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193,903,079 | I, Pollachi.The case of the prosecution is that on 09.12.2008, at about 07.00 am, the revision petitioners had came to the place of occurrence, where P.W.2 was residing and attacked her with wooden log.P.W.1 who is the son of P.W.2, questioned the same.The revision petitioners/accused had also assaulted P.W.1 with the wooden log.P.Ws.1 and 2 were taken to the hospital and they were given treatment as inpatient.A Head Constable, who is attached with the respondent police registered a case under Ex.P.5, FIR.Subsequently, he placed the same for investigation before P.W.5, who is the investigating Officer.P.W.5, took up the investigation and went to the place of occurrence.He preparedhttp://www.judis.nic.in 3 Ex.P.4 - Observation Mahazar and Ex.Investigating Officer enquired P.W.3 and received Exs.P.2 and P.3 Wound Certificate from him.The Criminal Revision Case has been filed by the revision petitioners to set aside the judgment and conviction dated 30.11.2012 made in C.A.No.272/2012, on the file of I Additional District and Sessions Judge, Coimbatore, confirming the judgment and conviction dated 03.09.2012 made in C.C.No.52/2009 on the file of Judicial Magistrate No.P.W.5, after completion of investigation filed a final report under Sections 294(B), 324, 326, 506(ii) IPC, and the same was taken on file by the learned Judicial Magistrate No.Incriminating evidences were put before the revision petitioners/accused and they denied the same as false.Though they said, they have evidence to produce to support their case, no oral evidence was let in and no documentary evidence was marked on the side of the revision petitioners/accused.After giving due opportunity to both sides, the learned Judicial Magistrate No.I, Pollachi found that the revision petitioners are guilty for the offence under Section 324 (2 counts) IPC and sentenced them to undergo imprisonment for a period of 6 months Rigorous Imprisonment with a fine of Rs.2,000/- each, in default they shall undergo imprisonment of another one month Simple Imprisonment.A2 alone ishttp://www.judis.nic.in 4 convicted under Section 326 IPC and sentenced him to undergo imprisonment for a period of one year Rigorous Imprisonment with a fine of Rs.3,000/- in default to undergo another one month.Aggrieved against the judgment of the learned Judicial Magistrate No.I, Pollachi in C.C.No.52 of 2009 dated 03.09.2012, the revision petitioners preferred a Criminal Appeal before the learned Sessions Judge, Coimbatore in C.A.No.272 of 2012, in fact, the Principle Sessions Judge made over the appeal to the learned I Additional District and Sessions Judge, Coimbatore and the same was confirmed to A1 and A3 and modified the conviction of A2 to one under Section 324 IPC to six months Simple Imprisonment and a fine of Rs.2,000/- in default to undergo simple imprisonment of one month.Against the Judgment of I Additional District and Sessions Judge, Coimbatore in C.A.No.272 of 2012 dated 30.11.2012, the revision petitioners are here with this present Criminal Revision Case.The learned counsel for the revision petitioners would submit that P.Ws.1 and 2 on one side and all the revision petitioners on thehttp://www.judis.nic.in 5 other side are close relatives, but they do not share a cordial relationship.There were property disputes between them and the enmity that it brewed has resulted in a false criminal case being filed against the revision petitioners.In support of his contention, the learned counsel for the petitioners placed relevance on the Judgments of the Hon'ble Supreme Court in Mohd. Hashim Vs.State of Uttar Pradesh [Criminal Appeal No. 1218 of 2016 arising out of S.L.P. (CRL) No. 6104 of 2014] and in Rattan Lal Vs.State of Punjab (LAWS(SC)-1964-4-43).The learned Government Advocate (Criminal Side) appearing for the respondent would submit that all the revision petitioners herein had assaulted P.Ws.1 and 2 with wooden log and caused simple and grievous injuries on them, thereby they have committed offences under Sections 324 and 326 IPC.Further, the names of all the accused were mentioned in the complaint, which is marked as Ex.P.W.1 in his evidence, has categorically deposed that all the accused had assaulted P.W.2 with wooden log on her head, right shoulder and her hip.When P.W.2 attempted to prevent the accused, they have attacked him also withhttp://www.judis.nic.in 6 wooden log on his head and hand.From the evidences of P.Ws.1 and 2, it is clear that they have cogently deposed that all the accused had assaulted them with wooden log.Further, P.W.3 - the Doctor, who gave treatment to P.Ws.1 and 2 deposed in his evidence that P.Ws.1 and 2 have informed him that three known persons have attacked them on 09.12.2008 at about 7.00 am in their land.In Ex.P.2, the Doctor stated that P.W.1 was suffered with injuries on his head, right shoulder, a contusion injuries on right and left hand and a fracture injury on his right hand.P.W.2 was suffered with injuries on her head, right shoulder.Therefore, from the oral and documentary evidences, it is clear that the accused had assaulted P.Ws.1 and 2 with wooden log.Hence, according to the learned Government Advocate, the order passed by the learned I Additional District and Sessions Judge, Coimbatore, dated 30.11.2012 in C.A.No.272/2012 needs to be confirmed by this Court.Heard both sides and perused the materials available on record.Admittedly, P.Ws.1 and 2 were assaulted by the revisionhttp://www.judis.nic.in 7 petitioners/accused.P.W.1, in her evidence has deposed that all the accused had assaulted her on her head and hand.The Doctor who gave treatment to P.W.1 opined that there was a fracture injury on the right hand of P.W.1 and the same is grievous in nature.In Ex.P.1 – complaint, it was specifically mentioned that the 2nd accused namely Rangasamy, had assaulted P.W.1 on her right hand.The Doctor who gave treatment to P.W.1 deposed that the injury found on the right hand is grievous in nature.So, it is clear that on the basis of the assault made by the 2nd accused alone, P.W.1 was suffered with grievous injury.Considering these circumstances, there is a continuous quarrel between the revision petitioners/accused and P.Ws.1 and 2, on which, the revision petitioners have gone to the extent of assaulting them with wooden log and caused grievous injuries.Further, this Court does not find it a fit case to release the revision petitioners under the Probation of Offenders Act. If the revision petitioners are acquitted from this case, it may lead to other offence.Hence, this Court finds that the prosecution has proved the case beyond reasonable doubt and the Judgment passed by the learned I Additional District and Sessions Judge, Coimbatore inhttp://www.judis.nic.in 8 C.A.No.272 of 2012 dated 30.11.2012 is in order.At this juncture, the learned counsel for the revision petitioners seeks to modify the sentence imposed on the revision petitioners.On a perusal of the Judgment in C.A.No.272 of 2012 dated 30.11.2012, it is made clear that the Appellate Judge already showed his leniency and modified the sentenced imposed on the 2nd accused.Therefore, no leniency could be given in modifying the sentence imposed on the accused/revision petitioners, since, P.Ws.1 and 2 were sustained with grievous injuries and also admitted in the hospital as inpatient for some days.Further, on a perusal of the Judgment of both the Courts below, this Court finds no perversity.It is a well settled proposition of law that the revision Court need not sit in the armchair of the appellate Court and re-appreciate the entire evidences.Accordingly, the Criminal Revision Case is dismissed.Consequently connected miscellaneous petitions are closed.First Additional District and Sessions Judge Coimbatore.The Sub Inspector of Police Kinathukadavu Police Station Coimbatore District.The Public Prosecutor Madras High Court.http://www.judis.nic.in 10 P.VELMURUGAN, J., Jer Crl.R.C.No.584 of 2013 & M.P.Nos.1 and 2 of 2013 | ['Section 324 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'] | Analyze the legal case and identify the corresponding section it comes under. |
193,909,342 | DATE : 04th SEPTEMBER 2019P.C.:-This Petition takes an exception to the order dated 03 rdFebruary 2016 passed by the Addl.Sessions Judge, Pune in Sessions CaseNo.848 of 2014 arising out of C.R. No. 320 of 2014 registered at NigadiPolice Station at Pune.The prosecution case in nutshell is as under:-Complainant namely Mr. Manikrao Chandarrao Aary has filedComplaint in Nigadi Police Station vide C.R. No. 320/2014 for the offencesUmesh Malani ::: Uploaded on - 05/09/2019 ::: Downloaded on - 05/09/2019 23:50:41 ::: 2/8 2.WP.1182.2016.docpunishable under Section 498(A), 306 r/w. 34 of IPC against the Accusedpersons and another.::: Uploaded on - 05/09/2019 ::: Downloaded on - 05/09/2019 23:50:41 :::As per case of the prosecution, the Complainant namely Mr.Manikrao Chandarrao Aary, filed complaint alleging therein that, hisdaughter namely Supriya was married with Accused namely Limbraj on10.05.2007 at Latur.After the marriage deceased Supriya went to cohabitwith Accused Limbraj in matrimonial home where accused persons areresiding.It is alleged that, there was demand of illegal amount and onaccount of it there was ill treatment caused to deceased Supriya by theaccused persons.It is also alleged that, on two occasions there wereabortion committed by accused persons.It is further alleged that, there wasdemand of Rs. 2 lakhs for purchasing new flat, and said amount was paid.Itis alleged that, deceased Supriya along with her husband and two childrenwent to reside separately since 15.06.2014 in new flat.It is further allegedthat, on 28.06.2014 deceased Supriya has committed suicide by hangingherself.After completion of the investigation police have submittedcharge-sheet and after committal the said matter is allotted to the file ofSessions Judge and at present is pending before Sessions Court.Being aggrieved by the said orderRespondent Nos. 2 to 6 herein filed Criminal Revision Application No.18/2016 (Exhibit-8).The Revision was allowed and Respondent nos. 2 to 6were discharged from the aforesaid offences.Hence, this Criminal WritPetition filed by the original informant.::: Uploaded on - 05/09/2019 ::: Downloaded on - 05/09/2019 23:50:41 :::It is submitted thatUmesh Malani ::: Uploaded on - 05/09/2019 ::: Downloaded on - 05/09/2019 23:50:41 ::: 4/8 2.WP.1182.2016.docmerely because two weeks prior to alleged commission of suicide of victim,her children and husband shifted from the matrimonial house situated atPhule Nagar, Chinchwad, to the new flat purchased by the husband of thevictim and therefore, the Sessions Court came to the conclusion to dischargethe Respondent Nos. 2 to 6 from the offence punishable under Section 306of the Indian Penal Code, by ignoring continuous ill-treatment andharassment caused by all the accused to victim Supriya.Learned seniorcounsel appearing for the petitioner relying upon the pleadings in thePetition, grounds taken therein and reasons assigned by the Ad-hoc DistrictJudge and Assistant Sessions Judge, Pune in the judgment and order dated17.12.2015 submits that the Petition deserved to be allowed.::: Uploaded on - 05/09/2019 ::: Downloaded on - 05/09/2019 23:50:41 :::On the other hand learned counsel appearing for theRespondent Nos. 2 to 6 invites attention of this Court to the reasonsassigned by the Sessions Court, Pune in the impugned judgment, andsubmits that Sessions Court after discussing the evidence of the prosecutionwitnesses and other material on record, discharged the Respondent Nos. 2to 6 from the alleged offences.The possible view has been taken by theAdditional Sessions Judge, Pune.It is submitted that, it is an admittedposition that two weeks prior to the alleged commission of suicide, husband(Limbraj) and his wife - victim (Supriya) and their children shifted to theirnew flat and therefore there was no any possitive act attributed quaUmesh Malani ::: Uploaded on - 05/09/2019 ::: Downloaded on - 05/09/2019 23:50:41 ::: 5/8 2.WP.1182.2016.docRespondent nos. 2 to 6 within the proximate period and time of the allegedoffence of commission of suicide against the Respondent Nos. 2 to 6 andtherefore Respondents are rightly acquitted from the offences punishableunder Section 306 of the Indian Penal Code.It is submitted that if thestatement of all the prosecution witnesses are read in its entirety, there aregeneral allegations of alleged harassment and ill-treatment withoutassigning specific role to any of the accused.Therefore, learned counselappearing for the Respondent Nos. 2 to 6 submits that Petition may berejected.::: Uploaded on - 05/09/2019 ::: Downloaded on - 05/09/2019 23:50:41 :::I have given due consideration to the rival submissions, withthe assistance of the learned senior counsel appearing for the petitioner,learned APP appearing for the Respondent - State and learned counselappearing for the Respondent Nos. 2 to 6, perused the pleadings andgrounds taken in the Petition and impugned order passed by the SessionsCourt, Pune so also the judgment and order passed by the Ad-hoc DistrictJudge and Assistant Sessions Judge, Pune on 17.12.2015 thereby rejectingthe application filed by the Petitioners for discharge.Upon careful perusal ofthe judgment passed by the Sessions Court, Pune it is abundantly clear thatthe Sessions Court, Pune has not adverted to the statement of all thewitnesses.It appears that, the Sessions Court only adverted to thestatements of PW-1 and did not consider the statements of otherUmesh Malani ::: Uploaded on - 05/09/2019 ::: Downloaded on - 05/09/2019 23:50:41 ::: 6/8 2.WP.1182.2016.docprosecution witnesses.When the application of the Petitioner for dischargewas rejected by the Ad-Hoc District Judge and Assistant Sessions Judge,Pune by order dated 17.12.2015 it was incumbent upon the Sessions Courtto meticulously go through the evidence collected by the prosecutionincluding statement of the prosecution witnesses and then take appropriatedecision.However, so far as offences punishable under Section 498-A r.w 34of the Indian Penal Code is concern the findings recorded by the SessionsCourt are cryptic and without adverting to the entire evidence collected bythe prosecution agency and in particular statement of the prosecutionwitnesses.Inthat view of the matter the Petition to the extent of allowing the applicationof the Respondent Nos. 2 to 6 for discharge from offence punishable underSection 498-A r.w. 34 of the Indian Penal Code deserved to be quash and setaside.::: Uploaded on - 05/09/2019 ::: Downloaded on - 05/09/2019 23:50:41 :::So far as alleged offence under Section 306 of Indian penalCode against the Respondent Nos. 2 to 6 is concern, admittedly the victim,her children and husband left the matrimonial home and went to reside atnew place 15 days prior to alleged offence of commission of suicide.Toattract the ingredients of Section 107 and Section 306 of the Indian PenalCode, it is necessary to bring on record evidence showing that there wereUmesh Malani ::: Uploaded on - 05/09/2019 ::: Downloaded on - 05/09/2019 23:50:41 ::: 7/8 2.WP.1182.2016.docpositive acts i.e. abetment, aiding or an instigation, on the part of theaccused within proximate period and time of the alleged commission ofsuicide by the victim.In that view of thematter the reasons assigned by the Sessions Court to the extent ofdischarging the Respondent Nos. 2 to 6 from the offence punishable underSection 306 of the Indian Penal Code needs no interference.::: Uploaded on - 05/09/2019 ::: Downloaded on - 05/09/2019 23:50:41 :::In the light of the above, I pass the following order :-(a) The order below Exhibit - 8 in Criminal Revision Application No. 18 of 2016 dated 03.02.2016 passed by the learned Additional Sessions Judge, Pune thereby discharging the petitioners i.e. Respondent nos. 2 to 6 herein, from the offences punishable under Sections 498-A read with Section 34 of the Indian Penal Code is quashed and set aside;(b) However, the impugned judgment and order to the extent of allowing the application of the petitioners / respondent nos. 2 to 6 herein for discharge from the offence punishable under Section 306 of the Indian Penal Code is maintained and stands confirmed;Umesh Malani ::: Uploaded on - 05/09/2019 ::: Downloaded on - 05/09/2019 23:50:41 ::: 8/8 2.WP.1182.2016.doc::: Uploaded on - 05/09/2019 ::: Downloaded on - 05/09/2019 23:50:41 :::(c) since the learned Additional Sessions Judge, Pune has not made endeavour to look into all the statements of the witnesses and other evidence collected by the prosecution agency, the matter is remitted back to the learned Additional Sessions Judge, Pune.The learned Additional Sessions Judge, Pune to consider a fresh the prayer Respondent nos. 2 to 6 herein for their discharge from the offence under Section 498-A read with Section 34 of the Indian Penal Code;(d) Criminal Revision Application No. 18 of 2016 in Sessions Case no. 848/2014 pending on the file of learned Additional Sessions Judge, Pune stands restored to its original file to the extent of considering the case of Respondent Nos. 2 to 6 for discharge as mention in clause 'c' herein above.(e) The learned Additional Sessions Judge, Pune is directed to complete the entire exercise by expediting the hearing of Revision and to render a final decision, as expeditiously as possible, however, within a period of three months from the receipt of the order.(f) Rule is made absolute on above terms.Criminal Writ Petition is partly allowed, and stands disposed of accordingly.(S.S. SHINDE, J.)Umesh Malani ::: Uploaded on - 05/09/2019 ::: Downloaded on - 05/09/2019 23:50:41 :::::: Uploaded on - 05/09/2019 ::: Downloaded on - 05/09/2019 23:50:41 ::: | ['Section 306 in The Indian Penal Code', 'Section 34 in The Indian Penal Code', 'Section 498 in The Indian Penal Code'] | Analyze the legal case and identify the corresponding section it comes under. |
193,913,003 | The applicants will comply with all the terms and conditions of the bond executed by them;The applicants will not leave India without previous permission of the trial Court.Certified copy as per rules.(RAJEEV KUMAR DUBEY) JUDGE as Digitally signed by ANURAG SONI Date: 23/07/2018 12:03:44 | ['Section 379 in The Indian Penal Code'] | Analyze the legal case and identify the corresponding section it comes under. |
193,916 | (Judgment of the Court was delivered by M.CHOCKALINGAM,J) This judgment shall govern the above two appeals. A-1 and A-2 in S.C.No. 129 of 2002 on the file of the I Additional Sessions Division, Krishnagiri, filed Crl.A.No.942 of 2004, while A-3 to A-5 in the said Sessions Case filed Crl.The appellants in these two appeals along with another accused, who was shown as A-6, stood charged as follows:-A-2 to A-4 and A-6 were charged under Section 147 IPC., while A-1 and A-5 were charged under Section 148 IPC.A-1 was also charged under Sections 323 IPC.(2 counts) and 324 IPC., while A-2 to A-6 were each charged under Sections 323 read with 149 IPC.and 324 read with 149 IPC.Further, A-2 was also charged under Section 325 IPC., while A-1 and A-3 to A-6 were each charged under Section 325 read with 149 IPC.A-3 was also charged under Section 323 IPC.(3 counts), while A-1, A-2 and A-4 to A-6 were each charged under Section 323 read with 149 IPC. A-4 was charged under Section 325 IPC., while A-1 to A-3, A-5 and A-6 were charged under Section 325 read with 149 IPC. A-4 was also charged under Section 323 IPC.(2 counts), while A-1 to A-3, A-5 and A-6 were each charged under Section 323 read with 149 IPC.A-5 was charged under Section 323 IPC.(2 counts), while A-1 to A-4 and A-6 were each charged under Section 323 read with 149 IPC.A-5 was also charged under Section 324 IPC., while A-1 to A-4 an A-6 were each charged under Section 324 read with 149 IPC.A-6 was charged under Section 323 IPC.A-1 was also charged under Section 302 IPC.while, A-2 to A-6 were charged under Sections 302 read with 149 IPC.On trial, A-1 was found guilty under Sections 148, 323 (2 counts), 323 read with 149 (2 counts), 324 (2 counts), 325 read with 149 (2 counts) and 302 IPC.and to pay a fine of Rs.1000/- under each count for the offence under Section 323 IPC.(2 counts), in default, to undergo one year imprisonment.He was also directed to pay a fine of Rs.1000/- under each count for the offence under Section 323 read with 149 IPC.(2 counts) in default, to undergo one year imprisonment, also to pay a fine of Rs.3000/- under each count for the offence under Section 324 IPC.(2 counts) in default, to undergo three years imprisonment.He was also directed to undergo five years rigorous imprisonment also to pay a fine of Rs.1000/- under each count for the offence under Section 325 read with 149 IPC.(2 counts), in default, to undergo one year imprisonment, and for the offence under Section 302 IPC., A-1 was sentenced to undergo life imprisonment and also to pay a fine of Rs.1000/- in default, to undergo one year imprisonment.A-2 was found guilty under Sections 147, 323 read with 149 (3 counts), 324, 324 read with 149 IPC.325, 325 read with 149 and 302 read with 149 IPC.He was sentenced to undergo two years rigorous imprisonment for the offence under Section 147 IPC., to pay a fine of Rs.1000/- under each count under Section 323 read with 149 IPC.