her FIR.As per the case of theprosecution, the prosecutrix and the accused nos. 1 to 12are the residents of village Randhikpur and she knew them.The incident took place on 3 rd March, 2002 yet she did notsay a word about them on 4.3.2002 when her FIR was ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:49 ::: 32 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docrecorded.She was sent for medical examination to DoctorMahato (PW 9) on the next day i.e. 5.3.2002 where also shekept mum.Thereafter on 6.3.2002, her statement Exhibit277 was recorded at Godhra Relief Camp by PW 23Govindbhai Patel, Mamlatdar, wherein for the first time, shehas stated the names of accused nos. 1 to 12 and stated thatshe and her female relations were raped and some of herrelatives were killed by them.He submitted that thisconduct of the prosecutrix is very unnatural and doubtful.Ifat all, she was raped and if her 3 year old daughter waskilled, she would have said it when she gave the FIR.Ponda further submitted that according to the prosecutrix,when she was sent to the Doctor on 5.3.2002 with a ladyconstable (DW 7 Ushaben Kishori), she told everything toUshaben.However, Ushaben was not examined by theprosecution and, therefore, the defence examined her as DW7, who deposed that nothing was narrated to her by theprosecutrix.Neither the fact of rape nor the names of therapists and assailants were disclosed to the Doctor PW 9 ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:50 ::: 33 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docDr.Mahato who examined the prosecutrix on 5.3.2002 at CHCLimkheda.Mr. Ponda submitted that this falsifies herevidence.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:49 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:50 :::17 Mr. Ponda further pointed out that on 7.3.2002, theprosecutrix sent a fax (Exhibit 57) to Collector of Dahod andgave different names regarding the persons who raped herand stated that she was raped by accused Nos. 2, 4, 5 & 6.She was examined by PW 17 Dr.The learned Counselthus, argued that the evidence of the prosecutrix is veryshaky and cannot be believed.18 Mr. Ponda pointed out that the timing of recording ofFIR (Exhibit 56) was 10.45 a.m. to 11.15 a.m. on 4.3.2002.Learned counsel Mr. Ponda relied on the register of the FIRi.e., Article 17 wherein the timing is mentioned.Hesubmitted that there was no delay in recording the ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:50 ::: 34 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docstatement of the prosecutrix i.e., FIR by Limkheda police.Asper the evidence of the prosecutrix, she reached Limkhedapolice station at around 10.00 a.m. and immediately, her FIRwas recorded by accused No.17 and also two other policeconstables, who were examined by the defence one of themis DW 1 Budhsingh Patel, who is the scribe of Exhibit 56 andthe other is DW 6 Chandubhai Tariyad.The learned defenceCounsel argued that the procedure of recording of FIR inGujarat, is brought on record in the evidence of PW 72 K.N.Sinha, the Investigating Officer.Three persons are involvedin recording of the FIR.Accused No.17, DW 1 Budhsingh andDW 6 Chandubhai Tariyad, the police of Limkheda policestation were involved in recording the FIR.He submittedthat there was no time for the police at Limkheda tomanipulate the case of the prosecutrix and create imaginaryand manipulated story of mob of 500 persons attackingthem.Whatever was narrated by her was recorded ad-verbatim in the FIR.In this FIR, she did not mentionanything about rape on her, so also she did not mention ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:50 ::: 35 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docabout the murder of her daughter Saleha by accused No.4.She also did not mention the names of three persons, whoraped her.She did not mention the assailants were fromRandhikpur and she knew them.Therefore, her evidencebefore the Court is completely false and is not to be believed.19 Mr. Ponda pointed out that DW 1 Budhsingh, DW 6Chandubhai Tariyad, and accused No.17 Somabhai KoyabhaiGori, are the police personnel, who recorded the FIR.Hesubmitted that three people could not have stated incorrectfacts.As far as this contention is concerned, it is seen fromthe evidence of DW 1 that accused no. 17 Somabhai wasloudly reading out the material which was being recordedsimultaneously by accused no.17, DW 1 and DW 6, hence,the same contents appear in all 3 copies of the FIR.Ponda then argued that the statements of DW 2 wererecorded on three occasions i.e., on 23.3.2002 by accusedNo.16, on 14.9.2003 and on 27.9.2003 by PW 52 Inspector,CID, Godhra yet he was not examined by the prosecution ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:50 ::: 36 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docbecause they did not want the true story to come up beforethe Court.Mr. Ponda stated that hence, the defenceexamined him to bring the true story before the Court.Ponda relied on the evidence of DW 2 as well asevidence of DW 6 Tariyad.The copies of FIR scribed byDW 1 and DW 6 also show that there was a mob of 500persons.The prosecutrix did not state therein about rape onher by accused nos. 1 to 3 or the fact that she identifiedaccused Nos. 1 to 12 as the assailants.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:50 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:50 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:50 :::20 Mr.Venegavkar while meeting the point has submittedthat the prosecutrix in her evidence has stated that herFIR was not recorded as per her narration.Her thumb ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:50 ::: 37 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docimpression was obtained forcibly and she was threatenedwhen she disclosed the names of the accused.She wasthreatened that a poisonous injection would be administeredto her when she was taken to the hospital for check-up.Hesubmitted that though the prosecution has produced the FIR,he has admitted that the contents in the FIR are differentthan her evidence before the Court.He further submitted thatthe main person who recorded the FIR i.e., accused No. 17Somabhai is made an accused and other persons, who werewriters i.e., DW 1 and DW 6, did not support the prosecutionand have stepped in the box as defence witnesses.ASSESSMENT21 The prosecutrix has deposed that the contents in theFIR Exh. 56 are not true and correct.In the examination inchief as well as in the cross-examination, she has specificallystated that the contents in Exhibit 56 are not true andcorrect.From the evidence of the prosecutrix it is found that ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:50 ::: 38 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docshe was not only illiterate but was from a remote village andwas a rustic lady.In the cross-examination, she has stated inparagraph 79 that she cannot read time from the watch andalso cannot understand the date, month and year from theCalendar.In paragraph 104 of the cross-examination, shehas deposed that she did not understand direction.Inparagraph 144 she has stated that she did not know thatadvocates wear black coats and for the first time she came toknow this when she appeared in the Court.All this showsthat she was a simple illiterate villager, therefore, herevidence has to be appreciated keeping this in mind.22 The entire case is mainly based on a single witness, i.e.the prosecutrix (PW 1).Her examination-in-chief is 14 pagesand her cross-examination runs into nearly 129 pages.However, the entire edifice of theprosecution case stands on the sole evidence of PW 1. ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:50 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:50 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:50 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:50 :::There aresome inherent and inter se omissions and contradictions.In all 72 witnesses are examined by the prosecutionand the defence has tendered evidence of 10 witnesses.Outof the prosecution witnesses PW 34 to PW 44 and PW 48 toPW 72 are the police personnel or the Government officialswho gave sanction or made inquiries and investigated thematter.We have classified the prosecution witnesses i.e. PW1 to PW 73 for the purpose of assessing the evidence of theprosecutrix into four categories - (1) Group of 9 witnesseswho are from village Randhikpur and they have deposedabout the riots which took place on 28 th February, 2002 atRandhikpur, (2) The witnesses the prosecutrix met before theincident; (3) The witnesses who she met immediately afterthe incident on the next day, i.e., 4 th March, 2002; (4) The ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:50 ::: 40 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docwitnesses who met her thereafter i.e., on 5 th, 6th, 7th March,2002 which also includes medical evidence.23 The entire evidence of the prosecutrix is to be read onthe background of the riots and anti-muslim atmosphere atGodhra, Limkheda, Randhikpur and the villages in thevicinity.Her evidence cannot be read without taking intoaccount her fear of death and instinct of survival.In the caselike the prosecutrix, we need to look through the evidence,sift the evidence minutely and carefully, as the truth liesbeyond the layers of omissions and contradictions anddishonest, callous investigation.In all, eight statements of theprosecutrix were recorded and chronologically, they are asfollows:::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:50 :::This was recorded intriplicate and the other two copies are marked at Exhibit 56Aand 56B. The offence was registered at C.R. No. 59 of 2002 ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:50 ::: 41 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docat Limkheda Police Station against unknown persons.AbdulSattar who was the father of PW 19 had expired when theevidence was recorded hence, he could not be examined.Itis the case of the prosecution that accused no. 17 recordedFIR Exh. 56 and as per the procedure followed in Gujarat, FIRis recorded in triplicate and therefore, it is marked Exhibits56, 56A and 56B. The person who scribed the FIR Exh. 56 onthe say of accused no. 17 is DW 1 Budhsingh MathurbhaiPatel who is a constable in Limkheda police station.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:50 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:51 :::26 It is to be noted that the police from Limkheda police ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:51 ::: 43 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docstation did not support the prosecution.At the cost ofrepetition the contents in the statements of the prosecutrixwhich are at Exhs.56 and 277 are reproduced to get a clearidea of variance and manipulation.In Exhibit 56, she hasstated that along with her sisters Mumtaz and Munni,brothers Aslam and Irfan, daughter Saleha, father Abdul Issa,mother Alima and uncles Majidbhai & Yusuf Musa, aunt Akila,Aminaben, cousins Shamimben and Mumtazben andMadinaben, 3 years old son Hussainbhai of Shamim, leftRandhikpur and went to Chundadi.She has stated that on3.3.2002, when she was going to Panivel, at 11 O'clock, amob of 500 persons armed with sticks attacked them.Hertwo sisters Shamim and Mumtaz were raped.They wanted torape her.However, when she informed she was pregnant,they left her.She fainted and when she regainedconsciousness, she found dead bodies of the people from hergroup around her.Then she spent night on the hillock.Thenext day, she came down and drank water at a hand pumpwhen she saw a jeep where a police officer was there and on ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:51 ::: 44 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docher request, she was dropped at Limkheda police station.27 After going through the contents of Exhibit 56 and herevidence, we find that her evidence is different than thecontents in the FIR (Exh. 56).In the cross-examination, thisfact was brought on record and was highlighted elaboratelyby the learned Counsel Mr.Ponda.Accused 17 who took down the F.I.R.has been convicted under Sections 217 and 218 IPC.Allthese facts need to be given due weightage against theaccused and the credential of these defence witnesses is to ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:51 ::: 45 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docbe assessed on this background.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:51 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:51 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:51 :::29 There is variance to a great extent in the contents in theFIR (Exh. 56) and the examination-in-chief of PW 1 theprosecutrix.This physical fact of finding of deadbodies of relatives of the prosecutrix is the most importantcorroboration to the evidence of the prosecutrix.30 It also cannot be lost sight of that as the investigationby Gujarat police was not proper, the prosecutrix approachedthe Supreme Court and the Supreme Court transferred theinvestigation to CBI.Looking to all these facts, we hold thatthe FIR Exh. 56 was not correctly recorded and facts havebeen suppressed and twisted therein.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:51 :::STATEMENT OF THE PROSECUTRIX DATED 6.3.2002 (EXH.He submitted that thisstatement corroborates the evidence of the prosecutrix.Thisstatement was recorded by PW 23 Mamlatdar / Executive ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:51 ::: 47 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docMagistrate Govindbhai on directions of PW 18 Jayanti Raviwho was the Collector and District Magistrate Godhra.In thestatement Exh. 277 dated 6.3.2002, the prosecutrix hasstated that mob started burning houses in RandhikpurVillage, hence, they left the village.She has given anarration of her journey from Randhikpur along with personsfrom her group and she said that 20 persons came in twowhite vehicles and attacked them at 12 noon.They strippedthe females in the group including her and raped them.Theykilled some persons in the group.When she gainedconsciousness, she went up the hill and hid herself.Thereafter, she reached Limkheda in police jeep.This statement was giventhree days after the incident.In Exh. 277 the prosecutrix hasmentioned that she and other females were raped and herrelatives were killed by a group of 20 persons, who arrived on ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:51 ::: 48 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docthe spot in two white vehicles.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:51 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:51 :::32 The statement Exh. 277 was recorded on 6.3.2002 byPW 23 Govindbhai Patel under the direction of CollectorJayanti Ravi (PW18).Jayanti Ravi has stated that she cameacross several complaints, one of them was of theprosecutrix.Jayanti Ravi learnt from the prosecutrix thatwhile she and her relations were escaping from violence theywere attacked by a mob.The prosecutrix mentioned thenames of the attackers, hence, Jayanti Ravi directed PW 23Govindbhai Patel to record the statement of the prosecutrix,pursuant to which the said statement was recorded.SECTION 157 OF THE EVIDENCE ACT VIS-A-VIS EXH.277:33 At this stage, it is necessary to deal with the question of ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:51 ::: 49 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doclaw raised by Mr.Ponda in relation to this statement (Exh.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:51 :::277).This statement is marked Exhibit 277 by the trial Court.However, Mr.He submittedthat admittedly PW 23 Patel is not a police person, he wasworking as an Executive Magistrate.Mr. Ponda submittedthat hence, he cannot be said to be an authority legallycompetent to investigate and moreover the statement wasnot recorded immediately after the incident, hence, it cannotbe looked into.Ponda has objected to its admissibility ontwo grounds : (i) the statement was not recorded by anauthority legally competent to investigate and (ii) thestatement was not recorded at or about the time, the incidenttook place.Thereafter, Mr. Ponda objected to admissibility ofExh.277 on the ground that exhibit 277 is not the originaldocument as it is a photocopy of the original statement of theprosecutrix.Mr. Ponda reiterated that in view of these facts ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:51 ::: 50 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docthe statement Exh. 277 of the prosecutrix cannot be relied onby the prosecution for corroboration.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:51 :::34 Mr. Ponda further submitted that this statement cannotbe considered for corroboration because it is neitherimmediate disclosure by the prosecutrix nor it is recorded byan authority who is competent to investigate.So hesubmitted that the statement can be used by the defenceonly for the purpose of omissions and contradictions whichdisclose that the prosecutrix has left out important materialfacts which took place at the time of incident.This, accordingto Mr. Ponda, shows that the prosecutrix was not present atthe time of the incident.35 Mr.He also submitted that out of omissions, omissionNos.4, 7 and 8 are important.They are thus:::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:52 :::Omission No.4 - Shamim was about to deliver;Omission No.7 - Saleha was smashed by accused No.4;Omission No.8 - accused Nos.1, 2 and 3 who raped her were from Randhikpur.36 As far as the above omissions are concerned, it isnoticed that this statement of the prosecutrix is very brief.The prosecutrix has briefly stated about her journey fromRandhikpur to the kachcha road and about the incident itself.She may not have stated that Shamim was about to deliverbut she has stated about rape on them & that her relationswere murdered which included her daughter.She may nothave mentioned that accused no. 4 smashed her daughterbut she has stated that her relations were murdered.Herdaughter also fell in the cateogry of relations.As far as not stating that accused ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:52 ::: 52 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docnos.1 to 3 were from Randhikpur on perusal of Exh. 277, wefind that she has categorically stated that all 12 accused i.e.including accused nos.1 to 3 were from Randhikpur.Thus,there was no basis, to raise this contention.37 On section 157, Mr.Ponda has submitted that thestatement has to be recorded by the authority which iscompetent to investigate.The powers of investigation are tobe allotted to that authority otherwise the statement cannotbe taken into consideration.In order to substantiate hissubmissions on this point, he relied on the followingjudgments:::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:52 :::ii) Tubarak Mandal vs. The King (AIR 36 1949 CalcuttaIn the said decision, a report about a fact wasmade 24 hours after it took place and therefore, it was notconsidered at or about the time of the occurrence of the fact,hence, it was not taken into consideration.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:52 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:52 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:52 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:52 :::He submitted that the gap of time between the incident andthe recording of statement being a number of days, thestatement cannot be regarded as one under Section 157 ofthe Evidence Act.46 Mr.Venegavkar, the learned Prosecutor, opposedthese submissions and submitted that while considering thescope of section 157, this statement which is recorded by PW23 who is an Executive Magistrate / Mamlatdar is admissibleand can be considered under section 157 of the Evidence Act.47 Mr.Venegavkar on the point of admissibility of Exh.277 recorded by PW23 Govindbhai Patel, has submitted thatthe prosecutrix narrated the facts to District Magistrate /Collector PW 18 Jayanti Ravi and Jayanti Ravi told PW 23Govindbhai to record the statement of the prosecutrix.In fact, the statement was made beforeJayanti Ravi and it was recorded by PW 23 Govindbhai at herinstance and as per section 17 of the Gujarat Police Act, PW18 Jayanti Ravi was legally competent to investigate a fact.Section 17 of Gujarat Police Act reads thus:::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:53 :::Control of District magistrate over Police Force in district:(1) The District Superintendent and the Police Force of a district shall be under the control of the District Magistrate.(2) In exercising such control the District Magistrate ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:53 ::: 62 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc shall be governed by such rules and orders as the State Government may make in this behalf.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:53 :::During this period, the LimkhedaPolice did not take down a true account of the incident,hence, she was helpless.She was sent to Godhra ReliefCamp on 5.3.2002, hence, when the District Magistrate mether on 6.3.2002, it was the first opportunity for her to give ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:53 ::: 63 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doctrue account of the incident.Taking into account thesequence of events, making a statement by the prosecutrixon 6.3.2002 can be said to be at or about the time of theincident.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:53 :::48 Mr. Venegavkar further submitted that in Exh. 277,there is no omission pertaining to rape but there is omissionregarding killing of the daughter, however, she has statedthat some of her group were killed.Former statements of witness may be proved to corroborate later testimony as to same fact.--In order to corroborate the testimony of a witness, any former statement made by such witness relating to the same fact, at or about the time when the fact took place, or ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:53 ::: 64 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc before any authority legally competent to investigate the fact, may be proved.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:53 :::In thecamp, on 6.3.2002, PW 18 District Magistrate and CollectorJayanti Ravi met the prosecutrix.When the prosecutrixnarrated the incident to her, Jayanti Ravi directed PW 23 ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:53 ::: 67 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docExecutive Magistrate / Mamlatdar Govindbhai to record thestatement of the prosecutrix.The atmosphere in LimkhedaPolice Station was hostile to the prosecutrix, hence, there wasno occasion on 4.3.2002 and 5.3.2002 for the prosecutrix torecord her statement giving true and correct facts.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:53 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:53 :::51 In the present case, PW 23 Govindbhai Patel whorecorded the statement of the prosecutrix on 6th March, 2002,was an Executive Magistrate, who accompanied PW18 JayantiRavi, the District Magistrate, Godhra to the Godhra ReliefCamp on 6.3.2002 and on direction of Jayanti Ravi, PW23Patel recorded the statement of the prosecutrix.He was nota person competent to investigate but PW 18 Jayanti Ravi inview of Section 17 of the Gujarat Police Act had control overthe police force which is an investigating agency.Moreover, ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:53 ::: 68 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docwe are not agreeable to the contention that the disclosurewas not at or about the time of the occurrence of the fact.The incident of killing and rape has taken place on 3.3.2002in the morning.The prosecutrix remained on the hillockovernight out of fear as her relatives were massacred inbroad daylight.She went to Limkheda police station on4.3.2002 and as per her case, the police did not support herbut they threatened her and tried to suppress her case.Thereafter, she was sent for medical examination on5.3.2002 where a male Doctor examined her.This Doctor i.e.PW 9 Dr. Mahto did not understand Gujarati and theprosecutrix did not understand Hindi, hence, there was acommunication gap between them.Thereafter theprosecutrix was sent to Godhra relief camp.There, she metother ladies and as she was crying, they enquired and shedisclosed this fact of killing of her relatives and the rapecommitted on her and other females in the group.Undoubtedly, the trauma of sudden attack and murder of herrelatives and of the rape was so horrifying that the delay of ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:53 ::: 69 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doctwo days in the disclosure of the true facts by the prosecutrixcannot be said to be late.The disclosure was definitelyproximate to the fact of occurrence.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:53 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:53 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:54 :::53 Thereafter Mr. Ponda objected to admissibility ofExh.The prosecution brought the saidentries on record by examining the police constables i.e., PW48 Rameshbhai Walabhai Babhor and PW 50 Ganpatsingh D.Khant, the constable at Limkheda police station.Thusoriginal statement dated 6.3.2002 was sent from Dahod toLimkheda police station.Thereafter, in the year 2004, all thepapers of investigation were taken over by CBI underpanchanama dated 5.1.2004 (Exh. 267) and 20.1.2004 ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:54 ::: 72 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc(Exh.268) which is brought on record through PW 52 KalubhaiVohaniya and the said statement of the prosecutrix dated6.3.2002 was not found in those papers and therefore, theprosecution relied on and tendered the secondary evidencei.e., the office copy of the statement preserved by the DistrictCollector, Godhra, which is on record, i.e., Exh. 277.54 PW 52 Kalubhai Vohania has stated that he was PI,CID, Godhra.He stated that he handed over investigation inthe present case to PW 72 Deputy Supdt.of Police K.N.Sinhaof CBI.They collected the papers from CID, Godhra, whowere investigating the matter.The case papers of theinvestigation were handed over to CBI by panchanama dated5.1.2004 marked Exhibit 267 and muddemal articles werealso handed over to CBI under memorandum of seizure (Exh.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:54 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:54 :::In the evidence of PW 23 Govindbhai, hehas specifically stated that the original of the said statementwas sent to SP, Dahod and in para 9 of this evidence, he hasspecifically mentioned that despite efforts, the original ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:54 ::: 73 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docstatement of the prosecutrix dated 6.3.2002 was not traced.However, he identified the office copy of the said statement.In view of theevidence on record, we are of the opinion that this copy Exh.277 can be taken into consideration and relied on.Thus,prosecution has sufficiently explained the reasons that whyoriginal of Exh. 277 was not with CBI hence this photocopywhich was an office copy was tendered.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:54 :::55 At this juncture, we asked a question to ourselvesas to whether the names of the assailants mentioned in thestatement dated 6.3.2002 (Exhibit 277) was a manipulationby the prosecutrix.On 4th March 2002 after 10.45 a.m. shestayed at Limkheda police station.The evidence of PW 35Ranjeetsingh Patel shows that the prosecutrix on 4.3.2002stayed overnight at Limkheda Police Station.On 5 th March, ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:54 ::: 74 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docalso she was at the police station thereafter, she was shiftedto Godhra Relief Camp.There was no opportunity to tutorher at Limkheda Police Station.Moreover, it was not possiblefor anyone to take her outside the police station on 4 th and 5thto tutor her.Almost all in the group of the prosecutrix werekilled.The situation outside the police station was totallyfraught with danger, in such case, it is not possible that theprosecutrix would leave the police station with someunrelated person to enable them to tutor her.The only timethat the prosecutrix left the police station between 4 th and 5thMarch was when she was taken to Community Health Centre(CHC) Limkheda for checkup.At that time, DW 7 PoliceConstable Ushaben accompanied her, therefore, there was noscope for tutoring.Thus, the defence hasunsuccessfully tried to create a cloud of suspicion that on the ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:54 ::: 75 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docnight of 4th or 5th March the prosecutrix was not at Limkhedapolice station and she was tutored by social workers andNGOs and to that effect, questions were put to her.However,the movements and stay of the prosecutrix at Limkhedapolice station and Godhra Relief Camp cannot be doubted.Moreover, it cannot be said without any foundation that thenames given by the prosecutrix in the statement dated6.3.2002 (Exh. 277) were imaginary or false.56 The statement (Exh. 277) recorded by PW 23Executive Magistrate Govindbhai on the instructions ofDistrict Magistrate & Collector PW 18 Jayanti Ravi was madeby the prosecutrix as early as can reasonably be expected inthe facts and circumstances of this case.Thus, the statementis admissible in evidence as it was made at or about the timethe fact occurred, so it can be used for the purpose ofcorroboration under section 157 of the Evidence Act. Thus,we have no hesitation in relying on the same. ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:54 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:54 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:54 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:54 :::However, she was threatened that she will be given apoisonous injection when she gave the names of accused andher FIR was not correctly recorded.The prosecutrix was inLimkheda Police Station till she was taken to Godhra ReliefCamp.In the hostile atmosphere which was prevailing atLimkheda Police Station the prosecutrix could not do anythingfurther as she was helpless.However, when the prosecutrixwas taken to Godhra Relief Camp on 6 th, she met PW 18District Magistrate Jayanti Ravi to whom she disclosed allthese facts which were recorded in her statement Exh. 277.The prosecutrix stated that as mob had started burninghouses in Randhikpur on 28th she along with others ran fromvillage Randhikpur and reached Chundadi village.They ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:54 ::: 77 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docstayed at Kuwajar.They stripped her, her sisters, her twoaunts, daughters of paternal aunts and raped them.Theyalso killed some of the persons in the group.She lay on theground as if she was dead.The attackers thereafter left.When she gained consciousness, she went up the hill and hid.She named accused nos. 1 to 12 as some of the personsfrom the mob who attacked them.This shows that as soonas the prosecutrix was in a free and fair atmosphere and wasnot under threat or fear, she disclosed the names of accusednos.1 to 12 and that they raped her and the ladies in hergroup and murdered the persons in her group.Thus herstatement Exh. 277 is a most important document.We ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:54 ::: 78 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.dochave dealt with it in detail.Suffice to say that PW 18 DistrictMagistrate Jayanti Ravi and PW 23 Executive MagistrateGovindbhai are independent persons, hence, we see noreason to disbelieve their evidence.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:54 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:54 :::In the FIR Exh. 56 she hasstated that a mob of 500 persons attacked them.In the FIR,she neither makes any mention of rape on her nor aboutknowing any of the attackers.However, in her statementExh.277 recorded on 6.3.2003 by PW 23 executiveMagistrate, she mentions that about 20 persons came andraped her and her sisters, aunts and cousins and thataccused Nos. 1 to 12 who are residents of Randhikpur wereamong the attackers.Mr. Ponda submitted that it is the caseof the prosecutrix that 20-25 persons attacked them, out ofthem, she knew accused Nos. 1 to 12 and accused Nos. 1 to 3 ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:54 ::: 79 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doccommitted rape on her.Mr. Ponda stated that the prosecutrixsent a fax Exh. 57 on 7.3.2002 to District Magistrate, Dahodin which entirely different story was given by the prosecutrix.In this fax, she stated that accused Nos. 2, 4, 5 & 6 raped herand she makes no mention of accused Nos. 3, 8, 11 & 12 asbeing part of the mob.Mr. Ponda submitted that theprosecutrix tried to deny this document i.e Fax Exh. 57.However, according to Mr. Ponda, the Fax was actually sentby her.Mr. Ponda submitted that there is reference to FaxExh.57 in W.P.No. 118 of 2003 (Exh. 61) which was preferredby the prosecutrix before the Supreme Court assailing thefaulty investigation in her case.He submitted that referenceis made to this Fax in para 4(vi) of the Writ Petition.Thefamily status of the prosecutrix is mentioned and there isreference to Godhra riots and that she and total 17 personsleft Randhikpur to save themselves.On the point of incident,it was mentioned that when they were passing between 2hills, 30-40 people from Randhikpur and Chapparwad came intwo white cars.The names of accused nos. 1, 2,4 to 7, 9 and ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:55 ::: 80 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc10 is mentioned and that they were holding swords, knives,sticks, etc. It is mentioned that they were shouting to beat,kill them.They tore clothes and raped the women includingher and killed the family members including her 3½ year olddaughter.The names of the persons, who raped her weregiven as accused no.2 Govind, accused No.4 Shailesh Bhatt,accused No.5 Lala Vakil (Radheshyam Shah) and accusedNo.6 Lala Doctor (Bipinchandra Kanaiyalal Joshi).Then shementioned that she spent the night on the hill.Thereafterthe police arrived there.They saw her.They provided herclothes and took her to Limkheda and thereafter to ReliefCamp.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:54 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:55 :::59 Mr.Ponda has argued that the said document i.eExh. 57 was relied upon by the prosecutrix in her WritPetition (criminal) No. 118 of 2003 preferred before theSupreme Court.The prosecutrix in her evidence hasadmitted that she has filed the Writ Petition.Mr. Pondapointed out that Exhibit 57 was one of the annexures to the ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:55 ::: 81 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docsaid petition.He submitted that in ground No.4(vi) of thewrit petition, she referred to this fax and she herself hasannexed a copy of the Fax (Exhibit 57) at Annexure P4 to theWrit Petition.He submitted that as these annexures wereadmitted and relied by her in the writ petition, which wasfiled before the Supreme Court, then, it is to be considered asan admission on the part of the prosecutrix that she has sentthe Fax and she herself is the author of the Fax Exhibit 57.60 Mr. Ponda further submitted that in Exhibit 57, shegave altogether different version of the assailants.She didnot tell that accused nos. 1 and 3 raped her but she hasstated that the accused nos.2, 4, 5 and 6 had raped her.Inher statement first in time, i.e., FIR Exhibit 56 she iscompletely silent about the incident of rape on her and killingof her daughter.He argued that though PW1 has deniedcontinuously that she did not send fax (Exhibit 57), herevidence is false.She has been telling lies throughout beforethe Court because she herself has annexed and relied on this ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:55 ::: 82 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docfax (Exhibit 57) in the Writ Petition (Exhibit 61) filed by herbefore the Supreme Court.In paragraph 4(vi) of Exhibit 61,she has mentioned that she relied on the annexures andreferred to this statement of hers dated 7th March, 2002.Thus, she is the author of Exhibit 57 and she cannot nowdeny the contents of the Fax.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:55 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:55 :::61 As far as the above submission is concerned, inpara 4(vi) of the Writ Petition, we find that she has mentionedthat her another complaint was filed before "Godhra policestation" on 7.3.2002, whereas the Fax is sent to "DistrictMagistrate Dahod".It was probablyto this statement to which she made a reference in para 4(vi)of the Writ Petition.In the entire Writ Petition, there is noreference to the Fax.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:55 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:55 :::83 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc62 Mr. Ponda argued that FIR Exhibit-56, Fax Exhibit57 and her other statement recorded on 6th March, 2003(Exh. 277) by PW 23 Executive Magistrate Govindbhai arecompletely inconsistent and differ in details in respect ofculprits.He further submitted that a letter was sent by PWHe referred to the evidence of PW 72 I.O. Mr. Sinha whospeaks about the letter dated 8th March, 2002 (Exhibit D-87)being sent by Dist.He also referred to the letter dated16th February, 2004 (Exhibit 447) sent by District Magistrate,Dahod to Police Inspector, Dahod and the letter dated 17thFebruary, 2004 which is reply by District Magistrate, Dahodto CBI.To this reply, Dist.Magistrate, Dahod annexed copyof Fax (Ex. 57) along with two other documents.Hesubmitted that original fax was to be brought on record forthe purpose of verifying thumb impression of the prosecutrixwhich was purposely not done.It is to be noted that FaxExh.57, FIR Exh. 56 and specimen thumb impression of the ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:55 ::: 84 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docprosecutrix were sent to the finger print expert.The report ofthe finger print expert is marked as Exhibit 445-B which isinconclusive as far as the finger print on Fax Exh. 57 isconcerned.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:55 :::She has given thenames of 12 accused persons therein i.e. accused nos. 1 to ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:55 ::: 85 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:55 :::On 5.3.2002 the prosecutrix was sent to CHC ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:55 ::: 86 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docLimkheda (Community Health Centre Limkheda).She wasaccompanied by DW 7 Ushaben who was the police constablewho took the prosecutrix to CHC Limkheda.This is clearfrom the evidence of DW 7 Ushaben.Ushaben has statedthat CHC Limkheda was at a distance of about 200 feet fromthe police station.Ushaben has specifically stated that whenshe and the prosecutrix were walking, nothing happened onthe way.Ushaben has stated that they were at CHCLimkheda for 1½ hour.Ushaben has stated that she was withthe prosecutrix at CHC Limkheda.Thereafter, they returnedto Limkheda police station.Thus, it is seen that on 4.3.2002and 5.3.2002 the prosecutrix had no opportunity to preparethe Fax (Exh.57) and thereafter send to District MagistrateDahod.Thereafter, the prosecutrix was sent from Limkhedapolice station to Godhra Relief Camp at Godhra.On 6.3.2002the prosecutrix met District Magistrate Godhra (PW 18)Jayanti Ravi and PW 23 Mamlatdar / Executive MagistrateGovindbhai Patel in Godhra Relief Camp.PW 23 Govindbhai ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:55 ::: 87 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docrecorded the statement of the prosecutrix on the say of PW18 Jayanti Ravi.In thisstatement, the prosecutrix has implicated accused nos.1 to::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:55 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:55 :::The evidence of PW 17 Dr. Katti shows that on 7.3.2002at about 6.45 p.m. the prosecutrix was brought to thehospital.Thus, itis not possible that on the very same day at 5.56 p.m. theprosecutrix would send the Fax (Exh.57) giving entirelydifferent story.The history which is reflected in Exhibits 138-A and Exh. 143 shows that accused nos.1 to 3 raped theprosecutrix.It is seen that the Fax (Exh.57) is in English.The Fax (Exh.57) is a neatly typed document.Theprosecutrix is an illiterate villager.Moreover, the prosecutrixwas penniless which is seen from the fact that she wasstripped naked after the incident.Thereafter she found one ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:55 ::: 88 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docpetticoat nearby her.She wore the said petticoat as she hadno clothes on her person.This shows that she had no moneywith her, hence, it would not have been possible for theprosecutrix to get her statement typed and then sent by Faxto District Magistrate Dahod.From the sequence of events,it is clear that the prosecutrix had no opportunity till theevening of 7.3.2002 to prepare and send the Fax, hence, itwould not have been possible for her to send this Fax that tooin English to the District Magistrate Dahod on 7.3.2002.65 The evidence of PW 72 I.O. K.N. Sinha shows thatdespite his best efforts he could not get the original Fax(Exh.57).There is only thumb impression affixed to the Fax(Exh.57) which as per the Expert's opinion, was not proved tobe that of the prosecutrix as it was blurred.Thus, it is seenthat on 4th and 5th she was at Limkheda police station.On 5 thshe was taken from Limkheda police station to Godhra ReliefCamp.On 6th her statement (Exh.277) was recorded by PW23 Govindbhai.This shows that she hardly had any time toprepare this Fax (Exh.57) or any opportunity to do so.On ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:56 ::: 89 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc7.3.2002 the prosecutrix was in Godhra Relief Camp.Moreover, it ishardly possible that the prosecutrix within a span of aboutone hour would give entirely different story before PW 17 Dr.57 was sent by the prosecutrix except the defencewitness DW 10 Shamjibhai Kunjadia who states that one Faxwas received on 7.3.2002 at 5.56 p.m. He has no personalknowledge about who actually sent this fax.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:56 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:55 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:56 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:56 :::90 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc66 Fax (Exh. 57) dated 7.3.2002, shows that it wasaddressed to the District Magistrate and Collector, Dahod.This fax was not relied on by the prosecution but it wasbrought on record by the defence in the cross-examination ofthe prosecutrix.She has denied the authorship of the said faxand also refuted that she was the sender of the said Fax.However, this Fax was in the police record as a copy of thisFax was sent by the Collector, Dahod to S.P.Dahod.DW 10Mr.Shamjibhai Kunjadia i.e., P.A. to Collector, Dahod, hasstated that he has received fax at 5.56 pm on 7.3.2002.Then, by letter dated 8.3.2002 (Exh.446 colly), that fax wasforwarded to S.P., Dahod by District Magistrate, Dahod.Thereafter one R.V. Wankhede, P.I., CBI by letter dated16.2.2004 (Exh. 447) asked for the said fax.The said fax wassent for the opinion of the CFSL regarding thumb impressionof the prosecutrix appearing at the bottom of the Fax.Exhibit445B is the inconclusive report of CFSL dated 19.4.2004,wherein it was opined that the fingerprint is blurred and unfitfor comparison, hence, it was inconclusive.Exhibit 446 ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:56 ::: 91 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doccollectively is a letter dated 8.3.2002 sent by Dist.Magistrate, Dahod to police SP, Dahod and along with that,he sent a copy of the Fax.It was written by Mr.Wankhede, PI, CBI, to theDistrict Magistrate, Dahod, Gujarat.A copy of the Faxmessage dated 7.3.2002 purportedly received from theprosecutrix addressed to the DM / Collector, Dahod and soalso letter dated 8.3.2002 addressed to the SP, Dahod alongwith the letter dated 1.5.2002 written by Dr.Amarjeet Singh,IAS, Commissioner, which is marked at Exh. 446A was askedto be handed over to the CBI for fresh investigation andpursuant to that, a copy of Fax was sent to CBI.Thus, thereis no merit in the submission that the original of Fax Exh. 57was purposely not collected.The evidence shows thatgenuine efforts were made by CBI to get the Fax Exh. 57.67 The contents of Exhibit 57 are different than theother statements of the prosecutrix dated 4.3.2002 (FIR Exh.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:56 :::56) and statement dated 6.3.2002 (Exhibit 277) recorded byPW 23 Mr. Patel, Mamlatdar / Executive Magistrate on ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:56 ::: 92 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docdirections of PW 18 District Magistrate Jayanti Ravi.Thoughthe prosecutrix has admitted the fact of giving of complaint(exhibit 56) to Limkheda police station and has admitted herthumb impression thereon, she has specifically stated beforethe Court that whatever she has narrated to the policeincluding the disclosure of the names of the accused asperpetrators of crime, nothing was taken down but major partof what she told was suppressed and some false statementswere inserted.FIR Exh. 56 was recorded on 4.3.2002.Thereafter, her statement Exh. 277 was recorded on 6.3.2002by non-police person i.e., Mamlatdar PW 23 Mr.Patel at theinstance of the Collector & District Magistrate Jayanti Ravi(PW18) and thereafter this Fax (Exhibit 57) in the name of theprosecutrix was prepared.It is advantageous for thedefence to fix the authorship of the FIR and the Fax on theprosecutrix because of the variance in the contents of thesedocuments.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:56 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:56 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:56 :::93 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc68 It is to be noted that this fax dated 7.3.2002 wasnot addressed to the police at Godhra but it was addressed tothe District Magistrate and Collector, Dahod District.In WritPetition, she has mentioned that she "filed FIR on 7.3.2002 atGodhra police station" and a copy is annexed therewith.On7.3.2002, her statement in fact was recorded by Godhrapolice station i.e., by PW 42 Shivaji Pawar.As statedearlier, the prosecutrix in her writ petition, has not statedanywhere that she had sent a Fax.It is to be noted that herwrit petition is in English.It was preferred through a social ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:56 ::: 94 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docworker working for human rights.A person who signs or putsthe thumb impression below the contents is presumed to bethe author of the contents, however, it is always subject torebuttal if contrary facts of authorship are brought on record.The prosecutrix was illiterate.She used to put her thumbimpression.The manner in which Fax Exhibit 57 is written isnot her expression.The prosecutrix is definitely not theauthor of the said Fax.Aquestion was put to her in the cross-examination thatwhether she was raped by accused Nos.4, 5 & 6, she refusedthe suggestion and stuck to the three names consistently ofaccused Nos.1, 2 and 3 as the persons, who raped her.So,though reference of statement dated 7.3.2002 is made inWrit Petition Exh. 61 it can be seen that the prosecutrix wasnot referring to the Fax Exh. 57 dated 7.3.2002 though itscopy was annexed to the writ petition but she was referring ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:56 ::: 95 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docto statement dated 7.3.2002 recorded by PW 42 Pawar whowas attached to Godhra Police Station.