(3 counts), in default, to undergo one year imprisonment, also to pay a fine of Rs.3000/- for the offence under Section 324 IPC., in default, to undergo three years imprisonment.He was also directed to pay a fine of Rs.3000/- for the offence under Section 324 read with 149 IPC., in default, to undergo three years imprisonment, and for the offence under Section 325 IPC., he was sentenced to undergo five years imprisonment and also to pay a fine of Rs.1000/- in default, to undergo one year imprisonment.He was also sentenced to undergo five years rigorous imprisonment with a fine of Rs.1000/-, in dafault, to undergo one year imprisonment for the offence under Section 325 read with 149 IPC.and to undergo life imprisonment with a fine of Rs.1000/-, in dafault, to undergo one year imprisonment for the offence under Section 302 read with 149 IPC.A-3 was found guilty under Section 147 IPC.and sentenced to two years rigorous imprisonment and for the offence under Section 323 IPC., he was sentenced to pay a fine of Rs.1000/- in default to undergo one year imprisonment and for the offence under Section 323 read with 149 IPC.(2 counts), he was sentenced to pay a fine of Rs.1000/- in default to undergo one year imprisonment under each count.He was also found guilty under Section 324 IPC.and sentenced to pay a fine of Rs.3,000/- in default to undergo three years imprisonment and for the offence under Section 324 read with 149 IPC.he was sentenced to pay a fine of Rs.3,000/-, in default, to undergo three years imprisonment.He was also found guilty under Section 325 read with 149 IPC.A-4 was found guilty under Section 147 IPC.and sentenced to two years rigorous imprisonment and for the offence under Section 323 IPC., he was sentenced to pay a fine of Rs.3,000/- with a default sentence of three years imprisonment.He was also convicted under Section 323 read with 149 IPC.(3 counts) and sentenced to pay a fine of Rs.1,000/- under each count in default to undergo one year imprisonment and for the offence under Section 324 read with 149 IPC.he was sentenced to pay a fine of Rs.3,000/- in default to undergo three years imprisonment.He was also found guilty under Section 325 IPC.and sentenced to undergo five years rigorous imprisonment with a fine of Rs. 1,000/- in default to undergo one year imprisonment and for the offence under Section 325 read with 149 IPC., he was sentenced to undergo five years rigorous imprisonment and also to pay a fine of Rs.1,000/- in default to undergo one year imprisonment and for the offence under Section 302 read with 149 IPC., he was sentenced to life imprisonment and to pay a fine of Rs.1,000/- in default to undergo one year imprisonment.A-5 was found guilty under Sections 148 and 323 IPC.and sentenced to undergo three years rigorous imprisonment for the former and to pay a fine of Rs.1,000/- in default to undergo one year imprisonment for the latter offence and for the offence under Section 323 read with 149 IPC.(2 counts), A-5 was sentenced to pay a fine of Rs.1,000/- in default to undergo one year imprisonment under each count.He was also found guilty under Section 324 IPC.and sentenced to pay a fine of Rs.3,000/- in default to undergo one year imprisonment and for the offence under Section 324 read with 149 IPC.he was sentenced to pay a fine of Rs.3,000/- in default to undergo three years imprisonment.He was also convicted for the offence under Section 325 read with 149 IPC.There was a common well, in which, A-4 and P.W.7 had right to take water along with a motor pump at Savlur Village.P.Ws.1, 7, 8 and the deceased were all living at Erumapatti village.After the marriage of P.W.5, there was a quarrel between A-4 and P.W.7 with regard to the common well and hence, A-4 dug a separate well and laid pipeline through the land of P.W.7 from the new well, which was objected to by P.Ws.5 and 7. P.W.5 along with others caused damage to the said pipe line.Hence, a complaint was laid to the police.The police intervened and advised P.W.7 first to repair the damage caused to the pipeline and only thereafter, they could settle the matter.On 31.1.2001 at about 11.30 a.m. P.W.1 was returning to the village from Krishnagiri after selling tomatoes.At that time, P.W.5 came there and take him to Savulur village to irrigate the lands.P.W.1 started the oil motor engine, which was objected to by A-5 and stopped the same.P.W.1 questioned A-5 and informed him that he would start the motor and hence, a quarrel arose between them.At that time, P.W.5 and other accused also came there.A-1 beat P.W.1 with a stick on his head and ran away.While A-5 and P.W.1 scuffling with each other, the father of the deceased, Narayanan, came to the place.At that time, A-1 cut Narayanan on his head thrice with an aruval saying that he is responsible for this occurrence.A-2 beat Narayanan with a stick on his forehead, right wrist and back.He also beat P.W.5 on his right hand, right wrist and back.A-1 cut P.W.9 on his left side of the head and A-2 beat on his left leg.A-3 beat P.W.7 with a stick on his shoulder.At that time, P.W.13 and one Ramasamy came there from Erumapatti in a cycle and found P.Ws.1, 5, 6, 7 and the deceased with injuries.He arranged a tempo and took the injured to the Government Hospital at Kaveripattinam and since no doctor was available at that time, he took the injured to Government Hospital at Krishnagiri and admitted them at 1.30 p.m.v.P.W.2, the doctor attached to Government Hospital, Krishnagiri, admitted the injured, viz., Narayanan as in-patient.P-25 is the wound certificate and Ex.P.Ws.1, 5 and 7 were also treated by P.W.2, who issued wound certificates, Exs.P-4, 3 and 2 respectively for the injuries sustained by them.On the same day, P.W.2 examined A-2, A-4, A-6 and A-5 also and issued wound certificates, Exs.P-21, P-23, P-24 and P-22 respectively.P.W.9 was treated by the doctor, P.W.3, on 12.2.2001 and issued Ex.P-5 wound certificate.He also examined P.W.8 at 8.30 p.m. on the same day and issued Ex.P-6 wound certificate.The doctor also examined P.W.6 at 8.40 p.m. on the same day and issued Ex.P-7 the wound certificate.P.W.4, the doctor, who was on duty at that time, examined him and issued Ex.P-9, the copy of the accident register.He sent the same to the respective police officer.He also received the death intimation that Narayanan, the father of P.W.1, who was admitted in Government Mohan Kumaramangalam Hospital, Salem, died, on the strength of which, he registered a case in Crime No.46 of 2001 for the offence under Sections 147, 148, 324, 323 and 302 IPC.P-8 is the printed first information report.He sent the same to the concerned Court and to the higher officials.P.W.18, Inspector of Police, Pochampalli Police Station, on receipt of the copy of the first information report, took up the case for investigation, proceeded to the scene of occurrence, made an inspection and prepared an observation mahazar, Ex.P-10 and also drew a rough sketch, Ex.He also recovered blood-stained earth and sample earth under a cover of mahazar Ex.Thereafter, he went to Government Hospital at Salem and conducted inquest on the dead body between 2.30 p.m. and 4.00 p.m. and prepared Ex.The learned Sessions Judge shall take steps to commit him to prison to serve the remaining period of sentence.bs/ToThe Judicial Magistrate, Pochampalli.The Chief Judicial Magistrate, Pudukottai.The I Additional Sessions Judge, Dharmapuri at Krishnagiri.The Principal Sessions Judge, Dharmapuri at Krishnagiri.Inspector of Police, Pochampalli, Nagarasampatti Police Station, Krishnagiri.The Superintendent, Central Prison, Vellore.The District Collector, Dharmapuri District.The Director General of Police, Madras.[PRV/8201]He was sentenced to undergo three years rigorous imprisonment for the offence under Section 148 IPC.(2 counts) and sentenced to undergo five years rigorous imprisonment and also to pay a fine of Rs.1,000/- in default to undergo one year imprisonment and for the offence under Section 302 read with 149 IPC.he was sentenced to life imprisonment and to pay a fine of Rs.1000/- with a default sentence of one year imprisonment.(2 counts) and sentenced to undergo five years rigorous imprisonment and also to pay a fine of Rs.1,000/- in default to undergo one year imprisonment and for the offence under Section 302 read with 149 IPC.he was sentenced to undergo life imprisonment and to pay a fine of Rs.1,000/- in default to undergo one year imprisonment.A-6 was acquitted of all the charges levelled against her.A-5 beat P.W.6 on her left head and left hand with an iron rod. A-4 caught hold of P.W.7 while A-3 beat P.W.7 on the right shoulder and right side of the head.A-3 beat P.W.8 on the head with a stick.A-1 beat P.W.8 on his nape.A-5 beat on the right and fore finger.A-4 caught hold of P.W.9 and fisted on the left thigh.Thereafter, on receipt of the intimation from the hospital authorities that the accused in Crime No.46 of 2001 were also admitted for the injuries sustained by them, he registered another case in Crime No.47 of 2001 under Sections 147, 148 324 and 323 IPC.at about 6.00 p.m. on the same day.P-28, the inquest report, in the presence of witnesses and Panchayatdars.Thereafter, he issued a requisition to the doctor for conducting post-mortem.On receipt of the requisition, P.W.17, the doctor attached to Government Hospital, Salem, conducted autopsy on the dead body and gave his opinion in Ex.P-20, the post-mortem certificate, opining that the deceased died due to head injuries sustained by him.In the meantime, P.W.18, who conducted investigation, seized the blood stained cloth of P.W.9 on 2.2.2001 at 3.00 p.m. and at 3.15 p.m. he seized the blood stained cloth of P.W.8 and sent P.Ws.6, 8 and 9 for treatment to Government Hospital at Krishnagiri.He gave confessional statement and in pursuance of the admissible portion, Ex.P-29, he produced a koduval.He also arrested A-3 at 1.00 p.m. on the same day and he volunteered to give a confessional statement, which was also recorded and in pursuance of the admissible portion, Ex.P-30, the investigating officer recovered sticks and an iron rod.He also arrested A-2, A-4, A-5 and A-6 at the hospital, when they were taking treatment.A requisition was forwarded with the material objects to the Court to subject them for chemical analysis and accordingly, the reports of the Chemical Analyst and the Serologist were also received by the investigating officer.The case was committed to the Court of Sessions.Necessary charges were framed and in order to substantiate the charges, the prosecution has examined 18 witnesses and relied on 33 exhibits and marked 16 material objects.On completion of the evidence on the side of the prosecution, the accused were questioned under Section 313 of the Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution witnesses.They denied them as false.On the side of the defence, neither a witness was examined nor a document was marked.After hearing the arguments advanced by both sides and on scrutiny of the materials available, the trial Court found the accused 1 to 5 guilty as per the charges levelled against them and awarded imprisonment as referred to above and acquitted A-6 of all the charged levelled against her, which is the subject matter of challenge before this Court.The learned Senior Counsel appearing for the appellants in Crl.A.No.834 of 2001 and the learned counsel appearing for the appellants in Crl.A.No.942 of 2004, inter alia, made the following submissions:-a)In the instant case, the occurrence has taken place at 11.00 a.m. on 31.1.2001 at the place of occurrence.The witnesses examined by the prosecution did not speak about the occurrence or given the correct version and they have spoken falsehood.Even as per the prosecution, there was a common well, for which, P.W.7 and A-4 had got right over it, and hence, there was a quarrel between them.He caused damage to the pipe line and hence a complaint was made to the police, who, in turn, advised P.W.7 to first repair the damages caused to the pipeline and then only directed A-4 to take water from the well.Even as per the first information report, before the Court, on the date of occurrence, it was P.W.1, who started the oil engine and there arose the whole occurrence.Thus it would be quite clear that even after the police had advised P.W.7 to repair the damage caused to the pipeline laid by A-4, P.W.7 did not heed the advise, but the prosecution witnesses voluntarily switched on the oil engine and hence, the accused party was perfectly correct in questioning the act of the prosecution witnesses and at that juncture, the occurrence has taken place.b) In the instant case, in order to establish the prosecution case, the persons, who were shown not only as eye witnesses but also as injured witnesses, viz., P.Ws.1 and 5 to 9 were examined and in respect of the injuries found on them, medical examinations were also done and wound certificates have also been issued.At this juncture, it is pertinent to point out that in the instant case, the doctor, P.W.2, who examined the injured witnesses, also examined A-2, A-4, A-5 and A-6 and issued wound certificates for the injuries sustained by them.A perusal of the same would clearly show that they were injured severely and that too on their vital parts, but the prosecution has no explanation for the injuries sustained by the accused in any manner.The lower Court has pointed out in the judgment that the prosecution has produced all the medical certificates in respect of the injuries sustained by the accused.It is true that the medical certificates were produced and the doctor, P.W.2, was also examined, which would go to show that A-2 to A-6 also sustained injuries in the same transaction.But insofar as the witnesses were concerned, P.W.1 would state that no one was injured in the occurrence.He would further add that he beat A-5 only once.According to P.W.5, it was P.W.8, who beat the accused with hands.According to P.W.6, he did not see whether anybody was injured.According to P.W.8, he also beat the accused only on the instigation of the other accused.All would go to show that from the evidence adduced before the Court through these witnesses, the prosecution has made a feeble attempt to explain the injuries sustained by the accused.It could be further pointed out that from all these injuries, as could seen from the wound certificates, in respect of A-2 to A-6, it would be quite clear that those injuries could not have been caused by attacking with hands, and they could have been caused only by using weapons and thus, the explanation tendered by the prosecution was only an attempt made but in vein.Thus, it could be well stated that the prosecution has no explanation for the injuries sustained by accused.c)Apart from that, in the instant case, the genesis of the occurrence was completely suppressed by the prosecution but it has been brought forth otherwise.The occurrence has actually started at the instance of P.W.1 due to his unlawful act.But the prosecution came forward with a different story complaining that as if at the instance of A-1, the other accused have attacked the prosecution witnesses.Thus, the genesis of the occurrence has also been suppressed by the prosecution.d)In the instant case, there was an occurrence took place at 11.30 a.m. and P.W.14, the Head Constable, has gone to the Government Hospital at Krishnagiri on receipt of information and has recorded the statement of P.W.1 at about 3.30 p.m. and sent the message to the respondent police station, on the basis of which, a case came to be registered only at 6.00 a.m. the next day morning and hence, there has been an inordinate delay and the prosecution did not explain this delay.e)Further, the investigation, from its commencement, was thoroughly biased.It could be noticed from the fact that P.W.14, the Head Constable, who recorded the statement of P.W.1 at about 3.30 p.m., also recorded the statement from A-5, who was taking treatment in the same hospital at about 4.30 p.m., pursuant to which, two cases came to be registered by the respondent police, viz., Crime No.46 of 2001 at the instance of the prosecution witnesses and Crime No.47 of 2001 at the instance of the accused.In respect of Crime No.46 of 2001, the case was registered at about 6.00 p.m. on 1.2.2001, whereas Crime No.47 of 2001 was registered at about 6.00 p.m. on the same day.Thus, insofar as the present prosecution case, viz., Crime No.46 of 2001 is concerned, it was registered belatedly and that delay has not been explained by the prosecution.Apart from that, so far as the other crime number is concerned, it was registered, on the complaint given by A-5, after a delay of 20 hours.In the same incident, both parties sustained injuries and the police has not registered the case based on the complaint given the accused immediately or properly investigated the case in Crime No.47 of 2001, which resulted in filing of the referred report.f)The contents of the referred report filed by the investigating officer in Crime No.47 of 2001 shows that as if there was an attack made by the accused and the prosecution party, in order to exercise their right of private defence to save them, attacked in retaliation and thus, those injuries were sustained on the accused.The lower Court has not gone into all the details, but has taken a view that the prosecution has proved the case beyond reasonable doubt.In the instant case, since the genesis of the occurrence has been suppressed and prosecution has no explanation for the injuries sustained by A-2 to A-6, all the accused are entitled for acquittal at the hands of this Court.The Court heard the learned Additional Public Prosecutor appearing for the State on the above contentions.The Court paid its anxious consideration to the submissions made and thoroughly scrutinised the available materials.It is not in controversy that one Narayanan, the father of P.W.1, died in the incident that took place at about 11.00 a.m. on 31.1.2001 and in order to substantiate that the deceased died out of homicidal violence, the prosecution has not only examined the doctor, P.W.2, who initially treated the deceased and but also, P.W.17, the doctor, who conducted post-mortem and who issued the post-mortem certificate, Ex.P-20, wherein he has opined that the deceased died out of the head injuries sustained by him.Apart from that, the said fact was also not disputed by the accused/appellants either before the trial Court or before this Court and hence, without any difficulty, it could be concluded that the deceased died out of homicidal violence.In the instant case, in order to substantiate the charges levelled against the accused, the prosecution, though examined number of witnesses, placed reliance mainly on the evidence of P.Ws.1 and 6 to 9, who are the injured witnesses.According to the prosecution, there was a dispute dispute between A-4 and P.W.7 in respect of taking water from a well and hence, A-4 dug a separate well and laid pipe line through the land of P.W.7, which was objected to by P.W.7, who caused damage to the said pipe line and hence a complaint was made to the police, who, in turn, advised P.W.7 to first repair the damages caused to the pipeline and then only directed both of them to take water from the well.Even from the evidence of the prosecution witnesses, it was P.W.1, who switched on the motor without even repairing the pipeline and naturally, it was questioned by the other party, that is, A-4 and hence, there was a scuffle and in that scuffle, all the accused attacked the prosecution witnesses as well as the deceased.Even as per the prosecution case, as could be put forth by these witnesses, they have been attacked by the accused and they were taken to the hospital at Salem and were medically examined by P.W.2, who has also given wound certificates, which have been marked by the prosecution.There is no doubt that these witnesses, regarding the injuries, have spoken the truth and with the regard to the same, the prosecution has also brought froth the medical evidence.In the course of the said transaction, it was A-1, who attacked the deceased on the head and caused injuries, which were fatal to which he succumbed.At this juncture, the contention put forth by both the learned Senior Counsel appearing for A-1 and A-3 and the learned counsel for A-3 to A-5 requires consideration.According to them, the genesis of the occurrence was not made known by the prosecution before the Court.This has got to be discountenanced for the simple reason that it is true that the case was registered at the instance of P.W.1 and he has also narrated the entire incident and even from the defence plea, there was an occurrence and from the available materials, it could be seen that even after the police has advised P.W.7 to repair the damage caused to the pipeline, P.W.7, without even repairing the pipeline, switched on the motor and the same was questioned by A-4, following which, the whole trouble has started.Under such circumstances, the contention that the genesis of the occurrence was not placed before the Court has got to be discountenanced.There was a free fight between the prosecution witnesses and the accused, in which, P.Ws.1 and 6 to 9 were injured and on the side of the accused, A-2 to A-6 sustained injuries.It is pertinent to be pointed out that these accused were also treated by the same doctor, P.W.2, who treated the prosecution witnesses and issued wound certificates in respect of the injuries sustained by both the parties.On perusal of the wound certificates issued in respect of A-2 to A-6, it would be quite clear that the injuries sustained by them are simple in nature, but they were found to be on the vital parts of the body and these injuries remain unexplained as put forth by both the learned counsel for the appellants.It is true that the prosecution has placed the entire case materials in Crime No.47 of 2001 and even the referred report has also been placed before the Court.Merely because of the marking of the wound certificates in respect of the injuries sustained by the accused, it cannot be said that the prosecution has explained the same.The prosecution must explain as to how and the manner in which the said injuries have been sustained by the accused.They have spoken to the fact that the injuries were sustained by both the parties only by attacking with hands.The certified copies of the wound certificates, viz., Exs.P-21 to P-24 with regard to the injuries sustained by A-2 to A-6, would show that those injuries could not have been caused by hands, but they could only be caused by using weapons.Thus, it would be quite clear that the witnesses, with regard to the injuries sustained by the accused, have not spoken the truth, and at the same time, they also sustained injuries in the course of the same transaction.Insofar as the other accused are concerned, they have only attacked the prosecution witnesses as well as the deceased with sticks and they also sustained injuries in the course of the same transaction.Under such circumstances, the Court is of the opinion that insofar as A-1 is concerned, there cannot be any justification for him to attack the deceased on his head and caused fatal injuries, which led to his death.Further, there cannot be any common object, since the occurrence itself took place in a free fight, wherein both parties have sustained injuries.Considering the totality of the evidence, when marshalled, the Court is of the considered view that the act done by A-1 would not attract the penal provisions of Section 302 IPC., but at the same time, it would attract Section 304 Part-I IPC.Accordingly, the conviction and sentence imposed upon A-1 are modified and instead, he is convicted under Section 304 Part-I IPC., for which, he is sentenced to seven years rigorous imprisonment.With respect to other charges framed against A-1, they are set aside.Insofar as the other accused, viz., A-2 to A-5 are concerned, they are acquitted of all the charges levelled against them.The appeals are disposed of accordingly.The Public Prosecutor, High Court, Madras. | ['Section 323 in The Indian Penal Code', 'Section 324 in The Indian Penal Code', 'Section 325 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 304 in The Indian Penal Code'] | Analyze the legal case and identify the corresponding section it comes under. |
193,917,979 | Counsel for the petitioners has vehemently urged the fact that the petitioners are only aggrieved by order dated 11.08.2015 passed by the Special and Sessions Judge, Dhar in Sessions Trial No.51/15 framing charge for offence under Sections 294, 323, 323/34, 325, 325/34 & 506 of IPC and r/w section 3(1) (10) of the SC/ST Act. Counsel submitted that the order was bad in law primarily because the offence under Section 3(1)(10) of the SC/ST Act could not be made out against the petitioners.Merely calling the person by their community name would not amount to cause insult; basically the dispute took place between the parties due to agricultural land and this has not been disputed by the complainant.Especially in this light the statements of Pappu @ Rajesh, Binnu @ Hitesh, Mahavir and Sonu were recorded by police 2 only indicated that the bad words hurled by the accused were not meant to insult or humiliate the complainant, but because there was an encroachment on their land.Counsel prayed that the application be allowed and at least charges under Section 3(1)(10) of the SC/ST Act be set aside.He placed reliance on Sushila Devi Sharma Vs.Daulat Prasad [2005(4) M.P.L.J. 467] and Kanhaiyalal & Ors.State of MP in Cr.R. No.903/15 to state that the mens rea or intention to insult the complainant by his caste was not available on record.Counsel submitted that the applicant would be made to undergo rigors of the trial without there being any incriminating evidence on record.Counsel prayed that the petition be allowed.Per contra Counsel for the respondent-State submits that the quarrel took place in an open place and the names of the caste of the complainant was uttered by the applicants.Merely calling the person by his caste name does not amount to an insult of the complainant because he belong to a particular caste.The threats have been eminated from the past conduct of the complainant and their dispute with the accused regarding the ownership of the agricultural land and the word 'khatik' by itself would not amount to insult or annoyance of the complainant and the High Court held in the matter of Sushila Devi (supra) that there must be a nexus between the utterance of the word 'Khatik' and the 4 intention to insult or annoy the complainant.And hence in this view of the matter I find that the petition needs to be partly allowed. | ['Section 325 in The Indian Penal Code', 'Section 323 in The Indian Penal Code', 'Section 34 in The Indian Penal Code', 'Section 506 in The Indian Penal Code', 'Section 294 in The Indian Penal Code', 'Section 3 in The Indian Penal Code'] | Analyze the legal case and identify the corresponding section it comes under. |
1,933,105 | The case of the prosecution is that the informant Dr. Balmiki Singh is a resident of Mohalla Sahebganj, Nathnagar.On January 13, 1989 at 2010 hours he lodged a first information report at P.S. Nathnagar in which he stated that on that date at about 7.30 p.m. while he was watching the television, other members of the family were in the house.His son Priyadarshi Ashok, PW-1 had gone to the fields and had not returned.While he was watching the television he saw that three persons entered his house with concealed faces.Of them two were armed with pistols and they demanded the keys from him.He could identify accused Parsuram Paswan by his voice, stature and eyes.He then heard the cries of his daughter-in-law coming from another room and when he rushed to her room he found that two other persons were threatening her, of whom one was armed with country made pistol.His daughter-in-law handed over to them whatever ornaments she was wearing at that time.Two other persons then entered the room who picked up some articles.Those two persons had not concealed their faces.Some other dacoits also entered the room of his daughter-in-law and started making demands from her.A relative of his, namely Rajiv Kumar Mishra, PW-4, who was residing with him, told his daughter-in-law to handover the keys to the dacoits.Thereafter the dacoits asked Rajiv to open the almirah but he was unable to do so.JUDGMENTB.P. SINGH, J.In this appeal by special leave the sole appellant is Pramod Mandal who alongwith six others was put up for trial before the 6th Additional Sessions Judge, Bhagalpur in Sessions Case No. 739 of 1990 charged of the offence under Section 396 IPC.It is not necessary to refer to the charges framed against the remaining accused since they are not appellants before us.The trial court by its judgment and order of April 24, 1995 found the appellant guilty of the offence under section 396 IPC and sentenced him to undergo rigorous imprisonment for 10 years.We may only observe that of the seven persons put up for trial before the learned 6th Additional Sessions Judge one Deepak Yadav was given the benefit of doubt and acquitted.One Parsuram Paswan was sentenced to life imprisonment both under sections 396 and 302 IPC, while Rajesh Kumar Yadav was sentenced to life imprisonment under section 396 IPC.The remaining accused were sentenced to 10 years rigorous imprisonment under section 396 IPC.The appeals preferred by the remaining accused have also been disposed of by the High Court by the impugned judgment.One of the dacoits threatened to kill him if he did not open the almirah.Seeing this, the informant rushed and caught that hand of the dacoit in which he was holding the pistol and pushed him towards the verandah.Thereafter the informant's daughter, Rani Purnashri started raising alarm.Some of the dacoits were in the courtyard of the house and he recognized one of them as Rajesh Yadav who was armed with a pistol.Rajesh Yadav exhorted Parshuram to fire and thereafter Parshuram fired hitting his daughter Rani Purnashri.The dacoits also exploded bombs.The informant claimed to have recognized one of the miscreants as Deepak Yadav who assaulted him on his back with the barrel of his pistol as a result of which his grip over one of the dacoits, whom he had caught, loosened and that dacoit slipped away.Thereafter the dacoits fled away.His daughter Rani Purnashri succumbed to her injuries.By this time his son Priyadarshi Ashok, PW-1 had also come.He mentioned in his report that Aruni, Rajiv Kumar Mishra, PW-4 and Madan Sriharsha, PW-2 were also injured.In the report he also gave descriptions of other dacoits whom he had not recognized.A motive was suggested in the report itself.The informant stated that he had a dispute with Rajesh Yadav and Deepak Yadav over the demolition of a ridge in his field.An incident took place in August, 1988 when he had been threatened by them.PW.11 Indradeo Singh the investigating officer was examined by the prosecution.Dr. Kailash Jha, PW-6 was the doctor who had conducted the post-mortem examination on the body of the deceased.PWs-8, 9 and 10 were the three Magistrates who conducted Test Identification Parades on different dates.Apart from these witnesses, several eye witnesses were examined, namely PW-1, Priyadarshi Ashok, son of the informant, PW-2, Madan Sriharsha, another son of the informant, PW-3 Vijayshree, daughter of the informant and PW-4 Rajiv Kumar Mishra, relative of the informant.PW-5, Dr. Balmiki Singh is the informant himself.All the witnesses have supported the case of the prosecution and there is nothing in the evidence to discredit them.The trial court as well as the High Court have carefully scrutinized the evidence of these witnesses and have concluded that the prosecution had proved that a dacoity took place in the house of the informant at about 7.30 p.m. on January 13, 1989 and in the course of the commission of the dacoity the daughter of the informant was shot dead by one of the dacoits.Learned counsel for the appellant did not even attempt to persuade us to hold that the prosecution case was false and such an occurrence had not taken place at all.He rightly drew our attention to the evidence on record in support of the defence that on the date of occurrence there was no electricity supply in that area between 6.55 p.m. and 7.55 p.m. and, therefore, identification of the appellant in electric light was not possible, and that there was no light from any other source which could have made his identification possible.It was further submitted that the conviction of the appellant is based on the sole identification by PW-4 Rajiv Kumar Mishra.It is not safe to convict the appellant on the basis of his identification.We shall first consider the evidence adduced by the defence to establish that on the date of occurrence between 6.55 p.m. and 7.55 p.m. there was no supply of electrical energy to Mohalla Sahebganj in Nathnagar.To prove this fact DW-1 Naval Kishore Yadav was examined.He was a correspondence clerk in the Area Electricity Board, Nathnagar, Bhagalpur.He produced a register and claimed that supply of electricity to different areas was noted in the said register by the Switch Board Operator, Arun Kumar Sah.From the register it appeared that from 6.55 p.m. to 7.55 p.m. on the date of occurrence there was no supply of electricity to the area in question.The entry referred to by him was in the handwriting of Mr. Arun Kumar Sah.He further stated that the entry had been certified by the Assistant Engineer Shri B.K. Srivastava.This witness admitted in cross-examination that the entry sheets were not bound.He also admitted that the register did not show in which areas electricity was being supplied.The High Court has attached no weight to the evidence of this witness.He was neither the author of the entry in the register nor was he the certifying officer.The Switch Board Operator who is stated to have made the entry and the Assistant Engineer who is stated to have certified that entry were not examined.There was overwhelming evidence of witnesses to the effect that there was supply of electricity at the time when the occurrence took place.Indeed PW-5 stated that he was watching the television when the dacoits entered his house.The High Court, therefore, rejected the evidence of DW-1 and held on the basis of the evidence on record that there was supply of electricity at the time when dacoity was committed in the house of PW-5 and the witnesses, therefore, had sufficient light and opportunity to identify the dacoits.The next question is whether the evidence of PW-4 Rajiv Kumar Mishra must be accepted.The courts below have concurrently found Rajiv Kumar Mishra, PW-4 to be a reliable and trustworthy witness.It has been noticed that Rajiv Kumar Mishra had suffered as many as 5 injuries in the course of the occurrence, three of them being incised injuries and the remaining two were abrasions.It will thus appear that PW-4 was in the forefront trying to defend the members of the family from the onslaught of the dacoits.Obviously he had sufficient opportunity to notice the features of the dacoits from close quarters.He has been mentioned in the first information report as the person who had advised the informant's daughter-in-law to handover the keys to the dacoits.It is also stated that thereafter the dacoits wanted him to open the almirah and when he was not able to open the almirah, he was threatened with death by the dacoits.We are, therefore, quite clear in our mind that Rajiv Kumar Mishra, PW-4, being a young man tried his level best to resist the dacoits to the extent possible in the circumstances and in that process he was severely assaulted.So far as the appellant is concerned, PW-4 had a special reason to remember his features.He deposed that he identified the dacoits in the light of electric bulb.He further deposed that Tuntun Choudhary had assaulted him on his left leg.Similarly the appellant Pramod Mandal had tried to assault him with an iron rod.It also appears from the record that this witness had stated these facts before the Judicial Magistrate who conducted the Test Identification Parade and this fact had been noted by the Magistrate in the Identification Chart.It cannot, therefore, be said that the role assigned to the appellant by PW-4 was an after thought.Thus there was a delay of one month in holding the Test Identification Parade and, therefore, the identification by witnesses in such an identification parade belatedly held was not reliable, particularly when there was only one identifying witness against the appellant.They had abundant opportunity to notice their features from close quarters and, therefore, it could not be said that only a month after the occurrence their memory faded to such an extent that they could not have identified the culprits on account of lapse of time.There was sufficient light to enable the witnesses to identify the dacoits. | ['Section 302 in The Indian Penal Code'] | Analyze the legal case and identify the corresponding section it comes under. |
193,316,343 | This is a petition for cancellation of the anticipatory bail that has been granted by the learned Principal Sessions Judge, Villupuram to the respondents 1 to 3 herein.The defacto complainant is the petitioner before this Court.It is the case of the prosecution that one Neela Narayanan has lands adjacent to the lands belonging to Pandian, who is the elder brother of the defacto complainant.It is stated in the complaint that Neela Narayanan is quarrying in his land and his vehicles passed through the lands of Pandian and damaged the crops.This was objected to by Pandian and the defacto complainant.On 25.03.2014 around 6.30 in the evening, when crusher lorries belonging to the said Neela Narayanan passed through the lands of Pandian, his brothers questioned Neela Narayanan.Incensed by that, it is stated in the complaint that Ganesan, Elumalai and Neela Narayanan indiscriminately attacked Pandian with iron rods and caused serious injuries to him.Pandian was carried by the defacto complainant in an ambulance to the nearby Government Hospital in Tindivanam, where he was given first aid and thereafter, he was shifted to Jipmer Hospital, Pondicherry.On the very same day, the injured was taken from Jipmer Hospital, Pondicherry to MIOT Hospital, Chennai, because the defacto complainant found serious fracture in the right fore arm.After admitting Pandian in the MIOT Hospital, the defacto complainant came to the Police Station and lodged a written complaint, based on which a case in Crime No.140 of 2014 under Sections 294(b), 324, 448, 506(ii) and 307 IPC was registered by Police on 26.03.2014 at around 3.00 p.m. against Ganesan (A1), Elumalai (A2) and Neela Narayanan (A3).On the next day, i.e., 27.03.2014, these three accused approached the Sessions Court for anticipatory bail, which came up for hearing on 28.03.2014 and the said Court was pleased to pass the following order:Heard both sides.The petitioners have been charged for the alleged offences u/s.294(b), 448, 324, 506(ii) and 307 IPC.On the contrary, a mere reading of the complaint, which forms basis for registration of the FIR, shows that after brutal attack, the injured was carried by the defacto complainant to the Government Hospital, Tindivanam and from there, he was taken to Jipmer Hospital, Pondicherry and again shifted from there to MIOT Hospital in Chennai for advanced orthopedic surgery.The complaint has been given only after admitting the injured in the MIOT Hospital.Therefore, at the time when the anticipatory bail was under consideration, injured was not discharged and he was an inpatient in the MIOT Hospital.The injured was treated as an inpatient in the MIOT Hospital and yet to undergo a complicated surgery, which resulted in internal fixation of plate.The assault seems to be a pre-planned one and the motive appears to be that the accused, who are mine operators, have been trespassing into the lands of the victim with impunity on account of the muscle and money power.Taking into consideration the gravity of allegations against the respondents 1 to 3 in the facts and circumstances of the present case, the order of granting anticipatory bail to them does not satisfy the parametres, laid down by the Hon'ble Supreme Court in the aforesaid judgment.In the result, this petition is allowed. | ['Section 307 in The Indian Penal Code', 'Section 324 in The Indian Penal Code', 'Section 294(b) in The Indian Penal Code', 'Section 448 in The Indian Penal Code', 'Section 506 in The Indian Penal Code'] | Analyze the legal case and identify the corresponding section it comes under. |
1,933,169 | JUDGMENT Shiv Narayan Dhingra, J.In the instant case, the only factor which seems to have weighed with the High Court for directing suspension of sentence and grant of bail is the absence of allegation of misuse of liberty during the earlier period when the accused-respondents were on bail.The mere fact that during the trial, they were granted bail and there was no allegation of misuse of liberty, is really not of much significance.The effect of bail granted during trial loses significance when on completion of trial, the accused persons have been found guilty. | ['Section 302 in The Indian Penal Code', 'Section 389 in The Indian Penal Code'] | Analyze the legal case and identify the corresponding section it comes under. |
193,333,438 | Through: Mr. Deepak Kumar, Advocate.HON'BLE MR.JUSTICE MANOJ KUMAR OHRIThe present revision petition is filed on behalf of the State challenging the order on charge dated 03.05.2016 passed by the ASJ-01 & Spl.Judge (NDPS) Shahdara, Delhi in FIR No.1472/2014 registered under Section 354-B/506/509/34 IPC & 8 POCSO Act at P.S. Madhu Vihar, Delhi.I have heard learned APP for the State as well as learned counsel for the respondent and have gone through the lower court records.The FIR, in the present case, was registered on 08.12.2014 at the instance of the complainant, who was aged about 17 years.The complainant stated that earlier she had lodged a complaint on 05.11.2014 against one Vipin Khanduri, pursuant to which, a case was registered and Vipin Khanduri was arrested.After being released on bail, Vipin CRL.REV.P. 592/2016 Page 1 of 6 Khanduri started roaming around her house in an inebriated condition and used to threaten her with an acid attack.CRL.REV.P. 592/2016 Page 1 of 6On 08.12.2014, the complainant had gone with her mother, Suman Bhadola to Shree Ram Chowk Sabzi Mandi to buy vegetables where the said Vipin Khanduri along with the present respondent came on the motorcycle.At Shree Ram Chowk, the complainant was intentionally hit with the motorcycle and when the complainant protested, the said Vipin Khanduri tried to pull her shawl and tear her clothes.In the scuffle, the strap of her bra was broken.Vipin khanduri not only abused her but also threatened to disrobe her on the road as well as threatened her that he would throw acid on her face.He also pulled her hair.The present respondent also abused the complainant in filthy language.In her statement recorded under Section 164 CrPC, the complainant supported her allegations against the said Vipin Khanduri as well as the present respondent.It was stated that the motorcycle was driven by the present respondent and Vipin Khanduri was sitting on the back seat.During the investigation, the statement of the mother of the complainant was also recorded on 08.12.2014 where she had supported the allegations made by her daughter against the respondent and Vipin Khanduri.The respondent has been named in the FIR and a specific role has been assigned to the respondent.After the investigation, a charge-sheet was filed against the respondent as well as Vipin Khanduri.The complainant as well as her mother stated that the respondent not only intentionally hit the complainant on her legs with the motorcycle which he was riding at that time but also hurled abuses at her while he was accompanying Vipin Khanduri.The impugned order is set aside.The trial court is directed to frame the appropriate charge against the respondent and proceed in accordance with law.CRL.REV.P. 592/2016 Page 5 of 6A copy of this order be sent to the concerned trial court for information. | ['Section 506 in The Indian Penal Code', 'Section 161 in The Indian Penal Code', 'Section 509 in The Indian Penal Code', 'Section 34 in The Indian Penal Code', 'Section 164 in The Indian Penal Code'] | Analyze the legal case and identify the corresponding section it comes under. |