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:56 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:56 :::EXHIBIT-6169 Exhibit 61 is a Writ petition filed by the prosecutrixbefore the Supreme Court.The prosecutrix being illiterate,the Writ Petition was filed by some activist on her behalf.Mr. Ponda relied on paragraphs 170 to 180 ofthe evidence of the prosecutrix and argued that theprosecutrix was tutored by many persons.Many socialworkers met her in the Godhra Relief camp and thereafter ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:56 ::: 96 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docshe came with this concocted version and has falselyimplicated the accused.Specific questions were asked aboutFarha and Umaben who attended the press conference andAdvocate Sheela Bhat, Malini Ghosh and NGO personsMuktabai and they were the persons who pushed her to lodgethe complaint.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:56 :::70 Questions in respect of the social workerLateefaben who admittedly met her at Godhra Relief Camp,were put to her.Thereafter, the names of one Huma Khanand Farha Naqvi are also put to the prosecutrix.The prosecutrix has admitted thatshe was contacted by members of the human rightscommission.The involvement of the social workers or NGOsin such matters is obvious and it cannot always be lookedwith jaundiced eyes.It is true that occasionally, they areover-enthusiastic and witnesses are encouraged to stateexaggerated or false statements and tender evidence ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:56 ::: 97 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docaccordingly.However, it is also true that these social workerssometimes are responsible to unearth the suppressedmaterial and do a good job towards justice system.Thus,mere presence and active participation to certain extent ofthese social workers in the investigation cannot make theevidence of the witnesses doubtful.The prosecutrix wasasked about many social workers and leaders, however, shehas flatly denied that she was tutored by these persons.Insome paras, suggestions were given to her that she hadreceived compensation from Government for making suchcomplaint and for being sexually assaulted, she has receivedcompensation from Gujarat State.She has specificallydenied such suggestions.She made statement thatcompensation is to be given to the victim of sexual assault,however she has not received any amount.She has admittedthat she was approached by National Human RightsCommission at Godhra.Thus, Exhibit 61, the writ petition,must have been filed through some activists and Fax Exhibit57 was annexed to that.However, we cannot say that it is ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:56 ::: 98 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docthe same annexure i.e., statement dated 7.3.2002 which wasrelied upon by the prosecutrix.Statement of theprosecutrix dated 7.3.2002 was recorded by Godhra Policewhich is part of Exh. 232 colly.The prosecutrix has made a reference to thisstatement and not to Fax Exh. 57 in her Writ Petition beforethe Supreme Court.Moreover, a petitioner relies on thedocuments to point out positive and negative facts also, toshow that how a document supports him or also to show thata document is false to discredit his or her case and, therefore,it cannot be held that though Fax Exhibit 57 was annexed toWrit Petition Exhibit 61, the prosecutrix has acceptedauthorship of Exh. 57 and also the contents therein.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:56 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:56 :::SCENE OF OFFENCE:71 Mr. Ponda then submitted that according to the ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:57 ::: 99 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docprosecutrix the incident took place on kachha road leading toPanivel whereas the incident actually took place in a ravinewhich was not accessible by vehicles, which proves that theentire story of the prosecutrix that about 25 persons came intwo vehicles and thereafter attacked them is false.Mr. Ponda submitted that the bodies werefound buried in the ravine hence, the incident took place inthe ravine.He further submitted that it has come on recordthat no vehicle can reach the ravine hence, the entireprosecution case is false.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:57 :::72 The learned counsel Mr. Ponda further submittedthat PW 13 Mukeshbhai Kalubhai Harijan who dug the pits tobury the dead bodies and PW 15 Baria Ramsingh Nayaka,panch to Inquest Panchnama Exh.123 were examined and ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:57 ::: 100 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docthey have stated that the distance between the kachha roadand ravine was 2 kms.Ponda has relied on the evidenceof PW 13 Mukeshbhai, who dug the pit for the burial of deadbodies, who gave admission that from kachha road, towardsthe hill, the entire team walked about 2 kms, where thebodies were lying.Thus, Mr. Ponda tried to knock out theevidence of the prosecutrix.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:57 :::73 The learned counsel Mr. Ponda further argued thaton 10th January, 2004 the scene of offence panchanama wasdrawn by CBI which is at Exh. 352 and 352A. Mr. Pondapointed out that in this panchnama spot shown is ravine.This panchnama was drawn after the prosecutrixshowed the spot.Mr. Ponda submitted in both thesepanchanamas, spot shown is different.Thus, evidence of theprosecutrix and the spot shown in spot panchanama 124drawn by Limkheda Police Station and Exh. 352 & 352A did ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:57 ::: 101 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docnot match, hence, the prosecutrix was not speaking the truth.74 It is to be noted that spot mentioned in spotpanchnama Exh. 124 drawn by Limkheda police is not thespot of offence according to the prosecution or theprosecutrix.So also spot shown in panchnama Exh. 352 and352A is not the actual spot of incident.It is noticed thatthe panchnama Exh. 352 & 352A is of the spot where thedead bodies were lying and were photographed by PW 10Soni.According to the prosecution and the prosecutrix thespot of offence is not ravine but Kachha road leading toPanivel.Till 4th March, 2002 the police did not know aboutthe incident and where it had taken place.Surprisingly,though the prosecutrix was available in Limkheda PoliceStation itself on 4.3.2002 and 5.3.2002, the police atLimkheda did not take her to the spot, to identify the correctspot.This also speaks volumes about the taintedinvestigation.As far as panchnamas Exh. 352 and 352Adrawn by CBI is concerned it is of the spot where dead bodies ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:57 ::: 102 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docwere seen lying.It does not necessarily mean that theincident took place at that spot.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:57 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:57 :::75 Mr.Venegavkar, learned Prosecutor for CBI hassubmitted that prosecution has tendered sufficient evidenceto prove that the spot of offence was near kachha road andnot the ravine and there is no confusion on the point of spotof offence.Mr. Venegavkar drew our attention to the evidence of PW 17Dr.Katti noticed injuries on the hand, back and breast of theprosecutrix.Dr. Katti has specifically mentioned about scabformation on the injuries and that injuries found on theprosecutrix were 4 to 5 days old.Mr. Venegavkar relied ontwo case law on the point of appreciation of evidence of aninjured witness.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:57 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:57 :::In Vishnu, the Supreme Court has observed that when aperson receives injuries in the course of occurrence, therecan be hardly any doubt regarding his presence at the spot.Further, injured witnesses would not spare the real assailantsand falsely involve innocent persons.In Abdul Sayeed, the Supreme Court in relation toinjured witness observed thus:-" The law on the point can be summarised to the effect that the testimony of the injured witness is accorded a special status in law.This is as a consequence of the fact that the injury to the witness is an in-built guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence."76 Mr. Venegavkar submitted that the defence hasrelied only on the circumstantial evidence for shifting place of ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:57 ::: 104 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.dococcurrence from one spot to the other spot i.e. from kachharoad to ravine.Apart from the evidence of the prosecutrix,Mr. Venegavkar relied on the evidence of PW 19 Firoz AbdulSatar Ghachi, who has stated that at the time of recording ofFIR of the prosecutrix on 4.3.2002, he was present at thepolice station and he had heard whatever the prosecutrix hasstated and she stated that the offence had taken place atkachha road leading to Panivela.He also relied on theevidence of Mamlatdar (Executive Magistrate) PW 23 Mr.He pointed outthat in the statement Exhibit 277 she has mentioned aboutkachha road.He relied on the medical case papers of theprosecutrix Exhibit 143 which is prepared by PW 17 Dr. RohiniKatti.In the history, the doctor has mentioned that theincident has taken place at Panivel.The learned Prosecutorfurther submitted that the dead bodies were lying at Kottar,i.e., ravine and they were not found at kachha road, becausethey were shifted from kachha road or spot of occurrence to ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:57 ::: 105 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docKottar.He relied onthe evidence of PW 8 Saddam who has stated that on 3 rdMarch, 2002 he was assaulted and became unconscious &when he regained consciousness, he saw a boy of 4 yearscrying there.He further argued thatthe fact that who had shifted and when the dead bodies wereshifted from one spot to other is entirely within theknowledge of accused nos. 1 to 12 & or accused nos. 13, 14& 16 i.e. Narpatsingh, Saiyed and Ramsingh, who were thenattached to Limkheda Police Station and were investigatingthe offence.He submitted that prosecution relies on section106 of the Evidence Act that the fact of shifting of bodies bywhom and when is within the special knowledge of accusednos.1 to 14 and 16 and therefore, as the prosecution hasproved that murders have taken place, then burden is on ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:57 ::: 106 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docthese accused to show about shifting of the dead bodies.Herelied on the following judgments of the Supreme Court:::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:57 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:57 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:57 :::Thedecision being entirely different on facts than the presentcase, it cannot be made applicable to this case.However, factremains that the evidence of the prosecutrix shows thataccused nos. 1 to 12 were part of the mob who killed her ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:57 ::: 107 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docrelatives and admittedly accused no.13, 14 & 16 werepresent at time of inquest and spot panchnama Exh. 123 &::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:57 :::In such case, it would be for them to explain how thebodies reached the ravine.In the case of Karnail Singh, thelegality of the acquittal of Karnail Singh was questionedbefore the Supreme Court.On the point of the spot of incident, weconsider the evidence of the prosecutrix.Her evidence isdirect evidence.She along with her relatives left Randhikpuron 28.2.2002 and travelled to different places i.e., villageChundadi and Kuwajer on the same day.They stayed thatnight at Kuwajer.Shamim, as per the evidence of the ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:58 ::: 108 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docprosecutrix, delivered a baby girl at Kuwajer and then, on1.3.2002 they left Kuwajer and went to village Khudra onfoot.She along with others, stayed at village Khudra in thehouse of PW 20 Nayak for two days.away from kachha road.Two panchanamas i.e. inquestpanchanama at Exhibit 123 and spot panchanama at Exhibit124 disclose the place where the bodies were lying was notkachha road but a ravine.On the basis of these ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:58 ::: 109 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docdiscrepancies, the learned Counsel for the defence made hisemphatic submissions that the spot of offence which isbrought on record by the prosecution as kachha road, is falseversion given by the prosecutrix.PW 10 Rameshchandra Soni whowent with the police on 5.3.2002 took photographs of thedead bodies.PW 10 turned hostile.The panchanama wasmade at the spot at Panivel Kesharpur jungle where corpseswere found lying.PW 34 Amrutsingh Khant has stated thatphotographs of the corpses were not taken, however, the said ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:58 ::: 111 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docwitness PW 34 Khant was cross-examined as he did notfurther support the prosecution.He has statedthat corpses of 4 ladies, one girl and two boys, i.e., total 7corpses were found.PW 35 Ranjeetsingh Patel also went toKesharpur jungle along with accused nos.13, 14 & 16 and PW34 and they found 7 corpses i.e., 4 female and 3 children,who were aged 14, 10 and 7 years.It is the prosecution casethat the 7 dead bodies were of Haleema i.e. mother of theprosecutrix, Munni- sister of the prosecutrix, Sugra - aunt ofthe prosecutrix, Amina - aunt of the prosecutrix, Shamim -cousin of the prosecutrix and Aslam and Irfan who werebrothers of the prosecutrix which is not disputed by defence.PW 15 Baria did not support theprosecution on certain points and therefore, he was cross-examined by the prosecution.He admitted that Exh.123 was ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:58 ::: 112 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docinquest panchanama of the 7 corpses.However, the spotpanchnama Exh. 124 drawn by Limkheda police was notbrought on record by the prosecution.The spot panchanamaExhibit 124 is brought on record by the defence in the cross-examination of PW 15 Baria who has admitted the drawing ofthe spot panchanama on 5.3.2002 between 1.00 p.m. to 2.00p.m.This panchnama is of the spot where the bodies werelying.In Exh.124 i.e. spot panchanama description of themango trees, hillocks and other trees is mentioned.Neitherof the two documents i.e., Exh. 123 or Exh. 124 say a wordabout kachha road leading to Panivel.Thus, the spot ofkachha road is completely disconnected from the place wherethe corpses were found.After going through thesedocuments and the evidence, mainly of PW 15 Baria and PW34 Khant, who turned hostile, the main question which arosein our mind is why the prosecutrix was not taken to the spotto show the spot of the offence on 4th or 5th of March, 2002?.It was very logical and obvious for the police of Limkhedapolice station, to take the complainant i.e. prosecutrix to ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:58 ::: 113 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docshow the spot of offence, where the assault had taken placeas she was an eye witness.The prosecutrix was very muchavailable to the police as she stayed at Limkheda policestation from 10.45 a.m. on 4.3.2002 till 5.3.2002.Mr.Venegavkar has rightly pointed out that in spotpanchanama Exhibit 124 name of one Mayurbhai DhirsingBaria is mentioned, that he showed the place of occurrence.We fail to understand who was this Mayurbhai Baria and whyhe showed the place.However, the prosecutrix was not takento the spot because the police did not want her to show theright spot.Though police accused 13, 14 & 16 visited the spoton the day of recording the FIR on 4.3.2002 along withphotographer, the question remains unanswered as to whythey did not draw the spot panchanama on the same day.The explanation coming forward from the defence that it wasnight time and therefore they could not draw the spotpanchanama, is lame and unsatisfactory.The police did notgo to the spot on 4.3.2002 at night.Therefore, when it was ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:58 ::: 114 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docpossible for them to take photographs what prevented theInvestigating Officer to draw the scene of offencepanchanama on that day?::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:58 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:58 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:58 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:58 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:58 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:58 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:58 :::Irrespective of the permission of the Magistrate, aspot panchanama is drawn routinely as it is an essential partof the investigation of such type of offence.80 The spot of offence was changed by the policeofficers of Limkheda from Kachha road to ravine.In thisconnection we would like to refer to the evidence of PW 56 ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:58 ::: 115 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docAbhijeet Rudra, who is a forensic expert.In the evidence ofPW 56 Abhijit Rudra it is stated that the bodies found on 5 thMarch were at a different place than the place of offenceclaimed by witnesses.In paragraph 55 PW 56 Mr. Rudra hasstated that in photograph A5 which is the photograph of ayoung girl, the front of the body appeared to be partially wetand the clothes appeared to be partially wet.Mr. Rudrain paragraph 60 has stated that judging from the condition ofthe bodies seen in the photographs Set-A & B and the injuriesrecorded in the post-mortem examination reports, the spotwhere the photographs were taken, would be unlikely to bethe spot of actual violence.In photographs A1 to A4 reddishstains were seen running downwards from left corner ofmouth and left nostril but no reddish material or stain isapparently visible on the ground.In photographs A1 to A4and B1 staining and soiling of the body is visible, however,the `Salwar' on the body is relatively clean.In photograph A5the front of the body appeared partially wet and reddish ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:58 ::: 116 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docstains were visible over right side of face but no reddish stainor material is visible on the ground or over surrounding area.In photograph B2 the position of the arm does not match thecurrent position of the body hence, the position having beenchanged after the onset of rigor mortis in some other positioncannot be ruled out.Mr. Rudra has stated that allthese photographs indicate that the possibility of the personhaving died at some other spot, cannot be ruled out.This shows that the incident took placeelsewhere i.e. on kachha road and the bodies were thereafterthrown in the ravine.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:58 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:58 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:58 :::The panchanamaof spot of offence (Exh. 131) recorded by CBI on 4.1.2004 isconsidered as correct.Arrival of the vehicles on the road wasthe starting point of assault, which was at kachha road.Naturally, the members in the group started running so all ofthem could not be caught and assaulted at one place butsome were assaulted on the road, some towards the hillockor jungle.Thereafter, the bodies were shifted to the spotwhere 7 bodies were found.Other 7 bodies were not found atall.Thus, the incident has commenced at kachha road,however, it continued and the rape and killing had takenplace at different places near the kachha road.Thus, thespot was not static.Similarly, it was definitely not 2 kms.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:59 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:59 :::118 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docaway i.e., at ravine where the spot of offence and inquestpanchanamas (Exh. 124 and Exh. 123) were prepared on5.3.2002 by the Limkheda police.Thus, omission of theInvestigating Officer on three major counts i.e., firstly, nottaking the prosecutrix to identify the dead bodies, secondlynot taking the prosecutrix along with them to show the spoteither on 4th or 5th March, 2002 and thirdly, not drawing thespot panchanama on the same day i.e., 4.3.2002, compel usto draw inference that the accused persons have changed thespot of offence & the bodies were shifted from kachha road toravine to make the story of the prosecutrix unbelievable rightfrom the point of spot of offence.It is also possible that theaccused nos. 1 to 12 threw the bodies in the ravine, becauseit was a place which was not easily accessible due to whichthe offence they committed would not come to light.It isfurther pertinent to note that when the bodies were exhumednot a single skull was found.This shows that the accused didnot want the bodies to be identified, hence, the heads mayhave been cut-off.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:59 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:59 :::119 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc82 We would also like to consider the evidence of PW72 Mr.K.N. Sinha, the Investigating Officer of the CBI.He hasstated in his examination-in-chief that she was in anadvanced stage of pregnancy and therefore, she was unableto come with the police to show the spot of offence.However, it appears that the police did not leave that issuethere but PW 72 Mr.Sinha again contacted the prosecutrixand on 13.3.2004 along with the prosecutrix proceeded tothe spot.The photographs of theprosecutrix showing the place and the actual kachha roadand the hill were taken which are marked at Exhibits 135 (1)to 135(15) collectively.A C.D. was also produced.We haveseen those photographs.In the photographs, hillock is seenand the place the prosecutrix hid between the boulders ontop of the hill is also seen.The photographs of hand-pump is ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:59 ::: 120 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docalso produced by CBI which further corroborates her case.The prosecutrix in her FIR Exh. 56 had made a reference tohand-pump.Though Limkheda police did not bother to takeany photographs of the hand-pump, the CBI took the effort totake photographs of the hand-pump.The prosecutrix hasidentified the same.If the prosecutrix had not been to thisspot, she would not out of the blue, make a reference tohand-pump.She was not familiar with that area, for her tomake a reference to the hand-pump or for that matter thekacha road.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:59 :::The prosecutrix wasthoroughly cross-examined on the point of shifting of spot ofoffence.However, her evidence is found consistent with herstatement Exh. 277 on the point of spot of offence.Thus, weare convinced that the incident took place at the kachha road ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:59 ::: 121 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docleading to Panivel and not in the ravine as contended by Mr.Ponda.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:59 :::When the bodies were exhumed, the bones of 7human bodies were found, however, while reading theevidence, it was shocking to note that the skull of none of thepersons was found.So it appears that at some point theheads were cut off.85 The learned Counsel Mr. Ponda has submitted thatthe learned trial Judge has erred in accepting and believingthe photographs (Exhs. 59/1 to 59/17).These documentsought not to have been exhibited as they are not proved ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:59 ::: 122 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docproperly.These are the photographs of seven dead bodies.He argued that though the prosecution has claimed that 14persons were killed, only 7 bodies were found.Secondly,Saleha's body i.e., the daughter of the prosecutrix was notfound.He argued that the prosecution has examinedwitnesses to prove the photographs and the postmortemnotes and CA report.He pointed out that PW 10 RameshChandra Soni was examined on the point of takingphotographs on 5th March, 2002, however, he did not supportthe prosecution.Similarly, PW28 Bhavinkumar Patel, whoaccording to the prosecution, took photographs on 4.3.2002,turned hostile.According to prosecution, PW 30 VasudeoLaxmidas Pandit had developed the photographs & PW 32Vinodbhai Prajapati is the one who lent the camera (article 3)to PW 28 to take out photographs, however, none of thesewitnesses supported the prosecution.Mr. Ponda pointed outthat in the inquest panchanama, 7 bodies were found, out ofwhich 5 were female and two were male i.e. 2 boys of 11 and13 years of age.Out of 5 female bodies, the age of the ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:59 ::: 123 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docfemales were 42, 40, 35, 20 and 9 years.He pointed outpanchanama which is marked as Exh 363 of the seizure ofthe photographs on 31.1.2004 wherein it is mentioned thatthe photographs of one lady of 40 years, one girl of 3 years,another girl of 10 years and three boys were taken.Ponda pointed out the letter dated 17.2.2004 (Exh 322) sentby Director of Central Bureau of Investigation to Forensicdepartment for analysis of photographs and other articleswith a questionnaire consisting 34 questions.In the said reply, initem 4, there is a reference to 10 photographs.He pointedout that the letter dated 27.2.2004 (Exh 428) was written byCBI to CA.The learned Counsel has argued that exhumationtallies with the post-mortem notes but it does not tally withseizure memo (Exh. 363) of photographs in which there isreference to body of a 3 year old girl.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:59 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:59 :::86 Mr. Ponda argued that a photograph which is ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:59 ::: 124 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docclaimed to be Saleha's (Exh 59/4) is in fact not of Saleha.Mr. Ponda submittedthat in fact, Saleha was not killed in the incident, therefore,there is no body of Saleha.Her body was not amongst the 7bodies and thus, the prosecution could not tender anyevidence on the corpus delicti of Saleha, so the death ofSaleha itself is not proved.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:59 :::87 The prosecution examined PW 10 R.K. Soni toprove photographs Exhs.59(1) to 59(8) and PW 28 BhavinPatel was examined to prove photographs Exh. 59(9) to59(17).The prosecution also examined other witnesses, ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:59 ::: 125 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docnamely, PW 29 Balubhai Vohania, PW 30 Vasudev Pandit andPW 32 Vinodbhai Prajapati, but none of them supported theprosecution.So, neither the negatives nor the photographswere proved by the prosecution.PW 10 and PW 28 who hadclicked the photographs took complete U-turn, and thereforethe admissibility of these photographs was challenged by thedefence.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:59 :::88 Mr. Venegavkar argued that though thephotographs 59/1 to 59/8 were taken by PW 28 Bhavin Patelon 4th March, 2002 and photographs 59/9 to 59/17 weretaken by PW 10 Ramesh Chandra Soni on 5 th March, 2002,these witnesses did not support and turned hostile.The otherwitnesses, i.e., PW 29 Babubhai Vohaniya, who was presentat the time of taking photographs, PW 30 Vasudev Panditwho was running "Scanner Colour Lab" in Godhra anddeveloped the photographs Exhs 59/1 to 59/17 in his laband PW 32 Vinodbhai Prajapati who gave his camera (Article3) to PW 28 Bhavin to click photographs & Camera Article 3 ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:59 ::: 126 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docwas seized from PW 32 Vinodbhai on 31 st January, 2004 wererelied upon by the prosecution for corroboration, however,they all turned hostile.He submitted that these photographswere taken on two dates i.e 4.3.2002 & 5.3.2002.Photographs Exhs 59/1 to 59/8 were seized by CBI Officer PW68 Tariyal from PW 28 Bhavin Patel under seizure memo Exh363 on 30th January, 2004 and photographs Exh. 59/9 to59/17 were seized by CBI Investigating Officer PW 72 Sinhafrom PW 10 Soni on 7.1.2004 vide seizure memo Exh. 109.He submitted that so far as evidence of these witnesses i.ePW 10, 28, 29, 30 and 32 are concerned, they did not tell thetruth before the Court in order to prove that photographswere in fact taken.Mr. Venegavkar pointed out that PW 10 Sonihas admitted that he knows Scanner Colour Lab and he usedto develop photos in scanner colour lab.Mr. Venegavkarfurther submitted that copies of 7 photographs of 7 bodieswere handed over to accused nos. 19 and 20 who conducted ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:00 ::: 127 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docpostmortem, which is marked at Exhs 411A to 417 A & B. Hefurther submitted that PW 28 took 8 photographs on 4 thMarch, 2002 and produced 10 negatives, they were seizedfrom him and his signatures are seen on the photographsExhs. 59/1 to 59/8 on the backside.PW 28 has admitted thathe signed on the back of these photos.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:34:59 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:00 :::89 Mr. Venegavkar, on the point of proof andadmissibility of the photographs Exhs. 59/1 to 59/17 hassubmitted that it is not necessary for the documents likephotographs to be proved through direct evidence but it canbe proved through circumstantial evidence.Mr. Venegavkarsubmitted that production of photographs 59/1 to 59/17produced before us itself show that they exist and thequestion is only about who clicked the photographs.90 Mr. Venegavkar relied on cross-examination of PW10 Soni and PW 28 Bhavin Patel.He submitted that thenegatives and photographs were seized from PW 10 Soni and ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:00 ::: 128 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docPW 28 Bhavin Patel.He relied on the evidence of PW 52Kalubhai Vohania, who recorded the statement of PW 10 andalso on the evidence of PW 68, the police officer Mr. Tariyal,who recorded the statement of PW 28 Bhavin Patel.Heargued that the police have prepared the memorandum ofseizure of the negatives and the photographs which wereseized from these two witnesses.Therefore, the prosecutionhas proved the photographs and are to be read and relied inthe evidence.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:00 :::91 Mr. Venegavkar relied on the case of RayappaAsari reported in 1972 Cr.L.J. 1226, in which one document(Exh P4) written by Rayappa was disputed on the point of itsadmissibility.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:00 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:00 :::129 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc92 The prosecution has tendered many photographsbesides the photographs of the dead bodies.Most of thephotographs were taken in Jan/Feb.2004 when CBI startedinvestigation and visited the spot for exhumation andinspection.Those photographs are proved through theInvestigating Officer and by producing negatives of thephotographs.However, 17 photographs of the dead bodiestaken on 4th and 5th March, 2002 which are marked at Exh.59/1 to 59/17 are disputed on the ground of admissibility.The photographs which were taken on 4 th March, 2002 arenumbered as A and the photographs which were clicked on5th March, 2002 are numbered as B. The total photographsand the identification of the bodies from the photographs isanalyzed as follows:::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:00 :::However, in the present case, weare concerned with identification of the corpse, the contentsin the photograph is the dead body, so the decision in thecase of Kartar Singh is not applicable.94 Let's advert to the law on the point of proof ofdocument contemplated under sections 61 and 63 of the ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:00 ::: 131 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docIndian Evidence Act. Section 61 states about the proof ofcontents of the documents which can be proved either byprimary or secondary evidence.Section 63 describes what ismeant by secondary evidence and section 63 is necessarily tobe read alongwith section 65 under which the instanceswherein the secondary evidence relating to the documentscan be tendered.A document generally can be provedthrough the author who writes the document or the person inwhose presence the document is written or who knows thesignature and hand-writing of the author.The contents of thedocument and truthfulness of the contents of the documentare two aspects.The author of the document may be awareof the contents and also the truthfulness of the contents.Aperson, who knows or passed an order or who writes a letteris supposed to be the best and competent witness on thecontents and truthfulness of those documents.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:00 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:00 :::A few of the letters said to have been received from the appellant, as stated above, do not bear his signatures.These were held to have been proved by the circumstantial evidence as pointed out and we see no objection thereto."::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:00 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:00 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:00 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:01 :::However, when primary evidence is notavailable, then, the document can be proved by tenderingsecondary evidence.When the contents of the document isthe issue, then, it can be proved by admissible evidence i.e.,through a person, who has a personal knowledge about thecontents of the document or the facts therein, which shouldinspire confidence in the mind of a Judge about thetruthfulness of the document or also by other means.103 It is necessary for the document to pass the first ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:01 ::: 139 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doctest of admissibility as contemplated under section 61, for itsproof before getting tested for its genuineness of contents.Iforiginal document i.e primary evidence, is not available, then,the secondary evidence can be tendered under section 63read with section 65 of the Evidence Act. As per section63(2), copies can be made from original by mechanicalprocesses which in themselves ensure the accuracy of thecopy and copies compared with such copies.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:01 :::required to be proved through a photographer who took thephotographs and by producing the negatives and theprintouts.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:01 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:01 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:01 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:01 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:01 :::144 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc108 In 2003, the matter was investigated by theGodhra police and it was not transferred to the CBI.PW 52Vohaniya who was a police officer from Godhra police hasstated that he has recorded the portion marked A fromstatement dated 14.3.2003 of PW 10 Soni and also theportion marked A and B from the statements dated 23.9.2003of PW 10 Soni.It shows that at the behest of LimkhedaPolice, Soni took photographs of 7 dead bodies including asmall girl in Kesharpur jungle on 5.3.2002.109 In the evidence of PW 28 Bhavin Patel, theprosecution has proved the omission through PW 68,Mr.The statement of PW 28 was recorded by CBI on30.1.2004 and it is marked as Exh 365 through CBI OfficerMr.His entire statement dated 30.1.2004 recordedby CBI is taken on record by way of omission in the cross-examination and the said big portion is marked as B of Exh.All these omissions in the evidence of PW 28 is asignificant circumstance.These omissions show that on ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:01 ::: 145 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc4.3.2002, he was taken to Pannivel jungle to take outphotographs of dead bodies of Muslims from Randhikpur.Thisclearly shows that the witnesses PW 10 and PW 28 were lyingbefore the Court and tried to suppress the truth, though theywent to the spot on respective dates and took thephotographs.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:01 :::The CBI Officer i.ePW 68 Tariyal has seized these photographs Exhs.InvestigatingOfficer PW 72 Sinha seized from PW 10 Soni 9 photographsExh.There is also one more memorandum i.e of scene ofcrime dated 6.1.2004 (Exh 348) that is drawn by PW 52 ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:02 ::: 146 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docVohaniya in which PW 10 R.K. Soni professional photographeris seen as witness.In addition PW 68 Tariyal has stated thatPW 10 R.K.Soni led them to where the bodies were found.Ifas per PW 10 Soni he had never been to the spot tophotograph the dead bodies, how he could lead the police tothe spot in the jungle.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:02 :::Inaddition, there is evidence of two police officers i.e. PW 72Investigating Officer and PW 68 Tariyal specifically statingthat PW 10 Soni and PW 28 Bhavin handed over thephotographs [Exh. 59(1) to 59(17)] alongwith negatives tothem.We see no reason to disbelieve these two witnesses.State of Himachal Pradesh, reported in2003 Cri.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:02 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:02 :::114 In relation to witness turning hostile, the SupremeCourt in the case of Anter Singh Vs.Prima facie, public servants must be presumed to act honestly and conscientiously and their evidence has to be assessed on its intrinsic worth and cannot be discarded merely on the ground that being public servants they are interested in the success of their ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:02 ::: 149 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc case......."::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:02 :::Daroga Singh & Ors.reportedin AIR 2008 SC 320 and Subbu Singh Vs.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:02 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:02 :::150 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc117 Mr. Venegavkar stated that it is the prosecutioncase that the photographs Exhs. 59/1 to 59/8 were taken byPW 28 and photographs Exhs.59/9 to 59/17 were taken byPW 10 and these photographs were developed in ScannerColour Lab run by PW 30 Vasudev Pandit.Mr. Venegavkarpointed out that PW 10 Soni has admitted that he knowsScanner Colour Lab and he used to develop photos there.Venegavkar further submitted that the photographs weredeveloped in Lab of PW 30 Vasudeo is seen from the factthat the polythene of the negatives bore the words ScannerColour Lab, Godhra on it.This is admitted by PW 28Bhavinkumar though he may have turned hostile.It is to benoted that PW 30 Vasudeo had stated that he is runningScanner Colour Lab in Godhra and the polythene jackets ofnegatives (of photos Exhs. 59/1 to 59/8) belong to his colourlab.This is in paragraph 3 of his evidence.In paragraph 7,this witness had admitted that in Godhra, there is no otherColour Lab named Scanner Colour Lab.From this, aninference can definitely be drawn that the photographs were ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:02 ::: 151 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docdeveloped in his lab.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:02 :::118 The evidence of PW 28 Bhavin shows that he waspresent at the spot when the photographs were taken.He has also stated that theseizure memo bears the signature of Vinodbhai Prajapti (PW ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:02 ::: 152 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:02 :::32) who is his father and his father was present when hesigned on seizure memo.If he did not take out photographsExh. 59/1 to 59/8 then in what circumstances, he came inpossession of these photographs and negatives is notexplained by him.119 As far as PW 10 Soni is concerned, according tothe prosecution, photographs Exh. 59/9 to 59/17 were clickedby him at the behest of Limkheda Police Station.Though, hehas turned hostile, he has admitted that Limkheda PoliceStation used to call him for taking photos.At this stage, wewould like to refer to the documentary evidence relied uponby Mr. Venegavkar i.e. a bill dated 14th March, 2002 (Exh.292A) issued by PW 10 Soni of Rs.270/- for 18 copies ofphotographs and thereafter a letter Exh. 292 sent by P.I.Limkheda on 19th March, 2002 to the higher authorityregarding payment against this bill.Thesephotographs were seized under the seizure memo on 7 thJanuary, 2004 by PW 72 Sinha.He has also admitted that hissignature is there on the back of these photographs.Theevidence of PW 72 Sinha shows that these photographs wereseized from PW 10 Soni.Soni is a photographer andLimkheda Police Station used to call him to take photos.Sonihad even issued a bill to Limkheda Police Station in respect oftaking photographs.All these facts point out that he clickedthe photographs.PW 10 has not explained in whatcircumstances he came in possession of these photographsand negatives.In any event, we see no reason to disbelievethe evidence of PW 72 Sinha who has stated that the saidphotographs Exh. 59/9 to 59/17 were seized from PW 10 Soni. ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:02 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:02 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:02 :::154 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc120 In paragraph 25 of her evidence, the prosecutrixhas identified bodies in the photographs and stated thatthese bodies were of Haleema, 2 brothers of the prosecutrix,her sister Munni, aunt Sugra, Saleha (daughter) and Shamim(cousin of the prosecutrix).He is the husband of PW 55Kampaben, who was Sarpanch of Randhikpur.Somabhai hasstated that on 5th March, 2002 the work of burial was done.PW 13 Mukeshbhai Harijan has dug the pit to bury bodies on5th March, 2002 and PW 15 Baria Ramsingh Nayaka hassupported the prosecution to certain extent on the point ofinquest, as he is the second panch to inquest panchnama.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:02 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:02 :::155 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docBaria has said that one old man who was present at the timeof inquest on 5th March, 2002 has identified the dead body ofa woman as Haleema.OTHER PHOTOGRAPHS:121 In the evidence, many photographs are brought onrecord.The main photographs i.e., 17 photographs marked atExh 59/1 to 59/17 are the photographs of the dead bodies.Some of the other photographs are copies of thesephotographs.They are marked as Exh 324/a to 324/g.These are the photographs of the white colour jeep(article 2) bearing registration No.GJ-20-A-3123, which standsin the name of the wife of the accused No.12 RameshRupabhai Chandana.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:03 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:03 :::156 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc123 The other photographs Exh 135(1) to 135/15 weretaken on 13.3.2004 when the prosecutrix showed the spot toCBI team.Photographs Exh 337/76 to 337/115 areabout exhumation of the bodies (bones) from a pit and theyare photographs of clothes and bones.351/1 to 351/9 are the photographs of the places where ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:03 ::: 157 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docthe bodies (bones) were found.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:03 :::These photographs aretaken and marked at Exh 324/a to 324/h.These photographswere sent to forensic department for the purpose ofcomparison and opinion.There are also photographs at Exh323/a collectively which are the additional copies of thephotographs of Exh 320/1 to 320/8 of the clothes which werealso sent to forensic department for comparison.127 There is also Exh 309 collectively which are thephotographs of (Article 3) camera and also photographs ofthe dead bodies which were also sent to CFSL.Theadmissibility of the photographs of the spot which was shownby the prosecutrix at the time of combing operation by CBIand are marked Exh 337 is not disputed.The photographswhich were taken by combing team of the CBI between28.1.2004 to 1.2.2004 are brought on record through the ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:03 ::: 158 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docInvestigating Officer and the photographer.128 Mr. Ponda submitted that the photographs of thebody of Saleha is a false fact brought before the Court andSaleha was not part of the group and did not die in theincident.