193,340,748 | This Appeal challenges the judgment and order dated 08.08.2018 passed by the High Court1 allowing Criminal Revision Petition No.834 of 2015 preferred by the Respondent No. 1; and thereby discharging the Respondent No.1 of the offences punishable under Sections 419, 420, 467, 468, 471 read with Section 120B of the Indian Penal Code, 1860 (‘IPC’, forSignature Not VerifiedDigitally signed byMUKESH KUMARDate: 2019.12.0516:56:41 ISTReason:1 The High Court of Karnataka at Bangalore Criminal Appeal No. 1837 of 2019 (@ SLP(crl.)No.6106 of 2019)Station House Officer, CBI/ACB/Bangalore vs. B.A. Srinivasan 2 short) and Sections 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988 (‘the Act’, for short).The Respondent No. 1 retired on 31.10.2012 as Assistant General Manager, Vijaya Bank.On 28.10.2013, FIR being RC 12(A)/2013 was registered pursuant to complaint given by the General Manager, Vijaya Bank, Head Office, Bangalore against the Respondent No.1 in respect of the offences mentioned hereinabove.After completion of investigation, charge-sheet was filed on 31.10.2014 against the Respondent No.1 and other accused in respect of said offences.It was alleged inter alia :-That Shri B.A. Srinivasan (A-1) while working as Assistant General Manager (AGM) and Branch Head, Vijaya Bank, Mayo Hall Branch, Bangalore during the period from 11.01.2010 to 20.10.2012 entered into a criminal conspiracy with Shri B.Lakshman (A-3), Smt. Shanta Gowda (A-4) and Shri S.V. Isloor (A-5) to cheat and defraud Vijaya Bank, Mayohall Branch, Bangalore and to extend undue financial accommodation to M/s. Nikhara Electronics and Allied Technics (A-2) on the basis of fake and fabricated documents and in furtherance of the said criminal conspiracy, Shri B.A. Srinivasan (A-1) sanctioned and disbursed Rs.200 lakhs of Term Loan and Rs.100 lakhs of Cash Credit Hypothecation (Working Capital) in favour of M/s. Nikhara Electronics and Allied Technics (A-2) without proper due diligence and in gross violation of all extant rules and regulations of Vijaya Bank, and hence, facilitated A-3 and A-4 to divert the loan-funds against the terms and conditions, thereby causing wrongful loss to Vijaya Bank and corresponding gains to others.Criminal Appeal No. 1837 of 2019 (@ SLP(crl.)No.6106 of 2019)Station House Officer, CBI/ACB/Bangalore vs. B.A. Srinivasan 3 … … …That Shri B. Lakshnian (A-3) and his wife Smt. Shanta Gowda (A-4) fraudulently created an agreement dated 10.06.2011 on the photocopy of e- stamp paper having franking No.57724 dated 08.06.2011 and submitted a copy of the same to Vijaya Bank to support their dishonest claim of taking over M/s. Nikhara Electronics & Allied Technics, proprietary concern by making a payment of Rs.1.00 Crore as goodwill to Shri Venkataramana Bhat (A-6).Shri B.A. Srinivasan (A-1) dishonestly accepted the photocopy of the agreement intentionally omitting to ascertain its genuineness or authenticity.It is revealed that the above agreement was fraudulently created on the photocopy of e-stamp paper franked vide 57724 dated 08.06.2011 and the original stamp paper remained blank was seized from the office premises of Shri S.V. Isloor (A-5).… … …That Shri B.A. Srinivasan (A-1) in furtherance of criminal conspiracy with the other accused dishonestly, by abusing his official position as AGM & Branch Head of Vijaya Bank, Mayohall Branch fraudulently considered the loan application, processed loan proposals in gross violation of the rules and regulations of Vijaya Bank in this regard in order to favour the accused persons.He intentionally accepted the inflated financial statements submitted by A-3 and A-4 even though they were not audited and considered them for working out the credit assessment of the borrower firm i.e., M/s. Nikhara Electronics and Allied Technics (A-2).He purposely did not exercise due diligence to analyse the financial statements submitted by the borrower firm which contained several inconsistencies.He also did not conduct the mandatory pre-sanction verification at the Criminal Appeal No. 1837 of 2019 (@ SLP(crl.)No.6106 of 2019)Station House Officer, CBI/ACB/Bangalore vs. B.A. Srinivasan 4 address of the borrower firm to ascertain whether any business activities such as manufacturing of electric equipment etc., were going on as claimed in the loan application.That Shri B.A. Srinivasan (A-1) prepared the Credit Process Note himself and obtained the signatures of Shri Jyoti Prakash Shetty, the then Asst.Manager in the column of appraising official.It is also revealed that tenants were paying rents to Shri Nagesh s/o late Krishnappa, who sold the property to Shri Nilakanth Sanikop, from whom A-3 purchased the property.A-1 intentionally omitted to make any endeavour to ascertain the nature of rights of the tenants, despite the fact that in future it would affect the enforceability of the mortgaged property by the bank.That Shri B.A. Srinivasan (A-1) also violated the extant rules of the bank by not obtaining the Legal Audit Report, on the mortgaged property, prior to processing and sanctioning of loans to M/s. Nikhara Electronics and Allied Tekchnics.Uday Umesh Lalit, J.1. Leave granted.Shri Nabeel Ahmed, the then Probationary Manager was also made to put his initials in the process note, merely as a token of his training.Three Crores were misutilised for the purpose other than for which the loan was sanctioned.Thus, all materials clearly go to show that there was dishonest intention on the part of the accused No.1 from the inception itself.Therefore, sanction as required u/s 19 of PC Act, 1988 to prosecute accused No.1 is not required.The discharge application filed by accused No.1 is devoid of merits and on the contrary, there are sufficient materials against accused No.1 for framing charge for the offences punishable u/s 120B, 420, 471 IPC and u/s. 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988….”The Respondent No.1, being aggrieved, preferred Criminal Revision Petition No. 834 of 2015 in the High Court, which was allowed by the judgment and order presently under appeal.The High Court, thus set aside the order dated 13.04.2015 as regards the Respondent No.1 and discharged him of the offences with which he was sought to be charged.Therefore, given a conclusion, it can be opined that the materials on record are sufficient to frame a charge against accused no.1, the findings of the Special Court in this regard do not indicate non- application of mind or, any infirmity or illegality in coming to an opinion that accused no.1 cannot be discharged on this ground.This finding needs to be sustained. | ['Section 120B in The Indian Penal Code', 'Section 420 in The Indian Penal Code', 'Section 161 in The Indian Penal Code', 'Section 34 in The Indian Penal Code'] | Analyze the legal case and identify the corresponding section it comes under. |
1,933,464 | JUDGMENT J.P. Mitter, J.This is a petition for revision of an order of the learned Additional Sessions Judge, Midnapore, whereby he set aside an order of discharge under Section 209 of the Code of Criminal Procedure and directed the petitioners' commitment to the Court of Session on a charge u/s 366 of the Indian Penal Code.The only question for decision is whether in view of the evidence and all the surrounding circumstances of the case the learned Magistrate's order of discharge of the petitioners was a proper one. | ['Section 366 in The Indian Penal Code'] | Analyze the legal case and identify the corresponding section it comes under. |
19,334,815 | Form No. J (1) IN THE HIGH COURT AT CALCUTTA Criminal Revisional Jurisdiction Appellate Side Present:The Hon'ble Justice Ashim Kumar Roy C.R.R. No. 1926 of 2008 Biplab Kumar Dasgupta & Anr.versus Champak Sen Chowdhury & Ors.When a notice was sent to the defacto-complainant, the petitioner herein, who appeared and filed a naraji petition, raising objection against the said final report.The Learned Magistrate after hearing the parties while accepted the final report took cognizance on the naraji petition.The petitioners challenged the said order in this criminal revision.Mr. Basu prays that the order impugned be set aside and case be sent back to the Court below with a direction for further investigation by the police.On the other hand, Mr. Sandip Ghosal, the learned advocate appearing for the accused/opposite parties submitted before this Court that after acceptance of final report the Learned Magistrate was duty bound to discharge the accuseds from the case. | ['Section 156 in The Indian Penal Code', 'Section 190 in The Indian Penal Code', 'Section 200 in The Indian Penal Code', 'Section 406 in The Indian Penal Code', 'Section 420 in The Indian Penal Code', 'Section 120B in The Indian Penal Code', 'Section 323 in The Indian Penal Code'] | Analyze the legal case and identify the corresponding section it comes under. |
19,335,393 | This petition under Section 482 of Cr.P.C. has been filed seeking a direction to the respondents/police authorities for arresting the accused persons and conducting free, fair and impartial investigation in Crime No.215/2018 registered at Police Station Kotwali, District Morena for offence under Section 307 read with Section 34 of IPC.It is submitted by the petitioner in this petition that a complaint was made by him and on the basis of the aforesaid complaint, the police registered the FIR under Section 307 read with Section 34 of IPC, but the police has neither arrested the accused persons nor has concluded the investigation so far.So far as the prayer made by the petitioner for issuing a direction to the police to arrest the accused persons is concerned, the same cannot be granted.The Supreme Court in the case of D. Venkatasubramaniam v. M.K. Mohan Krishnamachari reported in (2009) 10 SCC 488 has held as under :-The High Court, within a period of one month from the date of filing of the petition, finally disposed of the same observing that, "it is obligatory on the part of the respondent police to conduct investigation in accordance with law, including recording of statements from witnesses, arrest, seizure of property, perusal of various documents and filing of chargesheet.It is also needless to state that if any account is available with the accused persons, or any amount is in their possession and any account is maintained in a nationalised bank, it is obligatory on the part of the respondent police to take all necessary steps to safeguard the interest of the aggrieved persons in this case".The Court accordingly directed the police to expedite and complete the investigation within six months from the date of receipt of a copy of the order.The said order of the High Court is impugned in these appeals.* * * | ['Section 482 in The Indian Penal Code', 'Section 34 in The Indian Penal Code', 'Section 307 in The Indian Penal Code'] | Analyze the legal case and identify the corresponding section it comes under. |
193,354,259 | A s per the prosecution case, on 02.04.2019 co-accused Nikhil abducted the prosecutrix and took her to his house situated at Kanchanpur where he committed rape with her and also made video of his act and on the basis of that video he blackmailed the prosecutrix.On 05.04.2019 co-accused Nikhil and Sunita took the prosecutrix to Jabalpur Railway Station from where co-accused Sunita and one other person took the prosecutrix to Gangapur City, Rajasthan where co-accused Nandkishore and Pramod meet them, Digitally signed by ANURAG SONI Date: 18/06/2020 15:06:28 2 CRA-3045-2020 thereafter they took prosecutrix to Pramod's rented house where they confined prosecutrix for four days.Appellant Sainki and co-accused Nikhil also came there.The proceeding convened through video conferencing.Case diary perused and arguments heard.This criminal appeal has been filed under Section 14 (2) of SC/ST (Prevention of Atrocities) Act 1989 against the order dated 13/032019 passed by Special Judge, SC/ST (Prevention of Atrocities) Act, Jabalpur in Bail Application No.189/2019, whereby learned Special Judge rejected the bail application filed by the appellant Sainki Raikwar under Section 439 of Cr.P.C. to get bail in Crime No.419/2019 registered at Police Station Adhartal, District Jabalpur for the offences punishable under Sections 363, 366, 365, 368, 376 (2)(N), 370, 371, 506, 120B, 34, 420, 467, 468, 471 of IPC and Section 3 (2) (v) of SC/ST (Prevention of Atrocities)In total this is third appeal filed by the appellant and earlier first appeal filed by the appellant was dismissed on merit by this Court vide order dated 30/07/2019 passed in Cr.A.No.5027/2019 and second appeal was dismissed as withdrawn vide order dated 22/10/2019 passed in Cr.Thereafter appellant and co-accused Nikhil and Sunita took prosecutrix to Kota where they kept her in the house of co-accused Nand Kishore and they forcibly married prosecutrix with co-accused Golu @ Rajendra Vijayvargiya and also took Rs.2,25,000/- from him, thereafter co- accused Golu sexually exploited the prosecutrix.Prosecutrix informed the incident to her grand mother Saroj Ben on phone.On that, police recovered the prosecutrix from the possession of co-accused Golu @ Rajendra Vijayvargiya.and, registered Crime No.419/2019 at Police Station Adhartal, District Jabalpur for the offences punishable under Sections 363, 366, 365, 368, 376 (2)(N), 370, 371, 506, 120B, 34 of IPC and Section 3 (2) (v) of SC/ST (Prevention of Atrocities) Act. During investigation on 25.05.2019 police arrested the appellant.Being aggrieved by the impugned order, appellant filed this Criminal Appeal.Learned counsel for the appellant submits that appellant has not committed any offence and has falsely been implicated in the offence.There is no allegation against the appellant that she abducted the prosecutrix or took her anywhere.The appellant has been in custody since 25.05.2019 and the conclusion of trial will take time, hence prayed for release of the appellant on bail.Learned counsel for the State opposed the prayer and submitted that the earlier appeal filed by the appellant was dismissed on merit and thereafter there is no change in circumstance, so she should not be released on bail.The first appeal filed by the appellant was dismissed on merit by this Court vide order dated 30/07/2019 passed in Cr.A.No.5027/2019 and second appeal was dismissed as withdrawn vide order dated 22/10/2019 passed in Digitally signed by ANURAG SONI Date: 18/06/2020 15:06:28 3 CRA-3045-2020 Cr.It is alleged that the appellant and other co-accused took prosecutrix to Kota, where they kept her in the house of co-accused Nand Kishore and thereafter they forcibly performed the marriage of the prosecutrix with co-accused Golu @ Rajendra Vijayvargiya and also took Rs.2,25,000/- from him, thereafter co- accused Golu sexually exploited the prosecutrix.Hence, this appeal is rejected.(RAJEEV KUMAR DUBEY) JUDGE as Digitally signed by ANURAG SONI Date: 18/06/2020 15:06:28 | ['Section 3 in The Indian Penal Code', 'Section 363 in The Indian Penal Code', 'Section 366 in The Indian Penal Code', 'Section 376 in The Indian Penal Code', 'Section 365 in The Indian Penal Code'] | Analyze the legal case and identify the corresponding section it comes under. |
1,933,590 | The same morning at about 9.30 a.m., the accused went to the police station, Bilaspur, and lodged the first information' report (Ex. P-20) of the incident.This report is proved by Sunderlal Verma (P.W. 15), Assistant Station Officer.The accused, apart from reporting the fact that he had killed his wife and1 narrating the circumstances in which his committed the crime, gave information that the dead body and the basilar were lying in the house and lie could have them recovered.JUDGMENT Bharsava, J.1. Accused Moharsai has been convicted by the learned second Additional Sessions Judge, Bilaspur, for an offence Under Section 302 of the Penal Code and sentenced to undergo rigorous imprisonment for life.The accused has appealed to this Court against this conviction and sentence.the case for the prosecution is that the accused killed his wife by Inflicting blows with a Basula (a mason's sfttrp cutting tool for setting) at about 6.30 a.m. on 27-9-1960 at his house.The motive for the offence is said to b that the accused suspected the character of his wife.The relations between the couple were not very cordial and there used to be frequent quarrels between them.The accused denied his guilt completely.The evidence on which the learned lower Court has convicted the appellant consists of:(i) Circumstance of his being alone with the deceased in the house at that time of the commission of the offence;(ii) The fact of his going to the police station shortly after the commission of the crime but not naming anybody else for the act,- and recovery of the dead body of Poonabai and a basula (Article A) the weapon of offence at his instance.(iii) Extra judicial confession made by the accused to Bisahoo (P.W. 1) and Gopi Chand (P.W. 2), soon after the commissioner of the crime before he went to the Police Station.On the night preceding the offence the housa of the accused was occupied by only three inmates; they being the accused, the deceased and Heeralal (P.W. 5), the nephew of the accused.Heeralal used to sleep in a room on the ground floor of the house while the accused and the deceased used to sleep on the first floor.He has deposed that he had left the house at about 6 a.m. for his morning ablutions and till then the deceased and the accused were still in their room on the first floor.The accused in his statement Under Section 342, of the Code of Criminal Procedure, in answer to question No. 35 admitted the correctness of this fact.He admitted that at the tints Heeralal went to the river for taking his bath early in the morning of 27-9-1960 both of them, that Is to say, the accused and the deceased alone Were in the house.However, the accused further stated that he had also gone to the river for taking bath after Heeralal had left.Thus, the very fact that at the time of occurrence the accused and the deceased were the only inmates of the house who were in and the accused has given absolutely no explanation as to how his wife was killed constitutes vary strong circumstantial evidence against him and in the absence of anything pointing to the contrary, the only possible conclusion to draw is that it was the accused who killed his wife.The only other person in the house was Heeralal (P.W. 5).Dr. Thakur Ser Singh (P. W. 8) has proved the six incised wounds which were caused to her by a sharp edged weapon.The injuries were sustained on head and face. | ['Section 302 in The Indian Penal Code', 'Section 342 in The Indian Penal Code'] | Analyze the legal case and identify the corresponding section it comes under. |
1,933,714 | Smt. Ratna Chatterjee and the petitioner were known to each other from before and the petitioner used to come to the house of the complainant.Ratna, O.P. No. 2 who is a graduate with Honours in Economics from Chaibasa College.In December, 1987, the petitioner came to the house of Ratna.He often visited in the absence of her father.Her mother was working at Muri.She became pregnant and had been carrying for some weeks, when she went to Muri to tell her mother about the thing, and disclosed everything to her, then the mother told her father about it.Both of them informed the matter to the parents of the accused person when they agreed to the marriage of the petitioner with Ratna after his appointment at Gomaria.The said Section contains two ingredients:-(i) deceit issuing false belief in the existence of lawful marriage;and (ii) co-habitation with the person causing such belief,In the instant case, it has been submitted that there is no whisper either in the FIR or in the statement of the victim girl recorded under Section 164, Cr.P.C. that the revisionist deceitfully caused a false belief in the existence of a lawful marriage with the victim girl.The ld.advocate for the revisionist has also submitted that for an offence under Section 420 IPC, there must be cheating and resulting delivery of property dishonestly.The ld.ORDER N.K. Batabyal, J.This revisional application is directed against the Order dated 26-8-92, passed by the Id. Asst.Sessions Judge, Purulia, framing charge under Sees.376/420/493 of the I.P.C. in SC Case No. 75 of 1991, arising out of Purulia Town, P.S. Case No. 143/1989 dated 2-8-89 under Section 376 and 420 of the IPC.On 2nd August, 1989, Ratna Chatterjee of Dulmi, Purulia lodged a petition of complaint before the Ld.Chief Judicial Magistrate at Purulia and the said complaint was sent to Purulia Town, P.S. Case for treating same as F.I.R. The petitioner who is a young man, gainfully employed, in Tata Yodogawa Ltd. is a resident of Vill.Muri of P.S.- Silli, Dist.Thereafter, the accused petitioner-arid his parents refused to solemnize the marriage and there was thus a delay in filing the F.I.R.No one has appeared on behalf of the State, the Id. advocate on behalf of the opposite party No. 2 has holly contested the matter. | ['Section 420 in The Indian Penal Code', 'Section 376 in The Indian Penal Code', 'Section 482 in The Indian Penal Code', 'Section 164 in The Indian Penal Code', 'Section 228 in The Indian Penal Code'] | Analyze the legal case and identify the corresponding section it comes under. |
193,487,291 | 1 Form No. J (1) IN THE HIGH COURT AT CALCUTTA Criminal Revisional Jurisdiction Appellate Side Present:The Hon'ble Justice Ashim Kumar Roy C.R.R. No. 1244 of 2010 Mrinal Kanti Manna versus Smt. Chhabi Samanta & Anr.(c) The impugned proceeding is a counter-blast to the case earlier lodged by the present petitioner.Thus, before receiving the complaint at the Camp Office such complaint cannot be received at the police station.On the other hand, the Learned Junior Government Advocate, Mrs. Krishna Ghosh vehemently opposed the prayer for quashing.At the very outset she pointed out earlier on the selfsame grounds the petitioners moved another criminal revision being C.R.R. No. 1106 of 2007 for quashing of the impugned 3 First Information Report.However, this Hon'ble High Court by an order made on September 17, 2008 dismissed the said criminal revision. | ['Section 156 in The Indian Penal Code', 'Section 2 in The Indian Penal Code', 'Section 323 in The Indian Penal Code', 'Section 354 in The Indian Penal Code', 'Section 506 in The Indian Penal Code'] | Analyze the legal case and identify the corresponding section it comes under. |
193,487,801 | At the time of occurrence, prosecutrix was four years of age.Prayer allowed.Accordingly, I.A. No.3221 of 2018 is dismissed as withdrawn.Digitally signed by Pankaj Pandey Date: 2018.05.16 17:38:38 +05'30' | ['Section 3 in The Indian Penal Code'] | Analyze the legal case and identify the corresponding section it comes under. |
193,491,031 | This petition has been filed to quash the F.I.R. in Crime No.60 of 2018 registered by the first respondent police for offences under Sections 147, 148, 324 and 506(2) of IPC, as against the petitioners.The learned Counsel appearing for the petitioners would submit that the petitioners are innocent persons and they did not committed any offence as alleged by the prosecution.Without any base, the 1st respondent police registered a case in Crime No.60 of 2018 for the offences under Sections 147, 148, 324 and 506(2) of IPC, as against the petitioners.Hence they prayed to quash the same.The learned Additional Public Prosecutor would submit that the investigation is almost completed and the respondent police have only to file final report.Heard Mr.Accordingly, this Criminal Original Petition stands dismissed.However, considering the crime is of the year 2018, the 1st respondent is directed to complete the investigation in Crime No.60 ofhttp://www.judis.nic.in 5/8 CRL.O.P.No.1959 of 2020 2018 and file a final report within a period of twelve weeks from the date of receipt of copy of this Order, before the jurisdiction Magistrate, if not already filed.Consequently, connected Criminal Miscellaneous Petition is closed.01.09.2020 Internet : Yes / No Index : Yes / No Speaking / Non Speaking order gbihttp://www.judis.nic.in 6/8 CRL.O.P.No.1959 of 2020The Public Prosecutor, High Court, Madras.http://www.judis.nic.in 7/8 CRL.O.P.No.1959 of 2020 G.K.ILANTHIRAIYAN, J.gbi CRL.O.P.No.1959 of 2020 01.09.2020http://www.judis.nic.in 8/8 | ['Section 324 in The Indian Penal Code', 'Section 506 in The Indian Penal Code', 'Section 148 in The Indian Penal Code', 'Section 147 in The Indian Penal Code'] | Analyze the legal case and identify the corresponding section it comes under. |
193,492,610 | THIS is first application under Section 438 of the Code of Criminal Procedure.The applicants are seeking anticipatory bail in connection with Crime No.436/2015 for the offences punishable under Sections 327, 294, 120-B, 323 and 506 of IPC read with Section 3 (1) (10) of SC & ST (Prevention of Atrocities) Act registered at Police Station Rajgarh (Biaora).Learned counsel for the applicants submits that the applicants No.1 and 2 are senior citizens and applicant No.4 is a Government Servant and all the applicants are agriculturists.They are permanent resident of District -: 2 :- Rajgarh (Biaora).They have been falsely implicated in this case.The applicants are ready to co-operate with the investigation.In such circumstances, the applicants may be granted anticipatory bail.-: 2 :-Accordingly, the application is allowed.It is directed that in the event of their arrest in the aforesaid crime, they be released on anticipatory bail on each of them furnishing a personal bond in the sum of Rs.25,000-00 [Twenty Five Thousand Rupees] with one solvent surety each in the like amount to the satisfaction of the arresting officer for their appearance in investigation as and when directed and required.Facility of this bail shall remain available to the applicants during trial with the condition that in case the final report is filed, the applicants shall furnish fresh bail-bond as per this order.Applicants shall ensure that they would not commit any such offence during currency of bail and rest of the conditions stipulated under Section 438 (2) of the Code of Criminal Procedure shall be binding on them.-: 4 :--: 3 :--: 4 :-It is made clear that if the applicants will breach any of the condition, then this order shall automatically stand cancelled without reference to this Court and the concerning Court shall be free to take appropriate action to secure the presence of the applicants.Certified copy as per rules.[ Jarat Kumar Jain ] JUDGE (AKS) | ['Section 3 in The Indian Penal Code', 'Section 120B in The Indian Penal Code', 'Section 438 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'] | Analyze the legal case and identify the corresponding section it comes under. |
193,498,296 | CRL.A. 603/2002 & CRL.A. 625/2002PW19/A, upon which FIR No. 686/1998 (Ex.The case of the prosecution was that at about 12.15 PM on 04.08.1998, five-six miscreants duly armed with pistols and knives entered in the residential house bearing No.63-64, Hari Nagar Ashram, New Delhi.They enquired from Indu Gupta (PW3) as to whether some tenant was living upstairs and entered in the house by forcibly pushing the door.The complainant (PW2), Indu Gupta (PW3) and their mother-in-law Urmila Gupta (PW5) were covered by those boys with arms.The ornaments which the said women wearing on their person at that time were snatched by the miscreants and they compelled the women to give key of the almirah.Three of the boys covered the women and the remaining three ransacked the house.Two of the boys took Indu Gupta and Urmila Gupta to the adjoining room where their hands and legs were tied.Remaining four took Nisha Gupta at the point of the knife and pistol on the first floor Crl.Appeal Nos. 603 & 625 of 2002 Page 2 of 13 house where she used to live with her family and forced her to give the key and then the first floor was also ransacked and all the valuables were taken away.While the first floor house was being ransacked, one of the boy holding pistol went upstairs at the second floor.Threats were being given that they would be killed if tried to be smart.They then robbed Nisha Gupta of her ornaments weighing 25 tolas and cash of Rs.25,000/-.In the meantime, noises started coming from the second floor where one of the boy had gone.As a consequence, other persons also ran outside.Meanwhile, the complainant bolted the room from inside and opened the window which was facing the gali and started crying for help.The crowd which gathered there took out her from the window of the house.One of the boys, who had gone upstairs at the second floor with the country made pistol, had been caught by the public and was beaten up.Later it was found that his name was Dinesh, co-accused.The accused had robbed Rupees Two Lakhs and substantial quantity of jewellery from the ground floor, i.e., from the house of Indu Gupta.Police also arrived and caught co-accused Dinesh.These appeals are directed against the judgment of conviction and order of sentence dated 01.06.2002 and 07.06.2002 respectively passed by the then learned Additional Sessions Judge, New Delhi, in Sessions Case Crl.Appeal Nos. 603 & 625 of 2002 Page 1 of 13 No. 41/99, by which both the appellants, i.e., Suresh and Harish Kumar, were held guilty and convicted under Sections 395 and 397 read with Section 120-B of the Indian Penal Code, 1860 ('IPC') and sentenced to undergo rigorous imprisonment for seven years and fine of Rs.5,000/- each under Section 398 IPC, in default of payment of fine, they shall further undergo rigorous imprisonment for six months.Appeal Nos. 603 & 625 of 2002 Page 1 of 13Since, both these appeals have arisen out of the same judgment, therefore, both appeals were heard together and are being disposed of by a common judgment.Brief facts for the disposal of the present appeals are that on the statement Ex. PW2/A of Nisha Gupta (PW2), Investigating Officer/SI Subhash Malik (PW19) made an endorsement Ex.During the investigation, other accused were also apprehended.Recovery of some jewellery and money was effected from the appellants.After the trial, the appellants have been convicted and sentenced as aforesaid.Appeal Nos. 603 & 625 of 2002 Page 2 of 13Learned counsel appearing on behalf of the appellants submitted that the learned Trial Court has wrongly convicted the appellants as there is no cogent material on record to justify the same.The appellants were not previously known to the complainant and other witnesses, who allegedly seen the commission of the offence, as none of the witnesses, i.e., PW2, PW3, PW5 and PW17 had given the description of the accused Crl.Appeal Nos. 603 & 625 of 2002 Page 3 of 13 persons in the FIR or in their earlier statements, which only mentioned that accused persons were young boys of 20-25 years.No clue regarding their height, built, complexion etc. were given by any of the witnesses.Therefore, the prosecution ought to have proved the identity of the appellants beyond reasonable doubt.Moreover, the appellants have refused to participate in the TIP on the ground that they had been shown to the witnesses and their photographs have been taken by the police during the investigation.Appeal Nos. 603 & 625 of 2002 Page 3 of 13Learned counsel further submitted that as per the prosecution case, appellants were arrested in the intervening night of 9 th/10th August, 1998 and thereafter, they were taken to the house of the complainant where the alleged incident took place and remained there for about an hour.Therefore, the finding of the learned Trail Court that identification of the appellants was proved beyond reasonable doubt is not sustainable.Learned counsel submitted that the learned Trial Court had misdirected itself in convicting the appellants under Section 397 IPC and passing the order on sentence for offence punishable under Section 398 IPC.Learned counsel also submitted that no specific role is assigned to the appellants in committing the alleged dacoity by PW2/ Complainant Nisha Gupta, PW3 Indu Gupta, PW5 Urmila Gupta and PW17 Dr.R.S.Rathi, i.e., the witnesses of the incident of dacoity.Neither any independent witness was joined at the time of occurrence though it has come in the evidence of PW2 that crowd gathered in the gali outside the house in question nor at the time of effecting the alleged recovery from Crl.Appeal Nos. 603 & 625 of 2002 Page 4 of 13 the house of appellant Harish.Appeal Nos. 603 & 625 of 2002 Page 4 of 13To strengthen his submissions, learned counsel for the appellants has relied upon the judgments of this Court in 'Pramod Kumar Vs.State of NCT of Delhi' 2012 (3) JCC 2040, Criminal Appeal No.396/2012, titled as 'Sandeep @ Sanjeev Vs.State', decided on 28.11.2013 and 'Mohd. Rafiq Vs.Also relied upon the cases of Mukhtiar Singh @ Mukha Vs.State of Haryana, 1995 (2) C.C. Cases 337 (HC), Balwant Singh Vs.The State of Punjab, 1997 (2) C.C. Cases 9 (HC) and Khushal Singh & Ors.The State of Punjab, 1997 (2) C.C. Cases 34 (HC).Appeal Nos. 603 & 625 of 2002 Page 10 of 13Simple injuries have been sustained by the victim on his thigh."The sentence of appellants Suresh Kumar and Harish Kumar was suspended on Crl.Appeal Nos. 603 & 625 of 2002 Page 11 of 13 23.03.2004 and 20.04.2004 respectively.As per the nominal rolls dated 02.01.2004 and 02.05.2005 of appellant Suresh Kumar and Harish Kumar respectively, they were arrested in this case on 10.08.1998 and have already undergone more than six years imprisonment including the period of remission earned out of total sentence of seven years.Appellants faced trauma of criminal proceedings for more than eighteen years.Appeal Nos. 603 & 625 of 2002 Page 11 of 13No injuries were admittedly caused to any of the persons while committing dacoity.It was contended that the appellants are about 50 years of age, having marriageable children.They remained in judicial custody for more than six years.They are not the habitual offenders.The occurrence is alleged to have taken place on 04.08.1998, i.e., about 18 years ago from today.Taking into consideration the law discussed above, and the facts and circumstances of the case, I feel persuaded to reduce the sentence of seven years' rigorous imprisonment awarded to the appellants.Accordingly, the substantive sentence of imprisonment awarded vide order on sentence dated 07.06.2002 is modified and the appellants are set Crl.Appeal Nos. 603 & 625 of 2002 Page 12 of 13 free on the sentence for the period already undergone by them.Appeal Nos. 603 & 625 of 2002 Page 12 of 13Accordingly, the appeals are partially allowed.The Registry of this Court is directed to send a copy of this order to the concerned Jail Superintendent for information.M.A. No.4072/2005 With the dismissal of the appeal itself, the present application has become infructuous.The same is dismissed accordingly.SURESH KAIT (JUDGE) NOVEMBER 26, 2015 Sb/jg Crl.Appeal Nos. 603 & 625 of 2002 Page 13 of 13Appeal Nos. 603 & 625 of 2002 Page 13 of 13 | ['Section 397 in The Indian Penal Code', 'Section 34 in The Indian Penal Code', 'Section 395 in The Indian Penal Code', 'Section 5 in The Indian Penal Code', 'Section 467 in The Indian Penal Code', 'Section 392 in The Indian Penal Code', 'Section 471 in The Indian Penal Code', 'Section 120B in The Indian Penal Code', 'Section 161 in The Indian Penal Code', 'Section 411 in The Indian Penal Code'] | Analyze the legal case and identify the corresponding section it comes under. |
193,507,583 | VIBHA KANKANWADI, J. ] [ T. V. NALAWADE, J. ] ndm ::: Uploaded on - 10/09/2018 ::: Downloaded on - 10/09/2018 23:43:08 :::::: Uploaded on - 10/09/2018 ::: Downloaded on - 10/09/2018 23:43:08 ::: | ['Section 353 in The Indian Penal Code'] | Analyze the legal case and identify the corresponding section it comes under. |
193,518,795 | Item No. 76And In the matter of: Bhabani Pramanick & Ors.- versus -The State of West Bengal .The Petitioners, apprehending arrest in connection with Karimpur Police Station Case No.152 of 2013 dated 25.09.2013 under sections 498A/34 of the Indian Penal Code, have applied for anticipatory bail.We have heard the learned Advocate for the Petitioners and the learned Advocate for the State.The Petitioner No.1 is the mother-in-law of the Complainant.The application for anticipatory bail is, thus, disposed of.(Nishita Mhatre, J.) (Indrajit Chatterjee, J.) | ['Section 438 in The Indian Penal Code', 'Section 34 in The Indian Penal Code', 'Section 498A in The Indian Penal Code'] | Analyze the legal case and identify the corresponding section it comes under. |
193,439,282 | Accordingly, application of the present applicant under Section 439 Cr.P.C. relating to the aforesaid crime is hereby dismissed.as per rules.(S.A. Dharmadhikari) Judge Durgekar* Digitally signed by SANJAY N.DURGEKAR Date: 2018.08.23 15:54:27 +05'30'Learned counsel for the rival parties are heard in this first bail application under section 439 of Cr.P.C.The applicant has been arrested by Police Station Jaura, District Morena in connection with Crime No. 78/2018 registered in relation to the offences punishable u/S. 363, 366, 376 of IPC and section 3/4 of POCSO Act.As per prosecution story, the complainant Rakesh Tyagi has lodged the report to the effect that on 16/02/2018 at about 11.30 Am his minor daughter namely Anjali went for giving practical examination and thereafter till night she did not come back to home and on searching, the information was gathered that the prosecutrix was seen boarded in a bus along with applicant and co- accused persons namely Pappan, Bhukan and some other co-accused persons.On the basis of aforesaid, the applicant has been implicated in the present case.Learned counsel for the applicant submits that applicant is a youth of 19 years of age, who has no criminal past alleged against him and he has been 2 HIGH COURT OF MADHYA PRADESH M.Cr.C. No. 26985/2018 falsely implicated in the present case.The charge sheet has since been filed and further custodial interrogation of the applicant may not be required.The co-accused Pappan is the main accused who committed offence under section 376 of IPC.The applicant is in custody since 20/03/2018 without any substantial reason and if he is kept in custody for longer period then his future career may be spoiled under the company of hardened criminal inside the jail.Early conclusion of the trial is bleak possibility and prolonged pre-trial detention is an anathema to the concept of liberty.On these grounds, applicant prays for grant of bail.Learned Public Prosecutor for the State opposed the application on the ground that as per the statement of prosecutrix recorded under section 161 and 164 of Cr.P.C., the applicant has played important role in commission of the alleged offence since the applicant was instrumental in taking the prosecutrix and the co-accused along with him to Haryana and other places without which the offence could not have been committed by the co-accused and prayed for its rejection by contending that on the basis of the allegations and the material available on record, no case for grant of bail is made out.On considering the submissions made by learned counsel for the parties and looking to the 3 HIGH COURT OF MADHYA PRADESH M.Cr.C. No. 26985/2018 facts and circumstances of the case particularly the nature of allegation, I am of the opinion that this is not a fit case, in which bail may be granted to the present applicant Suraj Jatav. | ['Section 376 in The Indian Penal Code'] | Analyze the legal case and identify the corresponding section it comes under. |
1,934,439 | JUDGMENT B.B. Vagyani, J.Heard learned Advocate Shri R.N. Dhorde for the petitioners and Shri V.D. Sapkal, learned A.P.P., for the State.Rule, returnable forthwith with the consent of the parties.There was no progress after recording of plea of the petitioners.No oral evidence was recorded by the Special Judge.Relying on Raj Deo Sharma's, case AIR 1998 SC 3281, the present petitioners filed application dated 7.7.1999, in the Trial Court and sought a direction from the Court to close the prosecution evidence. | ['Section 304A in The Indian Penal Code'] | Analyze the legal case and identify the corresponding section it comes under. |