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:03 :::129 The prosecution has relied on the evidence offorensic expert.The C.A. (PW 56 Rudra) has proved reportsin respect of exhumation and the photographs.While givingreport, the forensic department has referred the postmortemreport of each body which is shown in the photograph andafter examining and comparing with the bones found inexhumation and the postmortem notes and the photographs,the opinion is given by the forensic expert whether there is aco-relation between the photograph and the bones recoveredin exhumation.The description of the photograph No.10, appearing on page 2034 of the paperbook is mentionedas "body of the deceased i.e a girl was not recovered during ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:03 ::: 159 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docthe exhumation." Mr. Ponda relied on the relevant portion ofthe forensic report Exh. 324/11 colly.which reads thus:-::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:03 :::"Photograph of 4.03.02 Photograph numbered A-10 shows the body of a young girl child, dressed in a green frock and mauve shorts.Reddish stains are visible over the right side of the face.There appears to be an injury near the right eye.Cause of death is not apparent from the photograph.Co-relation with bones recovered in exhumation.Probability of matching: Does not appear to match any of the sets recovered.Co-relation with clothing recovered in exhumation None of the items of clothing recovered during exhumation match those seen in the photograph.Opinion The body of the deceased was not recovered during exhumation."130 The finding is not helpful to the defence but on thecontrary fortifies the case of the prosecution that Saleha's ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:03 ::: 160 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docbody was missing.It confirms that the body of Saleha wasthere and the photographs by the first investigating team ofLimkheda Police Station who visited the spot on 4.3.2002and took the photographs.However, on 5.3.2002, the bodywas not found and there is no photograph of Saleha on thenext day.Her body was not buried along with 7 bodies andtherefore, her bones were not exhumed.These are veryimportant circumstances which show that the finding ofSaleha's body and subsequent missing of Saleha's body isitself evidence against the accused.The Limkheda Policemade no effort to guard the dead bodies.It is possible thatthe body being of a small child was carried away by wildanimals.It is pertinent to note that no suggestion is put tothe prosecutrix that she did not have a three year olddaughter by name Saleeha.The medical case papers of theprosecutrix Exh. 138A when she was examined by PW 17 Dr.Katti at Godhra Civil Hospital, show that the prosecutrix hadlost her minor daughter in the riots.The case paper Exh.138A of the prosecutrix states that one full term normal ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:03 ::: 161 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docdelivery female died in riot.Moreover, the prosecutrix wasfrom Randhikpur village i.e. the same village as accusednos.1 to 12 therefore, if Saleha the daughter of theprosecutrix had died prior to the riots, the accused wouldhave produced such evidence or proved it by examiningsome witness from the village.If Saleha did not die and wasstill alive the accused would have produced evidence to thateffect.Thus, we find no merit in the submission of Mr. Pondathat just because the body of Saleha was not found, Salehahad not died in the incident.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:03 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:03 :::Thus, even if the deadbody of Saleha or dead body of new born baby of Shamimwas not found, in the light of the evidence of the prosecutrixit has to be held that the accused no.4 committed the murderof Saleha and all the accused with the aid of Section 149 ofIPC, were liable for the death of Saleha and new born baby ofShamim.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:03 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:03 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:03 :::163 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docAPPRECIATION OF EVIDENCE OF THE PROSECUTRIXALONGWITH THE EVIDENCE OF OTHER WITNESSES:132 The prosecutrix has taken the names of number ofpersons whom she met before and after the incident.Herevidence flows along parallel rivulets of those witnesses.Whether the prosecutrix is a liar or a reliable witness, whichevidence is to be believed and which is to be discarded fromher evidence can be assessed on the touchstone of thedepositions of these witnesses.She pleaded to leave her as she waspregnant.However, accused Nos.1, 2 and 3 raped her.Shebecame unconscious and when she became conscious, shefound that she was naked and the dead bodies of her familymembers were lying around.She was scared.She found onepetticoat, which she wore.Then, she climbed the hill insquatting position.She did not try to know whose deadbodies were lying there as she was scared.She spent the ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:04 ::: 166 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docentire day and night hiding herself on the hillock.The nextmorning, she was thirsty and hence, she descended thehillock from the other side.There was a hand pump.At thattime, she met an adivasi lady i.e., PW 11 Sumaliben.Thereafter the prosecutrix met DW 2 Vanraj and PW 27Natwarbhai (Homeguards).She sought help from them andthey took her to Limkheda Police Station.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:03 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:04 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:04 :::The defence has tried to assail theevidence of the prosecutrix in every possible way, especiallyby pointing out each and every omission and contradiction inthe statements of the witnesses whom she met first in theinitial days prior to the incident and after the incident, bypointing out the contradictions and omissions from thedeposition of the prosecutrix in the Court and in relation tothe other witnesses and thus, we now proceed to analyse herevidence and her previous statements along with the ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:04 ::: 167 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docevidence of other witnesses.Out of the witnesses, who wereexamined, some of them did not support the prosecution andmany were examined as defence witnesses.For the sake ofconvenience, we deal with the evidence of both theprosecution and defence witnesses together as there is alogical sequence in the chain of persons whom theprosecutrix met.Thus, these witnesses can be categorizedas follows:::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:04 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:04 :::They fled to the jungle and stayed there for twodays.Thereafter, they were taken to Limkheda PoliceStation.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:04 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:04 :::Whilethey were taken to Police Station, he passed his residenceand he saw his residence was burnt down and his belongingswere looted.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:04 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:04 :::From there, he wastaken to Godhra Relief Camp in a police van.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:04 :::Thereafter, the prosecutrix moved from village to village tillon 3.3.2002, she reached near Pannivel where the incidentoccurred.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:04 :::145 Mr. Ponda assailed the evidence of the abovewitnesses and submitted that their evidence cannot bebelieved though they are victims of riots because nocomplaints were lodged by them in relation to the fact thatthe mob burnt the houses of some of these witnesses.Hefurther submitted that their statements were recorded afterinordinate delay.146 The learned counsel Mr. Ponda argued that almostall the witnesses i.e PW 4, PW 19, PW 25, PW 26, PW 31, PW45, PW 46 and PW 47 were related to each other, however, ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:05 ::: 175 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docnone of them lodged any complaint against the acts ofaccused persons in relation to the rioting.He submitted thatthey had four good chances to lodge the complaint.Firstly,after leaving Randhikpur when they all went to LimkhedaPolice Station to seek shelter, none of them gave complaint.They all have admitted that they did not lodge complaintexcept PW 26 Imitiaz Ghachi and PW 31 Rasul Ghachi.Thesetwo witnesses though have stated that they lodged thecomplaint, they did not produce a copy of the said complaintlodged by them with the police station though in the cross-examination, opportunity was given to them.Secondly, whenthey all were taken to Godhra Relief Camp, many policeofficers, revenue officers, Collector like PW 18 Jayanti Ravivisited Godhra Relief camp and they enquired about therefugees.None of these witnesses came forward to registerany complaint against the accused persons.Thirdly hepointed out that in the evidence of PW 2 Faruqbhai thedefence has brought admissions on record that Limkhedapolice station and the Limkheda Court were situated very ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:05 ::: 176 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docclose to each other, hence, even if the police did not recordtheir complaints, they could have filed private complaintsbefore the Court.Fourthly, all these refugees including thegroup of 9 witnesses were given residence at Rahimatbaug.They were all occupying the tenements in the same area andstayed there nearly 1½ to 2 years.The admissions arebrought out in the cross-examination from all thesewitnesses that they used to meet and discuss about the riot.Thus, Mr. Ponda submitted that lodging of complaint wasexpected from these witnesses and their not doing so, showsthat they are got up witnesses.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:05 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:05 :::Out of fear,they left Randhikpur and did not go back to their village.Thus, they left not only their houses but also theiroccupations and parted from their family members.Thewitnesses like PW 2, PW 4, PW 26, PW 31 have stated thatthe police were not in a mood to record any complaint of theMuslims.PW 31 Rasul Umer has stated that "I discussed theissue of reluctance of revenue and police to record thecomplaint of the inmates of the camp".Thus, when thesewitnesses found police non-cooperative or hostile, thennaturally they were discouraged to lodge any complaint atany place where they were staying.By lodging complaintagainst the hindus who were in majority or the assailants whowere also Hindus, might have led to a situation moredangerous and traumatic and the complainant could haveinvited further trouble.Such appeal helps the people toembolden themselves and they come forward and giveinformation to the police which can be recorded.Therefore,the statement of most of the witnesses were recorded on 6 thand 7th March, 2004 when CBI was entrusted to investigatethe matter.Looking to the peculiar facts and circumstancesof this case, delay in recording the statement of thesewitnesses would not render them unreliable.GROUP 2:::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:05 :::PW 8 Saddam aged 8 years & oneHussain @ Mohsin aged 3 / 4 years are the only survivorsalong with the prosecutrix.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:05 :::ON MEETING OTHER PERSONS BEFORE ASSAULT & RAPE:149 Mr. Ponda referred to the evidence of 4 witnesses, ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:05 ::: 180 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doci.e., PW 33 Bijalbhai Damor, PW 21 Salim Rasul Rampuria, PW6 Zaitoon Atila and PW 20 Nanjibhai Nayak, and he pointedout the omissions and contradictions in the evidence of allthese witnesses.Hesubmitted that there are omissions in the statements of thesewitnesses.The learned counsel argued that the prosecutrixhas stated that first they went to Kadakiyabhai, who isSarpanch of Randhikpur.However, she did not mention thename of Kadakiyabhai in the FIR (Exh 56).She has stated thatthereafter they went to Chundadi at the residence of PW 33Bijalbhai.In her examination-in-chief in paragraph 36 shehas stated that Bijalbhai had given them food and water,however, in paragraph 88 she admitted that she did not meetBijalbhai though food and water was provided to them.150 The contradictions which are brought on record inrespect of meeting PW 33 Bijalbhai Damor is also not ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:05 ::: 181 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docsignificant.The prosecutrix has stated in her examination-in-chief that Bijalbhai provided food and water, however, sheaccepted in paragraph 88 that she did not meet Bijalbhai butfood and water was provided to her.So Bijalbhai providedwater and food means it is provided not personally by himbut at his behest.No doubt PW 33 Bijalbhai does not stateanything at all about the prosecutrix and her group comingto him and he providing food to them.No doubt, this is true,however, the evidence of PW 6 Zaitoon shows that on thesecond day after Godhra riots i.e on Thursday, 4 to 5 Muslimwomen came to her residence at Kuwajar and they were fromRandhikpur.One of them i.e Shamim was to deliver a child.Shamim delivered a baby girl around midnight.Thus, theevidence of PW 6 Zaitoon corroborates the evidence of theprosecutrix.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:05 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:05 :::151 First, the group proceeded and went to the houseof Sarpanch Kadkiyabhai.There, they found that it wasunsafe.So, they went to Chundadi, where at the house of PW ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:05 ::: 182 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc33 Damor, who was an ex-MLA of village Randhikpur food andwater was provided to the group of the prosecutrix andthereafter, on that day they went to Kuwajar and took shelterin a mosque.There Shamim who was pregnant was taken tothe house of midwife Zaitoon and Shamim delivered a babywith the assistance of PW 6 Zaitoon.The learned DefenceCounsel Mr Ponda on the point of this journey of theprosecutrix and delivery of Shamim raised number ofobjections.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:05 :::152 Mr. Ponda, while assailing the evidence of theprosecutrix further submitted that in fact Shamim had notdelivered a baby at Kuwajar.As per the evidence of theprosecutrix, Shamim delivered a baby at Kuwajar at theresidence of PW 6 Zaitoon.Mr. Ponda submitted that neitherthe prosecutrix nor PW 6 Zaitoon make a mention about PW21 Salim.However, PW 21 Salim who is brother-in-law ofZaitoon has stated that on the next day of Godhra riot ataround 9 to 10 p.m., 16 to 17 people from Randhikpur arrived ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:05 ::: 183 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docat his residence.One lady was to deliver a baby, so he tookthe said lady and some persons from her group to Zaitoon(PW 6) who was a midwife.Mr. Ponda pointed out thathowever, all this is absent in the evidence of the prosecutrixand Zaitoon.PW6 Zaitoon has stated in her evidence that 4to 5 people visited her house and one of them was to delivera child.This according to Mr. Ponda completely ruled outSalim's evidence.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:05 :::He further argued that PW 6 Zaitoon does notcorroborate the prosecutrix.Mr. Ponda pointed out that aquestion was put to PW 6 Zaitoon as to whether she wasmaintaining registers of birth or not, to which she answeredin affirmative.However, no such register is produced beforethe Court.Mr. Ponda submitted that such register wouldhave been contemporaneous document which would havecorroborated the prosecutrix and Zaitoon.Mr. Ponda ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:05 ::: 184 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docsubmitted that the fact that register of birth / delivery, wasnot produced by the prosecution falsifies evidence of Zaitoonand the prosecutrix however, considering the situation ofKuwajar and the circumstances under which the delivery hastaken place, at that time, the entry about birth might nothave been entered.In our view, non production of birthregister would not affect the credibility of the evidence ofZaitoon or the prosecutrix.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:05 :::The admissions aresought to be relied upon by the defence in the cross-examination of PW 6 Zaitoon that after Godhra riots herhouse was attacked by Adivasis and therefore, she left thehouse.Mr. Ponda submitted that if Zaitoon has left the ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:06 ::: 185 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.dochouse on the same day, how it was possible for her to attendthe delivery of Shamim at her residence.Thus, this falsifiesthe whole story of delivery of Shamim at her house.155 Learned Counsel Mr. Ponda has raised onequestion on the evidence of the prosecutrix on the point ofdelivery of Shamim, which has taken place on the night of28.2.2002 at the house of PW 6 Zaitoon.He submitted thatthere is discrepancy in the evidence of PW 21 Salim aboutwho offered food and shelter in the beginning at Kuwajar tothe group of the prosecutrix and who took Shamim to thehouse of PW 6 Zaitoon.He submitted whether the groupstayed at mosque; whether Shamim was taken to PW 6Zaitoon directly from the mosque or from the house of Salimis not clear.The witnesses have made different statements tothat extent.He pointed out from the evidence of PW 6Zaitoon that in the cross-examination, she admitted thatwhen there was stone pelting by adivasis, she left her houseimmediately on the next day of the Godhra riots.Thus, Mr. ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:06 ::: 186 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docPonda contended that in fact, PW6 Zaitoon was not presentat her residence on 28th i.e., on Wednesday, as she hadaccepted in her further cross-examination that she left thehouse and went to the jungle.The learned counsel Mr. Pondathus made a point that Shamim has in fact not delivered ababy at Kuwajar.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:06 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:06 :::156 The learned Prosecutor Mr. Venegavkar relied onthe evidence of the prosecutrix.He submitted that she hasspecifically stated that when the group went to Kuwajar,Shamim had delivery pains and so Shamim was taken to PW6 Zaitoon.The prosecutrix went along with Shamim andthere, Shamim delivered a baby girl.The learned Prosecutorsubmitted that PW 6 Zaitoon, PW 21 Salim and PW 20 Nayakare the witnesses, who corroborate the evidence of theprosecutrix on the point of delivery of Shamim.He pointedout that PW 6 Zaitoon has categorically stated that she lefther residence not on day of breaking of Godhra riots but onFriday that is the day next after the delivery.Mr. Venegavkar ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:06 ::: 187 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docsubmitted that though Mr.Ponda tried to make capital of herstatement that there was stone throwing on her residence onthe day Godhra riots broke and hence, she was afraid and lefther residence, this statement does not mean she did notcome back to her residence thereafter.Mr. Venegavkarsubmitted that her categorical statement that she left thehouse the day next of the delivery cannot be brushed asideand ignored.Mr. Venegavkar drew our attention to evidenceof PW 21 Salim where he has stated that 16 to 17 personsfrom Randhikpur came to him.One of them was pregnant,hence, he took her to PW 6 Zaitoon who was a mid wife.Mr.Venegavkar pointed out that PW 20 Nayak in paragraph 8 ofhis cross-examination has specifically stated that in the groupof the prosecutrix, there were four women, one girl and onerecently born baby and rest were male persons.Hesubmitted that the omissions in respect of this incident in thestatement of the prosecutrix and also in the statement ofZaitoon cannot be taken into account as the earlierstatements of the prosecutrix were recorded by Limkheda ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:06 ::: 188 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docpolice station.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:06 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:06 :::157 Regarding Zaitoon leaving the house after stonepelting and running away to the jungle, the learned trialJudge put Court questions to her in order to remove doubt asto whether Shamim really delivered at the house ofZaitoon or not? While answering to the Court questions,she said that she attended the delivery of Shamim andthereafter she left her house and went to Jungle.Thereafterquestions were put to Zaitoon by the prosecution as well asthe defence.Zaitoon was cross-examined and she admittedthat after Godhra incident, next day there were riots andstone pelting and after that she left the house immediately.Zaitoon answered in re-examination that she left the houseafter Godhra riots and only after delivery of Shamim, she leftthe house and ran away.Further, in order to dislodge thewitness, a question was put that on Wednesday, there wereGodhra riots and on the next day, there was stone peltingand so she immediately left the house.In the cross- ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:06 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:06 :::189 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docexamination, a skillful question was asked, however, theanswer given to that question cannot be read in isolation butin the context with the answer given by the witness in her re-examination which is to be taken into account.A confusion was createdby changing the sequence of the incidents.Zaitoon is foundfirm on three points - firstly that Shamim delivered a baby ather house; secondly, there was attack by Adivasis and stonepelting and thirdly, after delivery she left the house.The train burning of kar sevaks took place on 27.2.2002at Godhra.On the same day, theprosecutrix and the group left Randhikpur; went to Chundadi,reached Kuwajar and at night, Shamim delivered a baby andthereafter, PW 6 Zaitoon ran away from Kuwajar on Friday.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:06 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:06 :::Mr. Pondasubmitted that Nanjibhai has mentioned the timing in theexamination-in-chief to suit the story of the prosecutrix.Nanjibhai has admitted that he did not state the date ortiming when he gave statement to CBI.Mr. Ponda furthersubmitted that as per the evidence of the prosecutrix andNanjibhai, 4 ghagras and 4 lehengas were provided byNanjibhai to the prosecutrix and her group.He submittedthat it was necessary for CBI to confront the prosecutrix andNanjibhai with each other, however, it was not done.Similarly, as per the evidence of the prosecutrix and PW 3 ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:06 ::: 191 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docSugra, Sugra handed over one green colour lehenga of theprosecutrix to the police, which is marked as Article 5A. So,this lehenga should have been shown to Nanjibhai to confirmwhether this was one of the lehengas which he provided tothe group of the prosecutrix.He contended NanjibhaiNayak's evidence on the number of children is also notreliable as to whether 16 to 17 people with 3 ½ years oldchild and 2 days old baby were proceeding or not is doubtful.The prosecutrix and those inher group were from Randhikpur.Moreover, Shamim had justdelivered a baby and the prosecutrix stated that one personfrom Nayak tribe took pity on them as Shamim had a newborn child and he provided them with food, water and clothesand gave them shelter for two days.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:06 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:06 :::160 We have perused the evidence of the prosecutrix,PW 6 Zaitoon, PW 21 Salim Rasul Rampuria and PW 20Nanjibhai Nayak.She has specificallymentioned the name of Shamim in her substantive evidence.The omissions brought on record by the defence are mainlyfrom the statement i.e., FIR and from the statement dated ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:06 ::: 193 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc13.3.2002, which was recorded by the accused persons i.eaccused Nos. 17 and 16 respectively.These two statementswere recorded by the police of Limkheda police station.Fromthe beginning, the stand of the prosecution is consistent thatthe statements recorded by the police of Limkheda policestation, who are accused i.e., accused Nos.16 &, 17 are not tobe relied on and the contents therein cannot be construed astrue as they were recorded by the accused.The CBI hasrecorded further 3 statements of the prosecutrix and noomissions in respect of delivery of Shamim are brought onrecord from those statements.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:06 :::161 Not finding of the body of newly born baby ofShamim at the time of panchanama of the spot or inquestpanchnama is one more aspect which Mr. Ponda tried to takeadvantage of.162 According to the prosecutrix, the group on1.3.2002, moved to Khudra and they took refuge at the house ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:07 ::: 194 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docof PW 20 Nayak, who offered them food, shelter and clothesto women.PW 20 Nayak has said in the examination in chiefthat in the group, he noticed one lady with a newly bornbaby.Non-finding of body of the newly born baby at the timeof the spot panchanama itself cannot disprove the fact ofbirth of baby at the house of PW 6 Zaitoon when ocularevidence of the witnesses on this point is found consistentand believable.Thus, the challenge given to the delivery ofShamim does not sustain and according to us, theprosecution has established that Shamim had delivered ababy girl at the house of PW 6 Zaitoon at Kuwajar.GROUP 3:::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:07 :::G ROUP OF PERSONS THE PROSECUTRIX MET ON 4.3.2002 :AtLimkheda police station, the prosecutrix met PW 7 MadinaSiraj Patel, and PW 19 Firoz Abdul Sattar Ghachi, who hadsought refuge at Limkheda police station.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:07 :::164 According to the prosecutrix, when she camedown from the hillock, she met PW 11 Sumaliben.Accordingto the prosecutrix, as she was semi-nude, when she met theadivasi lady, she asked the lady to provide her someclothes.At that time, Sumaliben gave her blouse and odni.Ponda submitted that the entire story of the prosecutrixof assault and rape and murder is false which can be seenfrom the fact that the prosecutrix did not disclose about rapeand murder to Sumaliben.He submitted that if the story ofthe prosecutrix was true, the prosecutrix would haveimmediately disclosed this fact to Sumaliben.He argued that ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:07 ::: 196 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docif the prosecutrix was only in petticoat, i.e., semi nudecondition, then, it was obvious for any woman to tell thereason for such condition to the other lady.Along with the evidence of Sumaliben, it isnecessary to consider the evidence of DW 2 Vanraj Dhingraand PW 27 Natwarbhai Bamnia as these were the twopersons whom the prosecutrix met on 4.3.2002 i.e. the nextday after the incident and before going to the police station.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:07 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:07 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:07 :::They tookthe lady in the jeep to Limkheda Police Station.167 DW 2 Vanraj has stated that on 4.3.2002 at about7.30 a.m. they proceeded towards Limkheda.He wasaccompanied by four home-guards including PW 27Natwarbhai.When they were at the junction of four roads,some people reported that there was a riot at Kesharpur,hence, he proceeded towards Kesharpur.They found thatpolice were making enquiry in the vicinity of a small hill.They proceeded towards the other side of the place i.e.kachcha road leading to Panivela.There they got down andstarted making search.After about 30 to 45 minutes, theycame back near the vehicle.She told himthat she and her family members were returning home fromwork at Vadodara and on the way, they were accosted by amob of 400 to 500 persons, therefore, they ran helter skelterand in the process, she was separated from her family ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:07 ::: 199 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docmembers.She further told that she did not knowwhereabouts of her family members and she should be savedand she should be taken to the police station, hence, theytook her to Limkheda Police Station.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:07 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:07 :::168 Mr. Ponda submitted that though the prosecutrixhas stated that she met DW 2 Vanraj, her story is totallydifferent than the case of Vanraj.The prosecution droppedDW2 Vanraj though he was a necessary witness for theprosecution.Mr. Ponda submitted that therefore theyexamined DW 2 Vanraj as defence witness.DW 2 Vanrajarrived in a jeep on 4.3.2002 in the morning along with hisassistant PW27 Natwarbhai when he was going near Keshpurjungle and carrying out search.Mr. Ponda submitted that thiswitness has admitted the fact of meeting the prosecutrix onthat day as she approached them.According to Vanraj, shetold that when she and her family were returning home fromVadodara on the way, she was attacked by a mob of 400 to500 persons.Thereafter, she and her family members ran ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:07 ::: 200 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docand in the process, she was separated from her familymembers.She requested him to save her and take her topolice station and therefore, he took her in his vehicle andhanded her over to PSO at Limkheda police station.Ponda referred to PW 27 Natwarbhai, who has confirmed thefact that one woman i.e., the prosecutrix met commandantDW 2 Vanraj on the way and it was DW 2, who talked withher.However, he said he did not know what was the talk.Ponda argued that all these three witnesses PW 11Sumaliben, DW 2 Vanraj and PW 27 Natwarbhai are the keywitnesses whom the prosecutrix met soon after the incident,and their evidence, in fact, has demolished the case of theprosecution, as the prosecutrix did not disclose anythingabout the rape or killing of her family members to them.169 In reply, Mr. Venegavkar, the learned Counsel hassubmitted that DW 2 Vanraj and PW 11 Sumaliben did notsupport the prosecution and PW 27 Natwarbhai did not talkwith the prosecutrix directly but he relied on what DW 2 ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:07 ::: 201 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docVanraj had stated.Mr. Venegavkar submitted that thelearned Prosecutor has cross-examined both DW 2 Vanraj andPW 11 Sumaliben.The prosecutrix could nothave told DW2 Vanraj that she was coming from Vadodarawhen she was coming from Kuwajar or even Randhikpur.Hepointed out that DW2 Vanraj was on duty.He was trying tofind out the dead bodies because Vanraj had receivedmessage and directions from the authority to find out thedead bodies which were lying in the jungle and when he wasin search of the bodies, he met the prosecutrix.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:07 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:07 :::170 PW 11 Sumaliben was the first person who met theprosecutrix at the hand pump after the prosecutrix ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:07 ::: 202 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docdescended the hillock.As per case of the prosecutrix, shewas in a petticoat and when the prosecutrix approachedSumaliben, the Adivasi lady, was violent.Therefore, theprosecutrix convinced her that she was like her andthereafter, Sumaliben provided her clothes including blouseand odni.Thereafter, as per the prosecutrix, she saw thatone police person came there in a vehicle.So, she rantowards the vehicle.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:07 :::171 PW 11 Sumaliben did not support the case of theprosecution.PW 11 has stated in the examination in chiefthat she did not provide clothes to the prosecutrix.Mr. Pondaargued that why the prosecutrix did not disclose toSumaliben about the fact of rape and killing of her familymembers.He argued that if the prosecutrix was only in apetticoat, i.e., in a semi-nude condition, it was obvious forany woman to tell the reason for her condition to the otherlady.In addition Sumaliben stated that when she met theprosecutrix, she was wearing clothes and she did not say that ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:07 ::: 203 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docshe supplied clothes to the prosecutrix.Thus, Sumaliben didnot support the case of the prosecution.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:07 :::172 DW 2 Vanraj is Commander in Home Guards, whowas given the duty of patrolling in a jeep with PW27Natwarbhai near Panivel.He met the prosecutrix on 4.3.2002but he did not say that she complained about killing of herrelatives and she was raped and also killing of her daughter.173 As per the case of the prosecutrix, the first twopersons she met after the incident are PW11 Sumaliben andDW2 Vanraj.However, both did not support the case of theprosecution and they maintained a stand that the prosecutrixdid not say a word to them about the killing of her relativesand rape on her.While appreciating the submissions of thelearned defence Counsel on this point, we keep in mind thefact that these two witnesses have turned hostile.Theprosecutrix did not mention that she disclosed the fact ofrape or killing of her relatives to Sumaliben.She had asked ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:08 ::: 204 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docfor clothes and then, the lady offered blouse and odni to her.Assuming that the prosecutrix was not fully clothed and waswearing only petticoat, barely covering her body, it cannot beexpected that the prosecutrix ought to have disclosed aboutthe fatal incident to an unknown woman.The prosecutrix hadlost her two brothers, mother, sister and 3½ year olddaughter on the earlier day.She had witnessed the massacreof all her near relatives who were with her.She had to leaveeverything and she was walking and running from one placeto the other since last three days to find shelter and saveherself.Moreover, she was raped when she was 5 monthspregnant.This was a big trauma.Under such circumstances,a woman may react in a totally different way and not as perthe expected behaviour in any other rape case.174 The fact that the prosecutrix went to DW 2 Vanrajis admitted by the prosecution and the defence.He was ahome guard person in the jeep.Naturally, the prosecutrixthought him to be a police person and, therefore, her ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:08 ::: 205 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docapproach to him with a view that she might get someprotection is found logical.She told him the facts regardingwhat had happened.Vanraj did not support the prosecutionand PW 27 Natwar, who is examined by the prosecution hasalso in fact, deposed on the same lines as that of Vanraj.Weare of the opinion that the disclosure by the prosecutrix whichis stated by DW 2 Vanraj itself appears false and, therefore,we discard evidence of DW 2 and PW 27 on this point.Theprosecutrix was in fact coming from Randhikpur and wasgoing towards Sarjumi.Baroda (Vadodara) is in a totallydifferent direction and there was no need for her to hide heridentity and tell that they were coming from Baroda.This lieput in the mouth of the prosecutrix, in fact proves DW 2Vanraj is a liar.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:08 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:08 :::175 A mob of 500 persons chasing and assaultingrelatives of the prosecutrix has come in the evidence firstly inthe FIR (Exhibit 56) which can be relied only on the point thatthe prosecutrix had grievance that some trauma had ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:08 ::: 206 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.dochappened and she had approached the police to complainabout it.However, it is to be noted that she has deposed thather FIR Exhibit 56 was incorrectly recorded and the personwho had recorded the complaint, was subsequently madeaccused No.17 and convicted under sections 217 and 218.Thus, Exhibit 56, in a way is a very important documentwhich establishes the fact that though the prosecutrix went topolice station and urged for her complaint to be recorded,many facts were suppressed at the police station and her FIRwas manipulated.The FIR itself throws light on the falsity inrecording of the information narrated by the prosecutrix.Thus, exhibit 56 initiated an imaginary story of 500 personschasing and attacking group of the prosecutrix.Undoubtedly, this figure of 500 persons was deliberatelymentioned to show the impossibility in the story of theprosecutrix of her being able to identify accused nos.1 to 12from a mob of 500 people.The exaggerated figure of 500persons was false.It was intentionally written.Therefore,by mentioning mob of 500 persons, it was intended to showthat nothing happened, as per story given by the prosecutrixso that she can be proved a liar or a lady giving all imaginaryversion.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:08 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:08 :::176 As per the case of the prosecutrix, she saw twopersons, i.e., DW 2 Vanrajsingh Dhingra and PW 27Natwarbhai who were from Home Guard, however, shetreated them as police, hence, she approached them for help.The learned Counsel Mr. Ponda submitted that thoughstatement of DW 2 Vanraj was recorded, he did not want tolie before the Court, so prosecution chose not to examinehim.PW 27 Natwarbhai was substituted in the place ofVanrajsingh and hence defence examined Vanraj.Hesubmitted that the evidence of the prosecutrix can bescrutinized on the basis of the witnesses who met her first ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:08 ::: 208 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docafter the incident.The prosecutrix has stated that she metVanraj and told about the killing and also that she was rapedand thereafter, he took her to the police station.Theprosecutrix meeting Vanraj is not disputed by either theprosecution or by the defence.However, as per thedeposition of Vanraj, the prosecutrix met him and told himthat she was coming with a group from Baroda and 500people attacked them at around 12 pm on the earlier dayand, therefore, she lost the group.Therefore, she requestedhim to take her to the police station and she was taken topolice station.PW 27 Natwar has also stated that when theyreached near kachha road, at that time, he along with Vanrajgot down.One woman was standing near the jeep and therewas talk between Commandant Vanraj (DW 2) and the lady.However, he did not know what was the talk and they tookthe lady in the jeep to Limkheda Police Station.In the cross-examination, he has stated that he had talk withCommandant Vanrajsingh, who told him that the lady was ina group from Baroda and the group was chased by 500 ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:08 ::: 209 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docpeople after the riots.Ponda has submitted that thisshows that the prosecutrix did not disclose to Vanraj the factof killing of her relatives and of rape on her which had takenplace on the earlier day.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:08 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:08 :::However, adefence witness cannot be cross-examined and contradictedby the Prosecutor on the basis of his statement recordedunder section 161 of the Code of Criminal Procedure.Ponda questioned the legality of the cross-examinationand especially the attempt of the prosecution of proving theomissions in the evidence of DW 2 Vanraj throughInvestigating Officer i.e., PW 72 Sinha.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:08 :::Statements to police not to be signed: Use of ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:08 ::: 211 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docstatements in evidence.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:08 :::Under subsection (3) ofsection 161, the police officer may reduce into writing any ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:08 ::: 212 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docstatement made to him in the course of examination of awitness during investigation.However, in our criminalsystem, neither the statement recorded by the police undersection 161 needs to be signed by the person making it norunder section 162 the said statement can be used for anypurpose except as stated or allowed under the proviso of thesection.The proviso permits the use of the statement only tocontradict to bring on record significant omissions andcontradictions.This helps the prosecution to produce thatrecord to prove the authenticity and the truthfulness in theinvestigation and so also it is helpful to the defence.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:09 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:09 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:09 :::Therefore, it isnecessarily implied that witness should not be a witness fordefence.A person may stand as a witness for defencethough he is cited as a witness for prosecution in the report(charge sheet) filed under section 173 of Cr.P.C. Theprosecution has choice to examine or delete the witnessthough his statement is recorded.It is always open for thedefence to lead evidence by calling any witness.If defencechooses to examine a witness cited but dropped by theprosecution, then he is a defence witness, thus, his characteras a witness changes.The prosecution witness getsconverted into defence witness.However, this conversiondoes not change the nature or the character of the statementwhich is recorded by the police under section 161 of the Code ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:09 ::: 216 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docof Criminal Procedure.The statement remains as astatement under section 161 of the Code of CriminalProcedure, therefore, procedural bar under section 162 runsagainst the use of a statement in the evidence and it can beused only for the limited purpose.The said proviso andprovision to contradict the witnesses is not available to theprosecution because the witness does not remain as awitness for the prosecution but is converted into a witness ofthe defence.The section by necessary implication puts baron use of such statement on the prosecution for the purposeof contradiction to a witness who was earlier its own witnessbut now has stepped in the box as a defence witness.Insuch case omissions and contradictions brought on record inthe case of DW 2 Vanraj cannot be looked into.However, weare of the view that his evidence does not inspire confidence,hence, we place no reliance on it.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:09 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:09 :::Patel, the writer constable in Limkheda Police Station who isone of the scribes of FIR Exh. 56; DW 6 Chandubhai A. Tariyadand DW 5 Jaisingbhai Hirabhai Patel, Police Constables whowere present when FIR Exh. 56 was prepared on 4.3.2002.We have already discussed above regarding the FIR in detail,hence, we need not discuss the evidence of these threewitnesses.Madina stated that the prosecutrix disclosed thenames of three persons i.e., accused Nos.1,2 and 3 as thepersons who committed rape on her.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:09 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:09 :::Then,the police asked them to go away and therefore, they left.On the point of narration of the FIR by the prosecutrix at theLimkheda police station, the prosecution has tenderedevidence of PW 7 Madina and PW 19 Feroz.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:09 :::187 On 4.3.2002, when the prosecutrix reached atLimkheda police station, the police station was crowded withmany Muslims who were there seeking protection.Theprosecutrix was confronted with Madina for identification andMadina stated in her evidence that she knew the prosecutrixas the daughter of Abdul Ghachi.Both Madina and Ferozwere the victims of the riots and so their coming together at ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:09 ::: 222 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docthe police station and supporting each other was natural.Madina also was separated from her family members.PW 7Madina has stated that when the prosecutrix narrated theincident to Limkheda police station, she told that her familymembers were murdered and she was raped by Jaswant Nai,Govind Nai and Naresh Modhiya i.e., accused Nos.1 to 3respectively.She mentioned that Feroz and Abdul Sattarwere with her at the time of narration and at that time, thepolice drove them away so they left the place.Thereafter,she did not know what happened.She claimed that when theprosecutrix was sent for medical examination, she along withone lady constable accompanied her to Limkheda hospital.She also mentioned that one Abdul Sattar, was taken in theevening by the police to the place where the bodies werelying.He was taken to the spot of offence for the purpose ofidentification of the dead bodies and when he returned, hewas crying and said they met a bad end.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:09 :::188 The learned Counsel Mr. Ponda submitted that on ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:10 ::: 223 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc4.3.2002, the prosecutrix was taken by DW 2 Vanraj toLimkheda Police Station where she met PW 7 Madina and PW19 Firoz.First of all Madina was not from any village but she was fromRandhikpur i.e. the same village as the prosecutrix, hence,when the prosecutrix came to the police station, Madinawould try to go near her to find out the facts.Secondly, thepolice station was crowded, hence, the chances of peopleincluding Madina being in hearing distance were very high,hence, there was every possibility for Madina to hear whatthe prosecutrix stated.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:10 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:10 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:10 :::224 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc189 PW 19 Phiroz was the son of Abdul Sattar.They stayed in the jungle.After two days,they saw a police vehicle and they were taken to the policestation at Limkheda.There, he met Madina.Two daysthereafter, one person brought the prosecutrix to the PoliceStation around 10.00 to 10.30 a.m. It was the fourth day ofthe month.He noticed injuries on the hand of theprosecutrix.Her hair was loose.The prosecutrix stated thatwhile she was at the place near Kachcha road leading toPannivel, two white vehicles came to the spot.Mob ofpersons alighted from those vehicles and attacked her andher relations.She also told the police that oneShailesh Bhatt (accused No. 4) snatched her daughter fromher and killed her by smashing on stone.The police ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:10 ::: 225 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docthereafter threatened the prosecutrix that if she gives thenames of the rapists, she would be finished by givingpoisonous injection.He and Madina were then asked to goaway.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:10 :::190 Mr. Ponda argued that the evidence of PW 19Feroz Ghachi is not reliable on the point of being present atthe time of recording of the FIR Exh. 56 of the prosecutrix atLimkheda police station.He submitted that PW 19 is aninterested witness as the prosecutrix was related to himthrough her grandfather.He submitted that the statement ofthis witness was recorded by CBI two years after the incidentand there is a material omission that he heard the prosecutrixnarrating the incident had taken place at Kaccha road.Thereafter, it is stated that there is an omission in respect ofnarration of the prosecutrix that the persons alighted fromthe vehicle and attacked her relatives.Mr. Ponda furthersubmitted that social workers, namely, Farha Naqvi, HumaKhan and Sugra, were present at the Camp and they tutored ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:10 ::: 226 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docthese witnesses including the prosecutrix.As far asomissions in the evidence of Feroz are concerned, they are allinconsequential in nature and do not change the basicsubstratum of the case of the prosecutrix.