1,934,546 | One Bankey Lal had four sons, namely, Ram Chandra deceased, Suresh Chandra appellant, Raja Ram and Ram Bharosey.P.W. 1 Smt. Shyam Piari is the widow of Ram Chandra deceased and P.W. 2 Ashok Kumar is their son.Vijai alias Vijai Kumar appellant is a friend of Suresh Chandra appellant.According to the case of the prosecution, Suresh Chandra appellant was previously in the service of police but due to misconduct he was removed from service.He was also involved in some theft cases.Ram Chandra deceased used to claim his share in the property of his father but Suresh Chandra appellant did not allow any such partition to take place.The relations between Suresh Chandra appellant and Ram Chandra deceased were thus strained.It is further the case of the prosecution that on the night between 24th and 25th November, 1976, at about 2-2.30 a.m., Vijai appellant, armed with a pistol, and accompanied by his friend Suresh Chandra appellant, armed with a gun, and two other persons came to the house of Ram Chandra deceased.Firstly, both the appellants and one of their companions went to the room, situated on the first floor, where Smt. Shyam Piari, informant, along with her children, including P.W. 2 Ashok Kumar, injured, was sleeping.They forcibly opened the door and entered into the said room.Suresh Chandra appellant sat at the cot of Smt. Shyam Piari and at the point of the gun removed her golden ornaments.They had threatened Smt. Shyam Piari not to raise any noise.They then took Ashok Kumar, aged about 16 years downstairs and asked him to get the door of the room where his father, i.e. Ram Chandra deceased, was sleeping opened.The door of the said room was opened and Ram Chandra deceased came outside in the court-yard.The fourth companion of the appellants was already present there and he joined the remaining miscreants.They beat Ram Chandra and Ashok Kumar and caused injuries to them.Suresh Chandra appellant fired a shot at Ram Chandra deceased which hit him and he fell dead at the spot.Vijai appellant had fired at Ashok Kumar as a result of which he sustained injuries.The appellants and their companions had also looted properties in the house.There was light of an electric bulb in the house at that time.Noise had been raised which attracted the witnessess to the place of occurrence.The appellants and their companions then went away from the house with the looted property.JUDGMENT Madan Mohan Lal, J.These two criminal appeals have been filed against the judgment and order dated 31-1-1978 passed by Sri B. I. S. Sodhi, the then Second Additional Sessions Judge, Budaun by which he has convicted the appellants Suresh Chandra and Vijai alias Vijai Kumar under Sections 302/34, 307/34 and 394, I.P.C. and has sentenced each of them to undergo life imprisonment, four years' R.I. and four years' R.I. respectively thereunder.All the sentences have been made to run concurrently.As both these appeals arise from the same judgment, hence these are being disposed of by this common judgment.After the incident Smt. Shyam Piari went to police station, situated at a distance of 3 furlongs, where she lodged report of the incident on the same night at 3.15 a.m.In order to prove its case the prosecution examined nine witnesses.P.W. 1 Shyam Piari, informant and P.W. 2 Ashok Kumar injured have given details of the incident.P.W. 9 Balloo is a recovery witness in whose presence three dhoties were recovered at the instance of Vijai appellant from his house in a box.Sri Balbir Singh, Deputy Collector.P.W. 4 Bhim Singh was Head Moharrir at P.S. Kotwali Budaun.He had recorded first information report of this case on 25-11-1976 at 3.15 a.m. and had registered this case.Constable Mohd. Faruq, P.W. 5 was a formal witness.Investigation of this case was conducted by P.W. 6 Sri M. C. Jain.He had also arrested Vijai Singh appellant and had then recovered the aforesaid dhoties at his instance from a box in his house.P.W. 3, Dr. Guru Charan Singh, the Medical Officer, District Hospital, Budaun, had medically examined Ashok Kumar on 25-11-1976 at 4.50 a.m. He had found the following injuries on his person :--Two gun shot wounds of entry 0.5 c.m.x 0.5 c.m.each in an area of 2.00 c.m.x 1 c.m.over left parietal region 8 c.m. above left ear.Three lacerated wounds 3 c.m. x 1.5 c.m.x scalp in an area of 3 c.m. x 1.5 c.m. over left parietal region 8 c.m.3. Lacerated wounds with blackening of margins 14 c.m.x 7 c.m. x bone with fracture of underlying bone on the back of left elbow 4 c.m.below the elbow joint.He had found the following antemortem injuries on the dead body of Ram Chandra deceased:--Gun shot wound of entry 0.7 c.m.x 0.5 c.m. x cavity, circular, over front of chest in the mid line 8 c.m.below sternal notch wound was directed backward.Lacerated wound 6 c.m.x 11/2 c.m.x scalp over (Rt) side of parietal bone 6 c.m. above the (Rt) eye brow.Abrasion 1 c.m.x 1/2 c.m.over dorsum of middle phalynx of little finger (Lt) hand.Abrasion 1 c.m.x 1/2 c.m.over dorsum of middle phalynx of ring finger (Lft.) hand.Abrasion 1 c.m.x 1 c.m.over dorsum of middle phalynx of middle finger (Lft) hand.Abrasion 1/2 c.m.x 1/2 c.m. over dorsum and root of (Rt) thumb (Rt. hand).Abrasion 1/2 c.m.x 1/2 c.m. over dorsum and root of index finger (Rt) hand.1 pleura, right lung, pericadium and heart were also found punctured.The doctor had recovered one bullet from thorax cavity.According to the doctor the death of Ram Chandra deceased had occurred due to shock and haemorrhage at about the time of the incident.Both the appellants in their statements recorded under Section 313, Cr.P.C. denied the case of the prosecution.Vijai Kumar appellant further stated that the police had falsely implicated him in this case due to old enmity.Suresh Chandra appellant, on the other hand, stated that there was always a quarrel between his brother Ram Chandra deceased and his wife Smt. Shyam Piari, that whereas his brother was miser, his wife was extravagent and she used to take liquor and that his brother used to come to his house and take food and on account the same Smt. Shyam Piari P.W. 1 and Ashok Kumar P.W. 2 have implicated him in this case.The appellants, however, did not produce any witness in defence.The learned trial Court believing the case set up and the evidence produced by the prosecution, has convicted and sentenced the appellants as aforesaid.Aggrieved by the same the appellants have filed these appeals.We have heard the learned counsel for the appellants and the learned Addl.Government Advocate and have perused the record carefully.The prosecution has taken a case that there was enmity between Ram Chandra deceased and his family members, on the one hand, and Suresh Chandra appellant, on the other and that on account of the same Suresh Chandra himself with the help of his friend Vijai and two other companions, committed this crime.The prosecution has alleged that Ram Chandra deceased used to claim his share in the property of his father but Suresh Chandra appellant did not allow any partition to take place.At the out set it may be observed that it was high handedness on the part of Ram Chandra deceased to claim one fourth share in the property of his father.P.W. 1 Smt. Shyam Piari has stated in her evidence that her husband had claimed one fourth share in the house of his father.In the first place it may be observed that when the father was alive and when the house belongs to the father, Ram Chandra deceased could not possibly claim any share in me said house.Besides, when Bankey Lal hald four sons and if Bankey Lal was to divide his property between himself and his four sons the share of Ram Chandra could not exceed one fifth.Therefore, it was indeed too much for Ram Chandra deceased to have claimed one fourth share in the house of his father and that too when he himself was admittedly very well of as compared to Suresh Chandra appellant.Presuming that Suresh Chandra appellant was aggrieved that his brother Ram Chandra deceased was demanding a share in the house of his father, then at the best his motive would have been to eliminate Ram Chandra and not to commit robbery/dacoity of his property.In this case, on the other hand, we find that a lot of property of Ram Chandra deceased was looted.The property looted in this incident is specified in the first information report.According to it one golden chain weighing 11/2 tola, one pair of golden jhala weighing 2 tolas, two golden rings weighing 4 annas each and another golden ring weighing 1/2 tola along with many saris and other clothes were looted.In all 33 items of property were looted and taken away by the robbers.In our view had Suresh Chandra appellant, with the help of his friend and companions, gone to commit this crime, his first and foremost object would have been to commit murder of Ram Chandra deceased and not to loot so many articles.It could be said that in order to confuse the investigating agency he might have tried to take away some property but looting as many as 33 items of the property cannot possibly be explained when the motive of Suresh Chandra appellant would have been to eliminate Ram Chandra.It may be noted that the miscreants had firstly gone to that room situated on the first floor of the house where Smt. Sham Piari with her children was sleeping.Ram Chandra deceased was not there.According to the evidence produced by the prosecution in this case the assailants instead of rushing to the room where Ram Chandra was sleeping firstly proceeded to loot ornaments and other property in the said room.Suresh Chandra appellant himself had been assigned the role of removing golden ornaments of his sister-in-law, i.e. Smt. Shyam Piari.Besides, having gone to the ground floor the assailants had not only committed the murder of Ram Chandra and caused injuries to Ashok Kumar but had opened the safe kept in that room.Looting of as many as 33 articles tend to show that probably this case was a case of robbery/ dacoity in which the inmates of the house who resisted, i.e. Ram Chandra and Ashok Kumar, were caused injuries.Therefore, we find force and merit in the argument advanced by the learned counsel for the appellants that after the commission of robbery /dacoity P.W. 1 Smt. Shyam Piari named Suresh Chandra appellant and his friend Vijai in the first information report due to enmity and strained relations.The learned counsel for the appellants has further urged before us that had the real motive of Suresh Chandra appellant been to commit robbery, along with his friend Vijai and others, then they were known to the victims, they would have in the normal course taken precautions to conceal the identity.The said submission cannot be said to be without substance because Suresh Chandra appellant would have in all probability borne a mask if he had to commit a robbery at the residence of his own real brother.At the risk of repetition we may say that this case appears to be a case of robbery in which murder was committed and that possibly Suresh Chandra appellant with his friend Vijai and companions would not have involved himself in such a crime, when, as already stated, his motive at the best would have been merely to eliminate Ram Chandra.It is the case of the prosecution that Din Dayal and Sohan Lal had seen the miscreants going away from the place of occurrence after committing this crime, but these two witnesses had not been examined on the plea that they had turned hostile.Therefore, we have to examine the evidence of the informant and his son produced in this case carefully.P.W. 1 Smt. Shyam Piari was not at all injured in the aforesaid incident.Whereas she was present in the room situated on the first floor of the house, murder of Ram Chandra was committed and the injuries to Ashok Kumar were caused in the ground floor.Therefore, we have to be satisfied that P.W. 1 Smt. Shyam Piari had seen the miscreants.She has stated in her evidence that both the assailants, who had fired, were standing at a distance of only one cubit from her husband.In our view had shots been fired at Ram Chandra deceased from such a close range as one cubit then he would have certainly suffered blackening and tattooing.The fact that there was no blackening and tattooing around the gun shot injury sustained by Ram Chandra deceased indicates that P.W. 1 Smt. Shyam Piary had not seen the assailants.Medical evidence to the effect that there was no blackening or tattooing around the gun shot injury suffered by Ram Chandra deceased rules out the version given by Smt. Shyam Piari P.W. 1 that the shots were fired at her husband from a very close range.In our opinion, when medical evidence completely rules out the version given by the eye-witness, then the the version of the eyewitness cannot be believed.We are thus not satisfied that P.W. 1 Smt. Shyam Piari had seen the assailants.The learned Additional Government Advocate has urged before us that the prompt first information report in this case corroborates the evidence given by P.W. 1 Smt. Shyam Piari.No doubt the record shows that whereas this incident took place on the night between 24th and 25th November, 1976 at 2-2.30 a.m. the first information report, on the other hand, was lodged at the police station, situated at a distance of three furlongs, at 3.15 a.m. It is not a case where the informant had no sense of time.She had given time of the incident as 2-2.30 a.m. in her first information report.In her evidence as well she gave different timings i.e. the time when the incident took place and the time when she reached the police station.However, at an unguarded movement, she admitted in her cross-examination that the Sub-Inspector had written the report at her house after interrogating her.After this admission the learned Sessions Judge considered it proper to put a Court question and to the Court question as well Smt. Shyam Piari re-affirmed that at first report was written at the house and thereafter she was taken to the police station where again the report was written.This lady further admitted in her evidence that the sub-Inspector had come to her residence at 2 a.m. in the night.In our view, when the sub-Inspector had promptly reached the house of the informant and when after her interrogation report was written in the house, the said report lodged at the police station has lost corroborative value.Therefore, we do not consider it safe to rely upon the evidence of P.W. 1 Smt. Shyam Piari.Coming to the evidence of P.W. 2 Ashok Kumar he has admitted in his evidence that the miscreants by flashing torches in his eyes had almost made him blind and that, therefore, he was unable to see anything.He has further admitted that on account of the said fact he was unable even to see as to who was that miscreant who had flashed torch in his eyes.This witness has also admitted in his evidence that immediately after sustaining injuries he had become unconscious and he had thereafter regained consciousness in the morning.On account of the same the learned counsel for the appellants had urged before us that probably P.W. 2 Ashok Kumar was taken by surprise and that due to the flash of light in his eyes and due to his becoming unconscious immediately on receiving injuries he could not see any miscreants.We find force in this submission specially when we notice that the evidence of P.W. 2 Ashok Kumar cannot be reconciled with the medical evidence.P.W. 2 Ashok Kumar has stated in his evidence that the shots were fired at him from a distance of 8-10 feet.In our view, had the shots been fired from such a long range, then Ashok Kumar would not have sustained any blackening on any of his wounds.As may be seen from the injuries reproduced above the third injury of Ashok Kumar had blackening on margins.In our view, the said blackening could occur only when the shots had been fired at Ashok Kumar from a close range and not from a distance of 8-10 feet.As already observed, we are of the view that when the medical evidence completely rules out the version given by the witness, the said version of the eye-witness cannot be believed.Therefore, we are of the opinion that although Ashok Kumar, P.W. 2, was injured but the way and the manner in which the crime was committed, he could not have an opportunity to recognize the assailants.In the result, therefore, we do not consider it safe to rely either upon P.W. 1 Smt. Shyam Piari or upon P.W. 2 Ashok Kumar.In the end the learned Addl.In view of what has been stated and discussed above, and for the reasons stated, we are of the opinion that the prosecution has failed to prove its case beyond reasonable doubt against the appellants or any of them.The appellants are entitled to get benefit of doubt.Accordingly, both the appeals are allowed and the conviction and the sentences of the appellants under Sections 302/34, 307/34 and 394, I.P.C. are hereby set aside.Both the appellants are on bail. | ['Section 34 in The Indian Penal Code', 'Section 313 in The Indian Penal Code', 'Section 302 in The Indian Penal Code', 'Section 307 in The Indian Penal Code', 'Section 394 in The Indian Penal Code'] | Analyze the legal case and identify the corresponding section it comes under. |
19,346,240 | 2. Prosecution case in short is that on 17-8-2014, the complainant Charan Singh Ahirwar, lodged a Gum Insaan Report in Police Station Civil Lines, Vidisha, alleging that he is residing at the given address and is labourer by profession.He is residing in a rented house along with his younger Rakesh Ahirwar who is working as Asstt.Secretary in Gram Panchayat Mudara Moghana.On 16-8-2014, he had come to get the father treated and therefore, he stayed with the complainant in the night.However, the father went back by bus.On 18-8-2014, one Preetam Ahirwar gave an information to the police Station Kotwali, Distt.Vidisha that the dead body of an unknown person is lying on the banks of Betwa River who appears to be aged about 26-27 years.As per the prosecution story, the deceased was married to Smt. Bharti on 7-5-2014 and Smt. Bharti was residing in her parents house and had visited her matrimonial house for a very short period.As children of Charan were prosecuting their studies therefore, he had also shifted to Vidisha and was residing in the house of the applicant on rent alongwith the deceased and other brothers.From the plain reading of the suicide note, it appears that the deceased was having a suspicion that his wife Smt. Bharti is having illicit relations with the applicant.Neither there is anything mentioned in the suicide note to substantiate the suspicion, nor any witness has narrated any incident which may point out that the applicant was having illicit relations with Smt. Bharti.(22/12/2016) This petition under Section 482 of Cr.P.C. has been filed seeking quashment of F.I.R. in crime no. 761/2015 registered by Police Station Kotwali, Vidisha for offence under Section 306/34 of I.P.C. as well as the charge sheet and the criminal proceedings in S.T. No. 66/2016 pending in the Court of 1st A.S.J., Vidisha.His younger brother along with Golu was 2 M.Cr.C. No. 8083 of 2016 sleeping in the separate room.In the morning, he found that Rakesh Ahirwar is missing.He searched for him but as his whereabouts could not be ascertained, therefore, a Gum Insaan Report was lodged.2 M.Cr.C. No. 8083 of 2016Half of the body was lying outside the river whereas half of the body was inside the river.On this report, Marg was recorded and the police started Marg Enquiry.The Spot map was prepared and the dead body was sent for postmortem.In the post mortem, the cause of death was found to be drowning.However, the right tibia bone was preserved for diatom test.It appears that the diatom test was not conducted in view of the specific finding by the autopsy surgeon that the cause of death was asphyxia due to drowning.In F.S.L. report, no poison was found in the viscera.Golu stated that he had slept in the night of 16- 8-2014 and 17-8-2014 along with his brother Rakesh Ahirwar.However, in the morning he found that his brother is missing and he found that his mobile, purse and one suicide letter is kept on the table in which he has expressed that he had a suspicion that his wife Bharti has illicit relations with the applicant.In the morning of 17-8-2014, he received a telephonic call from Golu that Rakesh is missing and one suicide note is found on the table.3 M.Cr.C. No. 8083 of 2016However, it is surprising that Raghuvir Ahirwar, father of Deceased Rakesh Ahirwar produced the alleged suicide note, on 9-10- 2014, i.e., after 2 months, which was allegedly written by deceased Rakesh.The Police after investigation came to a conclusion that Rakesh was having suspicion that his wife Smt. Bharti is having illicit relations with the applicant and only because of that reason he has committed suicide.Thus, the police filed the charge sheet against the applicant and Smt. Bharti for offences punishable under Sections 306 read with Section 34 of I.P.C.It is submitted by the learned Counsel for the applicant, that the so called suicide note was in fact a concocted and false document, as when the brother of the deceased namely Golu had already found a suicide note on the table of the deceased on 17-8-2014, then why the same was not handed over to the police immediately whereas the said so- called suicide note was seized by the police from the possession of Raghuvir on 9-10-2014, and why there is no mention of the said suicide note as well as the presence of Golu in the Gum Insaan Report which was lodged by Charan Ahirwar.esjs fiz; ekrk&firk ,oa Hkkb;ksa] eSa vkils cgqr djrk gwW vkSj eSa cM+s nq[k ds lkFk dg jgk gWw fd vkidk vkSj esjk lkFk cl ;gha rd FkkA D;ksafd eq>s ifjokj rks vPNk feyk ysfdu eq>s ifRu vPNh ugha feyhA esjh ifRu pfj=ghu gSA og eq>s ikxy cuk jgh gS vkSj oks :ipan Bsdsnkj oS".kksansoh okys ds lkFk uktk;t laca/k j[krh gSA oks vius ?kj ls eq>ls feyus dk cgkuk cukdj :ipan ls feyus tkrh gSA os nksuksa lkaph jksM ij ,d jsLVksjs.12 M.Cr.13 M.Cr.C. No. 8083 of 2016C. No. 8083 of 2016 | ['Section 306 in The Indian Penal Code', 'Section 498A in The Indian Penal Code', 'Section 34 in The Indian Penal Code', 'Section 107 in The Indian Penal Code'] | Analyze the legal case and identify the corresponding section it comes under. |
19,348,229 | By order dated 17.08.2002, rigorous Crl.Appeal No.753/20002 Page 1 of 4 imprisonment for seven years with fine of Rs.5,000/-, in default in payment of fine the appellant to undergo simple imprisonment for six months was awarded as punishment for the offence under section 394 read with section 397 IPC.Appeal No.753/20002 Page 1 of 4The appeal was admitted and directed to come up in due course from the list of 'Regular Matters'.By subsequent order dated 24.08.2004 the sentence was suspended and the appellant was released on bail.The turn of the appeal for final hearing has come up almost seventeen years after it had been presented.While the appeal had been admitted, the trial court record had been called for by the registry.The said record, however, along with similar records in a large number of appeals went missing.Though there have been some administrative inquiries made, the accountability for the said loss has not been fixed against any individual, the matter to that extent having been closed reportedly with the approval of Hon'ble the Chief Justice.Against the backdrop of the loss of the trial court record, administrative instructions were also issued for its reconstruction.Pursuant to the said directions, the ASJ now presiding over the concerned court made a report on 13.01.2012 submitting therewith Crl.Appeal No.753/20002 Page 2 of 4 reconstructed record, to the extent it has been possible to do so.The record so re-constructed, unfortunately, does not include the crucial documents in the nature of seizure memo, medico-legal certificate, etc. It, however, does include the statements of Gulshan Grover (PW-6) and Subhash Chander (PW-7).Appeal No.753/20002 Page 2 of 4As is clear from the perusal of the copy of the judgment under appeal, the offence of armed robbery was committed against the person of PW-6, the other witness (PW-7) being his maternal uncle, he also being present at the scene.PW-6 statedly was carrying at that point of time a cloth bag in which, besides certain documents, he was also having in his possession cash amount of Rs.1,75,000/-.As per prosecution charge, the appellant had accosted PW-6 at the point of a dagger and snatched away the said cloth bag and had started running away, he being later apprehended and the stolen money recovered from his possession.According to the prosecution case, the appellant had caused injuries with dagger which he was carrying at the time of commission of the robbery.The prosecution case also stated that the said dagger was also recovered.The FIR had been registered not at the instance of PW-6 who, it is stated, had been taken to hospital for medical aid.Instead, the case Crl.Appeal No.753/20002 Page 3 of 4 was registered and the investigation was taken up on the basis of statement of PW-7 who had been present with the former at the time of commission of offence.Appeal No.753/20002 Page 3 of 4The court testimonies of PW-6 and PW-7 show that both of them had refused to identify the appellants as the perpetrators of the offences.Though it does appear that PW-6 had earlier pointed out the appellant as the sole perpetrator.But then, under cross-examination he expressed doubts also adding that he had been earlier tutored to identify the appellant as the perpetrator.PW-7, in contrast, was totally hostile to the prosecution case refusing to identify the appellant thereby failing to connect him in any which way with the crime.In the above facts and circumstances, benefit of doubts will have to be given to the appellant.The appellant is acquitted.The impugned judgment and order on sentence are set aside.The appeal is disposed of accordingly.R.K.GAUBA, J.AUGUST 14, 2019 vk Crl.Appeal No.753/20002 Page 4 of 4Appeal No.753/20002 Page 4 of 4 | ['Section 397 in The Indian Penal Code'] | Analyze the legal case and identify the corresponding section it comes under. |
193,483,540 | The prosecution story in brief is that, the prosecutrix is the daughter of accused.She was aged about 17 years at the time of commission of offence.On 28.02.2016 a dead body of newly born girl child was found in Matiya pond of village Urdmaow.One Dinesh Kumar of village had given information of dead body to the Police Station Gadi Malahara.The Police registered a merge intimation and Rajesh Tiwari, Assistant Sub Inspector (PW-21) reached on scene of occurrence, prepared spot map, conducted inquest and sent the dead body of child for postmortem.The part of femur bone and lungs etc. of child were preserved and kept for further investigation.During enquiry it was found that somebody had thrown the child into the pond to hide the facts of illegal birth.Child was died from drowning.Subsequently, the Police recorded FIR (Ex.P/27) and registered an offence under Section 318 of Penal Code against unknown person and initiated investigation.During investigation Police recorded statement of prosecutrix, which reveals that the prosecutrix was living with the accused who is her father in village Urdmaow.Her mother was died during her childhood.Accused was a drunkard, he frequently used to beat and misbehave with the prosecutrix.Around one year before the incident after-4- Cr.A. No.3820/2016 AFR consuming liquor the accused had beaten the prosecutrix and thereafter committed sexual intercourse with her and threatened her to kill if she would inform anybody about the incident.Thereafter, repeatedly accused used to ravish the girl by committing rape.After sometime prosecutrix became pregnant and at the advance stage of pregnancy, on 27.02.2016 at village Urdmaow accused gave some medicine to prosecutrix due to which prosecutrix delivered a girl child in the night.To hide the fact of delivery of child accused took the child with him and thrown her into the pond near his house.Next day accused took the prosecutrix to village Zind near Delhi to her brother Santosh, left her there and came back to his village.Prosecutrix informed her brother about the incident and thereafter, she came with her brother to village Urdmaow and went to Police Station Gadi Malahara where she narrated the entire story.The mother of prosecutrix had died earlier.Prosecutrix (PW-5) in her Court statement deposed that after the death of mother she was living with the accused/appellant.Her brother and sisters are married and living separately in their house.The accused/appellant used to beat and harass her after consuming liquor.Some one year before the incident the accused/appellant had beaten her and committed sexual intercourse.When she tried to resist accused/appellant threatened her to kill.Thereafter, at several times accused/appellant committed rape with her.Due to fear of accused/appellant prosecutrix did not tell about the incident to anybody.Later on the prosecutrix became pregnant.At this time prosecutrix was living with the accused in Delhi where they were employed in labour work.When the pregnancy of prosecutrix was at advance stage, accused brought her to his house in village Urdmaow and gave some pills.Due to these pills on 27.02.2016 prosecutrix delivered a girl child.It is further deposed by the prosecutrix that seeing the girl child accused took her and went out of house and throw the child in the pond situated near the house.-9- Cr.A. No.3820/2016 AFR accused took the prosecutrix to village Zind and left her in the house of her brother and came back.(28.02.2017) Per Anurag Shrivastava, J Aforesaid criminal reference as well as appeal arrived out of common impugned judgment; therefore, this judgment shall govern the disposal of both the cases.Learned Special Sessions Judge ,Protection of Children From Sexual offence Act Chhatarpur vide impugned judgment dated 21st November, 2016 passed in Special Trial No.52/2016 has convicted the respondent/appellant Shyam (hereinafter referred as the "accused" also) for the offence punishable under Sections 302 and 376 (2) (Cha) (Ja) (Ta) (Tha) (Dha) of IPC.Feeling aggrieved by the impugned judgment of conviction and order of sentence the accused has also filed this appeal under Section 374 (2) of the Code.The police registered a case u/s 302 and 376 of Penal Code and during investigation recorded statements of the prosecutrix and other witnesses.Prosecutrix and accused were medically examined.The blood samples of prosecutrix, accused and body part of child were sent for a DNA test, which confirms the fact that the accused was biological father of the child of prosecutrix.After completion of investigation the accused was charge sheeted.The trial Court framed charges against the accused for commission of offence punishable under Sections 302 and 376 (2) (Cha) (Ja) (Ta) (Tha) (Dha) of IPC.The accused abjured guilt and pleaded not guilty.Prosecution examined 21 witnesses including prosecutrix, her brother and his father-in-law Changa Raikwar, who deposed about the rape, against the accused.Accused has not led any evidence in defence.In his defence under Section 313 Cr.P.C statement, the accused stated that the prosecutrix and her brother wanted a share in the property of the accused, which he denied, therefore, a false report has been lodged against him.The trial Court has awarded capital punishment and made a Criminal Reference under Section 366 of Cr.P.C for confirmation of death sentence.Being aggrieved by the judgment of conviction and sentence the accused also preferred Criminal Appeal.It is submitted by learned counsel for the appellant/accused that, the entire case is based on the testimony of prosecutrix (PW-5) the daughter of the appellant , but her-6- Cr.A. No.3820/2016 AFR evidence is not satisfactory and cogent to convict the appellant under Section 302 of IPC.As per her evidence soon after the birth of female child the appellant took her in a towel and thrown into the pond which is situated near her house, on the second day the body of the deceased was recovered and thereafter she further stated that she went to her brother and thereafter on 29.03.2016 she informed to the police about the entire act of the appellant.Why prosecutrix did not report to Police soon after the incident when accused took her child, it is not explained by her.It is further submitted that the prosecution has failed to prove the age of deceased female child, the mother of the child stated that soon after birth the child was thrown into the pond, the witnesses said that the age of the child was 6-7 months and the doctor has admitted that the age of the child was 6-7 days, therefore, it is very doubtful that when the child was thrown into the pond and that particular time what was the age of that child.The autopsy surgeon has categorically stated that the placenta was seems to be recently cut, but he did not find any infection or active bleeding, therefore, the story of the prosecutrix that soon after the birth the murder was committed, becomes false, apart from that the hut in which the incident took place situated in the locality but she failed to inform anyone.The lady Doctor (PW-16) had also failed to give any evidence to this effect that from her examination-7- Cr.A. No.3820/2016 AFR of the prosecutrix, how many days before she gave birth to the child and the prosecution has also failed to put any question on this point, therefore, looking to this material evidence the prosecution has failed to prove that when the act of murder committed and what was the age of the deceased.Apart from this evidence the possibility of committing murder of deceased by the prosecutrix is more probable because she had a motive and angriness against the appellant, therefore, looking to the entire evidence the conviction under Section 302 of IPC could not sustained and appellant is entitled for acquittal.It is further argued by learned counsel that coming to the second charge of rape, the prosecution has also failed to prove this charge beyond reasonable doubt, though the DNA test report relied by the prosecution, but the possibility of mistake in this report cannot be ruled out.Therefore, the alleged offence against the appellant is not proved beyond reasonable doubt.As far as sentence is concerned, this is not a rare of rarest case in which capital punishment is warranted.Learned Panel Lawyer for the State argued that the appellant has committed rape with his daughter, which is a gruesome offence and to save himself from social boycott and bad-name he had killed the newly born child.Therefore, trial Court on correct appreciation of evidence convicted and sentenced the appellant/accused.Thus, theConsidering the rival submissions of learned counsel for the parties and on perusal of evidence led by the prosecution, it appears that the prosecutrix is daughter of accused/appellant who was living with him.Prosecutrix was subjected to lengthy cross examination but the substance of the statement made in examination in chief remain totally un-impeached.A suggestion is put to the witness that a false case has been posted against the accused at the instance of her brother, denied by her.The statement of prosecutrix is well corroborated in all particulars by her brother Santosh (PW-4) and father-in- law of her brother namely Chhanga Raikwar (PW-6) to whom prosecutrix had informed about the incident.The defense has not disputed the fact that on 28.02.2016 a body of newly born girl child was found in the pond of village Urdmaow.From the evidence of prosecution witnesses it is found that, the witness Dinesh (PW-2) gave information about the child to Police Station Gadi Malahara where Rajesh Tiwari, ASI (PW-21) registered a merge intimation Ex-P/4 and reached on the spot and prepared spot map Ex.P/3 and conducted inquest and sent the dead body for postmortem to PHC Maharajpur.Dr. Omkar Nath Singh (PW-13) deposed that on 29.02.2016 at PHC Maharajpur he performed postmortem of a newly born girl child.There was no injury found on her body.A recently cut placenta was found on the body of child.There was water found in the lungs and stomach and the death of child was due to drowning.The statement of-10- Cr.A. No.3820/2016 AFR Doctor is corroborated by postmortem report Ex.In cross examination Doctor has clarified the fact that child was newly born and the age of child 6 to 7 months was written in P.M. report only on the basis of age mentioned in application for postmortem sent by the Police.This explanation is acceptable, because in the body of child of 6 to 7 months of age, placenta cannot be found.The presence of placenta is also noticed in Panchnama of body Ex.Since, the death was due to drowning in the water, therefore, because of swelling of dead body due to water the child appeared as of older age.It is also opined by the Doctor that the death occurred within 24 hours of postmortem.This corroborates the testimony of the prosecutrix who deposed that after delivery of child the accused took the child and threw her in the pond.The death due to drowning shows that the child was alive when she was thrown in the pond in order to kill her.Therefore, the trial Court has rightly concluded that the death of child is homicidal death.The prosecutrix was examined by lady Dr. Suman Bajpai (PW-16) on 28.03.2016 after one month of incident.Dr. Bajpai in her statement deposed that at the time of examination the baby milk was coming from the breast of the prosecutrix.The prosecutrix had also informed her about the incident and delivery of child.Therefore, from the MLC report Ex.P/21, it appears that the prosecutrix had delivered a child.During investigation the blood samples of accused, prosecutrix and child were sent for DNA test.This fact is corroborated from the statement of Dr. N.K. Warsana (PW-12), R.K. Pateriya (PW-11) Lab Technician, who had collected the blood samples and also from the statement of Investigation Officer Dilip Pandey (PW-19).The DNA report Ex.She delivered the child in the house of accused in village Urdmaow .Soon after delivery she was not able to go out of the house.Whereas the accused had a motive to kill the child in order to save himself from out casting and condemnation by the family circle as well as by society. | ['Section 302 in The Indian Penal Code', 'Section 376 in The Indian Penal Code'] | Analyze the legal case and identify the corresponding section it comes under. |
193,522,552 | Privacy and secrecy are more characteristics of a conspiracy than a loud discussion in an elevated place open to public.In the present matter, the applicant Dr. Atul Krishna Bhatnagar runs a trust and institutions at Meerut i.e. Subharti Medical College etc.. The deceased Nirmal Sharma was working in the institutions run by the applicant.At one point of time, a dispute arose between one Hari Om Anand, who was also a shareholder/ partner with the applicant, and the applicant regarding share in the income of the institution.The present application has been filed by the applicant with the prayer to quash the impugned summoning order dated 13.12.2010 passed by the Special Judicial Magistrate (C.B.I.), Ghaziabad in Criminal Case No. 4143 of 2010 (CBI vs. Dr. Atul Krishna Bhatnagar and others) under Sections 120-B read with Section 302 IPC, Police Station New Delhi -C.B.I./S.C.B.-II/2008, New Delhi relating to Case Crime No. RC.1(S)/2008/SCB-II/ Delhi.Further prayer has also been made to quash the proceedings of the aforesaid Criminal Case.At the out-set, it is mentioned here that against the impugned order dated 13.12.2010 the applicant had preferred Criminal Revision No. 25 of 2011 before this Court, which, by the order dated 27.9.2012 was converted into the application u/s 482 Cr.It appears that a First Information Report (in short 'FIR') was lodged on 15.6.2006 at police station Sadar Bazar, Meerut on the information of opposite party no. 3 Tushin Bishnoi against three unknown persons and the applicant of the present case with the allegation that his brother-in-law Nirmal Sharma son of late Ram Kishan Sharma, resident of 195, Police Street, Meerut Cantt was doing pairvi of the cases relating to Subharti Medical College.Shri Atul Kumar Bhatnagar had grudge with Hari Om Anand and often forbade Nirmal Sharma to favour Hari Om Anand.Before two days at about 11.30 a.m., Atul Krishna, General Manager, Subharti Trust alongwith his two companions had gone to the house of the informant.They called out Nirmal Sharma and gave threat to him, in the presence of the informant and his sister, that if Nirmal favours Hari Om Anand, he will face dire consequences.On 14.6.2006 at 21.15 p.m. near House No. 107/2, Thaper Nagar, Meerut deceased Nirmal Sharma was done to death.In compliance of the orders dated 8.2.2007 and 31.10.2007 passed by this Court in Writ Petition No. 7865 (MB) of 2006, investigation of the matter was transferred on 23.10.2008 from Police Station Sadar Bazar, Meerut to the C.B.I., which was registered as case crime no. RC.1/(S) 2008/SCB-II/Delhi under Section 120-B read with Section 302 IPC.The C.B.I., after investigation in the matter submitted charge-sheet before the concerned Magistrate against the present applicant and other accused persons.Aggrieved with the said order, the applicant has approached this Court through the present application.Affidavits in the matter have been exchanged between the parties.Heard Shri G.S. Chaturvedi, learned Senior Counsel assisted by Shri Samit Gopal, learned counsel for the applicant and Shri N.I. Jafri, learned counsel appearing for the C.B.I. and perused the entire record.The Investigating Officer has submitted charge-sheet on the basis of inadmissible evidence.To attract the offence under Section 120-B IPC, there must be some connecting evidence showing the complicity of the applicant in the matter.At this stage, Shri Chaturvedi, learned Senior Counsel referred to the statement of witnesses recorded by the C.B.I during course of investigation and also the confessional statement recorded in the matter.He was expelled from the institution.Many persons were having enmity with the deceased, therefore, it was a blind murder.The applicant was roped in this case only on the basis of suspicion.There is every chance that some other persons would have committed the present offence.The applicant has no concern with the murder of the deceased.It was next submitted that perusal of the evidence recorded by the C.B.I. shows that essential ingredients to constitute the offence under Section 120-B IPC are lacking.The applicant never met with the other co-accused persons.Call details collected by the C.B.I. to connect the applicant with the present offence is also not sufficient to connect him with the present offence.Details of talk said to have been made on the mobile / telephone was also not made clear by the prosecution.The extra-judicial confession or confessions said to have been made in the matter also does not link the applicant with the present offence.On the other hand, learned counsel appearing for the CBI has submitted that there is sufficient evidence to connect the accused applicant with the present offence.Circumstantial evidence also clearly shows the complicity of the accused applicant in the present matter.Deceased was employed in the institution of the applicant and due to some dispute arose between them, he was removed from the employment.The deceased was about to make press conference to disclose the wrongs done by the applicant.Serious threat for dire consequences were given by the applicant to the deceased.Other accused persons were in contact of the applicant and one of them was working in the Subharti institution itself.The statement of witnesses recorded by the CBI during course of investigation clearly shows the complicity of the accused applicant with the present matter.Confession / extra-judicial confession recorded in the matter are also sufficient to connect the accused applicant with the present offence.It is further submitted that essential ingredients to constitute the offence under Section 120-B IPC are available in the evidence collected during investigation.The conduct of the applicant and the circumstances prior to or after the incident clearly shows the involvement of the accused applicant with the present matter.The confession of co-accused can be read against the accused applicant taking recourse of the provisions of Section 30 of the Evidence Act. Motive against the accused applicant is sufficient to commit the present offence.Since deceased was fully aware about the wrongs / illegal acts done by the applicant, he, with the help of other co-accused, got eliminated the deceased.It was further submitted that at this stage, the Magistrate dealing with the matter is required to see only prima-facie case.There is no requirement of law to analyze the evidence at par with trial, therefore, the Magistrate concerned has rightly passed the impugned order against the accused applicant.There is direct evidence that wife of the one of the accused had made call to the applicant just after the incident, which also shows complicity of the accused applicant with the present matter.It is evident from the record that Hari Om Anand was expelled/ removed from the trust by the applicant.Not only this, the deceased and other persons, who were favouring Hari Om Anand, were also expelled from the institution.It is also evident from the record that after their expelling / ouster, deceased and Harim Om Anand had made several complaints to the authorities including the Income Tax department regarding irregularities / illegalities done by the applicant.On the complaint, the Income Tax Department had imposed fine upon the institution and also directed for recovery of the said fine.As mentioned above, the First Information Report in the matter was lodged by one Tushin Bishnoi, who was the relative of the deceased.In the statement recorded under Section 161 Cr.P.C. by the C.B.I., this witness has stated that he was not present on the spot at the time of the incident but he has supported the events happened / taken place between the applicant and the deceased prior to the incident.He has also stated that his daughter Sunita, who was later on murdered, at that time had come to his house with a bag containing Rs. 65,000/- lakhs.One Shyam Prada, the wife of the deceased has stated that two days before the incident, on the instigation of the applicant some unknown persons had given threat to the deceased.It has also come in the evidence that at one point of time before the incident, the applicant tried to take back the deceased in the employment and when deceased denied, he was given threat to kill.Statement of Sanjay Gautam further reveals that co-accused Kuldeep was having good links / relations with the applicant and spent most of time in the Subharti premises.Hari Om Anand has also stated the malpractices done on the part of Subharti Trust.He admitted that deceased after his removal was working with him and complaint had also been made against the Trust by this witness as well as by the deceased.Conduct of the accused applicant and the circumstantial evidence collected by the Investigating Officer during course of investigation are also sufficient to infer that applicant hatched conspiracy with other accused persons to accomplish the object.Relation of the accused applicant with co-accused persons and their conduct before and after the commission of the offence is also sufficient to presume the existence of meeting of mind to hatch the conspiracy between the applicant and other co-accused persons to eliminate the deceased from the way of the applicant.The application being devoid of merits is liable to be dismissed and the interim order is liable to be vacated.The application is accordingly dismissed.The interim order stands vacated.Order Date :- 03.11.2015 safi | ['Section 120B in The Indian Penal Code', 'Section 302 in The Indian Penal Code'] | Analyze the legal case and identify the corresponding section it comes under. |