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:10 :::191 It was vehemently argued by Mr. Ponda that therewas a delay in recording the statements of these witnessesi.e. PW 7 Madina and PW 19 Feroz and therefore, thesewitnesses are tutored by social workers.We do not considerthat there is a delay in recording of the statements of thesewitnesses, on the background of callous investigationconducted by the Limkheda police station and Gujarat CID.This is a case where the police wanted to help the accusedby suppressing their names.The police were not passivetowards investigation but they were very active in destroyingthe case of the prosecutrix.Therefore, at no point of timethere was any chance of recording the statements of thesetwo witnesses.Thus only after the CBI took over theinvestigation in January, 2004 that after collecting the ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:10 ::: 227 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docinformation from the prosecutrix and other sources, theycould reach to these witnesses and their statements wererecorded.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:10 :::192 Mr. Venegavkar submitted that there are nomaterial omissions in the evidence of PW 7 Madina, PW 19Firoz and only suggestions are given to these witnesses whichwere denied by the witnesses.The evidence of these two witnesses i.eMadina and Feroz is not demolished in the cross-examination,hence, we find it safe to rely on their testimony and we are ofthe opinion that their evidence fully corroborates theevidence of the prosecutrix.GROUP 4: GROUP OF PERSONS BILKIS MET FROM 5THMARCH, 2002 TO 7TH MARCH, 2002:::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:10 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:10 :::228 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc 5.3.2002: This group includes DW 7 Ushaben Kishori, who was a police constable attached to Limkheda police station and who took the prosecutrix to community health centre, Limkheda on 5.3.2002 where the prosecutrix was examined by PW 9 Dr. Rakeshkumar Mahto.We shall deal with the evidence of Dr. Mahto a little later.Later on, on 5.3.2002, the prosecutrix also met PW 3 Sugraben, aunt of the prosecutrix and PW 5 Sharifa Abdul Razzak Umarjee, social worker whom she met at the Godhra Relief Camp.6.3.2002: On 6.3.2002 PW 18 Jayanti Ravi, District Magistrate and Collector, Godhra and PW 23 Govindbhai Patel, the Executive Magistrate visited Godhra Relief Camp.The prosecutrix narrated the incident to PW 18 Jayanti Ravi.PW 18 Jayanti Ravi directed PW 23 to record the statement of the prosecutrix.Accordingly, he recorded statement (Exh. 277) of the prosecutrix.7.3.2002: PW 17 Dr.Rohini Katti and DW 3 Dr.Geeta Pisagar examined the prosecutrix on 7.3.2002 at Godhra Civil Hospital.On that day PW 42 Mr.Shivaji Pawar, PSI attached to the Godhra town police station::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:10 ::: 229 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc recorded the statement of the prosecutrix on 7.3.2002 at Civil hospital, Godhra.Except for recording this statement he has played no further role.We will deal with the evidence of PW 17, DW 3 and PW 9 together when we deal with the medical evidence.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:10 :::193 In relation to the persons the prosecutrix met on5.3.2002, Mr. Ponda submitted that if story of the prosecutrixwas true, she would have definitely told about it to PoliceConstable DW 7 Ushaben.DW 7 Ushaben went along withthe prosecutrix on 5.3.2002 to Community Health Centrefrom Limkheda Police Station.Ushaben admits it, however,she does not say that the prosecutrix told her that she wasraped, who raped her and her relatives were killed.It is to benoted that Ushaben was also attached to Limkheda policestation, hence, she would certainly not support theprosecutrix.194 Mr. Venegavkar has submitted that on 5.3.2002,the prosecutrix was taken to Dr. Mahato (PW 9) at CHCLimkheda in the morning.She was accompanied by PW 7 ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:10 ::: 230 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docMadina and DW 7 Ushaben.On the same day, she wasshifted to Godhra Refugee Camp and there, she met PW 3Sugra and PW 5 Sharifa.He submitted that the evidence ofthe prosecutrix that she was taken to CHC Limkheda iscorroborated by the evidence of these 3 witnesses i.e.Madina, Ushaben and Dr. Mahto.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:10 :::195 Mr. Ponda has argued that there is a confusion inthe evidence of Madina and the prosecutrix as to on whichdate she was taken to CHC Limkheda and when she wasexamined by PW 9 Dr.If the CBI wanted to manipulate ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:10 ::: 231 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docthis record there was ample opportunity to do so but it wasnot done.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:10 :::Subsequently,they were sent to C.A. It may be stated that no incriminatingmaterial was found on these clothes.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:10 :::198 Sugra was put number of questions in the cross-examination in respect of the villagers who were residents ofRandhikpur.Questions were also put to her about theaccused and she answered that she knew most of the ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:11 ::: 233 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docaccused prior to the incident.They are all from Randhikpur.She was elected member of Gram Panchayat and worked assuch for 5 years.In her evidence, it has come on record thatshe also stated that the population of Randhikpur was 1000to 1500 out of which 100 to 150 houses were of muslims atthe time of Godhra riots.She has mentioned that she leftwith her family members including Haleema, Munni, Mumtazand the prosecutrix together.However, she stayed back atChundadi for two days.There is no confusion about thesenames because though many persons left together, later atdifferent points of time, the group separated and the groupwhich was moving with the prosecutrix till Panivel was agroup of 16 to 17 persons and nothing much is brought onrecord which damages the evidence of Sugra.It appearsthat a large number of muslims left Randhikpur.Theystopped at Chundadi where some stayed back and othersbroke up into different groups and proceeded in differentdirections.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:11 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:11 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:11 :::234 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc199 PW 5 Sharifa was working as a social worker inGodhra Relief Camp.She has stated that she met theprosecutrix on 5.3.2002 in the camp.When Sharifa first metthe prosecutrix, the prosecutrix was crying.Sharifa asked herwhy she was crying.At that time, the prosecutrix told herthat accused Jaswant Nai, Govind Nai and Naresh Modhiya,i.e. accused Nos.1, 2 and 3 raped her and wrong was donewith her mother and sisters and accused no.4 Shailesh Bhattkilled her daughter.The prosecutrix also told her that afterthe incident, she had been to Limkheda police station and shehad lodged her complaint at Limkheda police station,however, her complaint was not read over to her but theyobtained her thumb impression on the complaint.She alsotold that the police at Limkheda had threatened her that ifshe disclosed the names, she would be finished by givingpoisonous injection.Ponda has submitted that thestatement of this witness was recorded only by CBI.Thiswoman, who was a social worker did not come forward togive her statement to Limkheda police station or the Gujarat ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:11 ::: 235 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docCID, hence, her evidence is suspect.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:11 :::200 Admittedly, Shareefa was a social worker and hasstated that there were 2500 to 3000 persons staying atGodhra Refugee Camp at that time.She has deposed thatshe met the prosecutrix and the prosecutrix disclosed the factof rape, assault on her and murder of her daughter Saleha bythe accused Nos.1 to 4 attributing them specific roles.Inthe cross-examination, some immaterial omissions in respectof her residence as to whether it was Dahod or Godhra andabout the name of her husband were brought.She was putquestions about many persons including other social workersFarha Naqvi, Huma Khan, Sugra, Farooq, Mukhtiyar, etc.Thus, we find that her evidencecorroborates evidence of the prosecutrix.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:11 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:11 :::236 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc201 Mr. Ponda also pointed out that there was aseizure panchanama of the clothes of the prosecutrix, i.e.,petticoat, odni and blouse which she wore immediately afterthe incident.This is marked as Articles 5A, 6A and 7Arespectively.As per the evidence of the prosecutrix,she handed over her clothes to one Sugra in March 2002 atGodhra Relief Camp, so it is surprising that Sugra preservedher clothes for 2 years, i.e., till January 2004, hence, it isobviously a planted evidence.Mr. Ponda has submittedthat the statement of Sugra that she received clothes fromthe prosecutrix at the Godhra Refugee Camp i.e., one greencolour lehenga/ghagra (article 5A), blouse (article 7A) andcream colour dupatta (article 6A) is a cooked up story and soalso Sugra's evidence that she preserved the clothes for twoyears is also bogus.He submitted that Sugra did not knowthe adivasi lady and why the prosecutrix handed over thoseclothes to Sugra and why did Sugra preserve these clotheswith her, appears to be absurd, hence, these clothes must ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:11 ::: 237 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.dochave been planted.As as far as this contention is concerned,it is not the case of the prosecution that any semen or bloodstains etc. were found on these clothes.Hence, no purposewould have been served by planting these articles.Moreover,Sugra has given an explanation for keeping the clothes withher i.e. she thought that the owner of the clothes would cometo take them.Thus, as far as this contention is concerned, wemay state that nothing could have been achieved by theprosecution by planting these clothes.The clothes werewashed by Sugra and it is not anybody's case that any stainsor anything incriminating was present on those clothes.Thus,we find no merit in the submission of Mr. Ponda that theclothes were planted.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:11 :::P202 Mr. Ponda pointed out that in the evidence of PW 3Sugra and PW 5 Sharifa both the ladies have deposedassertively that they met the prosecutrix on 5th March, 2002,however, their evidence is falsified by a document, i.e., therelevant pages dated 5th March, 2002 of the register of ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:11 ::: 238 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docrefugees of Godhra Relief / Refugee Camp.Mr. Pondafurther submitted that there is no consistency in thestatement of Sugra and Sharifa about who were theassailants and there is also variance in the evidence of theprosecutrix.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:11 :::203 Mr. Ponda further pointed out that a list ofrefugees at Godhra Relief Camp was maintained for thepurpose of supply of ration (Exhibit 440).He relied on the list ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:11 ::: 239 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docdated 5.3.2002 which is annexure to letter dated 13.2.2002which is at Exh. 440 colly.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:11 :::204 The contention of Mr. Ponda that because thename of the prosecutrix was not there in the register ofGodhra Relief Camp dated 5.3.2002, hence, the prosecutrixwas not in the camp on 5.3.2002, cannot be accepted.We also find no merit in the contention that on 5.3.2002 theprosecutrix was taken somewhere from the police station andtutored.She stayed that night at the policestation which is clear from the evidence of PW 35Ranjeetsingh Patel.Many Muslims had sought shelter in thepolice station because the situation outside was fraught withdanger.Almost all the relations of the prosecutrix had beenkilled, in such case, she would not dare to leave the safety ofthe police station and go outside with some unrelatedpersons.Thus, we find no merit in the contention that on5.3.2002, she was taken somewhere from the police stationand she was tutored to falsely implicate accused nos. 1 to 12.CORROBORATION BY 9 WITNESSES TO THE EVIDENCE OFTHE PROSECUTRIX REGARDING ASSAULT AND RAPE:-205 As far as the actual incident is concerned, theevidence of the prosecutrix is corroborated by PW 3 Sugra,PW 5 Sharifa, PW 7 Madina, PW 18 Jayanti Ravi, PW 19 Firozand PW 23 Govindbhai Patel.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:11 :::She narrated the facts to PW 18Jayanti Ravi.As theDistrict Magistrate, she visited the relief camps.On 6.3.2002,she visited Godhra Relief Camp.She came across severalcomplaints in the camp.One distinct complaint was that ofthe prosecutrix.On her interaction with the prosecutrix,Jayanti Ravi learnt from her that she and her relatives whileescaping from violence were attacked by a mob and she wasraped and her family members were killed.She mentionedthe names of the offenders whom she identified.The ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:12 ::: 242 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docprosecutrix further disclosed that the FIR given by her wasnot lodged as per her narration.She expressed that she begiven an opportunity to lodge her complaint.PW 18 JayantiRavi then directed the Executive Magistrate PW 23Govindbhai Patel to record the narration of the prosecutrix.On going through the statement (Exh. 277) of the prosecutrix,she realized the gravity and ordered medical examination ofthe prosecutrix by Civil Surgeon, Godhra.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:11 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:12 :::207 PW 23 Govindbhai Patel has stated that he wasMamlatdar and Executive Magistrate at Godhra at therelevant time.PW 18 Ms. Jayanti Ravi was the DistrictMagistrate and Collector of Godhra.On 6.3.2002, heaccompanied PW 18 Jayanti Ravi to Godhra Relief Camp.PW18 Jayanti Ravi made inquiries with the inmates of the camp.Two ladies approached PW 18 Jayanti Ravi with a grievance ofrape on the prosecutrix and killing of her relations.JayantiRavi then instructed him to record the statement of theprosecutrix.Thereupon, he recorded the statement (Exh. ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:12 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:12 :::277) of the prosecutrix.He obtained thumb impression of theprosecutrix on the statement.Govindbhai attested thethumb impression of the prosecutrix with his countersignature.He handed over this statement to PW 18 JayantiRavi.Not only the evidence of PW 18 Jayanti Ravi and PW 23Govindbhai Patel corroborate the case of the prosecutrix butthe statement (Exh. 277) of the prosecutrix also corroboratesthe case of the prosecutrix.We have already dealt withExh. 277 in detail, hence, we need not discuss it any further.208 On 7.3.2002, the prosecutrix met PW 17 Dr. RohiniKatti and DW 3 Dr. Geeta Pisagar, who examined her.Weshall deal with their evidence & the evidence of PW 9 Dr.We will deal with theevidence of PW 12 Madhusudan Prajapati along with theevidence of PW 54 Prafulchandra Sevak as they are ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:12 ::: 244 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docconnected.PW 12 Madhusudan has stated that a panchnamaconcerning white colour marshal jeep bearing registration No.GJ-20-A-3123 was made in their presence.The vehicle wasseized.He has identified the photographs Exh. 58/1 to 58/4as those of the vehicle.Madhusudan has stated that theprosecutrix was present at the time of seizure of the saidvehicle.The photographs of the vehicle were taken in theirpresence.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:12 :::While giving hisevidence, he relied on the Motor Vehicle Register (Article 50)having pages consecutively numbered.It may be stated thatRamilaben is admittedly the wife of accused No. 12Rameshchandra Chandana.211 As far as the vehicle is concerned, the prosecutrixhas stated that the vehicle involved in the crime was shown ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:12 ::: 245 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docto her.It was the vehicle which was used by the offenders forarriving at the scene of offence.She has identified it beforeCBI.She has further stated that she was shown jeep Article 2and she has identified it as the same jeep which was used bythe offenders on the date of the incident.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:12 :::212 The prosecutrix has stated that the incident tookplace on the kachcha road leading to Pannivel.This iscorroborated by the evidence of PW 16 Balwantsingh Rajput.PW 16 Balwantsingh Rajput has stated that PW 1 prosecutrixled them to one place.They went to the place by vehicle.They halted the vehicle at the confluence of pakka road andkachcha road.The kachcha road led to village Pannivel.DISCREPANCIES IN NUMBER OF ACCUSED, WEAPON ANDSLOGANS:213 Mr. Ponda has submitted that the prosecutioncould not tender reliable evidence on the point of how manyassailants were in the mob? what weapons they werecarrying? what slogans the mob was shouting? which vehicle ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:12 ::: 246 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docthey came in? He referred to examination-in-chief of theprosecutrix in paragraph 6 where she has stated that 25 to30 persons had come in a white vehicle, however, this whitecolour vehicle is an omission which she has admitted inparagraph 112 of her evidence.She has stated that theywere carrying swords, sickles and sticks and were shoutingthat "Aa Raye Musalmano.Emne Maro, Kapo" and itstranslation verbatim is that "See these are Muslims, kill, cutthem".He argued that in FIR Exhibit 56, the prosecutrix hasstated that there was mob of 500 people and to that effectquestion was put to her, and in fax Exhibit 57 she has stated40 persons.These are the omissions and contradictions inrelation to number of people in the mob.He arguedthat it was not mentioned in the Fax Exh. 57 and also in thestatement dated 7th March, 2002 recorded by PW 42 Mr. ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:12 ::: 247 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docPawar.He further pointed out that in Exhibit 57 i.e. fax shehas mentioned weapons as spear, dagger, bow and arrow.He argued that the contradictions are also in respect ofslogans shouted by mob who allegedly attacked theprosecutrix and her relatives.In paragraph 6 she has statedthat they were saying "Aa Raye Musalmano, Emne Maro,kapo", however, in paragraph 117 it is brought on record thatsuch slogans are not mentioned in FIR Exhibit 56 but it isstated that "Tamaro Musalman manus ne maro hindu manusne mari nakel che".He argued that the question howSaleha was killed has remained mute though the prosecutrixin paragraph 7 of her examination-in-chief has stated thataccused No. 4 Shailesh has snatched Saleha from her andsmashed her.However, she is completely silent about thisfact in her FIR, in the fax or further statements recorded on6th March, 2002 (Exh. 277) by PW 23 Govindbhai Patel and so ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:12 ::: 248 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docalso on 7th March, 2002 which is recorded by PW 42 Pawar soalso in the statement recorded on 13th March, 2002 by CircleInspector Limkheda i.e accused No. 16 Ramsingh Bhabhor.214 As far as statement (Exh. 277) recorded by PW 23is concerned, the prosecutrix mentions about killing of herrelatives, hence, her daughter Saleha is covered in thatcategory.No doubt, there is non-disclosure of killing ofdaughter in her two statements, i.e., FIR dated 4 th March,2002 and the statements recorded on 7th and 13th March,2002 by PW 42 and accused no. 16 respectively.As far asFIR is concerned, we have already observed that the policehave on purpose not recorded it correctly.As far as, statement dated 7th and 13thMarch 2002 of the prosecutrix are concerned, these cannotbe scrutinized properly unless we advert to the mostimportant aspect in this case, i.e., the investigation.The investigationremained with Limkheda Police and thereafter with GujaratCID.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:12 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:12 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:12 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:12 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:12 :::215 Mr. Venegavkar has submitted that the evidenceof the prosecutrix is corroborated by the evidence of 9witnesses i.e., PW 3 Sugra, PW 5 Sharifa, PW 7 Madina, PW 8Saddam, PW 12 Madhusudan Prajapati, PW 18 Jayanti Ravi,PW 19 Firoz, PW 23 Govindbhai Patel and PW 54Prafulchandra V. Sevak.He has read over the evidence of theprosecutrix.He argued that the prosecutrix has narrated theincident of assault and rape attributing specific roles toaccused Nos.1, 2 and 3, who raped her and accused No.4,who snatched her daughter Saleha and smashed her on theground.This is how Saleeha was killed.216 Mr. Venegavkar argued that the prosecutrix has ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:12 ::: 251 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docstated that the persons, who arrived there in two vehicleswere from Randhikpur and they were holding weapons likeswords, sticks and sickle and they assaulted her relatives whostarted running helter skelter.Accused no.4 snatched herdaughter Saleeha and smashed her on the ground.Theytore clothes of the women and raped them.She mentioned that at the time ofattack, these persons were shouting slogans against Muslims.She became unconscious because of the sexual assault onher.On going through their evidence, we findmuch merit in this submission.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:12 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:13 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:13 :::252 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docNO COMPLAINT THOUGH FOUR CHANCES217 Mr. Ponda submitted that there is group of 9witnesses who were examined by the prosecution on theincident of 28th February, 2002 at Randhikpur.He gave list ofthe witnesses that is PW 2 Pinjara, PW 4 Salim Ghachi, PW 19Feroz Ghachi, PW 25 Siraj Ghachi, PW 26 Imitiaz Ghachi, PW31 Rasul Aziz Umer, PW 45 Sayad Abdul Salam, PW 46 SalimAbdul Sattar Musa Ghanchi, PW 47 Sattar Majid Ghanchi.These 9 witnesses were residents of Randhikpur.218 The learned counsel Mr. Ponda has argued that 7witnesses i.e. PW 19, 25, 26, 31, 45, 46 & 47 were related toeach other, however, none of them lodged any complaintagainst the acts of accused persons or the rioting.Hesubmitted that they had four good chances to lodge thecomplaint.Firstly, after leaving RanPdhikpur when they allwent to Limkheda Police Station to seek shelter, none of themgave complaint.They all have admitted that they did notlodge complaint except PW 26 Imitiaz Ghachi and PW 31Rasul Ghachi.These 2 witnesses though have stated that ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:13 ::: 253 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docthey lodged the complaint, they did not produce a copy of thesaid complaint lodged by them with the police station thoughin the cross-examination, opportunity was given to them.Secondly, when they all were taken to Godhra Refugee Camp,many police officers & revenue officers, like PW 18 JayantiRavi visited Godhra camp and they enquired about therefugees.None of them came forward to register anycomplaint against the accused.Thirdly he pointed out that inthe evidence of PW 2 Pinjara the defence has broughtadmissions on record that Limkheda police station and theLimkheda Court were situated very close to each other hence,if police were reluctant to lodge FIR, they could have lodgedprivate complaints.Fourthly, all these refugees including thegroup of 9 witnesses were given residence at Rahimatbaug.They were all occupying tenements in the same area andstayed there nearly 1½ to 2 years.The admissions arebrought out in the cross-examination from these witnessesthat they used to meet and discuss about the riot.Thus,lodging of complaint was expected from these witnesses.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:13 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:13 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:13 :::254 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc219 The submissions and the points raised by learnedcounsel Mr. Ponda about non-lodging of the complaint by thewitnesses about the riot and the case of the prosecutrix isanswered by these witnesses in their respective evidenceitself.These 7 witnesses undoubtedly are the victims of riot.Out of fear, they left Randhikpur and didnot go back to their village.Thus, they left not only theirhouses but also their occupations and parted from theirfamily members.The witnesses like PW 2, PW 4, PW 26 andPW 31 have stated that the police were not in a mood torecord any complaint of the muslims.PW 31 Rasul Umer hasstated that "I discussed the issue of reluctance of revenueand police to record the complaint of the inmates of thecamp".Thus, when these witnesses found police non-cooperative or hostile, then naturally they were discouragedto lodge any complaint at any place where they were staying.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:13 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:13 :::255 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docBy lodging complaint against the hindus who were in majorityor the assailants who are also Hindus, might have led to asituation more dangerous and traumatic and the complainantcould have invited further trouble.WHO LEFT RANDHIKPUR WITH THE PROSECUTRIX:She has taken names of one Iqbal, her brother, soalso, there is confusion about Mumtaz, whether she wasreally with the group or not.The prosecutrix has taken thename of her father Abdul Issa Ghachi, who also left with her.She has taken the name of Majidbhai Patel, who was in thegroup.However, her evidence is not clear on the point whoaccompanied her.221 The learned Counsel Mr. Venegavkar whileanswering this point has submitted that who left with the ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:13 ::: 256 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docprosecutrix on 28.2.2002 and who moved alongwith theprosecutrix on 28.2.2002 and thereafter till 3.3.2002 are twodifferent issues.He submitted that the persons, who weresubjected to assault and were killed were the persons, whohad moved with her.She has taken the names of the personsspecifically who moved with her.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:13 :::brothers Aslam and Irfan, uncles Majidbhai and Yusuf Musa Patel, aunt Sugraben, cousins ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:13 ::: 257 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc Shamimben, Mumtazben, Hussain, cousin Shamim, aunt Ameena, Saddam son of Ameena had left our residence at village Randhikpur and moved from the places as aforesaid".::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:13 :::In herexamination in chief, she did not mention the name of herfather PW 24 as being part of her group.PW 24 AbdulGhachi, her father, also corroborates her as he has said thathis daughter (the prosecutrix) alongwith his wife and childrenleft the house in the morning, however, he remained in thevillage to look after his cattle and arrange belongings.Thenon the same day, he left Randhikpur at 1.15 pm.Therefore,in the cross-examination, though the defence has brought onrecord that in FIR Exh 56, she has taken the name of her ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:13 ::: 258 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docfather Abdul, who left alongwith her, we are of the opinionthat the said evidence cannot be read in isolation or only inthe light of some omission that his name was included by theprosecutrix in her FIR or other statements.PW 24 Abdul mayhave initially left with the prosecutrix, however, immediately,thereafter, he returned back.No doubt in FIR Exh. 56, thename of Saddam is not mentioned.However, as wediscussed earlier, Exh.56 is a disputed document in respect ofsome portion of the contents, so is Fax Exh. 57.224 As far as the prosecutrix, PW 3 Sugra and PW 24Abdul giving different names of the persons who leftRandhikpur is concerned, it is seen that on account of Hindusburning and looting the houses of Muslims, there was massexodus of Muslims from Randhikpur.Some of these personsconverged at Chundadi.Thereafter, these persons appear tohave formed different groups and they went onwards indifferent directions.PW 3 Sugra did not accompany thegroup of the prosecutrix after Chundadi and she stayed back ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:13 ::: 259 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docat Chundadi.It appears that each witness has stated thenames of the persons who were close to them and otherpersons in the group are not mentioned.In any event, itappears that many groups left for Chundadi.Thereafter, theyformed smaller groups or some joined other groups and thenthese groups proceeded in different directions.Looking tothe mass exodus of persons from Randhikpur, muchimportance cannot be given to the fact that initially the groupconsisted of different persons and thereafter, the groupconsisted of different persons.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:13 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:13 :::TIME WHEN BILKIS LEFT RANDHIKPUR :-He relied onparagraphs 3, 71 and 83 of her evidence and submitted thatwhether prosecutrix and the group left in the afternoon or inthe evening.In paragraph 71, she stated that we did notleave in the evening.In paragraph 83, she has stated that it ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:13 ::: 260 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docis not true that we left Randhikpur at 10.00 a.m. In ouropinion at what exact time, she left Randhikpur is not at allmaterial.The fact remains she left Randhikpur on 28.2.2002.About the incident taking place on 3.3.2002, there is nodiscrepancy.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:13 :::WHEN THEY WERE SAFE AT CHUNDHADI, WHY THEY LEFT :-226 Mr. Ponda thereafter argued that the evidence ofthe prosecutrix shows that many Muslims had gathered atChundadi.He submitted that when many Muslims hadgathered at the residence of Kadakiyabhai or Bijalbhai, theywould be safe there, then why Bilkis and her family membersleft Chundhadi? This conduct was not natural.This questioncan be answered.The house of Kadakiyabhai, beingSarpanch of Randhikpur was itself in Randhikpur andBijalbhai's house was in Chundhadi which is also close toRandhikpur.At that time, the fear of death was in the mindsof the prosecutrix and her relatives and in fact in the minds ofall the Muslims from Randhikpur.They were hearing news of ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:14 ::: 261 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docriots, looting and killing of Muslims by Hindus and therefore,these people wanted to run far away from the village whereMuslims were being attacked and their houses were beinglooted and were being set on fire.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:14 :::THE PROSECUTRIX DID NOT TELL HER FATHER SHE WASRAPED:227 Mr. Ponda argued that the evidence of theprosecutrix is further falsified by the evidence of her fatherPW 24 Abdul Ghachi.He pointed out that in paragraph 6 ofevidence of PW 24 Abdul Ghachi, he has stated about hisdaughter (prosecutrix) telling him only about rape on otherwomen and killing of daughter Saleha by accused no. 4Shailesh Bhatt, however, she did not tell him about rape onher and also killing of her relatives.In view of this fact, heargued that the story of the prosecutrix is imaginary and, asthere is lot of variance it is hence, unworthy of credit.Hefurther submitted that the story of the prosecutrix that shehad been raped cannot be believed because if any suchincident had occurred, she would have definitely told about ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:14 ::: 262 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docthe same to her father.However, her father PW 24 Abdulmakes no reference to the prosecutrix making any suchdisclosure.This shows the evidence of the prosecutrix cannotbe believed.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:14 :::228 In relation to the above connection, it is seen thatPW 24 Abdul Ghachi, (father of the prosecutrix) in para 18 ofhis cross-examination has stated that his first statement wasrecorded on 18.3.2002 by Circle Inspector, Limkheda, who isan accused.His second statement was recorded on 9.1.2004by PW 68 Mr.The witness in para 6 ofhis evidence has stated that the prosecutrix met him outsidethe camp 3 months after the incident at Godhra.At thattime, she disclosed to him that "her daughter Saleha waskilled by accused No.4 Shailesh Bhatt by smashing her on theground" and "persons with her were raped." The learneddefence Counsel, cross-examined PW 18 Abdul to bring onrecord that whatever he has stated in para 6 of hisexamination-in-chief is an omission and no such disclosure ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:14 ::: 263 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docwas made by the prosecutrix to him and therefore, theincident of rape on the prosecutrix and Saleha's killing did nottake place.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:14 :::229 In para 25 of the cross-examination of AbdulGhachi, he has stated as follows:"I did state before the CBI about the disclosure made by PW1 Bilkis.I cannot say why the facts disclosed by PW1 Bilkis that her daughter Saleha was killed by accused No.4 Shailesh Bhatt by smashing her on the ground and that persons with her were raped do not figure in my statement".In para 26, he hasstated that he did not know whether the Circle Inspector,Limkheda, has recorded his statement and then, thestatement dated 18.3.2002 was shown to him and read overto him and then, he denied that he gave that statement.Healso stated in his evidence that why this record i.e., exhibitX18 was made.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:14 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:14 :::His statement was mainly recorded for theidentification of the photographs and at the end, he hasstated that his daughter Bilkis met him two months after theincident and narrated the incident which happened to her andother relatives.Some persons are vocal; some are silent; some are accurate;some may be timid or some may be miser in expression and ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:14 ::: 265 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docwords.So, it is the police who has to lead the witnesses togive correct, true and relevant answers and the informationwhile recording his or her statement.The witnesses whohave seen the incident or who are aware of the incidentsometimes keep quiet and remain very cryptic having animpression that the incident is so much discussed on numberof occasions and known to everybody, therefore he need notsay anything about the incident but needs to talk only abouthis impressions or will answer the questions only which areasked by the police.A witness may not be aware for what heis called.The photographs of the dead bodies were shown tohim.These were the photographs of the dead bodies of hisnear and dear relatives.Thus, it appears that the witness haspresumed that the fact of murder and rape must be withinthe knowledge of the police and therefore it was notnecessary for him to repeat and speak about it.A commonman does not know the law that though the police may beaware that who committed murder but yet for the purpose of ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:14 ::: 266 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docevidence, it should come through a witness and not as a factwithin the knowledge of the police.Therefore, we do notdiscard the evidence of Abdul Ghachi as untrustworthy andsimilarly it would be erroneous to infer on the basis of hispartial silence that the prosecutrix must not have told himanything about her rape and killing of her relatives, becauseit did not occur.Drawing such conclusion is grossly illogical.232 The Court cannot go beyond evidence.However,there are certain circumstances which can be spotted andread between the lines.His statement recorded on18.3.2002 cannot be given any importance because it wasrecorded by the police officer of Limkheda who was anaccused.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:14 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:14 :::Abdul Ghachi could not meet Bilkis at least for aperiod of two months from the occurrence of the incident ofmurder and rape.The police of Limkheda were fully awarethat Abdul Ghachi is the father of the prosecutrix and they ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:14 ::: 267 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.dochad sent the prosecutrix to Godhra camp.However, they didnot bring the father and the daughter together to find out thetruth and more details from them which in fact, was requiredand expected from the investigating agency.SADDAM :-::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:14 :::233 One more witness corroborates the prosecutrix tosome extent i.e. PW 8 Saddam.Saddam is a child witness.At the time of giving evidence, Saddam was only about 12years old.They peltedstones on them.He said that he was hit with stone on his ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:14 ::: 268 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docforehead.In fact, even at the time of his evidence a visiblescar could be seen on his forehead which lends furtherassurance to his evidence.He deposed about killing of hismother and other relatives and when he became conscious,he found Hussain, a four year old boy, weeping in the bush.He took Hussain with him and they ran towards the road.Saddam has further stated that one person arrived there andhe took them to Limkheda police station and then, they weresent to hospital for medical treatment and thereafter toDevgad Bariya.Thereafter he was studying in 2005 in 4 thstandard at Ahmedabad.He has identified accused Nos. 1and 7 to 10 in the dock as assailants who were fromRandhikpur.He was cross-examined thoroughly as he wasthe only witness on the point of taking name of the accusedas assailants corroborating the evidence of the prosecutrix.We would like to note that in the cross- ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:14 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:14 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:14 :::269 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docexamination, the defence has tried to bring omissions inrespect of the names of the accused persons as assailantsand the offenders were from village Randhikpur.Inparagraph 28, he has stated that he did not recollect whetherhe disclosed before the CBI that all the offenders were fromvillage Randhikpur and he did not know if there is a specificreference to these persons or not.The defence has movedapplications under section 391 of the Code of CriminalProcedure before us at the time of hearing the appeal on22.9.2016 with prayer of recalling ¼ witnesses including theInvestigating Officer Mr.Sinha (PW 72).The learned CounselMr.Ponda has submitted that the Investigating Officer PW 72had recorded the statement of Saddam.In the said applications, the defence wanted torecall some other witnesses to prove the omissions andcontradictions in the statements of the prosecutrix which wasrecorded by accused No.18, who could not be put in the boxand, therefore, those omissions and contradictions could not ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:14 ::: 270 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docbe proved.However, for the reasons mentioned therein, wehave rejected all the applications in all the appeals.234 PW 9 Dr. Mahato was working as a medical officerat CHC, Limkheda at the relevant time.He has mentionedabout the OPD register, the MLC register and case papers.He has stated that on the night intervening between 3.3.2002and 4.3.2002, he has attended Saddam and Mohsin as OPDpatients.Saddam was treated at 1.55 am.He found CLW onhis person admeasuring 0.5 cms over the forehead, right sideand small abrasion over the occipital area.He then issuedMLC dated 4.3.2002 in the name of Saddam under MLCNo.1794 which is marked exhibit 88ABC.The children werereceived from constable PW 37 Jorawarsingh R. Rathwa.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:15 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:14 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:15 :::He has mentioned that Muslims hadsought refuge in Limkheda police station and CHC was nextto the police station.This portionmarked A from the statement dated 24.3.2004 which wasrecorded by CBI is proved.However, on account of thecontradictions being brought out we can certainly take intoconsideration that he cannot be relied upon.It has also to beborne in mind that PW 37 was attached to Limkheda PoliceStation and he had interest in purposely giving wrong dates.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:15 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:15 :::272 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc236 Learned counsel Mr. Ponda while appreciating theevidence of PW 8 Saddam, has submitted that Saddam wasnot in the group of the prosecutrix.PW 24Abdul Issa in paragraph 3 of his evidence has given the list ofthe persons who left along with the prosecutrix and hasmentioned the name of Saddam and Hussain, however, headmitted the omission that he did not give the names ofSaddam and Hussain when his statements dated 9 th January,2004 and 2nd February, 2004 were recorded.He submittedthat whatever list is given by PW 24 of the persons who leftRandhikpur along with the prosecutrix is different than thelist given by PW 3 Sugra who left with the prosecutrix or thelist given by the prosecutrix.He further submitted thatSaddam was not present at the spot.The entriesare incorrect.Some of the pages are blank, dates aremanipulated.This falsifies presence of Saddam on 3 rd March at ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:15 ::: 274 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.dockachcha road at Panivel with the prosecutrix.237 Mr. Ponda tried to make capital of the fact thatExh.90A dated 4.2.2002 shows that Saddam was notexamined after the incident but one month prior to theincident.However, it is seen that PW 9 Dr. Mahato has statedthat after he examined the patient, the medical officer usedto record his observations on OPD case papers.Nurse onduty used to fill in the particulars of the patient and themedical officer used to record the observations made and thetreatment advised in his indoor case papers.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:15 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:15 :::238 Mr. Ponda has submitted that the evidence of ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:15 ::: 275 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docSaddam is full of omissions and contradictions.He did notsay anything about the incident of rape.He has admittedthat he did not state before Gujarat CID when his statementwas recorded on 4th March, 2002 that he saw his mother washit with dhariya.He did not state about tearing of clothes ofthe ladies.He did not state about his mother telling him thathis sister Akli was dead.He also admitted that he did notstate that the persons in the mob were holding weapons likesword, dhariya, sticks etc. Mr. Ponda pointed out thatSaddam has also admitted that at the time of recording hisstatement by CBI he had not mentioned that he was hit by a'big' stone.On the other hand, Mr. Ponda further submittedthat it is a very minor injury and Saddam did not mentionthat he became unconscious.The learned counsel submittedthat his evidence is full of contradictions and thus, he was notin the group of the prosecutrix when they all started fromRandhikpur and the incident took place.However, it is seenthat Saddam has stated that he was hit by stone.This isfurther corroborated by the evidence of PW 9 Dr. Mahto as ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:15 ::: 276 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docwell as the fact that when he was deposing before the Court,a scar was seen on his forehead.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:15 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:15 :::Exh. 277is the only document which is exhibited and can be readwherein it is noticed that the prosecutrix has not takenspecific name of any relatives but she has stated that "westarted running.... we left Randhikpur...we started to go tokachcha road..." Thus, she has not taken specific names,therefore, it cannot be said that Saddam's name is adeliberate addition made by the prosecutrix in her evidencejust to create one witness to the incident.At this juncture, thesubmissions of Mr. Venegavkar that the injuries caused toSaddam and his medical examination by PW 9 Dr. Mahato onthe early morning of 4.3.2002 is a corroboration of his ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:15 ::: 277 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docpresence at the time of assault, is also required to beconsidered.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:15 :::240 We have seen the record of various entries aspointed out by Mr. Ponda from MLC register.For exampleEntry No. 1883 dated 9th April 2002 is marked Exh 101 andentry No. 1980 dated 7th May, 2002 is marked Exh 102,however, there is entry No. 1900 which is on 7 th March, 2002,i.e.With this, we accept that entriesmade in MLC register at CHC Limkheda were not madeproperly.241 Mr. Venegavkar admitted that the MLC and OPDregisters of Community Health Centre at Limkheda were notmaintained properly which is clear from the evidence of PW 9Dr.However, Mr. Venegavkar relied on theevidence of PW 9 Dr. Mahato who has stated that Saddamwas examined by him on 4.3.2002 at 1:55 a.m. When heexamined Saddam, he found C.L.W. measuring 0.5 cm on the ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:15 ::: 278 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docright side of the forehead of Saddam and abrasion overoccipital area of the scalp on the right side.Accordingly, hemade record of it in the OPD Papers.We have gone through theevidence of PW 9 Dr.Mahato along with the evidence of PW 8Saddam.Dr. Mahato has stated that Saddam was eight yearsold child.If Dr. Mahato had not examined Saddam, therewould be no occasion for him to see Saddam and to state thathe was a boy who was eight years of age.Mr. Venegavkarsubmitted that Saddam himself is an injured witness andhence, his testimony ought to be relied upon because thetestimony of an injured witness stands on a higher footingthan that of other eye witnesses.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:15 :::They ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:15 ::: 279 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docrelied on paragraphs 28 and 29 of the said decision whichreads thus:::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:15 :::The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this Court.Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone."Convincing evidence is required to discredit an injured witness".(Vide Ramlagan Singh & Ors.Darshan Singh (PW 4) was an injured witness.He had been examined by the doctor.He had given full details of the incident as he was present at the time when the assailants reached the tubewell.The fact that the witness sustained injuries at the time and place of occurrence, lends support to his testimony that he was present during the occurrence.In case the injured witness is subjected to lengthy cross- examination and nothing can be elicited to discard his testimony, it should be relied upon (vide Krishan v. State of Haryana, (2006) 12 SCC 459).Thus, we are of the considered opinion that evidence of Darshan Singh (PW 4) has rightly been relied upon by the courts below."::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:16 :::reported in (2003) 10 SCC 414 hasobserved that the evidence of injured witness has greaterevidentiary value.244 Mr. Venegavkar read over the evidence of PW 8Saddam so also PW 24 Abdul Ghachi and the prosecutrix onthe point of the presence of Saddam.He submitted theomission of name of Saddam is found in the FIR (Exh.56),however, the name of PW 24 Abdul Ghachi, the father of the ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:16 ::: 282 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docprosecutrix is mentioned in the FIR (Exh. 56).Venegavkar submitted that Exh. 56 is a manipulateddocument prepared by the police of Limkheda police stationand some of these police officials were made accused andSaddam being an eye witness to the incident, his name isdeliberately omitted.The discrepancies, which arehighlighted by the defence are superficial.He further reliedon the documentary evidence of medical certificate ofSaddam's MLC and OPD registers of CHC Limkheda.Hefurther submitted that Saddam was taken to hospital and wasattended by PW 9 Dr. Mahato.This fact itself confirms thatSaddam was present at the time of the assault and he hasidentified accused Nos. 1 and 7 to 10 as assailants, who werefrom Randhikpur.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:16 :::245 Mr. Venegavkar submitted that from the evidenceof Saddam, it is proved by the prosecution that on the sameday, i.e., 3rd March, 2002, Saddam was taken to Limkheda ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:16 ::: 283 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docPolice Station and he has disclosed the fact, however, his FIRwas not recorded.Rakeshkumar Mahato who examined Saddam.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:16 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:16 :::MEDICAL EVIDENCE - PW 9 DR.Mahto, PW 17 DR.ROHINIKATTI AND DW 3 DR.GEETA PISAGAR IN RELATION TO THEPROSECUTRIX:248 PW 9 Dr.Mahto is the medical officer who wasdeputed at CHC, Limkheda which was under the Governmentof Gujarat.Dr. Mahto has stated that he examined theprosecutrix on 5.3.2002 at 10.10 a.m. when she was broughtto CHC, Limkheda, by a lady constable with yadi written inGujarati.So, he made entry at entry No.3983 dated5.3.2002 (Exh. 95) in the register i.e., OPD register (article37).Thereafter, he alsoentered name of the prosecutrix at Sr.1796 dated5.3.2002 in medico legal case register (article 38) which aremarked exhibits 91 & 91A. She was treated as OPD patient.He had recorded the observations made by him in OPD case ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:16 ::: 285 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docpapers.He has stated in his evidence that he found swellingon the left hand and pain in the neck and back of theprosecutrix.She was also complaining about pain in the rightoccipital area of the scalp.He was cross-examined thoroughly especially onthe point of maintaining the OPD and MLC registers.249 The learned Counsel Mr.Ponda submitted that onthe point of injury on the person of the prosecutrix, she hasstated in paragraph 7 of her examination-in-chief thataccused no.1 Jaswantbhai was holding sword and heassaulted her with sword, at that time, she tried to ward it offwhich caused cut injury to her left palm between thumb andindex finger.She was examined by PW 9 Dr.Mr. Ponda submittedthat the medical evidence does not support her oralevidence.He pointed out from the evidence of PW9 Dr.Mahto ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:16 ::: 286 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docthat there was only swelling on her left hand and no otherinjury was found.He submitted that the injury noted by Dr.Mahto is not consistent with assault by sword.250 The learned counsel Mr. Ponda submitted that theprosecutrix has deposed that she told about her health andinjuries to PW 9 Dr. Mahto, however, after going through theevidence of Dr. Mahto, it is clear that he did not tell that theprosecutrix had informed him about rape on her and killing ofher relatives.The learned counsel submitted that theprosecutrix did not disclose the fact of rape on her andkilling of her daughter at the earliest opportunity when shewas taken to Dr. Mahto because it never happened that shewas raped nor her daughter was killed as stated by her.It ispertinent to note that Dr. Mahto had stated that he was notconversant with Gujarati and the prosecutrix has stated thatshe did not understand Hindi.Dr. Mahto has stated that he isoriginally from Patna, Bihar.He passed MBBS from MedicalCollege in Bihar.He joined Medical services as Medical ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:16 ::: 287 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docOfficer in January, 2002 and was posted at Community HealthCentre Limkheda.He has specifically stated that in 2002, hewas only knowing Hindi and little English.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:16 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:16 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:16 :::Herelied on the evidence of PW 9 Dr. Mahto in paragraph 42where PW 9 has admitted that the entries were made by himin the MLC registers on 2nd March, 2002 or on 3rd March,2002 but they were not made on the respective dates.Thelearned counsel thus submitted that this clearly shows thatthe registers were not maintained in the regular course ofbusiness and the entries relating to the prosecutrix aremanipulated.He submitted that in the loose papers, i.e.,medical certificates which were prepared, wrong dates arementioned, wrong timing is given and hence, these ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:16 ::: 288 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docdocuments cannot be relied upon.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:16 :::252 Mr. Ponda submitted that the defence hasexamined DW3 Dr.Geeta Pisagar.She stated that sheexamined the prosecutrix at Godhra civil hospital and thecase papers (exhibit 138A) were in her hand-writing.Sheconcurred with the negative finding given by Dr.Katti inrespect of the prosecutrix about the injuries to genitals andpresence of spermatozoa.On the basis of Exh. 138A andpathological report marked exh.144 of vaginal swab andblood, she opined that she did not think that the prosecutrixmight have been raped by three persons.253 Mr. Ponda elaborated the circumstances todiscredit the evidence of the prosecutrix and relied on theevidence of PW 17 Dr. Katti and also DW 3 Dr.Asper the evidence of PW 17 Dr. Rohini Katti, the prosecutrixdisclosed the suffering to her and the prosecutrix told herthat accused Nos.1, 2 and 3 raped her.Wehave already dealt with in detail about Exh.57 and how itcannot be relied upon.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:16 :::254 Mr.Ponda on the injuries of the prosecutrix and themedical evidence before the Court has submitted that as perher case, which is brought out in the cross-examination, herclothes were torn and she was dragged nearly for 30 feet bythe accused and thereafter, accused Nos.1, 2 and 3 rapedher one after the other.Rohini and DW 2 Dr.Pisagar isconsidered, it shows that there were multiple abrasions onher back which in fact corroborates the case of theprosecutrix.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:17 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:17 :::290 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc255 Mr. Ponda submitted that though she had statedthat accused No.2 put foot with chappal on her neck, therewas no injury on neck which shows that her story cannot bebelieved.As far as this aspect of no injury on neck isconcerned, in our opinion it does not necessarily follow thatbecause foot was kept on neck of the prosecutrix, thereshould be an injury.Thereafter Mr. Ponda further submittedthat moreover, she was 5 months pregnant and if 3 personswould have raped her one after the other, there would havebeen injury to her so also the foetus would have beenharmed.He relied on the evidence of Dr.Rohini Katti, whohas stated that she might not have been raped by threepersons.256 Mr. Ponda further pointed out that PW 9 Dr. Mahtowho examined the prosecutrix on 5th March, 2002 found onlyswelling on the left hand of the prosecutrix.However,Dr.Rohini who examined her on 7.3.2002 i.e. two daysthereafter found CLW injury on the left hand.Thus, there is a ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:17 ::: 291 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docvariance in the evidence of the two Doctors.He pointed outDW 2 Dr. Geeta Pisagar was M.D. Gynaecologist and she wassuperior to Rohini and she has opined that it was not a caseof rape, hence, it has to be believed.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:17 :::257 On the other hand, Mr.Venegavkar has fully reliedon the evidence of PW 17 Dr. Rohini Katti and submitted thatthe defence could not dislodge the evidence of Dr. Katti inthe cross-examination.This casepaper is in the hand writing of Dr. Katti.He argued that Dr.Katti has described the injuries on the back of the prosecutrixwhich corroborate her evidence that she was dragged.Katti has stated that she noticed multiple abrasions over backof the prosecutrix with scab formation.She also noticedabrasions on her right arm with scab formation.Dr. Katti alsonoticed CLW admeasuring about 4 cm.x 2 cm.x 1 cm in the ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:17 ::: 292 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docweb between left thumb and index finger with diffusedswelling on left hand.So also, DW 3 Dr. Geeta Pisagar hasstated that on 7.3.2002, she examined the prosecutrix andshe has admitted her hand-writing on exhibit 138A. Mr.Venegavkar submitted that the prosecutrix has given thehistory to the Doctor and that is reproduced as narrated bythe prosecutrix in the history-sheet (Exh.138 and 138A).Inthe said history, it is stated that the prosecutrix along withher family members ran away from Randhikpur to Chundadivillage, then to Kuwajar and on the way to Panivela a mobkilled her relatives and she was raped by accused nos.1 to 3.The next day police came and rescued her.He pointed outthat the names of all the 3 accused 1, 2 and 3 i.e., JaswantNai, Govind Nai and Naresh Modhiya are mentioned and thatthey raped her on the road leading to village Panivel.Hesubmitted that these medical papers (Exh. 138, 138A, 141,::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:17 :::143) dated 7.3.2002 corroborate the evidence of theprosecutrix in respect of the incident and identification of thepersons, who raped her.Mr. Venegavkar drew our attention ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:17 ::: 293 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docto Exh. 138A and other case papers & more specifically topage 1217 of the paper book and pointed out that the casepapers of the prosecutrix show that she had abrasions on theback, right breast, gluteal region, left leg and right thigh.Hesubmitted that the evidence of DW 3 Dr.Geeta Pisagar couldnot demolish the case of prosecution and the evidence ofDr.Katti, who hails from Madhya Pradesh and hascorroborated the fact of recording of history as narrated bythe prosecutrix.DW3 Dr.Geeta Pisagar was from Godhra andtherefore she was won over by the investigating accusedwho were investigating the case at the relevant time.258 Mr.Venegavkar has submitted that prosecutionrelies on evidence of PW-9 Dr. Mahto for three points - (i) theprosecutrix was examined on 5th March, 2002 at CommunityHealth Centre Limkheda; (ii) Saddam and Hussein / Mohsinwere brought to Community Health Centre at 1.55 a.m. on4th March, 2002; and (iii) there were injuries on the person ofthe prosecutrix, Saddam and Hussein.It is the case of the ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:17 ::: 294 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docdefence that the prosecutrix did not narrate the incident ofrape to PW 9 Dr. Mahto, because no such incident occurred.Mr. Venegavkar submitted that PW 9 Dr. Mahto did not saythat he examined the prosecutrix for rape.This is becausethe prosecutrix was unable to communicate to him that shewas raped.This is because she is a rustic illiterate villagerfrom Gujarat, who knew only Gujarati hence, it was notpossible for her to communicate with PW 9 Dr. Mahto inHindi.Dr. Mahto only knew Hindi and a little English.Hejoined Community Health Centre first time in Gujarat on 7thJanuary, 2002, I.e, 2 months prior to the examination of theprosecutrix.Earlier, he was at Bihar where Hindi is the locallanguage.He could not read Gujarati and hence could notread Yadi Exhibit 302 in which rape was mentioned.He submitted that PW 9 Dr. Mahto couldnot write history of the patients because Saddam andHussein were crying and the prosecutrix spoke to him in ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:17 ::: 295 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docGujarati which he could not understand.He furthersubmitted that there was no nurse in the room, that has beenbrought out in the cross-examination in paragraph 74 of PW 9Dr.Mahto and therefore it was not possible for him toconduct vaginal examination of the prosecutrix.259 Mr. Venegavkar has submitted that PW 9 Dr.Mahtowas a Doctor.He furthersubmitted that the prosecutrix talked with him in Gujarati.The witness has stated so and he has also stated that shedid not reply in Hindi.Thus, though the prosecutrix talked ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:17 ::: 296 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docwith him, he did not understand what the prosecutrix saidand he just said that the prosecutrix did not make statementof any rape before him.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:17 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:17 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:17 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:17 :::These arethe case papers of the prosecutrix.He submitted that theprosecutrix was admitted as indoor patient.261 The learned counsel Mr. Venegavkar argued thatDW-3 Geeta Pisagar, is M.D. (Gynaecology)but the maindoctor who has examined the prosecutrix is PW-17 Dr. Katti.He submitted that opinion given by DW 3 Dr. Geeta Pisagar ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:17 ::: 297 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docon the point of rape is inconsistent with law.She said thatpartial penetration with or without emission of semen wouldnot constitute the offence of rape.Dr. Geeta Pisagar has given opinion that theprosecutrix was not raped.However, it is the opinion of Dr.Pisagar as expert in the medical field.We have to considerthe offence in legal terminology where the definition of rapeis different than sexual intercourse.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:17 :::262 We have perused Article 37 OPD register andArticle 38 MLC register of CHC Limkheda.Entry of theprosecutrix is found at sr.The submissionsof Mr. Ponda on the point of MLC and OPD register that theyare not properly maintained at CHC Limkheda is accepted.The entries which are pointed out by him clearly disclose thatthe doctors or the staff had made the entries subsequentlyand the names of the patients who were treated were not ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:17 ::: 298 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docentered in the registers on the respective dates that theywere examined.The witnesses i.e the prosecutrix and PW8Saddam have stated that they were sent to CommunityHealth Centre on the relevant dates.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:17 :::PW 17 Dr.Rohini Katti stated that shenoticed one CLW about 4cm X 2cm X 1cm in the webbetween left thumb and index finger as well as defusedtender swelling on the left hand.She noticed multiple ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:18 ::: 301 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docabrasions over back and right arm with scab formation.Shehas opined that those injuries were 4 to 5 days old.This fullycorroborates the evidence of the prosecutrix of beingassaulted by Accused No.1 with sword.The prosecutrix waspregnant at that time.Dr. Katti noted down that theprosecutrix was 20 weeks' pregnant.She sent vaginal swabsand blood sample of the prosecutrix to forensic laboratory.Dr. Katti has stated that nopolice yadi was sent along with the prosecutrix.Though shehad sent the report (Exhibit 137), no yadi was sent.She sentreminder on 13.3.2002 and ultimately, the yadi was receivedon 18.3.2002 (Exh. 140).The CBI seized the case papersand relevant medical papers of the prosecutrix from PW 17Dr.Dr. Katti identified her signature on it.The medical certificate issued is marked exh.143 whereinshe described the details.Dr. Katti stated that she had joinedher senior in the medical examination.She identified the two ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:18 ::: 302 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docsheets of case papers on which DW 3 Dr.Geeta Pisagar hassigned and has recorded observations which is markedexhibit 138A and certificate is marked exhibit 143.265 No doubt, in her cross-examination Dr. Katti hasadmitted that no spermatozoa were detected in the vaginalswab sent to the pathological laboratory, Godhra and noinjuries were detected on external or internal genital organsand no semen was found on the genital organs of theprosecutrix.Dr. Katti gave admission in the cross-examination that she was not in a position to say from theseaspects as to whether the prosecutrix was raped or not.Inthis connection it may be stated that the incident occurred on3.2.2002, it is not expected that on 7.2.2002 when theprosecutrix was examined, traces of semen would be found.As far as finding of injuries on genitals is concerned, theprosecutrix was a married woman.Much prior to the incidentshe had given birth to a child which is seen from case paperof the prosecutrix Exh. 138A that previously she had a full ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:18 ::: 303 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docterm normal delivery of a female child who died in the riots.In such case, it is not expected that there would be anyinjuries on the genitals of the prosecutrix on account of rape.As far as Dr. Katti not being able to state whether theprosecutrix was raped or not, we would like to make areference to Exh. 137 which is a letter written by PW 17 Dr.Rohini Katti to the police Inspector of Godhra town.It isstated therein that one Bilkis Yakub Rasul Patel age 20 yearscame to Civil Hospital Godhra from rescue camp at Godhraon 7.3.2002 at 6.45 p.m. with history of rape five days ago.266 PW 17 Dr.Rohini Katti and DW3 Dr.Geeta Pisagarhave admitted that the documents at exhibit 138 and 138Aare in their respective hand-writing.The injuries are also mentioned.In Exh. 138Awhich is in the hand-writing of DW 3 Dr.Geeta Pisagar, thereis a mention of history of rape.She found the injury on theleft hand of the prosecutrix.She has admitted in the cross- ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:18 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:18 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:18 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:18 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:18 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:18 :::304 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docexamination by the prosecution that she did not record heropinion that there was no possibility of rape on theprosecutrix.Though DW 3 Dr.Geeta Pisagar did not record apositive finding of rape, she also did not record the opinionabout non-possibility of rape on the prosecutrix.Theprosecutrix was married.She had a daughter who was 3½years old.She was pregnant second time.The mostimportant fact in respect of absence of spermatozoa &internal or external injuries on vagina is that when theprosecutrix was examined almost 5 days had elapsed sincethe incident.The prosecutrix was examined by theseDoctors almost 5 days after the incident and therefore, therecannot be any possibility of finding of spermatozoa or semenso many days after the incident.However, after 5 days,formation of scab on the abrasions was seen on the back ofthe prosecutrix which further supports her case.267 In relation to the contention of Mr. Ponda that theprosecutrix was dragged for 30 feet and absence of abrasion ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:18 ::: 305 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docon her back disproves her theory, it is to be noted that theprosecutrix did not state in the examination-in-chief that shewas dragged for 30 feet.She has stated that she was takenaway near the tree.However, in what manner, she wasdragged is not stated by her.In the cross-examination, thedefence has sought admission from her that she was draggedfor 30 feet.However, she has not stated that when she wasdragged, she was naked.She has admitted that her clotheswere torn.However, tearing of clothes does not mean thatthe person was naked at the relevant time so also whichportion of the clothes was torn also matters.It is notnecessary that when the person is dragged, his or her backshould touch the ground.A person can be forcibly draggedwithout the back touching the ground.Thus, it is notnecessary that when the prosecutrix was taken there forciblyand her clothes were torn, there should be marks orabrasions on her back or buttocks.Thereafter, for one day, she hid on the ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:18 ::: 306 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.dochillock.On 7th March shewas sent for medical examination, four days had alreadygone by.However, it is pertinent to note that PW 17 Dr.Rohini Katti found a number of abrasions on the back of theprosecutrix which supports the case of the prosecutrix.268 In relation to the contention of Mr. Ponda that it isthe case of the prosecutrix that accused No. 1 was going toassault her with sword, hence, she held out her hand to wardoff the blow due to which she received injury on her left handand Dr. Mahto finding only swelling on her palm whichfalsifies the case of the prosecutrix, we may state that Dr.Mahto could not understand what the prosecutrix was saying.He did not think it is a serious case and hence he examinedher cursorily.His evidence also shows that there was a hugecrowd at the hospital, he was the only doctor dealing with thepatients, hence, he did not examine the prosecutrix verycarefully.However, the evidence of Dr. Katti clearly shows ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:18 ::: 307 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docthat a CLW was found on the hand of the prosecutrix whichwas 5 days old.The injury seen by Dr. Katti on the palm ofthe prosecutrix is consistent with the case of the prosecutrixof accused no.1 assaulting her with sword.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:18 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:18 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:18 :::269 It appears from the evidence of PW 9 Dr. Mahtothat he did not understand what she was telling andmoreover, he was a male Doctor.From his side, he being aDoctor, all patients irrespective of the gender, are samebefore him.However, the prosecutrix would not have beencomfortable with a male doctor so also there was barrier oflanguage.She was also threatened by the police not todisclose the names of the assailants and rapists otherwisepoisonous injection would be administered to her at hospital.Though she has not stated specifically in the evidence but thefact that she deposed that she told Dr. Mahto but she couldnot explain it properly, appears true.She might haveattempted to disclose but as she could not succeed she left it.On 7.3.2002 when she was taken to PW 17 Dr.Rohini and DW ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:18 ::: 308 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc2 Dr.Pisagar, she told that she was raped.She has also disclosed that her relatives werekilled.When she was sent for medical examination as avictim of rape, that time, she was carrying a foetus of 5months.It is not necessary that after three successive sexualintercourse, the foetus must be affected as contended by Mr.Ponda.DW 3 Dr.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:18 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:19 :::270 On 5th March, 2002 when the prosecutrix wasexamined by PW 9 Dr. Mahto, on paper there is nothing toshow that the prosecutrix has disclosed that she was rapedand yadi, which is marked as Exhibit 203 sent by LimkhedaPolice Station to Medical Officer is also silent about whetherthe prosecutrix was raped or not as yadi was preparedconsistent with FIR Exh. 56 which is a fabricated document.Inthe medical examination conducted by PW-17 Dr. Katti andDW-3 Dr. Pisagar on 7th March, 2002 her vaginal swab andblood was taken and samples were sent to ForensicLaboratory.Such report is bound to be negativebecause the vaginal fluid samples were taken 4 days afterthe incident of rape.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:19 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:19 :::310 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc271 At this stage, we would like to highlight one pointthat yadi was sent by Limkheda Police station on 5th March,2002 to PW-9 Dr. Mahto Medical officer, Community HealthCentre Limkheda.In that yadi which is marked as Exhibit203, the offence under section 376 was mentioned, however,there is no mention of rape on the prosecutrix.In Exh. 203there is specific mention that the palm of the prosecutrixwas injured so she was to be examined.Thus, as far as Dr.Mahto was concerned, there was no clue whether theprosecutrix was raped.There was no reason for PW-9 Mahtoto be aware of the contents in Exhibit 56 wherein there wasno mention that the prosecutrix was raped but the narrationof rape of other ladies was only mentioned.The said yadiwas in Gujarati and PW 9 Dr. Mahto could not read Gujarati.According to the evidence of the prosecutrix, she told inGujarati that she was raped, however, Dr. Mahto did notunderstand what the prosecutrix was saying.PW-17 Dr. Kattihas stated that the prosecutrix was brought to her by Dr.Jamila of Godhra Hospital and she examined the prosecutrix ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:19 ::: 311 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docas she gave history of rape.She immediately sent medicalreport dated 7th March, 2002 which is marked Exhibit 137.PW-17 Dr. Rohini Katti addressed that report to P.I. Godhraspecifically stating that it is a medico legal case of rapeduring riots which has taken place 5 days back.Pursuant tothis note, PW-17 Dr. Rohini Katti was expecting yadi fromLimkheda Police Station, however, yadi was not sentimmediately.She waited for it.The yadi is marked as Exhibit::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:19 :::Thus, 10 days after medical examination of theprosecutrix by PW 17 Dr. Katti, the yadi was sent byLimkheda Police Station.272 We have perused both the yadis Exhs.203 and140 and compared them with each other.We found that in ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:19 ::: 312 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docyadi Exhibit 203 though section 376 was written but it wasnot in relation to the prosecutrix.However, in this yadi, therewas specific mention of injury to palm of the prosecutrix, soit was suggested that she has to be treated for that injury.However, in yadi Exhibit 140 though PW 17 Dr. Katti hadmentioned that the prosecutrix has come there with thehistory of rape committed on her about 5 days back duringthe riot and she requested for yadi, the police officer ofLimkheda did not mention that the prosecutrix is to beexamined medically for the offence under section 376 ofIndian Penal Code.It was necessary and obvious that anypolice officer, while preparing yadi in relation to victim ofrape, would request doctor to examine victim medically forsexual assault.However, yadi Exhibit 140 is vague and itdoes not specifically mention that the prosecutrix has to bemedically examined in relation to rape.Thereafter it wasfurther necessary step for Limkheda Police to recordsupplementary statement of the prosecutrix as soon as theywere informed about the rape.However, this was not done.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:19 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:19 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:19 :::313 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docThus, we don't require any other proof to infer that policefrom Limkheda Police Station wanted to suppress the fact ofrape committed on the prosecutrix.They wanted to screenthe perpetrators of the crime for the reasons best known tothe police.This is how they gagged mouth of the prosecutrixso that her cry for justice would not be heard by anybody.273 On going through the medical evidence, we are ofthe opinion that the evidence of PW 17 Dr. Rohini Katti fullycorroborates the prosecutrix.Out of these 7bodies were found.The evidence of PW 34 Amrutsingh Khantand PW 35 Ranjeetsingh Patel show that 7 corpses werefound i.e. of 4 females and 3 children.The evidence of panchwitness Baria also shows that 7 bodies were found.Thedefence has not disputed this position.According to the ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:19 ::: 314 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docprosecution, the bodies of 7 persons are as under:::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:19 :::Shamim and Saleha 3½ year old daughter of the prosecutrixwere not found but the photographs of dead body of Salehaare on record.275 On 4.3.2002, FIR of the prosecutrix was recordedat Limkheda police station by accused No.17 SomabhaiKoyabhai Gori and DW1 Budhsingh who scribed the same.DW 6 Chandubhai also scribed 1 copy of FIR.At that time,PW 35 Ranjeetsingh the police constable, was present.Hehas stated that a Yadi was prepared for sending theprosecutrix for medical examination.A copy of the said yadidated 4.3.2002 was shown to PW 35 and he has identified the ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:19 ::: 315 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doccertified copy of the said yadi.Exhibit 203 is the yadi.Yadidiscloses that it was prepared on 4.3.2002 at Limkheda policestation.However, the prosecutrix was not sent for medicalexamination on the same day.It has come in the evidence ofDW 7 Usha and PW 7 Madina that CHC Limkheda was veryclose to Limkheda police station.The prosecutrix had sufferedone injury to her hand and it was visible.It was noticedby PW 19 Feroz Ghachi and the prosecutrix has also statedabout the injury in her examination in chief.The caseof the prosecutrix was that she had disclosed to theLimkheda police that she was raped by three persons.Ifthere is a complaint of rape made by any woman to thepolice, then it is the first and foremost duty of the police tosend that lady for medical examination to collect medicalevidence and also to ascertain the truthfulness.Instead, thepolice i.e., accused No.16, who was in charge of investigationdid not send her for medical examination.This is a big flaw in ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:19 ::: 316 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docthe investigation of Limkheda police station which in factgoes against the accused persons and this flaw is anincriminating circumstance against the accused as notsending the prosecutrix to CHC on the same day along withthe Yadi, though the same was issued, itself corroborates thecase of the prosecutrix that she disclosed that she was rapedand injured but with a view to suppress the fact, she was notsent for medical examination on that day.She stayedovernight in the police station and was sent on the next dayfor medical examination.The evidence of PW 35Ranjeetsingh Patel shows that the prosecutrix stayedovernight at Limkheda Police Station.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:19 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:19 :::This letter is dated 4.3.2002 and it wasreceived by the medical officer on 5.3.2002 at 12.10pm.This shows thenature of the investigation.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:19 :::277 Another biggest manipulation by the Investigatingaccused in the case is not to take the prosecutrix to the spoton the same day i.e., on 4.3.2002 and to only visit the spot atKachha road at night on the same day ie., on 4.3.2002.Though the police had visited it, they did not conduct eitherinquest panchanama or spot panchanama.Another explanation which has come forward fromthe defence is that the bodies were lying in the jungle andtherefore it was not possible to conduct the spot panchamaor inquest panchanama at night.Both the explanations are ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:19 ::: 318 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docunsatisfactory.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:19 :::278 The learned Counsel Mr.Venegavkar vehementlyargued on the point of taking of the photographs by thewitnesses and he has discussed and analysed their evidenceat length and pointed out that the photographers PW 10 Soniand PW 28 Patel did not support the prosecution with anobject to defeat the prosecution case though they had gonethere.After unfolding of the entireevidence, especially of the police officers from Limkhedapolice station, the police persons who supported theprosecution, the other police persons and the hostilewitnesses, we are unable to accept the explanations of thedefence that on that day i.e,.4.3.2002, they could not carryout the inquest and spot panchanamas.Though the policewitnesses like PW 34 Amrutsingh Khant and PW 35Ranjeetsingh Patel remained silent about the visit of accusedpersons along with the photographers on 4.3.2002 and ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:20 ::: 319 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc5.3.2002 and they took the photographs, considering thedocumentary evidence especially of PW 68 Tariyal and PW 72K.N.Sinha and so also the cross examination of these hostilewitnesses, we are convinced that on 4.3.2002, the accusedand the police have visited the spot and took thephotographs of the dead bodies.The photographs of thedead bodies themselves speak the truth.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:20 :::279 Regarding burial of dead bodies and taintedinvestigation, Mr.Venegavkar has submitted that the deadbodies which were found on the spot were hurriedly buriedso that no other person or the relatives of the dead personswas given any opportunity of identification of the deceased.Panch PW 15 Baria Nayaka did state in his evidence that onemuslim person was present to identify the dead bodies andhe identified dead body of Haleema.He relied on theevidence of PW 56 Dr. Rudra, who was a Professor in ForensicDepartment.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:20 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:20 :::However, those articles werenot seized and not preserved.280 Mr.Venegavkar further submitted that missing ofdead body of Saleha is another circumstance in respect ofdefective investigation.Mr. Venegavkar submitted that thebodies were left unguarded.According to Mr. Ponda, Saleha ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:20 ::: 321 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docwas not killed in the incident and totally false story is putforward by the prosecutrix.In this connection, it may benoted that the medical case papers Exh. 138A of theprosecutrix were prepared by PW 17 Dr. Katti and in relationto the prosecutrix it is mentioned in the case papers that onefull term normal delivery female died in the riots.This showsthat the prosecutrix lost her minor daughter in the riots.He also drew our attention to the letter dated7.3.2002 written by PW 18 to Superintendent of Police Dahodregarding case of the prosecutrix as well as subsequentletters and pointed out that no steps were taken by the policeto arrest the accused or investigate the matter.282 On FIR Exh. 56, Mr.Venegavkar submitted that it isnot recorded on 4.3.2002 at 10.45 am but it was recordedmuch later after some deliberation.In support of hissubmission, he relied on station diary, which is article 69 andentries i.e., 406A and 406B. He submitted that it is thedefence case that accused No.17, started recording the FIRat 10.45 am.This is stated in para 5 of hisevidence.DW 1 has also stated that Somabhai took chargeon 4.3.2002 at 11.35 a.m. He also relied on PW 72 Sinhaand DW 1 Budh Singh.He submitted that there is anoverwriting on exhibit 56C. So also, in exhibit 56, a differentink was used in relation to timing.He further submitted thatcopy of FIR was sent to the Magistrate late i.e., on 8.3.2002and not forthwith as is the mandate under Section 157 Cr.So, theprocedure for investigation laid down under Chapter XII of the ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:20 ::: 324 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docCode of Criminal Procedure is to be followed.He also reliedon the definition of 'investigation' under section 2(h) of theCode of Criminal Procedure which includes all proceedingsunder the Code for collection of evidence conducted by apolice officer or by any person (other than the Magistrate)who is authorised under the Act.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:20 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:20 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:20 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:20 :::285 We have gone through the said judgments.Baladin (supra) was relied on, on the point of honest,efficient and fair investigation is a requirement of each andevery criminal trial.The judgment tends to be discursive and could have been more concise without affecting its quality.The High Court went into meticulous details but, as will presently appear, fell into a grievous error as a result of which it acquitted 20 of the appellants, a number of whom had been ascribed leading parts in the occurrence which was the subject matter of the charge against them.The High Court held that the Sub-Inspector, the Circle Inspector and the Deputy Superintendent of Police who were successively in charge of the police investigation, to put it mildly, were not very circumspect in conducting the investigation.The investigation ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:20 ::: 326 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc suffered from lack of thoroughness and quickness, with the result that statements of witnesses were recorded by them in the "most haphazard manner" and many matters of importance and significance to the case were omitted.It also observed that:::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:20 :::"Sub-Inspector Raj Bahadur Singh for oblique motives distorted their statements, ...... that his attempt was to introduce such variations in the statements and to leave such loopholes as to damage the ultimate result of the case to as large a measure as possible".The High Court in the main relied upon the testimony of the four eye-witnesses, the ladies belonging to the family of the victims, but with reference to the testimony of Paiyyan Devi and Shanti Devi further observed that their evidence should be scrutinized and relied upon only when corroborated by other evidence on the record.Hence in respect of those two witnesses, the learned Judges were not as sure as in respect of the others.Having held that the four eye-witnesses were on the whole reliable and that the record of their statements made by the investigating Sub-Inspector was not honest and faithful, the High Court fell into the error of acquitting all those accused persons, appellants before it, whose names did not find a place in the record made by that police officer.In other words it rejected reliable testimony with reference to that very record which it had condemned as unreliable."::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:20 :::327 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc Thus, both the parties before the Court should be given a fair trial.The High Court quashed the second FIR.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:20 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:20 :::288 On the point of digging of dead bodies, theprosecution has examined PW13 Mukeshbhai.He and his three colleagues were paid Rs.200/- bythe police.The work was over by 5pm to 5.30 pm.289 We have already observed that not a single skullof the dead bodies was found at the time of exhumation.Asper PW56 Rudra, 109 bones were found from the grave andthey were of 5 different individuals.As per the evidence ofPW13 Mukeshbhai Kalubhai Harijan, all 7 bodies were put inone pit and buried after piling them one on the other.It ispertinent to note that there is no suggestion to this witnessthat there were only five bodies or there were no bodies.Thisposition that there were 7 bodies appears to have beenaccepted by the defence.Then where did the bones of twobodies disappear remains unanswered.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:21 :::290 When we perused the photographs, we foundexhibit 59/4, which is a photograph of a 3 to 4 years old small ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:21 ::: 330 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docgirl wearing green (pista) colour frock/top and legwear.This was not done.This shows another lapse ininvestigation.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:21 :::291 Another glaring lapse is that the prosecutrix wasnot taken to the spot to identify the spot or the dead bodies.We fail to understand why the prosecutrix was not taken to ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:21 ::: 331 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docthe spot for identification of the dead bodies or even toidentify the spot.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:21 :::The FIRExhibit 56 was recorded by one of the accused, i.e., accusedNo.17 Somabhai Koyabhai Gori and the statement of theprosecutrix dated 7th March, 2002 was recorded by accusedNo.16 Ramsingh Mitlibhai Bhabhor, Circle Inspector ofLimkheda.Thus the investigation was not only unsatisfactorybut it smacked of dishonest steps to screen the culprits.Thisitself is the most incriminating circumstance against theaccused.That the investigation was tainted can also be seenfrom the fact that in paragraph 19 of the evidence of PW9Dr.Mahato i.e the Doctor attached to Limkheda CommunityHealth Centre, he has stated that no postmortem of any bodywas conducted on 4th March or 5th March, 2002 and there wasno request from the police to conduct any postmortem.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:21 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:21 :::332 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docDespite Dr. Mahto being available, the postmortemwas got conducted by accused Nos. 19 and 20 Dr.Arunkumar Prasad and Dr. Sangeeta Arunkumar Prasad, ahusband and wife team who was attached to Dudhia andBandipur respectively.293 On the point of quality of investigation, wehighlight two major aspects: (i) identification of the deadbodies and (ii) keeping silence over the queries made byPW18 District Magistrate Jayanti Ravi and suppression oforiginal statement Exh. 277 dated 6.3.2002 by the police atLimkheda police station.(i) Identification of dead bodies: Admittedly 7 dead bodies were found at the ravine i.e., Kottar.To take the prosecutrix to the spot was an obvious part of the investigation.However, the prosecutrix who is the informant and who is a victim and relative of the deceased was not taken to the spot for identification of ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:21 ::: 333 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc the spot or dead bodies.No close relative of the deceased was taken on 4.3.2002 or 5.3.2002 for identification of the dead bodies.However, one Abdul Sattar Ghanchi was taken to the spot to identify the bodies.He was not a close relative of any of the deceased.He identified only the body of Haleema i.e mother of the prosecutrix.This circumstance has created a big question mark before us and undoubtedly it leads to the only inference that this was a deliberate act on the part of the police.Identification of the dead bodies is a first and the basic step in the investigation.Without that, the police have conducted the post- mortem with the help of accused Nos.19 and 20 and hurriedly buried the dead bodies with sacks full of salt, so that the bodies will decompose faster.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:21 :::In the alleged FIR (Exh. 56), there was a mention of rape on ladies.Even if it is taken as it stands, then it was the duty of the police to ask the lady Doctor i.e., accused No. 20 Dr. Sangeeta Arunkumar::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:21 ::: 334 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc Prasad to conduct a proper examination of the private parts of the dead bodies and give a finding accordingly.However, in the inquest panchanama at exhibit 123 in the description, there is a mention that marks of cruelty / violence were found on the private parts of one female dead body and some white fluid was seen coming out of the private parts of two female dead bodies.In such case, it was necessary for the medical officer to give specific finding regarding violence and marks of injuries on the private parts and to take the cotton swab samples of the fluid coming out of the dead bodies and send the same to the forensic laboratory.However, nothing was done by the police or the Doctors but they conducted haphazard post-mortems, dug a pit with the help of labourers, put salt in it and buried 7 dead bodies one on top of the other in the same pit.Thisstatement was recorded by Executive Magistrate PW 23Govindbhai pursuant to directions given by the Collector /District Magistrate PW 18 Jayanti Ravi.This statement wassent by PW 18 Jayanti Ravi to Mr. Jadeja.She hasmentioned that the statement of Bilkis (prosecutrix) was sentto take necessary steps.There is a chain of correspondencefrom the side of PW 18 Jayanti Ravi, thereafter for twomonths, whereby she asked about what happened to thecomplaint of the prosecutrix.She has directed the officer totake steps and arrest the accused persons.Thereafter, she sent aletter on 18.3.2002 to Dy.SP, Dahod marked 148B demandingreport of progress in the case of the prosecutrix.However, ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:21 ::: 336 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docthere was no reply.She again sent letter dated 3.5.2002marked Exh. 148C. By 27.6.2002, no report was sent byDy.SP.so, letter exh.148D was sent.Another letter was senton 29.6.2002, which is marked Exh.148E. Through thepolice witnesses PW 23, PW 48, PW 49, PW 50, PW 51 andPW 52, the prosecution has successfully brought on recordthe fact that the said letter dated 7.3.2002 sent by PW 18District Magistrate Jayanti Ravi was suppressed by the policeat Limkheda.MR. VENEGAVKAR ON INQUEST PANCHNAMA ALONG WITHFAULTY INVESTIGATION:::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:21 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:21 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:21 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:21 :::He pointed out that as per theinquest Panchnama exhibit 123 it was carried out on5.3.2002 between 10 a.m. to 12 noon.Venegavkarsubmitted that the inquest Panchnama at exhibit 123 is notcorrectly recorded and it is a manipulated document.It hasnot taken place between 10 am and 12 noon as mentioned inthe Panchnama.The timing is false.The persons, who arestated to be present at the time of Panchnama i.e., AbdulSattar, who identified the body of Haleema is falsely stated tobe present on 5.3.2002 because the evidence of theprosecutrix, PW 7 Madina and PW 19 Phiroz (son of Abdul ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:22 ::: 338 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docSattar) shows that Abdul Sattar was taken to the spot on"4.3.2002" and he came back and informed that the relativesof the prosecutrix were killed.He submitted that Ramtiben,the woman panch to the inquest panchnama, was also notpresent when the panchnama was carried out.Venegavkar submitted that in fact such a person did notexist.Learned Counsel Mr. Venegavkar submitted thatRamtiben, a female panch, was never traced and therefore,she could not be examined.However, the prosecutionexamined other two panchas to the Inquest panchnama, i.e.,PW 15 Ramsingh Bariya and second panch PW 73 SomabhaiChavan.He submitted that there is an inter se contradictionbetween the evidence of these two panchas.PW 73 hasstated that he was standing at the bus stop near Kesharpur togo to Limkheda alongwith Ramsingh Bariya at noon and atthat time, the police came and took them to Kesharpur jungleto act as panchas.However, PW 15 who is the secondpanch has stated that at 10 am, the police approached themat Limkheda bus stop.He further relied on the evidence of ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:22 ::: 339 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docPW 34 police officer Amrutsingh Khant where he has statedthat at 9.45 am, he was present alongwith others at thejungle for Panchnama.Mr. Venegavkar relied on exhibit 244i.e., a letter sent by Limkheda police dated 4.3.2002 toMagistrate at Limkheda seeking permission to conductinquest.Mr.Venegavkar pointed out that on this letter(Exhibit 244), there is an endorsement that this letter wasreceived by the Magistrate on 5.3.2002 at 11.30 am andthereafter the Magistrate gave permission immediately.Hesubmitted that if the permission was given by the Magistrateafter 11.30 am, for inquest panchnama then, how the timingis mentioned in the inquest Panchnama of 10 am to 12 noonremains an issue.It was addressed to Director ofGujarat Forensic Science Laboratory (GFSL).By this letter ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:22 ::: 340 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docsigned by the accused No.16, Circle Police Inspector,Limkheda, the samples of soil, property collected at the timeof the inquest Panchnama Exh. 123, the clothes of thedeceased and other samples including those of theprosecutrix were sent to forensic laboratory for its opinionand the report was sent by GFSL on 24.4.2002 to LimkhedaPolice Station.Mr. Venegavkar argued that till today, a standis taken by Limkheda police that the only body identified byAbdul Sattar at the time of inquest Panchnama Exhibit 123was of Haleema.In the inquest Panchnama at Exhibit 123, noother name is appearing as no other body was identified.However, in the letter dated 10.4.2002 (Exh.233), the nameof Madina and Ameena is mentioned by the Limkheda policeas persons who were gang raped and murdered and thecomplainant Bilkis was raped is also mentioned.Mr.Venegavkar pointed out that in the report of the GFSL Exh.238 dated 24.4.2002, the names of Akli, Irfan and Aslam arementioned as clothes of these three persons were found atthe time of inquest and were sent.It is further pertinent to ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:22 ::: 341 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docnote that Akli is mentioned in Exh. 238 as wife of Yusuf MusaPatel.If only Haleema was identified by Abdul Sattar fromwhere the names of other deceased appeared in thecorrespondence of Limkheda police station and GFSL.Thisshows that the police of Limkheda Police Station includingaccused no.16 who was the investigating officer weresuppressing the names of the deceased and wanted to showthem as unidentified bodies.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:22 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:22 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:22 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:22 :::297 All these lapses which clearly appear to bedeliberate show that the investigation is not only faulty but itis downright tainted.SUBMISSION OF MR.PONDA UNDER SECTIONS 143, 147 &148 OF IPC298 Mr. Ponda submitted that there is a group of 9witnesses who were examined by the prosecution regardingthe incident of 28th February, 2002 at Randhikpur.He gavelist of the witnesses that is PW 2 Pinjara, PW 4 Salim Ghachi, ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:22 ::: 342 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docPW 19 Feroz Ghachi, PW 25 Siraj Ghachi, PW 26 ImitiazGhachi, PW 31 Rasul Aziz Umer, PW 45 Sayad Abdul Salam,PW 46 Salim Abdul Sattar Musa Ghanchi, PW 47 Sattar MajidGhanchi.These 9 witnesses were residents of Randhikpur.299 This group of 9 witnesses was examined by theprosecution on the incidents that took place on 28.2.2002 atRandhikpur.On 27.2.2002, the incident of burning of train atGodhra took place and on the next day, there were riots inthe Districts Godhra and Dahod.All these 9 witnesses werethe residents of Randhikpur, which is near Godhra.The riotswere the after-math of burning of train at Godhra in whichthere were large number of Kar Sevaks.Overall, thesewitnesses say about the mob of people shouting slogansagainst Muslims that "Musalmano ko maro" was moving invillage Randhikpur after 10 am - 10.30 am on 28.2.2002.Some of the witnesses have stated that it was a mob of 30 to40 people.Some have stated that it was a mob of 100 to 150people.Each of the 9 persons have identified some of the ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:22 ::: 343 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docaccused persons; one or two accused persons individually asthe members of the mob.They have identified and attributeda particular role to these accused persons.Theiridentification and the roles attributed to them respectively bythe witnesses are described in a tabular form as follows:::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:22 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:22 :::Witness Identification of Role attributed accusedPW2 PinjaraPW4 Salim GhachiPW19 Feroz Ghachi Identified accused Part of mob no.8 PradipPW25 Siraj Gahchi Identified accused Carrying sword No.4 Shailesh Bhatt Identified accused Carrying axe No.9 BhikabaiPW26 Imtiyaz Identified accused Holding Rampuri knifeGahchi No.3 Naresh Modhiya Identified accused No.8 Pradip Modhiya Pelting stonesPW31 Rasool Umer Identified accused No.11 Mitesh As being part of mob Identified accused No.12 RameshPW45 Sayed Salam Identified Accused Holding petrol can No.7 KesarPW46 Salim Identified accused Shouting slogans killGhanchi no.8 Pradip Modhiya muslims.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:22 :::Hesubmitted that accused nos. 1 to 12 are punished undersection 143 of Indian Penal Code for being members ofunlawful assembly.Accused nos. 1 to 12 were also punishedunder section 147 of IPC for rioting by forming unlawfulassembly and accused no. 1 only is punished under section148 of IPC for rioting armed with deadly weapon.Soalso as per the evidence of these 9 witnesses, accused no. 1and accused no. 2 were having fire balls, accused no.3 washolding knife, accused no.4 was carrying sword, accused no.7 was holding petrol can, accused no. 8 was pelting stonesand shouting slogans, accused no. 9 was armed with axe andaccused nos. 11 and 12 were part of the mob on 28 thFebruary, 2002 when the witnesses noticed these accused.All these 9 witnesses did not take the names of all the ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:22 ::: 345 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docaccused persons but each witness took the name of one ortwo accused and attributed the role.Therefore, none of them isconvicted for conspiracy under section 120B of IPC.Therefore, the evidence of all these 9 witnesses attributingparticular role of any act on 28 th February, 2002 is in fact notrelevant.We find much merit in this submission andtherefore, we do not consider the conviction under thesesections in respect of their acts of 28th February, 2002.POLICEMEN ARE ACCUSED, THEREFORE, POLICESTATEMENTS OUGHT TO BE READ BY THE COURT :::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:22 :::301 Mr. Ponda submitted that some of the statementsof the prosecutrix were recorded by policemen who werelater made accused, hence, the omissions and contradictionsin these police statements could not be proved by thedefence.Thus, it is seen that in thepeculiar facts and circumstances of that case, the policestatements were read by the Court and they were consideredto the limited extent of deciding whether the application foradditional evidence or for examining additional witnesseswho were not examined earlier is to be allowed.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:23 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:22 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:22 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:23 :::The statement made by a witness before the police under Section 161(1) Code of Criminal Procedure can be used only for the purpose of contradicting such witness on what he has stated at the trial as laid down in the ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:23 ::: 349 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc proviso to Section 162 (1) Code of Criminal Procedure.The statements under Section 161 Code of Criminal Procedure recorded during the investigation are not substantive pieces of evidence but can be used primarily for the limited purpose:- (i) of contradicting such witness by an accused under Section 145 of Evidence Act; (ii) the contradiction of such witness also by the prosecution but with the leave of the Court and (iii) the re-examination of the witness if necessary.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:23 :::Court cannot suo moto make use of statements to police not proved and ask question with reference to them which are inconsistent with the testimony of the witness in the court.The words in Section 162 Code of Criminal Procedure "if duly proved" clearly show that the record of the statement of witnesses cannot be admitted in evidence straightway nor can be looked into but they must be duly proved for the purpose of contradiction by eliciting admission from the witness during cross-examination and also during the cross-examination of the investigating officer.Statement before the investigating officer can be used for contradiction but only after strict compliance with Section 145 of Evidence Act that is by drawing attention to the parts intended for contradiction."[ Emphasis Supplied ] Mr. Venegavkar pointed out that throughout the::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:23 ::: 350 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doctrial, the accused and their Advocates were present.Itcannot be said that they are helpless just because some ofthe policemen who recorded the statements of theprosecutrix were made accused.The accused could very wellhave examined themselves as envisaged under Section 315of the Code of Criminal Procedure.Section 315 of the Codeof Criminal Procedure reads as under:-::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:23 :::(1) Any person accused of an offence before a Criminal Court shall be a competent witness for the defence and may give evidence on oath in disproof of the charges made against him or any person charged together with him at the same trial;(a) he shall not be called as a witness except on his own request in writing;(b) his failure to give evidence shall not be made the subject of any comment by any of the parties or the Court or give rise to any presumption against himself or any person charged together with him at the same trial.In this view ofthe matter, it is not possible for us to look into the statementsof the prosecutrix which were recorded by some of theaccused persons.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:23 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:23 :::352 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc304 Moreover, we have already observed thecircumstances in which there are omissions andcontradictions in the evidence of the prosecutrix andtherefore, discrepancies in the various statements of theprosecutrix.The accused persons who recorded herstatements were attached to Limkheda Police Station andthey tried to gag the mouth of the prosecutrix and the FIRand the statements of the prosecutrix were mixed with truthand falsehood.It was a big job for us to shift through thatevidence on the basis of other oral, documentary orcircumstantial evidence.Her evidence emerged before uslike a collage which we find completely trustworthy.SECTION 313: vis-a-vis ACCUSED NOS.It was necessary for the learnedtrial Judge to put questions to that effect to the accusedunder Section 313 of the Code of Criminal Procedure.If it is ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:23 ::: 353 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docthe case of the prosecution that why the prosecutrix was notsent on 4th March, immediately after the recording of the FIRfor medical examination, but was sent on 5th March, the saidquestion should have been put by the learned trial Judge tothe accused.A point was raised by the prosecution that thespot panchnama was not conducted immediately i.e. on4.3.2002 by Limkheda police i.e accused Nos. 13 to 18 andthis point was considered against the accused by the learnedjudge in his judgment.So, the trial Judge ought to haveformulated this question as it is a circumstance against theaccused i.e the police who initially investigated the offenceand an opportunity should have been given to the accused toexplain the circumstance.Mr. Pondasubmitted that if the questions are not put to the accused ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:23 ::: 354 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docabout the circumstances which are going against him in theevidence, then, the accused is denied an opportunity toexplain the said circumstance.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:23 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:23 :::In the saiddecision, it is observed as under:-In order to appreciate the submissions ofMr.However, the questions werenot put to the accused persons to that effect.ENHANCEMENT OF SENTENCE316 While deciding the appeal by the State forenhancement of sentence, we have to consider thesentencing policy of capital punishment.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:24 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:24 :::They argued that at one time,14 helpless persons including children and women werebrutally murdered by these accused.While committing thisinhuman act, three women were raped i.e Halima, Shamimand the prosecutrix.This shows that the accused had noregard for law and order and were perverse.These murdershave shocked the conscience of the society and is agruesome offence which is to be dealt with capitalpunishment.In order to substantiate its appeal forenhancement of the sentence, the learned Counsel relied on ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:25 ::: 367 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docthe judgments in Sevaka Perumal & anr.Before commenting on the enhancement of sentence in thepresent case, let us advert to the cases relied on by theprosecutors.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:25 :::They induced and enticed innocent boys from affluentfamilies and took them to distant places.The boys weremade to bring jewellery and valuables.After taking themoney and the valuables, they killed the boys.Theycommitted four murders in the same manner.The SessionsCourt convicted the accused persons and sentenced them todeath.The High Court confirmed the sentence and therefore,the appeals were preferred before the Supreme Court."It will be a mockery of justice to permit the accused to ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:25 ::: 369 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc escape the extreme penalty of law when faced with such evidence and such cruel acts.To give the lesser punishment for the accused would be to render the justicing system of the country suspect.The common man will lose faith in courts.In such cases, he understands and appreciates the language of deterrence more than the reformative jargon."::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:25 :::Two days prior to the incident, she hadcomplained to her mother against the guard that he hadbeen teasing her on her way to and fro from school and alsoasked her to accompany him to a cinema hall to watch amovie.After her complaint, action was taken by thesupervisor of the accused and he was transferred to someother apartment as a security guard.However, on that day,the accused did not attend his new duty but came to thesociety of the deceased and did the duty at the society of thedeceased and at around 5.20pm, when her mother went tothe temple, he entered the flat on some pretext, raped andmurdered her.His movements in and out of the flat were ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:25 ::: 370 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docwitnessed by the other guard and the supervisor andthereafter he was caught.In the said case, the SupremeCourt has held thus:::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:25 :::It held that "it is unfortunate but ahard fact that all these accused have committed a heinousand inhumane crime for satisfaction of their lust but it cannot ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:25 ::: 371 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docbe held with certainty that this case falls in the rarest of rarecases" and the Supreme court commuted the sentence ofdeath to that of life imprisonment i.e., 21 years and partiallyallowed the appeals.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:25 :::323 The submission of the prosecution is that it is notonly one or two murders but it is a case of mass murderswhere the women were ravished and raped and it hasshocked the social conscience.In the case of DhananjoyChatterjee (supra), the culprit was a security guard and hehad a history of making sexually coloured remarks towardsthe victim girl.Thus, he had lust for the victim from thebeginning and though he was removed and given the duty ofguard in another building, he disobeyed his superintendentand stayed there which shows that he had planned to rapethe girl and it was a cold blooded murder.In the case ofSevaka Perumal (supra), there was extortion and theaccused had murdered four boys in a period of 5 years byusing the same modus operandi.This shows that they were ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:25 ::: 372 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.dochardened criminals who repeated the act.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:25 :::In the case of Ramnaresh & Ors.They were boiling with revenge.It was an unlawful assembly of the 12 accused and somemore unidentified persons.As soon as they saw the muslims, ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:25 ::: 373 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docthey pounced upon them, assaulted them and also rapedsome women.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:25 :::325 We have carefully gone through the elaboratediscussion of aggravated and mitigating circumstances andthe principles laid down by the Supreme Court in Ramnaresh& Ors.(supra).We do agree that the crime is uncommonand a large number of persons from the muslim communitywere murdered, however, the sentencing policy is alsorequired to be balanced on the scale of proportionality.326 Thus, considering the facts of this case, thoughsuch crime is not justifiable and is shunned, we are of theview that it is not a case wherein the sentence imposedwould be completely inadequate and would not meet theends of justice especially looking to the fact that though theprosecutrix was present at the scene of the incident, shedoes not state that accused Nos. 1 and 2 murdered any ofthe persons in her group, nor does she say that accused Nos. ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:25 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:25 :::374 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc1 and 2 raped Halima or Shamim.These accused have been in custody allthis while.Looking to this fact, after a gap of 15 years, weare not inclined to enhance the sentence.327 The Appeal for enhancement of sentence is thusdismissed.(ii) accused Nos.1 to 12 are convicted for offence of committing rape under Sections 376 (2)(e) & (g) and sentenced to life and fine;(iii) accused Nos.1 to 12 are also convicted under section 376(2)(g) and sentenced to 10 years imprisonment and fine.(iv) accused Nos.1 to 12 are also held guilty under section 147 IPC and also under section 143 of Indian Penal Code and they are sentenced to suffer R.I. for 2 years and six months respectively.(v) accused No.1 is held guilty under section 148 of the IPC and sentenced to suffer R.I. for 3 years.(vi) accused 17 who is dead was held guilty under section 217 and 218 and sentenced to suffer R.I for two years.329 Mr. Venegavkar submitted that accused Nos.13 to18 are the police officers from Limkheda police station, who ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:25 ::: 376 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.dochave played different roles in the initial investigation.Theinvestigation was found defective and therefore, the SupremeCourt by its order dated 16.12.2003 in MiscellaneousCriminal Application No.8850 of 2003 in W.P. No. 118 of 2003(Exh.61) transferred the investigation to the CBI.The CBItook over the investigation on 1.1.2004 and after completionof the investigation, filed chargesheet on 19.4.2004 beforeCJM Ahmedabad.At the time of investigation, the CBI foundthat the concerned police personnel of Limkheda policestation who were involved in the initial investigation were notonly negligent, but deliberately tried to screen the offendersand have also caused disappearance of the evidence of theoffence and gave false information to screen the offenders.Therefore, accused Nos.13 to 18 were prosecuted.Accused Nos. 19 & 20 cameacross the 7 bodies.Though, it was apparent that the deadbodies were victims of assault and violence, and whitish ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:26 ::: 377 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docliquid was seen coming out of the private parts of some of thefemale dead bodies, accused Nos. 19 & 20 did not collect thenecessary samples; did not conduct the post-mortem asrequired under law and have therefore committed the offenceunder sections 201, 217 and 218 of the Indian Penal Code.Hence, these appeals.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:25 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:26 :::The reasonsgiven for acquittal are erroneous in view of the fact thatthere is sufficient evidence against all the accused to convictthem under sections 217, 218, 120B and 201 of the IndianPenal Code.He further submitted that when the role of eachaccused is specifically brought on record by the prosecution,the Trial Court ought to have considered it and should have ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:26 ::: 378 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docconvicted all the accused.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:26 :::The accused Nos.13 to 20 were all acquittedunder Section 120B of IPC.They were also acquitted underSection 201 of the Indian Penal Code i.e., causingdisappearance of evidence of offence or giving falseinformation to screen the offenders; accused Nos.13 to 16and accused Nos.18 to 20 are also acquitted from theoffences under sections 217 & 218 r/w 34 of the Indian PenalCode.In respect of accused No.17, appeal against acquittalis filed as he is acquitted under section 201 of the IndianPenal Code though he is convicted under sections 217 and218 of the Indian Penal Code.However, accused No.17 hasexpired pending appeal, so, the said appeal abates againsthim.332 As far as acquittal under section 120-B of IPC isconcerned, PW 2 Panjara is examined by the prosecution on ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:26 ::: 379 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docthe point of conspiracy and he has stated that on 28 thFebruary, 2002 he heard shouts from the mob againstmuslims.He remained in the house on the loft for few hoursand thereafter he came out of the house at around 1 p.m.and saw people assembled at the shop of accused no. 10Soni.There he noticed two police, i.e., accused no. 13Narpatsingh Patel and accused no.14 Idris Saiyed.So hewent towards them for help.However, they told him to runaway.So he went away.At that time he noticed all theaccused persons who had assembled in the shop were sayingthat muslims were to be finished.Mr. Ponda has submittedthat his evidence is not reliable.The learned trial Judge hasnot believed the evidence of PW 2 Pinjara on the point of hemeeting accused no.14 Saiyed.The learned counsel Mr.He relied on Exhibit 76 the station diary entry which isproved through DW 4 Mansinghbhai Kishori wherein it is ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:26 ::: 380 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docmentioned that accused no. 14 was directed to go toLimkheda for duty and so in a jeep he left Fatehpura policestation at 1.30 p.m. The learned counsel pointed out that inhis evidence DW 4 Mansinghbhai Kishori has stated that thedistance between Fatehpura police station and LimkhedaPolice Station was nearly 80 kms.Thus, it was not possiblefor him to reach Limkheda at 1 p.m. as deposed by PW 2Pinjara that he had seen accused no. 14 at Limkheda at 1.00p.m.. We find some merit in this submission.333 We have considered the evidence of PW 2 Pinjara.PW 2 is examined by the prosecution only on the point ofconspiracy.Besides PW 2 no other witness is examined onthe point of conspiracy.Our attention is drawn to thejudgment of the trial Court wherein accused nos. 1 to 18 arenot convicted for the offence of conspiracy under section120B of Indian Penal Code.There is no appeal by the Statechallenging this acquittal of the accused from the offence ofconspiracy under section 120B of the Indian Penal Code. ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:26 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:26 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:26 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:26 :::381 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docConsidering this position, we do not take into account theevidence of PW 2 who is a witness against accused no. 14 onthe point of conspiracy as well as against all the accused.334 In any event everything appears to have takenplace on the spur of the moment.There is no reliableevidence that on 28.2.2002, there was any conspiracy tomurder or rape muslims which can also be seen from the factthat on 28.2.2002 no physical harm was caused to anymuslim in Randhikpur.335 Mr. Venegavkar submitted that accused No.13Narpatsingh Patel took Hussain and PW8 Saddam, withoutyadi, to Limkheda Community Health Centre.He abandonedSaddam and Hussain at the hospital.PW 9 Dr. Mahto hasspecifically stated that Narpatsingh was supposed to comethere to take back the children and he had dropped themwithout yadi.This showed that accused No. 13 wanted theevidence to disappear that Saddam was victim of assault.Mr. ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:26 ::: 382 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docVenegavkar further argued that accused No. 13 Narpatsinghwas present on 5.3.2002 alongwith accused No.14 Saiyedwhen the inquest panchnama Exh. 123 and spot panchnamaExh.124 were drawn.They purposely did not protect thedead bodies due to which some of the bodies went missingand Saleha's body and body of Shamim's new born babywere lost.Mr. Venegavkar relied on theevidence of PW 34 Amrutsingh Khant, who has stated inparagraph 4 of his evidence that accused Nos.13 and 14dictated the inquest panchanama i.e., exhibit 123 which Mr.Venegavkar submitted is a defective and a manipulateddocument.Mr. Venegavkar further drew our attention toparagraph 4 of the evidence of PW 34 Amrutsingh, wherein,he has stated that he wrote the inquest panchnama at theinstance of accused Nos. 13, 14 and 16 i.e Narpatsingh, IdrisAbdul Saiyed and Ramsingh Bhabor.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:26 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:26 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:26 :::383 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc336 Mr. Venegavkar further pointed out that accusedNo.15 Bhikabhai Patel was the PSI in charge of theLimkheda police station when the FIR (Exh. 56) was preparedwhich is stated by DW 5 Jaisingh in paragraph 3 of hisevidence.He was in charge of theinvestigation.He did not investigate as per the contents ofthe statement of the prosecutrix dated 6.3.2002 (Exhibit 277)which was sent by PW 18 District Magistrate Jayanti Ravi tothe police station.He did not seize the photographs and thenegatives of the dead bodies (Exh.59/1 to 59/17) underseizure panchanama.He further submitted that the closurereport of A summary was manipulated.This was done at theinstance of accused No. 18 R.S. Bhagore Accused No.18,Dy.S.P., Limkheda, was supposed to supervise investigation ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:26 ::: 384 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docafter accused No.16 Ramsingh Bhabor did not perform hisduty but he purposely filed 'A' summary.He submitted it wastotally faulty investigation.Thus, the role of all these policepersonnel was not properly considered by the Trial Courtthough the offence under sections 201, 217 and 218 wasmade out.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:26 :::P.C. asking explanation on delay.The learned Counselargued that it is necessary for the Court to put specificquestions u/s 313 on each and every circumstance which is ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:26 ::: 385 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docagainst the accused and in the event of failure to put suchquestions, the benefit is to be given to the accused as thecircumstance remains unexplained.As far as thissubmission regarding not putting questions under Section313 of Cr.P.C. Is concerned, we have already dealt with thesame in detail in earlier paras of this judgment and found nomerit in this contention.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:26 :::Thereis no evidence against accused Nos.13 and 14 and otheraccused and therefore, their acquittal from the respectivecharges is justified.He argued that the ingredients ofsections 217 and 218 so also section 201 are not proved bythe prosecution and so the requirement of law is not fulfilled.339 Mr. Ponda submitted that it was argued by theprosecution that PW 8 Saddam was taken to Limkheda CHC ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:26 ::: 386 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docby accused No.13 Narpatsingh without yadi and he did notbring him back.The learned Counsel after referring to para21 of the examination in chief of PW9 Dr.Mahato submittedthat he did not identify Narpatsingh.He further argued thatthere is no charge of looting or rioting, so evidence to thateffect is irrelevant.Admittedly accused no.13 Narpatsinghwas attached to Limkheda Police Station.It was not his casethat there was any other policeman in that police station ofthe same name, hence, it has to be assumed that he tookSaddam to CHC Limkheda.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:26 :::340 Admittedly accused no. 13 Narpatsingh Patel,accused no. 14-Saiyed, accused no. 15- Bhikabhai Patel,accused no. 16-Ramsingh Bhabhor, accused no. 17-Somabhai, accused no. 18-Ramabhai Bhagora were the policepersonnel attached to Limkheda Police Station at the time ofthe incident, i.e., on 3rd March, 2002 and thereafter when theinvestigation was conducted by Limkheda Police Station, PW-19 Arun Kumar Prasad and PW-20 Sangeeta Prasad were the ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:27 ::: 387 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docdoctors who performed postmortem on 7 dead bodies of thevictims on 5th March, 2002 near Kesharpur jungle at ravinenamely "Shiv Kottar".Their respective roles in theinvestigation has come on record and cannot be disowned bythe defence.Thus, from the documentary evidence as wellas oral evidence of the witnesses, whether the dutiesperformed or not performed by these accused personsresulted in illegality fulfilling the ingredients of the offence forwhich they were charged respectively and whether thecommission or omission amounts to an offence especiallyunder Sections 201, 217 and 218 of IPC is required to bescrutinized.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:27 :::341 Section 217 and 218 of IPC read as under:-Public servant disobeying direction of law with intent to save person from punishment or property from forfeiture.--Whoever, being a public servant, knowingly disobeys any direction of the law as to the way in which he is to conduct himself as such public servant, intending thereby to save, or knowing it to be likely that he will thereby save, any person from legal punishment, or subject him to a less punishment than that to which he is ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:27 ::: 388 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc liable, or with intent to save, or knowing that he is likely thereby to save, any property from forfeiture or any charge to which it is liable by law, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:27 :::Public servant framing incorrect record or writing with intent to save person from punishment or property from forfeiture.-- Whoever, being a public servant, and being as such public servant, charged with the preparation of any record or other writing, frames that record or writing in a manner which he knows to be incorrect, with intent to cause, or knowing it to be likely that he will thereby cause, loss or injury to the public or to any person, or with intent thereby to save, or knowing it to be likely that he will thereby save, any person from legal punishment, or with intent to save, or knowing that he is likely thereby to save, any property from forfeiture or other charge to which it is liable by law, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.342 The recording of the FIR - Exh. 56 is the startingpoint of this investigation.The prosecutrix PW-1 was taken toLimkheda police station on 4th March, 2002 and there she told ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:27 ::: 389 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docabout the incident of murder and rape.Her evidence alongwith the evidence of other witnesses is discussed extensivelyearlier.She hasstated in her evidence that whatever was recorded by thepolice was not read over to her.She did not know whatrecord was made and the police forcibly obtained her thumbimpression on the record maintained by them.This evidencecan be assessed on the basis of other circumstantialevidence.FIR Exhibit 56 is to be looked into.The names ofthe persons who moved with the prosecutrix were taken,however, name of father Abdul Sattar was wrongly mentionedbut other names were rightly mentioned.It is furthermentioned that mob of 500 persons carrying sticks came ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:27 ::: 390 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docabusing.They tore the clothes of the ladies Mumtaz andShamim and committed rape on them.She sawone jeep on the road and went to the jeep where she met anofficer (DW 3) and told the incident to him.The officer tookher to Limkheda Police Station.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:27 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:27 :::343 Her statements which she gave before CBI and herstatement Exhibit 277 dated 6th March, 2002, disclosed adifferent story.The contradictions and omissions which arebrought on record from her statements dated 9 th January,2004, 13th February, 2004, 27th March, 2004 recorded by CBIwhich are respectively at Exhibit 434(Colly.), 439 (Colly.) andExhibit 393 (colly.) are considered.These omissions andcontradictions are insignificant when examined at the time of ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:27 ::: 391 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docsubmissions of learned defence counsel and learnedProsecutor.Thus, her substantive evidence is more or lessconsistent in all the material particulars with her previousstatements recorded by CBI and her statement Exhibit 277recorded on 6.3.2002 which can be used for the purpose ofcorroboration as it is at or about the time of the incident.344 The lapses in the investigation are as follows:::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:27 :::(i) Accused No. 17, who attended the prosecutrix, while recording the FIR did not mention the names of accused persons disclosed by her, which she disclosed subsequently in her statement Exhibit 277 and the statements before CBI.At that time, PW 15 Bhikabhai Patel was in charge of the police station.(ii) Though according to PW 35, Yadi (Exh. 203) was prepared on 4.3.2002 by Limkheda Police Station for sending the prosecutrix for medical examination, she was not sent on 4th but she was sent on 5.3.2002 for medical examination so as to cause disappearance of evidence.(iii) When the prosecutrix was sent for medical ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:27 ::: 392 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc examination on 7th March, 2002, after recording of her statement Exh. 277 by PW-23 Executive Magistrate Govindbhai, yadi was not sent.Yadi was sent after about 10 days though PW-17 Dr. Rohini Katti has asked for yadi on the same day i.e. 7th March.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:27 :::(iv) FIR was recorded on 4.3.2002 at 10.45 a.m. which disclosed cognizable offence of rape and murder and therefore it was registered under sections 376 and 302 of Indian Penal Code.So, immediate drawing of spot and inquest panchanamas was necessary.The police visited the spot on 4th March, 2002 in the evening, however, on that day, they did not draw spot or inquest panchanama though they found dead bodies.(v) The prosecutrix was not taken to show the spot or to identify the bodies.(vi) Incorrect inquest panchnama was drawn.(vii) It was the duty of the investigating officer and::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:27 ::: 393 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc police personnel to take care by appointing some person or constable by way of keeping guard or for security to protect the dead bodies which were lying on the spot which was open and unprotected place, however, it was not done.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:27 :::(ix) Postmortem was conducted in deliberate haste without examining and noting the necessary facts with a view to suppress the material evidence on the point of Sections 376 and 302 and the bodies were hurriedly buried with sacks full of salt so that they would decompose faster and the evidence would disappear.(x) No blood samples, nail clippings, hair sample etc and especially vaginal swabs were collected by accused Nos. 19 and 20 during postmortem though the FIR showed that it was a case of rape.(xi) Why bodies were not handed over to the relatives when Abdul Sattar had admittedly identified body of::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:27 ::: 394 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc Haleema as mother of the prosecutrix.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:27 :::(xii) Letter Exh. 233 dated 10.4.2002 by accused No. 16 Circle Police Inspector Limkheda to Forensic Science Laboratory shows that the accused gangraped Madinaben and Aminben and killed them.From where these names surfaced when according to the defence by then only one body was identified i.e of Halima.This shows the accused Nos. 13 to 18 were trying to suppress facts, however, truth has this uncanny way of surfacing.(xiii) GFSL report Exhibit 238 dated 24.4.2002 addressed by Forensic Science Laboratory to Circle Inspector Limkheda (accused No. 16) shows the names of identification of three dead bodies i.e Akliben w/o.Yusuf Musa Patel, Aslam Abdul aged 13 years and Irfan Abdul, when as per the police, the dead bodies were not identified at all except that of Haleema.This also shows police were suppressing facts.(xiv) Police did not seize and preserve all the articles of the deceased to facilitate their identification later on to purposely weaken the case.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:27 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:27 :::(xv) FIR was ante-timed.(xvi) Police did not arrest accused though it was a cognizable offence.(xvii) Suppression of material facts by police accused and accused nos. 19 and 20 to screen the offenders.345 We now proceed to chronologically assess the roleplayed by the accused and the investigation:346 Exhibit 56: Evidence of PW 35 Ranjeetsingh Patelpolice constable, DW1 Budhsingh Patel Writer Constable, DW5 Jaisinghbhai Patel head constable and DW 6 ChandubhaiTariyad police constable, is to be looked into alongwith theevidence of the prosecutrix.She has stated that all thecontents in Exhibit 56 are not true and there is a suppressionof material facts.The names of the assailants were disclosedby her.However, they were not mentioned in the FIRdeliberately by the persons, who recorded the FIR and herthumb impression was obtained forcibly.Not only that but ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:28 ::: 396 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docshe was threatened that if she disclosed the names of theculprits, then she would be taken to hospital and would begiven a poisonous injection.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:28 :::347 Thus, there is no mention in the FIR that theprosecutrix was raped.There is no mention of a single nameof any of the assailants in the FIR.False fabricated facts arestated that a mob of 500 persons attacked the prosecutrixand her group.PW 35 Ranjeetsingh Patel, DW 1 Budhsingh,DW 5 Jaisinghbhai Patel & DW 6 Chandubhai Tariyad have allstated & confirmed that a lady by name Bilkis Banoo arrivedat the Limkheda police station on 4.3.2002 to give complaintand her complaint was recorded i.e., Exhibit 56 which wasrecorded by accused No.17 Somabhai Koyabhai Gori.348 PW 35 Ranjeetsingh Patel in brief has stated thatthe contents of the FIR were stated to accused No. 17Somabhai by the prosecutrix that a mob of 500 peopleattacked them and raped her relatives and killed them.He hasstated that the handwriting is of one Budhsingh (DW 1).Hefurther submitted that the yadi of the prosecutrix for medicalexamination was prepared and he identified the said yadi atExhibit 203 dated 4.3.2002 bearing handwriting andsignature of accused No.17 Somabhai Gori.Further, he hasstated that on 5.3.2002, he alongwith accused No.13Narpatsingh, accused No.14 Idris Saiyed and accused No.16Ramsingh Bhabhor alongwith PW 34 Amrutsingh Khant andone Police Head Constable Mangalsingh left for Kesharpurjungle.Seven corpses were found in the jungle.As per hisevidence, accused No.13 Narpatsingh dictated the inquestpanchanama which was scribed by PW 34 Amrutsingh.Hefurther stated that accused No.19 Dr.Arunkumar RamkishanPrasad and accused No.20 Dr.Sangeeta Arunkumar Prasadconducted the post-mortem on the spot.He has furtherstated that a pit was dug by labourers and all the corpses ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:28 ::: 398 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docwere buried therein.So hecollected those clothes and came to Limkheda police stationand handed over the same to one PSO Jaisingh at Limkhedapolice station, who under panchanama, seized those clothes.He identified the clothes, i.e., sky blue coloursaree with label and seal marked Article 25 collectively,maroon brown colour petticoat with seal marked Article 26collectively, olive green trousers with seal and wrapper andenvelope marked Exhibit 27; one piece of bush shirt withlabel, envelope marked Exhibit 28; frock with floral designwith label, envelope, seal marked Article 29; a piece ofstriped bush shirt with envelope, seal, wrapper marked atarticle 30 collectively.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:28 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:28 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:28 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:28 :::These omissions have been proved.Thoughthese omissions cannot be considered in the evidence of thewitnesses, they are useful to assess the credit of the witness.350 PW 34 Amruthsingh Khant was a police constableand was on patrol duty at Randhikpur on 4.3.2002 alongwithCPI Bhabhor accused No.16 and other police officers i.e.,including accused No.13 Narpatsingh and accused No.14 IdrisAbdul Saiyed.They all went to Panivela Kesharpur area.PW34 has stated that the inquest was conducted on 5.3.2002 inthe Kesharpur jungle.Accused No.14 drew inquestpanchanama at exhibit 123 and accused No.19 Dr.Arunkumar ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:28 ::: 400 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docRamkishan Prasad and accused No.20 Dr.SangeetaArunkumar Prasad conducted the post-mortem at the site.He wrote the inquest panchanama at the instance of accusedNo.16 Bhabhor, CPI and accused No.14 Saiyed PSI and alsoaccused No.13 Narpatsingh.According to his evidence,accused No.14 Saiyed and accused No.13 Narpatsinghdictated the inquest panchanama at exhibit 123.351 Regarding corpses, Amrutsingh stated that therewere 7 corpses i.e of 4 ladies, 2 boys and 1 girl.What is mostimportant to note is that he stated that nothing from thecorpses was preserved for the purpose of establishing theiridentity.This shows they did not want the bodies to be ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:28 ::: 401 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docidentified.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:28 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:28 :::352 It has also come on record in the evidence of PW35 Ranjitsingh Patel that Yadi (Exhibit 203) dated 4.3.2002was prepared regarding sending the prosecutrix for medicalexamination.It is clear from the evidence of PW 9Dr.Mahto that the prosecutrix was brought on 5.3.2002 forexamination.It may be noted that CHC Limkheda wassituated just few yards away from Limkheda police station.The prosecutrix was purposely sent late for examination tocause disappearance of evidence.353 DW 1 Budh Singh is a defence witness who was ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:28 ::: 402 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docattached to the Limkheda police station at the relevant time.He admitted that he was a writer constable.Accused No.17 Somabhai Gori wasPSO at the time when the FIR was recorded and the originalof the FIR was scribed by accused No.17 Somabhai Gori.Somabhai, accused No.17 questioned the prosecutrix and he(DW 1) simultaneously recorded the replies given by theprosecutrix.Headconstable Jaisingh (DW 5) has stated that he handed overcharge to accused no. 17 Somabhai on 4.3.2002 at 11.35a.m.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:28 :::354 DW 5 Jaisingh Patel was working as a headconstable at Limkheda police station at the relevant time.Hemade the FIR entry Exhibit 485-A in FIR register (Article 74)as 10.15 am.Accused No.15 was heading Limkheda Police Station at that time.Patel made station diary entry about the incident.Accused No.15 had made note in the station diary entryregarding riots at Sanjeli which is marked exhibits 503, 503Aand while leaving police station, accused No.15 told DW 5 toleave two pages of FIR book for recording the complaint fromSanjeli and accordingly, he left two pages Nos.83, 84 andthose two sheets were torn off by him.This further shows the mischiefplayed by the police.The police have prepared the FIR laterto suit them and then antetimed it.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:28 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:28 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:28 :::404 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc355 DW 6 Chandubai Tariyad has stated that he was apolice constable at Limkheda police station at the relevanttime.He stated that the prosecutrix was present whenaccused No.17 Somabhai Gori told him to record thestatement.He prepared two copies of the FIR with carbonpaper.356 We have already discussed the evidence of PW 10Mr.R.K. Soni, PW 28 Bhavinkumar Patel, PW 30 VasudevPandit and PW 32 Vinodbhai Prajapati at length whilescrutinizing the evidence relating to photographs.We havealready held that though these four witnesses did not supportthe prosecution, there is sufficient reliable evidence to holdthat PW 10 and PW 28 went to spot on 4.3.2002 and5.3.2002; took photographs and PW 30 Pandit was havingScanner Colour Lab at Godhra and negatives (Exh. 59/1 to5/17) were developed in his Lab.The bill of PW 10 Soni forthe photographs was raised, demand made and the payment ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:28 ::: 405 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docof photographs was also made to PW 10 Soni.Thus, theprosecution has proved its case that accused no. 17 hadrecorded the FIR and accused nos. 13 to 16 have visited thespot on 4.3.2002 and 5.3.2002 and there are many lapses inthe investigation.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:28 :::357 We have mentioned earlier that none of the policepersonnel from Limkheda police station, who were on duty atLimkheda police station on 4.3.2002 and 5.3.2002 supportedthe prosecution when they were called as witness forprosecution.However, conspicuously, the police personnelappeared as witnesses for the defence and tried to destroythe case of the prosecution at its root.However theirattempts were an abortive attempt.Thus, we find thatthe witnesses who did not support the prosecution and whostepped in as defence witnesses, did not create anyconfidence in our mind that they were telling the truth but wefound that they were interested only in presenting amanipulated version to mislead the Court.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:29 :::Thus,when Superintendent of Police of Dahod was supervising theinvestigation, then how the police of Limkheda police stationi.e., accused Nos. 13 to 18 can be held responsible for anyomission or under sections 217, 218 and 201 of the IndianPenal Code.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:29 :::359 In order to examine the substance in thesubmissions of Mr.Ponda, we carefully went through thecorrespondence between PW 18 Jayanti Ravi DistrictMagistrate & Collector, District Panch Mahal Godhra andDistrict Superintendent of Police, Dahod and the AdditionalChief Secretary, Home Department, New Sachivalaya,Gandhinagar:(i) Exhibit 147 is a letter dated 7.3.2002 written by ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:29 ::: 408 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docPW 18 Collector and District Magistrate, Panch Mahal Godhrato the District Superintendent of Police, Dahod.She hasreferred to her visit to the relief camp and recording of thestatement of the prosecutrix by the Executive Magistrate.Inthe said letter, she has requested the District Superintendentof Police, Dahod to arrest the persons named in thestatement (Exh. 277) recorded by the Executive MagistratePW 23 Govindbhai Patel.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:29 :::(iii) There is another letter by PW 18 DistrictMagistrate, Godhra to District Superintendent of Police,Dahod dated 18.3.2002 which is marked exhibit 148B. Thiswas a reminder whereby the same request was repeated.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:29 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:29 :::(vi) Exhibit 148E dated 29.6.2002 is a letter by PW18 ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:29 ::: 410 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docJayanti Ravi to the Superintendent of Police, Dahod, whereinshe has informed that a team of 26 Members of Parliament isarriving on 2.7.2002 in connection with the incident ofcommunal riots and hence, she asked for detailed report.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:29 :::(viii) In the said report dated 30.6.2002, Mr.Jadeja hadgiven a gist of the FIR and also mentioned about thecomplaint given by the prosecutrix dated 6.3.2002 recordedby the Tehsildar where the names of the accused i.e.,accused Nos. 1 to 12 were mentioned and it was mentionedthat they were from Randhikpur.In the said letter, he hadforwarded the progress report of the Circle Police Inspector,i.e., the investigating police officer of this case i.e., accused ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:29 ::: 411 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docNo.16 Ramsingh Bhabor.In the said report, he has informedthat the complainant Bilkis has not stated in her FIR thenames of the accused and that she was raped and it wasmentioned by accused No. 16 i.e., the Circle Inspector thatwhen she disclosed these three names, she knew thesepersons, then why she did not disclose these names whenshe gave FIR at the Limkheda police station? He has furtherreported that the complainant has stated contradictory factsand the medical officer has given NIL report and noindependent evidence against the accused is available tillthen and therefore, it was communicated that the allegedaccused were not arrested.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:29 :::(ix) Exhibit 150 dated 20.3.2002 is a letter written byMr.Jadeja, Superintendent of Police, Dahod to PW 18 DistrictMagistrate, Panch Mahal, Godhra.(This letter was writtenafter receipt of letter Exh 148B which was sent on 18.3.2002by District Magistrate Godhra PW 18 Jayanti Ravi).He hasinformed that a violent mob of 500 attacked the prosecutrix ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:29 ::: 412 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docand her cousins and raped and killed them.However, shehas stated in another statement that 25 to 30 personsattacked and assaulted the prosecutrix and her cousins.However, there are contradictions in both her statementsabout the number of persons and the rapists and therefore,totally neutral and judicious investigation is done andaccordingly, he has instructed orally and in writing to theCircle Inspector, Limkheda police station i.e., accused No.16to investigate meticulously and to take over investigation andhe also instructed PW16 and his PSI to conduct theinvestigation under his guidance so that it is independent andwithout defect.He has also communicated that the processof daily investigation should be under his guidance and heinformed that efforts are being made to arrest the accused.360 We do agree with Mr.Ponda that in the letter i.e.,Exh 150, the Dist.of Police, Dahod has informed Dist.Magistrate PW 18 Jayanti Ravi, Panch Mahal, Godhra that hehas complete supervision over the day to day investigation of ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:29 ::: 413 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docthe case.Obviously, one may get the impression thatMr.Jadeja is responsible for all the loopholes and lacunaewhich are found in the investigation.The police i.e., accusedNos.13, 14, 15, 16 & 17 have at the initial stage deleted thenames of the accused.They did not record the names of theaccused and the material information furnished by theprosecutrix at the time of recording of the complaint.Accused Nos.13, 14 and 16 one after the other were incharge of the investigation or it appears they worked as ateam on the initial 2 to 3 days.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:29 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:29 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:29 :::Reasons are many for the witnesses turning hostile, but of late, we see, especially in high profile cases, there is a regularity in the witnesses turning hostile, either due to monetary consideration or by other tempting offers which undermine the entire criminal justice system and people carry the impression that the ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:29 ::: 415 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc mighty and powerful can always get away from the clutches of law thereby, eroding people's faith in the system.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:29 :::....If a witness becomes hostile to subvert the judicial process, the Courts shall not stand as a mute spectator and every effort should be made to bring home the truth.It shakes public confidence in the criminal justice delivery system.It is for this reason there has been a lot of discussion on witness protection and from various quarters demand is made for the State to play a definite role in coming out with witness protection programme, at least in sensitive cases involving those in power, who have political patronage and could wield muscle and money power, to avert trial getting tainted and::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:30 ::: 416 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc derailed and truth becoming a casualty.A stern and emphatic message to this effect was given in Zahira Habibullah's case as well.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:30 :::362 No statements of PW 10, PW 28, PW 30, and PW32 were recorded by the accused police.Jadeja came inpicture after 8.3.2002 i.e., after PW 18 Jayanti Ravi, the Dist.Magistrate, Godhra had written a letter dated 7.3.2002 (exh.147) to him and requested him to arrest the accused persons.However, thereafter, she wrote two reminders asking for thereport of arrest.However, reply to her letter dated 7.3.2002was given by Mr.Jadeja, Superintendent of Police,Dahod on20.3.2002 after collecting information from the Circle PoliceInspector (accused No.16) and others, thereby he hasinformed that the entire investigation is under his control.However, there is no evidence to show that Mr.Jadeja hadbeen to the spot at any point of time.He has obviously takenall the information and instructions from the accused policepersons and Mr.So also,the said accused have completely misled him.The defence relied on thecorrespondence between PW18 Jayanti Ravi and Mr.Jadeja does not absolve accusedNos.13 to 18 of their legal liability and their duty toinvestigate the matter properly.On the contrary, it highlightsthat though PW 18 Jayanti Ravi was pursuing the matter andhas demanded the arrest of the accused, the accused i.e., the ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:30 ::: 418 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docpolice of Limkheda police station have deliberately avoided toarrest the accused.It was a case of section 302 and section376 of the Indian Penal Code which are grave and serious asalso cognisable offences.It is not necessary for the police togo into detail and verify whether the accused are innocent ornot which is the function of the Court.The police weresupposed to take action when the cognisable offence isreported to them and the names of the accused are informedto them.After arrest of the accused, if the police would havecome to the conclusion that there is no evidence againstthem, then, they could have filed report under section 169 ofthe Code of Criminal Procedure.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:30 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:30 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:30 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:30 :::420 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc364 Accused Nos.19 and 20 are the medical officers.Prima facie, one may feel that they are not concerned withthe investigation and therefore, they are innocent.However,in our considered opinion and after close scrutiny of theevidence, we could read between the lines which show thatthe medical officers have completely failed to perform thepostmortem of all the bodies as is expected under the law.The medical officer, who is entrusted to perform thepostmortem of the dead bodies, is duty bound to give alldetails of the injuries and the cause of death.The postmortemreports are produced which are marked at exhibit 282A to282G.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:30 :::365 In Inquest Panchnama Exhibit 123, it is mentionedas under:::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:30 :::portion was pressed and on examination of the private part, a white liquid was flowing and it is mentioned that no clothes were found on the body except a red colour leg wear and the remaining portion is bare.(ii) Another female corpse was found.The corpse was lying naked on its stomach.It was the body of a young lady and blood was flowing from the mouth and no marks of cruelty were found.(iii) One more body was found of 35 years old female.Her face was crushed and bleeding.Her abdomen was swollen and white liquid was flowing through the private part.(iv) Then another i.e. 4th corpse which was of a 22 year old female was found.There was bleeding from her mouth and eyes.The face was swollen, the body was lying bare.However, no visible marks of injury were::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:30 ::: 423 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc found on the body.However, on examination of the private parts, marks of cruelty were seen.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:30 :::postmortem was conducted on 5.3.2002 from 5.10pm to 6.20pm.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:30 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:30 :::Post-mortem conducted between 3.52 p.m. & 4.30 p.m. Clause 15 Odematous Cause of Sudden Cardio Pulmonary Arrest due to shock due Death to blunt injury282G Of a 22 year old female, wearing yellow petticoat, multi colour saree.Postmortem started at 4.32 pm to 5.05pm.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:31 :::Clause Nos.9, 10, 15, 16 are mentioned as per the inquest.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:31 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:31 :::370 The inquest started at 10 am, finished at 12 noon.The report also started at 10.10 am and in all these reports,the words "as per inquest" were mentioned before inquestwas completed.Thus, it was hurriedly given to the medicalofficers and thereafter, these medical officers conductedpostmortem.In the proforma of the postmortem, specificinformation is required to be filled in about the injuries andthe private parts especially where rape is alleged.Nowhere,in any of the postmortem reports, the Doctors havementioned that white fluid flowing from private parts of thetwo bodies was noticed though it is mentioned in the inquest.Similarly, there is a clause in which the Doctor has to stateabout collection of any substance found on the body andnothing was mentioned by the doctors.All the acts of commission and omission of the police and themedical officers cannot be examined in isolation but they arewell connected with each other in a chain of suppression offacts causing disappearance of the evidence with intent toscreen the offenders and save them from punishment.Hence, their acquittal deserves to be set aside.We thereforecall upon Mr.Ponda to make submissions on the point ofquantum of sentence.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:31 :::371 In view of the above, we set aside acquittal ofaccused Nos.13, 14, 15, 16, 18, 19 and 20 under Sections201 and 218 of IPC and we hold them guilty of the offencespunishable under sections 201 and 218 of the Indian PenalCode.For the offence under Section 201 of IPC, each of theaccused nos. 13, 14, 15, 16, 18, 19 & 20 is sentenced to theperiod of imprisonment undergone by them and fine ofRs.5,000/- (Rs. Five thousand only) each i/d S.I. for two ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:31 ::: 429 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.docmonths.For the offence under Section 218 of IPC, each ofthese accused is sentenced to fine of Rs.15,000/- (Rs. Fifteenthousand only) each i/d S.I. for two months.The accused nos.13, 14, 15, 16, 18, 19 & 20 are granted time of eight weeksto deposit the fine amount.However, the ingredients u/s 217are not established.So, we maintain the verdict of the trialCourt in respect of offence u/s 217 of IPC.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:31 :::372 We hereby confirm the conviction and sentenceimposed on accused nos. 1, 2 & 4 to 12 as imposed by thetrial Court.All the Appeals filed by accused nos. 1, 2 and 4 to12 against their conviction and sentence i.e. Cri.Appeal Nos.1020 of 2009 to 1023 of 2009 and 487 of 2010, aredismissed, hence, they would have to undergo the convictionand sentence as imposed by the trial Court.373 Appeal for enhancement of sentence i.e. Cri.Appeal No. 271 of 2011 filed by the C.B.I., is dismissed.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:31 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:31 :::430 cr.appeal.1020-to-1023.09_487.10_194.11_271.11.j.doc 374 Appeal against acquittal i.e Cri.376 Learned counsel for the accused nos.1 to 20, learned Special Public Prosecutor and A.P.P. are furnished copies of judgment free of costs.[ MRS. MRIDULA BHATKAR, J ] [ SMT.V.K. TAHILRAMANI, J.]kandarkar / Amberkar ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:31 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:35:31 :::
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['Section 201 in The Indian Penal Code', 'Section 120B in The Indian Penal Code', 'Section 376 in The Indian Penal Code', 'Section 148 in The Indian Penal Code', 'Section 143 in The Indian Penal Code', 'Section 147 in The Indian Penal Code', 'Section 302 in The Indian Penal Code', 'Section 149 in The Indian Penal Code']
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Analyze the legal case and identify the corresponding section it comes under.
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88,333,829 |
(14)Allowed md.Sukumar Neogi and others ... Petitioners Mr. Pravas Bhattacharya .. for the petitioners Mr. Saibal Bapuli, A.P.P.Mr. Bibaswan Bhattacharya .. for the State The petitioners seek anticipatory bail in connection with Garhbeta Police Station Case No.363/18 dated 01.10.2018 under Section 302/34 of the Indian Penal Code.The petitioners submit that they are the relatives of the principal accused who has already been arrested.A certified copy of this order be immediately made available to the petitioners subject to compliance with all requisite formalities.(Suvra Ghosh, J.) (Sanjib Banerjee, J. ) 2
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['Section 438 in The Indian Penal Code', 'Section 34 in The Indian Penal Code', 'Section 302 in The Indian Penal Code']
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Analyze the legal case and identify the corresponding section it comes under.
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883,429 |
Be that as it may, as at present, we find there is no appeal on behalf of Balbir Singh convict before us and since Jaswant Singh stands acquitted, this appeal is to be considered for and on behalf of Bansa Singh only.According to the prosecution case Bansa Singh - appellant was not having good terms with Faqir Chand P.W. 4, who was running an Atta Chakki (Flour Mill) in village Moranwali, District Faridkot.The dispute between them was regarding the charges for grinding of wheat.On the night intervening 14/ 15th June 1984, while Faqir Chand PW4 was lying on a cot and his servant Gian Chand was grinding wheat at the flour mill, Bansa Singh and Balbir Singh, each armed with a kirpan, along with Jaswant Singh armed with a pistol appeared at the scene.Jaswant Singh fired two shots from his pistol, which, however, did not hit Faqir Chand.Harbans Singh alias Bansa Singh and Balbir Singh then caused injuries with their respective kirpans to Faqir Chand.They raised alarm on which the accused ran away along with their respective weapons.Smt. Rani informed Nachhattar Kumar about the incident and Faqir Chand was removed to the hospital at Faridkot with the assistance of Nachhattar Kumar and others.JUDGMENT A.S. Anand, J.Bansa Singh, Jaswant Singh and Balbir Singh were tried for offences under Sections 326/34 I.P.C., 436 I.P.C., 450 I.P.C. and Section 27 of the Arms Act by the learned Additional Judge of the Special Court, Ferozepore.Vide its judgment dated 1-4-1985, the learned trial Court acquitted Jaswant Singh of all the charges leveled against him.So far as Bansa Singh and Balbir Singh are concerned, they were acquitted of the charges under Section 450 I.P.C. as well as 436 I.P.C., but, convicted for the offence under Section 326/34 I.P.C. and sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs. 100/- each and in default to further R. I. for one month each.From the memo of the appeal, we find that the appeal has been preferred by Bansa Singh and Jaswant Singh.No appeal has been preferred by Balbir Singh convict.Jaswant Singh had been acquitted by the trial Court and we are at a loss to understand as why an appeal was filed on his behalf and no appeal was filed on behalf of Balbir Singh whose power of attorney is on the record.On the basis of her statement Ex. PH, formal FIR was drawn up.The investigation was taken in hand by Ranjit Singh ASI.The accused were arrested and thereafter sent up for trial, as noticed above.Dr. R. K. Arora, P.W. 1 examined Faqir Chand PW4 on 15-6-84 at 2.30 a.m. and found the following injuries on his person:An incised wound 11 cm x 6 cm over outer side of the left arm sliding off the skin which was reflected with base behind.An incised wound 9 cm x 4 cm x bone deep over front of the left shoulder joint.It had 5 cm long tail in front of the wound (which was horizontally placed) which extended on to the front on left side of the chest (injury was kept for x-ray and report of Orthopaedic surgeon).An incised wound 10 cm x 3.5 cm over dorsum of left wrist joint and hand.The wrist joint was open and tenders over back of the joint were cut.An incised wound 20 cm x 3 cm obliquely placed over left side of the face.Upper end of the wound was near left ear.It came down cutting through the chin and ended on the right side of the mid line.Incised wound 5 cm x 1 cm over the upper lip mostly over its left half it was obliquely placed, its left end being at a higher level.Three incised wounds placed vertically one below another over left side of abdomen in the mid axillary line (a) 4 cm x 0.25 cm (b) 4.5 cm x 0.25 cm x 0.25 cm (c) 6 cm x 0.25 cm x 0.25 cm.An incised wound 19.5 cm x 2.5 cm over the left side of back of chest.Upper end of the wound was to the right side of the mid line and was at the level of about the lower angle of scapule.Lower end was at about the level of umblicue.It had 2.5 cm long tail at the lower end (x-ray).Incised wound 7 cm x 1 cm x 3/c tissue deep over the front of right arm.Incised wound 9.5 cm x 1 cm x bone deep over top and back of right side of scalp (x-ray).Injuries 2, 3, 4, 5, 7 and 9 were found to be grievous while injuries 1, 6 and 8 were found to be simple in nature.Dr. Jaidev Singh PW3 who had first treated the injured deposed that between June 15,84 and June 17,1984, the injured, on account of the injuries received by him, was not in a fit condition to make a statement and that he had so informed the investigating officer.Faqir Chand PW4 has deposed about the manner of assault on him and has given a consistent version of the occurrence, He stated that he had become unconscious after receipt of the injuries and regained consciousness in the Civil Hospital at Faridkot which fact is corroborated by P.W. 3, Dr. Jaidev Singh.He also deposed about the grudge which the appellant had against him.Smt. Rani, PW5 also made a consistent statement and corroborated the version given by her in the FIR.Both P.Ws 4 and 5, were subjected to lengthy cross-examination, but nothing was elicited, which can in any way throw any doubt about their truthfulness or the veracity of their evidence.PW4 Faqir Chand, injured is a stamped witness who would not leave out the real assailant and implicate any innocent person.Jaswant Singh made a statement to the effect that he was not present on the alleged date of occurrence in the village, as he had gone to the house of Bikkar Singh along with some other Granthis for performing Akhand Path.
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['Section 34 in The Indian Penal Code', 'Section 326 in The Indian Penal Code', 'Section 450 in The Indian Penal Code']
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Analyze the legal case and identify the corresponding section it comes under.
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88,346,440 |
sa396-13cOn or about 16th June, 2002 the marriage was performed between the appellant and the respondent as per Hindu Rites and Rituals.It was alleged by the respondent that the respondent was forced to leave the matrimonial house along with her sisters by the appellant.It was the case of the respondent that on 30 th June, 2002, the respondent and her relatives visited the house of the appellant when they were abused and the respondent was driven out of the matrimonial house.On 12th August, 2002, an FIR came to be lodged by the respondent under sections 498A, 323, 504 and 506 of the Indian Penal Code against the appellant, his father, mother and brother.The appellant and his family members were arrested by the police pursuant to such complaint by the respondent.RESERVED ON : 5th DECEMBER, 2015 PRONOUNCED ON : 23RD DECEMBER, 2015 JUDGMENT :-By these two second appeals, the appellant has impugned the order passed by the Lower Appellate Bench granting reliefs in favour of the respondent in two separate civil appeals filed by the respondent.::: Uploaded on - 23/12/2015 ::: Downloaded on - 23/12/2015 23:58:45 :::Pursuant to the said FIR, a Regular Criminal Case No.378 of 2002 was initiated against the appellant and his family members in the Court of IVth Joint Judicial Magistrate, First Class, Sangli.On 21st December, 2002, the respondent filed a petition under section 9 of the Hindu Marriage Act for restitution of conjugal rights.The said order passed in the Regular Criminal Case No.378 of 2002 was not challenged.On 10th March, 2006, the appellant herein filed a Hindu Marriage Petition (49 of 2006) against the respondent in the Court of learned Civil Judge Senior Division, Sangli inter-alia praying for annulment of marriage and for divorce.The said marriage petition 2/23 ::: Uploaded on - 23/12/2015 ::: Downloaded on - 23/12/2015 23:58:45 ::: sa396-13c was filed on various grounds including ground of cruelty alleged to have been committed by the respondent.The said Hindu Marriage Petition was resisted by the respondent.Both the proceedings were heard together and were disposed of by a common order.On 29 th February, 2008, the learned Civil Judge Senior Division, Sangli allowed the said Hindu Marriage Petition filed by the respondent under section 9 of the Hindu Marriage Act for restitution of conjugal rights and rejected the Hindu Marriage Petition filed by the appellant inter-alia praying for annulment of the marriage and for divorce against the respondent.Being aggrieved by the said judgment and order dated 29th February, 2008, the appellant herein filed two regular appeals before the learned District Judge, Sangli.By a common judgment and decree dated 18th January, 2012, the learned District Judge dismissed both the regular civil appeals filed by the appellant.::: Uploaded on - 23/12/2015 ::: Downloaded on - 23/12/2015 23:58:45 :::On 17th February, 2015, this Court admitted Second Appeal No.396 of 2013 and formulated following substantial questions of law :-"Whether for the act of filing complaint under Section 498A of Indian Penal Code, to amount to mental cruelty on the acquittal of husband and family, it is essential that judgment of acquittal must find that the complaint filed was false and with an intention to defame ? "In so far as Second Appeal No.397 of 2013 is concerned, while admitting the said second appeal, this Court formulated following substantial question of law:-"Whether for the act of filing complaint under Section 498A of Indian Penal Code, to amount to mental cruelty on the acquittal of husband and family, it is essential that judgment of acquittal must find that the complaint filed was false and with an intention to defame ? "::: Uploaded on - 23/12/2015 ::: Downloaded on - 23/12/2015 23:58:45 :::sa396-13cHe submits that in the said proceedings, various witnesses were examined including the respondent herself by the prosecution.It is submitted that after considering the oral evidence and the documentary evidence, the learned IVth Joint Judicial Magistrate, First Class, Sangli held that the prosecution had failed to prove that the appellant and his family members herein in furtherance of their common intention subjected the complainant to cruelty by demanding dowry or had voluntarily caused hurt to the complainant or had intentionally insulted the complainant with intent to make her breach of public peace.Learned Joint Judicial Magistrate, First Class, Sangli also rendered a finding that the prosecution had failed to prove that the appellant and his family members in furtherance of their common intention criminally intimidated the complainant by threats of injury to her person.He submits that by the said order, the appellant and his family members were acquitted of offences punishable under sections 498A, 323, 504 and 506 of Indian Penal Code.The said order was not challenged by the State and has attained finality.Learned counsel also invited my attention to the order passed by the learned trial judge allowing the application filed by the respondent for restitution of conjugal rights and dismissing the Hindu Marriage Petition filed by the appellant inter-alia praying for annulment of marriage and for divorce.The learned IVth Joint Judicial Magistrate, First Class, Sangli has found that the prosecution had failed to prove any offences alleged to have been committed by the appellant and his family members.Such action on the part of the respondent in filing such false and frivolous complaint and getting the appellant and his family members arrested amounted to an act of cruelty by the respondent upon the appellant.::: Uploaded on - 23/12/2015 ::: Downloaded on - 23/12/2015 23:58:45 :::::: Uploaded on - 23/12/2015 ::: Downloaded on - 23/12/2015 23:58:45 :::It is submitted by the learned counsel for the appellant that in the examination in chief filed by the respondent in the proceedings before the trial Court, there were no allegations of dowry made by the respondent against the appellant and his relatives.Only during the course of cross examination of the respondent, she alleged demand of dowry for the first time alleged to have been made by the appellant and her family members.He invited my attention to the findings rendered more particularly in paragraphs 23 to 25 of the order passed by the learned trial judge and the issues framed in the 6/23 ::: Uploaded on - 23/12/2015 ::: Downloaded on - 23/12/2015 23:58:45 ::: sa396-13c said proceedings.He submits that the appellant had already given up grounds of nullity of the marriage before the lower appellate Court.::: Uploaded on - 23/12/2015 ::: Downloaded on - 23/12/2015 23:58:45 :::He submits that the appellant had filed false and frivolous Hindu Marriage Petition inter-alia praying for annulment of the marriage and divorce only after four years of acquittal of the appellant and his family members.He submits that the appellant and his family members have not been acquitted on the ground of false complaint but have been acquitted on the ground that the prosecution had not proved his case.He submits that there was no finding rendered in the order passed by the Criminal Court that the complaint against the appellant and his family members was false and was filed with an intention to defame the appellant and his family members.He submits that there was no finding rendered by the learned trial judge on the offence under section 498A of the Indian Penal Code.There was no cross examination of the respondent on the issue that the said complaint made by the respondent was false or was filed with an intention to defame the appellant and his family members.::: Uploaded on - 23/12/2015 ::: Downloaded on - 23/12/2015 23:58:45 :::Since it was found that the prosecution had failed to prove the offence against the appellant and the appellant was acquitted in such complaint, that itself proved the cruelty on the part of the respondent upon the petitioner under section 13(1)(i-a) of the Hindu Marriage Act.Learned counsel once again invited my attention to various findings rendered by the Criminal Court on this issue.He submits that the appellant had given up his allegation of fraud against the respondent before the lower appellate Court and did not press that allegation.::: Uploaded on - 23/12/2015 ::: Downloaded on - 23/12/2015 23:58:45 :::sa396-13cInsofar as submission of the learned counsel for the respondent that the application for restitution of conjugal rights was independent proceeding and could be considered even if any cruelty was committed by the respondent upon the appellant is concerned, it is submitted that the person who had committed cruelty cannot seek restitution of conjugal rights at the same time.REASONS & CONCLUSIONS :-This Court shall first decide whether filing of the complaint under section 498-A of the Indian Penal Code by the wife against the husband amounted to mental cruelty on the acquittal of the husband and his family members or whether any specific finding by the Criminal Court while acquitting the husband and his family members was essential that the complaint filed by the wife was false and was with an intention to defame the husband and his family members.Since 21st June, 2002 the respondent was alleged to have been forced by the appellant to leave the matrimonial home.It is not in dispute that pursuant to the complaint filed by the respondent, FIR came to be lodged under sections 498-A, 323, 504 and 506 of IPC against the appellant, his father, mother and brother.Pursuant to such FIR, the husband and his family members were arrested by the the police.There is no dispute that by an order and judgment dated 5th September, 2005, the learned IVth Joint J.M.F.C., Sangli has acquitted the appellant and his family members of an offence punishable under sections 498-A, 323, 504 and 506 of 9/23 ::: Uploaded on - 23/12/2015 ::: Downloaded on - 23/12/2015 23:58:45 ::: sa396-13c IPC.The said order dated 5th September, 2005 has not been challenged and has attained finality.::: Uploaded on - 23/12/2015 ::: Downloaded on - 23/12/2015 23:58:45 :::A perusal of the said order dated 5th September, 2005 clearly indicates that the prosecution had examined six witnesses, including the respondent - wife, who was the complainant.The learned IVth Joint J.M.F.C. in the said order dated 5th September, 2005 after considering the evidence of the six witnesses examined by the prosecution has acquitted the appellant and his family members of various offences.Insofar as the evidence of PW-1 is concerned, it is held in the said order that the said witness did not know about the marriage of the appellant with the respondent.The witness (PW-2) also deposed that he did not know about the marriage of the appellant with the respondent.It is held that their testimony was thus of no use to prove the case of the prosecution.Insofar as the witness (PW-4) was concerned, it is held that the said witness had deposed that the complainant herself did not tell him about ill-treatment or harassment meet out to her and thus his testimony did not help the prosecution.Insofar as the evidence of the respondent herein (PW-3) is concerned, the learned Magistrate has held that in her cross- examination she admitted that on 21 st June, 2002 while being driven 10/23 ::: Uploaded on - 23/12/2015 ::: Downloaded on - 23/12/2015 23:58:45 ::: sa396-13c out of her house, she was told not to come back unless she brought Rs.2.00 lacs and 10 Tollas gold.It is held that no such deposition was made in the examination in chief.There was variation in the cross-::: Uploaded on - 23/12/2015 ::: Downloaded on - 23/12/2015 23:58:45 :::It is held that the said deposition in the cross- examination for the first time about the alleged demand of dowry was an after thought.It is held that it appeared to be improbable that on 21st June, 2002 after Pooja was performed, she was suddenly and forcibly asked to leave the matrimonial home.The respondent herself had admitted that her father-in-law had come to leave her on the bus stand.She further admitted that gifts were given to her sister Kalika and also to her niece Teja after Pooja.The learned Magistrate accordingly held that in this sequence of events the alleged demand of dowry or forcing her out of the matrimonial home appeared to be totally improbable.The FIR was lodged more than one month after the alleged demand of dowry.The learned Magistrate totally disbelieved the explanation given by the respondent about the delay in lodging FIR.It is held that the case of the respondent was not believable in view of the appellant and his family members giving gifts to the relatives of the respondent and in view of the delay on her part in lodging a complaint against the appellant and his family members.The respondent had not given adequate reasons for the delay of more than one month in filing the FIR.The aforesaid finding of fact recorded by the learned Magistrate thereby acquitting the appellant and his family members of the offence under sections 498-A, 323, 504 and 506 of IPC has attained finality.::: Uploaded on - 23/12/2015 ::: Downloaded on - 23/12/2015 23:58:45 :::sa396-13cA perusal of the order passed by the learned Magistrate and the lower appellate Court indicates that both the Courts have held that the appellant husband had not proved that the respondent had committed any cruelty on him and further held that the respondent was entitled to a decree of restitution of conjugal rights.It is held that the appellant was thus not entitled for a decree of nullity or marriage or in the alternative the relief of divorce on the ground of cruelty.::: Uploaded on - 23/12/2015 ::: Downloaded on - 23/12/2015 23:58:45 :::examination that she did not mention of the incidents on which her complaint was predicated, in her statement under section 161 of Cr.P.C. It was also not her case that she had actually narrated all those facts to the Investigating Officer but he had neglected to mention them.The Criminal Court while acquitting the appellant and his family members, after considering the evidence of six witnesses had rendered a positive finding that the complaint filed by the respondent was an after thought.The Criminal Court has rejected the complaint on merits after evaluating the evidence of six witnesses.In my view, it was thus clear that the said complaint filed by the respondent wife after five days of marriage against the appellant and his family members was a false complaint and was filed as and by way of after thought and with an intention to defame the appellant and his family members.It depends on the manner in which the complaint was filed and prosecuted.In this case also the appellant and his family members have been acquitted since the allegations made in the complaint filed by the respondent and in the proceedings filed by the prosecution were not proved on merits.The said judgment of the 15/23 ::: Uploaded on - 23/12/2015 ::: Downloaded on - 23/12/2015 23:58:45 ::: sa396-13c learned Magistrate First class has admittedly not been assailed before the higher forum.The appellant husband had filed the proceedings for divorce on the ground of cruelty under section 13(1)(i-The finding rendered by the learned Magistrate First Class acquitting the appellant and his family members has attained finality.There was a complete irretrievable break down of the marriage of the appellant and the respondent within a short span of time.::: Uploaded on - 23/12/2015 ::: Downloaded on - 23/12/2015 23:58:45 :::Insofar as the submission of the learned counsel for the respondent that even if this Court comes to a conclusion that any cruelty was committed by the respondent upon the appellant, the respondent was still entitled to the relief of restitution of conjugal rights under section 9 of the Hindu Marriage Act is concerned, a perusal of section 9 of the Hindu Marriage Act clearly indicates that the application for restitution of conjugal rights can be filed under that provision only if when either husband or wife has without reasonable excuse withdrawn from the society of the other, the aggrieved party, may apply for restitution of conjugal rights and the Court after being satisfied of the truth of the statement made in such petition and that there was no legal ground as to why such application should not be granted, may decree restitution of conjugal rights accordingly.It is provided that the burden of proving the reasonable excuse shall be on the person, who has withdrawn from the society.In this case the respondent wife had filed a complaint under section 498-A and other relevant provisions of IPC.The respondent after filing such complaint and after arrest of the appellant and his family members had filed a petition under section 9 of the Hindu Marriage Act on 21st December, 2002 inter-alia praying for restitution of conjugal rights.::: Uploaded on - 23/12/2015 ::: Downloaded on - 23/12/2015 23:58:45 :::In my view, since the appellant husband and his family members were wrongly implicated in a false case filed by the respondent alleging the offence under sections 498-A, 323, 504 and 506 of IPC and were arrested by the police and the said complaint was subsequently prosecuted rigorously by the respondent till it was brought to its logical conclusion and the appellant and his family members having been exonerated of all such charges and were acquitted, in my view, the appellant had withdrawn from the society of the respondent with a reasonable excuse.The husband, who had suffered mentally in view of such false criminal case filed by the wife and admittedly in which he and his family members were acquitted, cannot be compelled by the Court by passing an order of restitution of conjugal rights under section 9 of the Hindu Marriage Act, 1955 and to co-habit with the wife.::: Uploaded on - 23/12/2015 ::: Downloaded on - 23/12/2015 23:58:45 :::In my view, the appellant husband had proved before both the Courts below that he had withdrawn from the society of the respondent due to the respondent having committed cruelty upon the appellant and such withdrawal from the society of the respondent was not without a reasonable excuse.::: Uploaded on - 23/12/2015 ::: Downloaded on - 23/12/2015 23:58:45 :::Insofar as substantial questions of law made in Second Appeal Nos.396 of 2013 and 397 of 2013 are concerned, the said questions are answered in the negative.In my view there is no positive finding required to be rendered in the judgment of acquittal that the complaint filed was false and was with an intention to defame the other party.b).::: Uploaded on - 23/12/2015 ::: Downloaded on - 23/12/2015 23:58:45 :::c).Hindu Marriage Petition No.179 of 2002 filed by the respondent under section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights is dismissed.::: Uploaded on - 23/12/2015 ::: Downloaded on - 23/12/2015 23:58:45 :::
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['Section 498A in The Indian Penal Code', 'Section 323 in The Indian Penal Code', 'Section 504 in The Indian Penal Code', 'Section 506 in The Indian Penal Code']
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Analyze the legal case and identify the corresponding section it comes under.
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88,100,563 |
This application under Section 438 of the Code of Criminal Procedure, 1973 has been filed for grant of anticipatory bail to the applicant who is apprehending his arrest in connection with Crime No.102/2017 for offences under sections 354-D and 506 of IPC and section 7/8 of POCSO Act registered at Police Station-Kotwali, District-Damoh.According to the case of the prosecution, the applicant herein has been charged as hereinabove.The allegation against the applicant is that the applicant herein is actually playing cupid for the co-accused Ankit who was interested in the prosecutrix who is only 14 years.Learned counsel for the State has read out from the 164 statement of the prosecutrix, in which, she says that she is a student at Kendriya Vidhyalaya, Damoh and that Ankit used to pursue wanting to talk to her.She does not allege anything untoward or ungracious conduct on the part of Ankit besides saying he likes the girl and that he is interested in making the friendship.Thereafter, upon being spoken to by the brother of the prosecutrix, the applicant is stated to have stopped following her and pestering her for some days.However, thereafter on 28.01.2017, the applicant herein, stated to have accosted the prosecutrix when she was going back home, stopped her and asked her as to why she is not talking to the co-accused Ankit and thereafter he is stated to have held her hand and put a mobile phone into her bag.Besides that there are no other accusation of any improper conduct on the part of the applicant besides holding the hand of the prosecutrix.Looking at the circumstances at this stage, in which, the offence is stated to have occurred and also looking to the age of the applicant is only 20 years and the fact that he was playing cupid for the co-accused Ankit, the application is allowed and direct that upon his arrest by the Arresting Officer, the applicant-Rupesh Holkar shall be enlarged on bail upon his furnishing a personal bond in the sum of Rs.50,000/- (Rupees Fifty Thousand Only) with one solvent surety in the like amount to the satisfaction of the Arresting Officer.However, the applicant is informed that the applicant ought to take care that he ceases to pursue the prosecutrix, and that if his conduct continues, the prosecutirx or the State may be at liberty to move an appropriate application for cancellation of bail.C.C. as per rules.(ATUL SREEDHARAN) JUDGE rk.
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['Section 506 in The Indian Penal Code']
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Analyze the legal case and identify the corresponding section it comes under.
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88,104,017 |
Heard on admission.All the substantive jail sentences have been directed to run concurrently.He has been in custody ever since.Learned Panel Lawyer for the respondent/State on the other hand, has opposed the bail application.It is directed that on depositing the fine amount, if not already deposited and furnishing a personal bond in the sum of Rs.40,000/- with one solvent surety in the same amount to the satisfaction of the trial Court for his appearance before the Registry of this Court on 08.09.2015 and all other subsequent dates fixed in this regard, the remaining part of the substantive jail sentence imposed upon him, shall stand suspended and he shall be released on bail.Certified copy as per rules.(C. V. Sirpurkar) Judge b (C V SIRPURKAR)
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['Section 389 in The Indian Penal Code']
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Analyze the legal case and identify the corresponding section it comes under.
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881,057 |
The short facts necessary for the disposal of this appeal can be stated as follows:(i) P.W.8 Uma is the wife of the deceased, Chellamuthu.P.W.3 is the elder brother of the deceased.Chellamuthu also compelled P.W.8 to sign in the documents for sale of the family house, to which course, she was not amenable and hence, their relationship became strained and they were living separately.Coming to know that Chellamuthu has developed illicit intimacy with A4 /Sakunthala, P.W.8 and her relatives went to the nearby village Chettikadu where the deceased Chellamuthu was staying with A4/Sakunthala and quarrelled with them.Pursuant to the quarrel, Sakuntala/A4 left to Veppadai.Even after that, the deceased Chellamuthu went over to Veppadai and continued his illicit intimacy.All the accused had intimacy with Sakunthala during the relevant time.(ii) In the night hours of 13.10.2004, when P.W.3 and P.W.4 were proceeding in their way, they saw A5 riding TVS 50 marked as M.O.10, in which, the deceased Chellamuthu was going as pillian rider.Pursuant to the conspiracy hatched by the accused, Chellamuthu was done to death and left the dead body in the field of Survey No.149/2 and fled away from the place of occurrence.Then, he proceeded to the place along with his assistant where he found the dead body.He made enquiry.Thereafter, he proceeded to the respondent Police Station, where P.W.18 Head Constable was on duty.He gave Ex.P.1 report, on the strength of which a case came to be registered in Crime No.450/2004 under section 302 I.P.C. The printed F.I.R. along with Ex.P1-report was despatched to Court.When the matter was published in the newspaper, P.W.3 and P.W.8 saw the same and went to the Police Station and thereafter, identified the dead body.(iv) P.W.20 Investigating officer, on receipt of a copy of the F.I.R., took up investigation.He examined the witnesses and recorded their statement.He prepared the observation mahazar,Ex.P3 in the presence of witnesses and drew a rough sketch Ex.The dead body was subjected to post mortem.P.W.19 doctor who conducted post mortem, has given her opinion that the deceased Chellamuthu died out of shock and haemorrhage due to the injuries sustained by him.The post mortem certificate was marked as Ex.A3 came forward to give confessional statement voluntarily and the same was recorded.The admissible part of the same was marked as Ex.Following the same, he produced M.O.12 and M.O.13, knife and shirt respectively which were recovered under a cover of mahazar.Thereafter, A2 gave confessional statement and the same was recorded.The admissible part of the same was marked as Ex.P19, pursuant to which M.O.14 and M.O.15, knife and banian were recovered under a cover of mahazar.(vi) The investigator, at the time of investigation, found out that A5 had pledged TVS 50 marked as M.O.10 with P.W.10 and borrowed a sum of Rs.1000/-.Equally, P.W.12 gave statement that the deceased Chellamuthu borrowed a sum of Rs.200/- by pledging his cell phone-M.O.11 and the same was also recovered from him.These two appeals challenge the judgment of the Additional Sessions Division, Fast Track Court, Namakkal made in S.C.No.149 of 2005 whereby the appellant in C.A.No.656 of 2009 ranked as A1 and the appellants in C.A.No.765 of 2009 ranked as A3 to A5 along with the second accused stood charges, tried and found guilty under section 302 r/w 34 I.P.C. and awarded life imprisonment each along with fine of Rs.1000/- each, in default to undergo one year rigorous imprisonment.P.W.20 recovered the material objects from the place of occurrence.Then, he conducted inquest on the dead body and prepared the inquest report Ex.A1 gave confessional statement and the admissible part was marked as Ex.He produced M.O.16 knife and M.O.17 shirt which were recovered under a cover of mahazar.A4 was also arrested on the same day.Pending investigation, A5 was arrested on 26.10.2004 and the accused were sent for judicial remand.(vii) All the material objects recovered from the place of occurrence, from the dead body and from the accused were subjected to chemical analysis.The reports received therefrom were also marked as Exs.P7 and P8, chemical report and serologist report respectively.On completion of the investigation, the investigating officer has filed a final report.(viii) The case was committed to the Court of Sessions.Necessary charges were framed.In order to substantiate the charges levelled against the accused, the prosecution examined 21 witnesses and relied on 27 exhibits and 19 material objects.On completion of the examination of the witnesses on the side of the prosecution, the accused were questioned under section 313 Cr.P.C. as to the incriminating circumstances found in the prosecution witnesses and they denied them as false.No defence witness were examined.The Court heard the arguments advanced on either side and took the view that the prosecution has proved the case beyond reasonable doubt and found the accused/appellants guilty as per the charges and awarded the punishment as referred to above.Hence, these appeals at the instance of the appellants.Advancing the arguments on behalf of the appellants, Mr.B.Vasudevan, learned counsel for A1 and Mr.It had brought forth certain circumstances to the notice of the Court but the prosecution miserably failed to prove those circumstances.Out of 21 witnesses , P.W.4, P.W.5, P.W.9 and P.W.14 have turned hostile.Even if there is evidence to indicate that the deceased had illicit intimacy with Sakunthala and during the relevant time, all the accused had connection with her and it was also proved, it cannot be stated that all the accused have joined together and caused the death of the deceased.For that purpose, the prosecution examined P.Ws.4 and 5 but both the witnesses have turned hostile.Though the investigator claimed that P.W.8 was examined on 15.10.2004 itself, her 161 statement has reached the Court after few months.Under such circumstances, no reliance could be placed on her evidence.Except this, the prosecution had no evidence to offer.Learned counsel would further submit that insofar as the arrest and recovery is concerned, the investigator would claim that from each of the accused, a knife and a shirt were recovered and the evidence adduced by the prosecution in this regard was shaky.Apart from that, merely on the recovery of the weapons alone, one cannot be found guilty.Added further learned counsel, in the instant case, nothing was available for the prosecution insofar as A1 to A4 were concerned.The prosecution had no iota of evidence at all.Under such circumstances, the trial Court has taken an erroneous view and has convicted the accused/appellants.Hence, the accused/appellants are entitled for acquittal in the hands of this Court.The Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submission made and looked into the materials available on record.When P.W.1, Village Administrative Officer came to know about the same, he went to the spot and prepared a report,Ex.P1 and gave the report to the respondent Police.Pursuant to the report, P.W.18 the Head Constable of the respondent police registered a case under section 302 I.P.C. P.W.20, investigating officer took up investigation.He went to the spot, made an inspection, prepared the observation mahazar and also recovered the material objects therefrom.Following the inquest made, the dead body was subjected to post mortem.The doctor exz\amined as P.W.19 gave her categoric opinion as a witness before the Court and also through the contents in the post mortem certificate that the deceased died out of homicidal violence.Regarding this, the accused had no dispute at all.Therefore, the prosecution was successful enough to prove that the deceased Chellamuthu died out of homicidal violence.In order to prove the charges levelled against the appellants/accused and also A2 before the trial Court, the prosecution had no direct evidence to offer.It relied on circumstantial evidence.All putforth together would clearly show that the prosecution has merely failed to prove the guilt of the accused.In the result, the criminal appeal is allowed.The Inspector of Police, Tiruchengode Rural Police Station, Namakkal District.The Public Prosecutor, High Court, Chennai.
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['Section 302 in The Indian Penal Code']
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Analyze the legal case and identify the corresponding section it comes under.
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88,112,824 |
pk CRM No. 3190 of 2015 In Re:- An application for anticipatory bail under Section 438 of the Code of Criminal Procedure filed on 6.4.15 in connection with Thanarpara P.S. Case No. 27/15 dated 9.3.15 under Sections 363/366/34 of the Indian Penal Code.And In the matter of:- Wajed Sk. & Ors.363/366/34 of the Indian Penal Code have come to this court for anticipatory bail.The petitioner no. 3 is the principal accused, who allegedly eloped the victim girl whereas the petitioner nos. l and 2 are his father and the uncle.The petitioner no. 3 and the victim girl as also the investigating officer of the case are present in court.The investigating officer identified the victim girl.We have been informed that already the petitioner no. 3 has married the victim girl according to the Muslim Rites and Customs.2 Having regard to its development, we find no valid reason to decline the petitioners' prayer for anticipatory bail.Accordingly, the prayer for anticipatory bail is allowed.In the event of arrest, the petitioners shall be released on bail to the satisfaction of the Arresting Officer upon furnishing a bond of Rs. 5000/- each on condition that after release the petitioners shall surrender before the regular court within four weeks thereafter.This order is subject to the conditions as laid down in sub- section (2) of Section 438 of the Code of Criminal Procedure.The application for anticipatory bail is, thus, disposed of.(Ashim Kumar Roy, J.) (Malay Marut Banerjee, J.)
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['Section 366 in The Indian Penal Code', 'Section 34 in The Indian Penal Code', 'Section 363 in The Indian Penal Code']
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Analyze the legal case and identify the corresponding section it comes under.
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881,144 |
JUDGMENT D.K. Jain, J.Though a common appeal (Crl.A.728/2001) had already been preferred by all the three convicts but a separate appeal (Crl.A. 365/2003) has also been filed subsequently by convict Raju.Since both the appeals are inter-linked, these are being disposed of by this common judgment.The appellants question their convictions for the offence punishable under Section 302 read with Section 34 of Indian Penal Code (for short 'the IPC') for allegedly causing homicidal death of Smt. Seema, hereinafter referred to as the victim.They have been sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.500/- each, with default stipulation of rigorous imprisonment for one month.The prosecution version, unfolded during the trial, is as follows:On the fateful night of 9/10 July 1998 at about 2 A.M., when there was no light in the area, the convicts were playing cards on the roof of the house on the second floor.Another tenant in the house, namely, Raj Kumar, husband of the victim, told the convicts not to play cards as they were making too much of noise and disturbing his sleep.Upon this the convicts started abusing and beating him.On hearing the noise, the victim came upstairs and intervened, whereupon all the three convicts got hold of the victim and threw her on the 'jaal' on the roof of the first floor, as a result whereof she sustained injuries.She was removed to Dr.Ram Manohar Lohia Hospital, where she was declared brought dead.On completion of investigations, charge sheet was filed against the convicts.The prosecution examined as many as 16 witnesses to further its case.The convicts chose not to lead any evidence in defense.Placing reliance on the testimony of PW-4, namely, Raj Kumar, husband of the victim and the complainant and PW-5, namely Sube Singh, the landlord of the house, the learned Judge has come to the conclusion that the evidence led by the prosecution is sufficient to bring home the guilt of the convicts and has thus, convicted and sentenced them as aforesaid.We have heard Mr. SDS Rathore on behalf of convict Raju, Mr. Rajesh Mahajan, learned amices Curiae and Mr. Ravinder Chadha on behalf of the State.
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['Section 300 in The Indian Penal Code', 'Section 299 in The Indian Penal Code', 'Section 304 in The Indian Penal Code', 'Section 302 in The Indian Penal Code', 'Section 34 in The Indian Penal Code']
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Analyze the legal case and identify the corresponding section it comes under.
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88,117,417 |
The first application of the applicant i.e. M.Cr.If the trial is not so concluded within the aforesaid time the applicant shall be at liberty to renew his prayer.
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['Section 376 in The Indian Penal Code']
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Analyze the legal case and identify the corresponding section it comes under.
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8,812 |
Briefly stated, the case of the prosecution was that on 26-4-79 corresponding to 12th Baisakh 1386 B.S. which was a Thursday, while P.W. 1 Anwara Khatun was bringing back the cattle from the field, the accused Golam Mohammad caught hold of her and tied her face with a napkin and physically lifted her to a bamboo grove at some distance, assaulted her in spite of her resistance and raped her against her will.Anwara returned home weeping and related (narrated) the incident to her mother and brother's wife who in turn reported the incident to her father and brother.That evening a salish was called which was attended to by some neighbours including the accused and his father.The salish proved ineffective and on the following morning, that is on 27-4-79 the victim girl went to Ghatal P.S. along with her brother Murshed and grandmother Pearon Bibi and made a verbal complaint which was recorded by S.I. Police Saroj Kumar Lahiri (P. W. 10) on the basis of which F. I. R.Exbt. 2 was drawn up and Ghatal P.S. Case No. 12 dated 27-4-79 under Section 376, IPC was started against the accused who had been earlier produced at the P.S. and taken into custody.The S.I. Police who took up the investigation of the case went to village Maricha, visited the place of occurrence, drew up a sketch map Exbt.3 of the place of occurrence as pointed out by the victim girl and examined some witnesses.The I.O. seized the wearing apparel of the victim girl under the seizure list, Exbt-4 and sent the same to the Chemical Examiner for examination and report.The victim girl and the accused were referred to S.D.M.O., Ghatal Hospital for medical examination.After completion of the investigation, the I.O. submitted charge-sheet against the accused under Section 376, I.P.C. followed by a trial by the learned Assistant Sessions Judge and a conviction and sentence in the manner hereinbefore stated.P.W.s 5 and 6 have been examined for establishing the fact of salish alleged to have taken place in the afternoon of 26th April.Mr. Chittaranjan Das the learned Counsel for the appellant, drew our attention to certain facts and circumstances appearing in evidence and argued in his usual candidness that the entire prosecution case was a fabrication and the story of the accused committing rape on the victim girl was highly improbable, In support of the improbability, the topography of the place of occurrence was brought to our notice and the medical evidence ruling put the possibility of the girl being a raped victim was referred to.Emphasis was laid on the specific defence case that over some quarrel between the accused on the one hand and the victim's brother and father on the other regarding supply of irrigation water, the accused was assaulted and wrongfully confined by P.W. 1's father and brother.From the evidence of P. W. 10, S.I., Saroj Kumar Lahiri, it appears that Maricha village is 500 yards away from the Nimgaria tank and the place of occurrence as shown by the prosecutrix and noted in the sketch map Exbt.3 was grassy with bamboo groves here and there.From the evidence of the I. O., it further appears that there are open fields on all sides of the place of occurrence and Bareda Kharar road is about half a mile from the Nimgaria tank.There is no reason to disbelieve the Investigating Officer who had the opportunity to visit the place of occurrence and take note of the surroundings on the day following the occurrence.It is evident from the evidence of P.W.s 1 and 2 that on that summer noon the place of occurrence and the area near about that place were secluded and no cowboy was seen grazing cattle in the field.It was mid-day and under the scorching heat of the sun nobody was expected to roam about the place.The defence contention that it was improbable that the accused would venture to commit the offence while the pitched road and the tea stall were close to the place of occurrence are not supported by legal evidence.From the defence suggestion that the accused was drawing water with the help of machine and over the supply of the water for irrigation purpose there was some quarrel between him and the victim girl's brother and father is indicative of his presence in the field on that date and at that hour when the offence is alleged to have been committed.It is probable that the accused considered the situation ideal for the commission of the outrageous act and he fully exploited it.Mr. Das contended that it was impossible for the accused to lift a girl of 12-14 years to some distance and to commit rape in spite of stiff resistance.It is impossible to accept such contention in view of the fact that the accused and the victim girl were of inequal strength and the sexual urge must have given him extra strength to commit the outrageous act at any cost.In her evidence P.W. 1 has given a vivid description as to how the accused caught hold of her, how she was silenced on pain of being severely dealt with and how she was slapped and raped.The supposed enmity between the two families has not been established.The evidence of the prosecutrix before the Court has been substantially corroborated by her statement in the F.I.R. and further corroborated by the evidence of her mother P.W. 3 Rabea Under Section 157 of the Evidence Act. After the alleged occurrence, the victim girl returned home weeping and on being interrogated she related the entire incident to her mother in presence of her brother's wife soon after the occurrence.The girl went for a bath in the adjoining tank.The conduct of the victim girl is consistent throughout and the conviction can be based on the sole testimony of the prosecutrix.The trial judge believed his evidence and we find no reason to take a contrary view.P.W. 4 Sattar Ali, brother of P. W. 1 Anwara returned home in the afternoon and after hearing the incident from her mother called P. Ws.Nauser Khan, Emdad Khan and others for salish.From the evidence of those two witnesses and that of P. W. 4 it has been Clearly established that there was a salish on that very day and in that salish accused made extra judicial confession in regard to the commission of rape on Anwara.As the accused and his father took time for communicating their reaction, the prosecutrix and her father and brother had to wait till the next morning and when the accused declined to settle the matter amicably the prosecutrix went to the P.S. to lodge a complaint.The evidence of the Radiologist considered along with the oral evidence of the victim girl and her mother P. W. 3 Rabea, we can safely come to the conclusion that on the date of occurrence P. W. 1, Anwara was between 12 and 14 years of age.The question of the victim girl's age is of little significance in the instant case because if she is under 16 years of age at the relevant time, her consent is immaterial and there is no suggestion that PW 1 was a consenting party, From the evidence of the other doctor, namely, P. W. 8 Dr. L. K. Das, it appears that he found no injuries on the external part of the body or on the private parts of the rape victim.In his report P. W. 8 had remarked that "the girl cannot correctly defined as raped now".Our attention was drawn to the evidence of P. W. 8 and it was argued that in the absence of any external or internal injury on the person of the victim girl, the prosecution story of the accused committing rape on the victim girl offering resistance, seems to be highly improbable.In answer, to the improbability urged by the learned Counsel for the defence, the explanation and clarification given by P. W.8 would be relevant for the purpose of determination as to whether in fact the victim girl was raped as alleged.From the evidence of P. W. 8, it appears that injuries on the external part of the body are not expected if the girl fails to resist during the rape.Injuries may not appear if rape is committed by lying her down on fallen bamboo leaves or on grassy land.5 which discloses that the pant was stained with human semen mixed with blood.The pant which was examined by the Serologist had been seized by the I.O. under a seizure list Exbt.The pant has been identified by P. W. 1 as her pant.Mr. Das contended before us that if the pant had been washed by the victim girl while taking her bath in the nearby pond no stains of semen or blood could be there at the time of the examination by the Serologist.The defence suggestion is that Sattar himself stained the pant with his own semen.The defence suggestion is absurd in the sense that if Sattar himself had stained the pant with his own semen, then there could have been no stains of blood on the pant.In view of what has been stated above, we can safely conclude that the charge under Section 376, I.P.C. has been proved against the accused beyond all reasonable doubts and the learned Assistant Sessions Judge has rightly convicted the accused for the aforesaid offence.The accused has committed sexual offence on a girl of 12/14 years of age.
|
['Section 376 in The Indian Penal Code']
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Analyze the legal case and identify the corresponding section it comes under.
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88,128,293 |
in connection with Crime No.54/17 registered at Police Station - Avantipur Badodiya, District - Shajapur for offence punishable under Sections 354-A(1), 354-D(2), 506 of IPC, Sections 11/12, 7/8 of Protection of Children from Sexual Offence, Act, 2012 and Sections 67, 67(A) of I.T. Act.
|
['Section 506 in The Indian Penal Code']
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Analyze the legal case and identify the corresponding section it comes under.
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1,607,154 |
K.Suseela (P.W.1) was living alone with her children inLakshmanur, since her husband had deserted her.One Mani, by professionTailor, had intimacy with P.W.1, since she used to go to his place often andthis affair continued for six months.(b) Selvam (P.W.4), Venkatesan (P.W.5), who are the residents ofAriyanur, had leasehold right over the Veerapandi lake for fishing, and forthat purpose, they had put up a hut on the bund of the lake, which will beunlocked and vacant, during the night hours.I,Salem.2) -do- Thro' the Principal Sessions Judge,Salem.3) The District Collector,Salem.5) The Superintendent,Central Prison,Salem.6) The Inspector of Police,Attayampatti Police Station,Salem District.7) The Public Prosecutor,High Court,Madras.(Judgment of the Court was delivered by M.THANIKACHALAM,J) The accused in S.C.128 of 2001 on the file of Additional SessionsJudge-cum-Fast Track Court No.1, Salem, who have been convicted under Sections 302 read with 34, 506(II) and 376 IPC, are the appellants.The respondent Police filed a final report against the appellants/ accused, seeking appropriate punishment for them, under Sections 302 readwith 34, 376 and 506(II) IPC, on the grounds that, due to previous enmity, theaccused with an intention to commit murder, having common intention, on01.08.1999 at about 7.00 pm, committed murder of one Mani by strangulating hisneck, that at the same time, against the wish of Suseela (P.W.1) and withouther consent, had committed rape and that after committing the above said twooffences, both the accused threatened and criminally intimidated the saidSuseela, not to divulge the incidents to anybody, and therefore, the accusedshould be dealt with accordingly.The learned trial Judge, upon perusal of the materials, havingsatisfied, prima facie that the offences are made out against both theaccused, framed charges, questioned, for which, both the accused / appellantsrefused to plead guilty.The Prosecution, in order to prove the guilt of the accused, asper the charges framed against them, had marched in 10 witnesses, sought aidfrom 26 documents as well 8 material objects.(c) On 01.08.1999, Sunday, P.W.1 went to the hut, at about 7.00 pm,where her paramour Mani was lying in a cot.When both of them were chatting,the accused went there, questioned the conduct of P.W.1, then requested her toaccommodate for them also, for which, P.W.1 refused, stating that, she isliving with Mani, since Mani is treating her as his wife, providing food andshelter.Aggrieved by the conduct of P.W.1, in order to eradicate Mani, 1staccused strangulated him with M.O.4 rope, while the 2nd accused pressed hislegs, thereby taking away the life of Mani.P.W.1, on seeing the murder,attempted to raise her voice, which was prevented by the accused.Thereafter,both the accused undressed P.W.1, sexually assaulted her, committing raperepeatedly, not only in the hut, but also outside the hut when P.W.1 attemptedto escape, despite her fervent plea to spare her, since she was unable to bearthe torture.After committing the rape, both the accused threatened P.W.1 notto divulge to anyone, and left the place.P.W.1, the victim of rape and theeye witness for the murder, apprehending further trouble and problem from thehands of the accused, failed to disclose the same to anyone and kept quiettill 02.08.1993 at 3.00 pm.(d) P.Ws.4 and 5, the owners of the hut, having gone to the hut, hadseen Mani, dead and it appeared to them, it was natural death.Therefore,both of them, informed the death to the relatives of Mani, including his wifeP.W.3, and his mother, and burnt the body on the same day.P.W.1, who hadconnection with Mani, which is known to everybody, failed to make herappearance, and therefore, P.Ws.4 and 5 had sent for her, and upon enquiry,she divulged the incidents to them on 02.08.1999, at 3 pm.Immediately, bothof them took P.W.1, to the Village Administrative Officer P.W.2, to whom, shehad narrated the incidents, which was reduced into writing as Ex.P-1. P.W.2handed over Ex.P-1 along with Ex.P-3, to the Inspector of Police, whoregistered a case in Crime No.671/99 under sections 302 and 376 IPC.(e) In pursuance of the first information report registered, Inspectortook the investigation, inspected the scene of crime, prepared observationmahazar, sketch, etc., in addition, recording the statements of the witnessesthen and there.P.W.1 and the accused were also subjected to medicalexamination, in order to find out, whether the accused are capable ofperforming sexual activities, and whether P.W.1 was subjected to rape.Thecertificates given by the doctors, statements recorded by the InvestigatingOfficers then and there, brought to surface that the accused, had committedthe murder of Mani, as well committed rape upon P.W.1, and in this view, asherein beforementioned, final report has been filed, leading to trial, endingin conviction, which is sought to be assailed, in this appeal.7. Heard the learned counsel Mr.Sudanthiram for the appellants andMr.E.Raja, the Additional Public Prosecutor.The learned counsel for the appellants, Mr.Even the concubine of Mani, who has been examined as P.W.1, has not whispered even a single word, about the alleged motive.She would say that, when she waschatting with Mani, both accused came, and there was wordy altercationquestioning the chastity, followed by strangulation immediately.That may be on account of the fact that she was overpoweredby five persons and as described by her, they kept her legs and hands pressed.Sub conjunctival hemorrhage in both eyes.Multiple small abrasion over left breast (healing) couldnot be caused by teeth bite.This certificate is signed on 6.11.2000 i.e. after the filing of the finalreport.The learned counsel appearing for the appellants brought toour notice, an another wound certificate available in the file, though notmarked dated 3.8.1999, which says that the victim was seen by the doctor on4.8.1999 and examined, wherein we find the following observation regarding theinjuries:When this wasbrought to notice of the learned Additional Public Prosecutor, he was unableto explain how an wound certificate dated 6.11.2000 came to be filed beforethe trial Court, when a wound certificate dated 4.8.99 was filed, wherein noinjury has been noticed as pointed out supra.The trial Courtconsidering the case of the prosecution alone, forgetting the defence and theanswers elicited during the cross examination, and more or less ignoring thesame, took side towards the prosecution thereby landing in an erroneousconclusion, which is certainly has to be set aside, by our interference.Forthe foregoing reasons, the appeal deserves acceptance, and therefore, the samehas to be allowed.The appeal is allowed setting aside the conviction and sentenceslapped by the trial Court in S.C.128 of 2001 on the file of AdditionalSessions Judge-cum-Fast Track Court No.1, Salem, by judgment dated 29.1.2002 and the accused are acquitted of the charges against them holding that theprosecution has failed to prove the guilt of the accused, beyond allreasonable doubt, ordering them to release forthwith, if their detention isnot required in any other case.1) The Additional Sessions Judge-cum-
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['Section 376 in The Indian Penal Code', 'Section 302 in The Indian Penal Code', 'Section 506 in The Indian Penal Code']
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Analyze the legal case and identify the corresponding section it comes under.
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160,725,890 |
Heard learned counsel for the applicant, learned A.G.A. for the State and perused the material on record.The present bail application has been filed by the applicant with a prayer to enlarge him on bail in Case Crime No. 157 of 2019, under Section 354 Kha, 376 IPC and Section 3(1) (Chha), 3(1) (Gha) SC/ST Act and Section 7/8 POCSO Act, P.S. Kishanpur, District Fatehpur.Learned counsel for the applicant submits that initially FIR was lodged under 354 (kha), 3(1) (D) ( and 3(1) (Dha) SC/ST Act, 7/8 POCSO Act. He further submits that according to FIR version, on 08.07.2019 at about 6.30 p.m. grand daughter of the informant aged about 14 years went outside to answer the call of nature, at that time applicant by catching hand of the victim started dragging her towards "Nala" and also touched her private part.On alarm many persons case there.He also submits that the FIR was lodged after three days.In statement under Section 161 Cr.P.C. the victim as well as informant has reiterated the FIR version.In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law.(ii) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel.In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code.
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['Section 229A in The Indian Penal Code', 'Section 174A in The Indian Penal Code']
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Analyze the legal case and identify the corresponding section it comes under.
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