193,525,287 | Stab injuries over left deltroit region:(a) 3" x 2" x 2", (b) Left Scapular area, two in number - 5" x 2" x 2" each, (c) over nape of neck one in number - 3" x 2" x 2", (d) 11 over right scapula region one 3" x 2" x 2".Each of number (b) injuries penetrated in lungs.2. (a) Blast injuries with lacerated injuries over lower part of back 2" x 1" x 1".(b) Over right buttock 2" x 1" x 1" with abrasions and charring of the surrounding skins.Further P.W.8 has stated that he took the injured Ali Mahammad to the operation theatre and undertook some minor operations.He also took care of the injured Ali Md. up to some time before 8.05 p.m. on 9th January, 1997 and he noted down in the bed-head ticket (Ext.9) that Superintendent should be informed for making necessary arrangement for recording dying declaration of the patient as the patient was under the expectation of death.According to P.W.8 the nature of injuries which he noticed in the body of Ali Mahammad was truly shocking and in shock creating condition.Such injuries, according to him, might be caused by explosive substances like bombs and by bhojali.According to P.W.8, human body ordinarily contains 7 litres of blood and as an effect of the injuries he noticed in the body of victim Ali Mahammad considerable loss of blood resulting in changes in fluid balance and various degrees of shock.He has also stated that the injuries which he noticed in the body of the victim Ali Md. might cause depression of vital function as a result of shock due to trauma resulting in instantaneous death or after a while in ordinary course of nature.It is the admitted situation that the victim Ali Md. died before recording of his dying declaration.It is in evidence of P.W.8 that dying declaration was suggested at about 8 p.m. of 9th September, 1997 and the victim died at 8.20 p.m. i.e. after 4 hours of his admission to Hospital.In our considered view, for want of sufficient time dying declaration of the victim could not be recorded for which merit of the present case cannot be curtailed.P.W.9, Dr. A.K. Saha, also happens to be another doctor (Surgeon) of Rampurhat S.D. Hospital.According to him, on 9th January, 1997 at about 8.05 p.m., he examined victim Ali Mahammad who was admitted to S.D. Hospital, Rampurhat, under the supervision of Dr. S.K. Mondal (P.W.8) and found the patient in gasping condition and ultimately he died on the same day at about 8.20 p.m. P.W.10, is the Autopsy Surgeon who as per identification of P.W.7, held post-mortem examination over the dead body of deceased Ali Mahammad on 10th January, 1997 and found the following injuries: -"Total five stab injuries present.One is upper part of left arm, four are present on upper part of back.All injuries are nearly 4" x 2" x bone-deep, penetrating deep tissues.On dissection, he found the following:- 13 (1) Left lung found injured.Blood and clots present in thorasic cavity.(2) Left leg and left knee joint found injured by bomb-injury, blackened skin present, muscles and bones of left leg severely injured."According to P.W.10, the death of victim Ali Mahammad was due to shock and hemorrhage for the injuries sustained by him which were ante-mortem and homicidal in nature.P.W.11, Sri Sanjit Mazumdar, a Judicial Officer who recorded the statements under Section 164 of the Criminal Procedure Code given by P.W.3 and P.W.4, namely, Nayeem Ali and Mahabul Haque and proved the same as Ext.4 and Ext.6 P.W.12, Falguni Majhi, is the Investigating Officer, who held inquest over the dead body of the deceased Ali Mahammad at Rampurhat S.D. Hospital and sent the dead body to the hospital morgue through Dy.G.C. H.G. Jagannath Mistri (P.W.7) for post-mortem examination.According to P.W.12, he seized some articles from the person of the deceased Ali Mahammad, namely, one green coloured full sleeve terricotton shirt in torn condition with blood-staind marks and bomb burnt and also one mufler with blue, green and red check and one blue underpant and one jangia under a seizure list (Ext.2).The articles seized by P.W.12 and produced before the Trial Court were marked as Mat.Ext-1 collectively.He has stated that witnesses Nayeem Ali and Mohabul Haque (P.W.3 and P.W.4) appeared before him and wanted to make voluntary statement before the Judicial Magistrate.From Ext.4 and 6 it could be ascertained that P.W.3 and P.W.4 made voluntary statements under Section 164 Cr.Therefore, having gone through the evidence and materials-on-record as also giving due regard to the submissions of the learned Counsel for both the parties, it could safely be said that victim Ali Md. was killed due to use of bombs and bhojali by the accused persons on 9th January, 1997 at about 2.30 p.m on the morrum road of village Rongaipur in front of the house of Morjem, Mohohar and Monjur.Accordingly, in our conscious consideration, P.O. happens to be the morrum road of village Rongaipur and no where else.The Autopsy Surgeon (P.W.10) who held post-mortem examination over the dead body of the deceased Ali Mahammad opined that the death of Ali Mahammad was due to shock and hemorrhage for the serious injuries sustained by him which was ante-mortem and purely homicidal in nature.From the evidence of P.Ws.No.1 to 6 and P.W.10, it would be conspicuous that the appellants used bombs and bhojali in killing the victim Ali Md. Non-mentioning of the names of the assailants before the doctor is not at all fatal and as such there cannot be any irregularity or legal infirmity for non-recording the names of the assailants by the doctor.Urgent Photostat certified copy, if applied for, be handed over to the parties as early as possible.(Md. Abdul Ghani, J.) KALIDAS MUKHERJEE, J.I agree. | ['Section 34 in The Indian Penal Code', 'Section 326 in The Indian Penal Code', 'Section 302 in The Indian Penal Code', 'Section 307 in The Indian Penal Code'] | Analyze the legal case and identify the corresponding section it comes under. |
193,537,517 | Initially DD No.4 (Ex.PW-18/B) was recorded at PS Sultan Puri, 4:25 a.m., to the effect that a quarrel had taken place in Prem Nagar, Gali No.3 near Subhash STD booth at house No.E/2/72A. Subsequently DD No.5 (Ex.PW18/A) was recorded on the statement of PW-1 to the effect that a neighbour had killed her son in block E-2, Prem Nagar III near Subhash STD booth.Initially, PW-16, ASI Krishan Kumar reached the spot at about 6:30 p.m. followed by Inspector Mir Singh (IO) of the case.A No.485/2011 Page 1 of 7The IO proceeded to record the statement (PW-1/A) of Smt.Madhu and made his endorsement Ex.PW-24/A at 11:00 a.m. and sent it to the police station for registration of a case.The facts of the case can be extracted from para 2 and 3 of the impugned judgment as under:In her statement to the police Smt.Madhu Devi told the police that she was residing at the above stated address and her husband used to work in a plastic factory at Mundka.On 11.06.06 at about 2:45 a.m. his elder son Deepak aged 4 years woke up to have some water.His younger son Roshan(deceased) also woke up with him and asked for some water.Deepak gave water to Roshan and said that he wanted to urinate.On this she told Deepak to open the bolt of the door and urinate near the tap.After some time Deepak came back running and he was frightened.She came outside with Roshan in her lap and saw that in the aangan two persons were standing and one of them was accused Rizwan who was their neighbour and they had a quarrel with him on the point of money transactions.The other person who was with accused Rizwan gagged her mouth and accused Rizwan went inside the room and after some time when he came back, he bolted the door of the room from outside leaving her husband inside the room.Thereafter accused Rizwan snatched her son Roshan from her and started strangulating him and when she tried to save her son, the associate of Rizwan gave her slaps.Thereafter accused Rizwan had put Roshan on the ground and started crushing his neck from his legs.Associate of accused Rizwan lifted Roshan from the ground and then again threw him on the floor and they both ran away from there.Thereafter she started crying and raised alarm and made her husband awake and called the police from the house of her relatives in the neighbourhood.Meer Singh made endorsement and got the present case registered.During investigation scaled site plan was got prepared through draftsman.On 11.06.06 ASI Krishan Kumar got postmortem on the body of deceased Roshan conducted and the doctor in the postmortem report opined the cause of death as asphyxia as a result of pressure over neck structure subsequent to throttling.On 12.06.06 complainant made a statement that the other person who was with accused Rizwan in commission of ofence on 10.11.06 was Janak Raj @ Lekhi, who is having a grocery shop at D Block, Prem Nagar.She further stated that she had not disclosed the name of accused Janak Raj@ Lekhi earlier as he had threatened her not to disclose his name otherwise he would kill her second son also.She also stated that as she had lodged a complaint against accused Rizwan regarding theft at her house but later on with the intervention of neighbours the matter was settled.She further stated that accused Rizwan and Jank Raj @ Lekhi started threatening her that she had defamed accused Rizwan and they will take revenge for the same and they became enmical towards her.Due to this enmity, accused Rizwan and Janak Raj @ Lekhi committed murder of Crl.A No.485/2011 Page 2 of 7 her son Roshan.On 15.06,06 accused Rizwan and Janak Raj @ Lekhi were arrested and their disclosure statements were recorded.Place of incident was got photographed.A No.485/2011 Page 7 of 7G.P. MITTAL, J. (ORAL)This case relates to the murder of an infant Roshan who was the son of PW-1 Smt. Madhu Devi, aged about 2-2 years.The Appellant having been convicted for the offences under Section 302/452/34 IPC by order dated 19.03.2011 was sentenced (by order dt.22.03.2011) to undergo life imprisonment and to pay a fine of `20,000/-, in default of payment of fine to undergo simple imprisonment for three years under Section 302/34 IPC.He was further sentenced to undergo rigorous imprisonment for seven years and to pay a fine of `5,000/- or in default of payment of fine to undergo simple imprisonment for one year for the offence punishable under Section 452/34 IPC.The Appellant challenged the conviction and order of sentence.On the statement of Madhu Devi, Insp.Viscera and blood gauge which were preserved by the doctor during postmortem were sent to FSL, Rohini for analysis.Statements of witnesses were recorded and thereafter challan was filed against accused persons for trial of offences punishable u/s 302/452/34 IPC."A No.485/2011 Page 2 of 7A report under Section 173 Cr.P.C. was filed by the police.One Janak Raj was also sent up for trial along with Appellant.The Appellant and the co-accused Janak Raj pleaded not guilty to the charge.The prosecution examined 24 witnesses.By impugned order, the Trial Court acquitted Janak Raj holding that there were doubts about his identity.The Appellant was convicted holding that the case was fully established against him.We have heard Mr.K.B.Andley learned senior counsel for the Appellant and Mr.Sanjay Lao learned APP for the State.It is urged by counsel for the Appellant that according to the prosecution the incident took place on 11.06.06 at about 2:45 AM.The first information about the incident was recorded by DD No.4 (Ex.PW-18/B) at 4:25 AM.It is the prosecution's case that there was some discrepancy in the DD (Ex.PW-18/B) about the address where the incident took place and, therefore, a second DD i.e. DD No.5 (Ex.PW-18/A) was recorded in the police station at 06:05 AM.The first DD entry, it is argued, was regarding a quarrel whereas the second DD was regarding the murder of the child of the complainant aged 2-2 years.It is submitted that, although the details about the age of the child were given in the second DD, yet, the name of the assailant, especially the Appellant, who was well known to Madhu (PW-1) (as they had a dispute) was not disclosed.It is urged that the cross-examination of PW-1 would reveal that she did not see the assailant and the Appellant with whom she had animosity was falsely implicated in the case to work out a blind murder case.This, argues the learned counsel, is fortified from an unexplained delay of 5-6 hours in recording the FIR.A No.485/2011 Page 3 of 79. To appreciate the contention raised on behalf of the Appellant it would be appropriate to refer to PW-1's testimony.She deposed that on 10th of a particular month in the year 2006 she went to bed around 11:30 PM.The main light was switched off and only the night lamp was on.At about 2/2:30 AM her son Deepak got up to pass urine.She directed him to relieve himself near the tap.She deposed that the main gate of the house was locked.The door of the room in which they were sleeping was open.Her son Deepak returned and looked scared.When she asked for the reason he did not disclose anything and simply embraced her.Deepak asked for water and she asked him to have it from the pitcher.In the meanwhile her younger son Roshan also got up and also asked for water.Deepak gave him water in the same glass.She came out with Roshan in her lap.As soon as she entered the courtyard she saw two persons, one of whom caught hold of her hand and the other slapped her.When she cried she was gagged.Out of the two persons one was Rizwan (the Appellant), the other person had muffled his face with a handkerchief.Rizwan caught hold of her son Roshan by the neck, pressed it and then threw him on the floor.She started crying, on which the Appellant and his associate fled the spot.While leaving, Rizwan's associate put his foot on her son.She lifted Roshan and found him dead.She deposed that her husband could not come to her rescue as the room in which he was sleeping was bolted (by the accused) from outside.She opened the main gate to call the police.The witness then deposed about an earlier theft incident, committed by Rizwan from her house and the matter having been settled by a memo Ex.PW-1/D through which Rizwan settled the accounts with her.She deposed that in spite of the compromise, Rizwan started threatening her that since he was insulted by her he would avenge it.In cross-examination, she deposed that on the night of the incident it was dark as the lights were off.She gave a version contrary to her examination-in-chief when she deposed that her husband slept in the same room where she had slept with her children.She stated that her husband was not alcoholic and on that day did not go to sleep after taking liquor.She deposed that her son Deepak who had gone to pass urine in the night did not disclose about Rizwan's presence.She deposed that she could not state with certainty if both the persons in the courtyard had muffled their faces.She stated that there was no exchange of arguments so as that she could identify Rizwan by his voice.When a specific question was put to the witness that Rizwan was not present at the time of the incident the witness deposed that she had Crl.A No.485/2011 Page 4 of 7 collapsed on the dead body of her son and, therefore, could not state about Rizwan's presence.A No.485/2011 Page 4 of 7It is important to note that in her examination-in-chief PW-1 deposed that her husband could not come out (at the time of the incident or even thereafter) as his room was bolted from outside by the assailants.In cross-examination she changed her version and deposed that her husband slept in the same room in which she was sleeping with her kids.The conduct of the husband (PW-4) in not getting up on hearing commotion and not lodging report with the police is quite strange.From the deposition of Smt.Madhu Devi (PW-1) it is clear that she was sure of the Appellants identity as he was Madhu's neighbour and there was also a previous incident of theft being committed by the Appellant at complainant's house, the dispute was settled a few days before this incident.It is intriguing that neither in the DD (Ex.-PW-18/B) recorded at 4:25 a.m. nor in DD (Ex.-PW-18/A) recorded at 6:05 AM, the name of the Appellant was mentioned.Sometime sketchy information is given to the police merely to enable it to reach the spot and take further action.That is not the case here.DD No.5 (Ex.PW-18/A) mentioned some details i.e., that the complainant's son aged 2-2 years was killed.As a natural human conduct the complainant would have mentioned the assailant's name if she was really aware of it.According to PW-16 ASI Krishan Kumar, on receipt of the DD he could not reach the spot because of confusion about the house number.However, when he received the subsequent DD (No.5) through Constable Ratti Bhan he immediately reached the spot.In cross-examination ASI Krishan Kumar disclosed the time he reached the complainant's house, as 6:20 AM.He stated having met the complainant Madhu Devi and her husband, yet he preferred not to record their statement.He deposed to remaining at the spot for two hours.Inspector Mohd. Iqbal, SHO of the police station and the crime team also reached the spot in his presence at 7:20/7:30 AM.It is not inexplicable why the complainant's statement was not recorded either by ASI Krishan Kumar or by the SHO of the police station though commission of a serious offence such as murder had been brought to their notice.PW-16 went on to add that the additional SHO Inspector Mir Singh reached the spot in his presence at 8:30 a.m. He was the IO of the case and recorded the complainant's statement.Rukka Ex.PW- 24/A was recorded on the statement of Ex.A No.485/2011 Page 5 of 7 Devi might have been recorded at 10:45 AM.The prosecution is under an obligation to explain the delay from 6:20 AM when ASI Krishan Kumar reached the spot followed by the SHO, at least Inspector Mir Singh who was assigned the investigation ought to have given some explanation as to why he did not record the statement of the complainant immediately at 8:30 AM.But no explanation whatsoever has been given either by the complainant or by the IO for this delay in recording the complainant's statement on the basis of which the FIR was ultimately recorded.A No.485/2011 Page 5 of 7In Meharaj Singh v. State of U.P. (1994) 5 SCC 188 while emphasizing the importance of recording a prompt FIR the Supreme Court observed as under:This delay assumes importance in view of the fact that the complainant had animosity against the Appellant and his name did not find mention in DDs Ex.PW 18/A and PW-18/B.A No.485/2011 Page 6 of 7The impugned order, therefore, cannot be sustained and the appeal has to succeed.In view of above discussion the impugned order is set aside.The Appellant's personal bond and the surety bond are cancelled and he is ordered to be set at liberty, if not required in any other case. | ['Section 34 in The Indian Penal Code', 'Section 452 in The Indian Penal Code', 'Section 302 in The Indian Penal Code'] | Analyze the legal case and identify the corresponding section it comes under. |
193,539,819 | It is alleged that Thakurdas died due to head injury caused by the persons having sharp cutting weapons.The applicants were not aware that the co-accused would assault the deceased Thakurdas in such a forceful manner with the sharp cutting weapons.Heard the learned counsel for the parties.At this stage, as prayed by the learned counsel for the applicants, the application under Section 439 of the Cr.P.C. filed by the applicant Hardayal is hereby dismissed being withdrawn.Since both the applications are connected with the same crime, therefore, decided by the present common order.The applicants Harcharan and Chhotu are in custody since 05.01.2016 whereas applicants Matadeen and Dharmendra are in custody since 13.01.2016 relating to Crime No.06/2016 registered at Police Station Dheerpura, District Datia (M.P.) for the offence punishable under Sections 147, 148, 149, 341, 323, 325, 294, 436, 307, 302, 506B of IPC.Learned counsel for the applicants submits that the applicants are the reputed citizens of the locality.Out of them applicant Harcharan is an old person aged 60 years whereas applicants Dharmendra and Chotu are under the age group of 19 to 20 years.None of the applicants [Harcharan, Chotu, Matadeen and Dharmendra] has criminal 2 Mcrc.5765.2016 Harcharan and other Vs.State of M.P.Mcrc No.5813/2016 Matadeen and others Vs.State of Madhya Pradesh past as alleged against them.In the present case, it is alleged against the applicants Harcharan, Chotu, Matadeen and Dharmendra that they assaulted and killed the deceased Thakurdas, however, Thakurdas had sustained only six injuries whereas 13 to 14 persons were implicated in the crime.No common intention of the applicants [Harcharan, Chotu, Matadeen and Dharmendra] can be presumed with the co-accused persons Bhagwan Singh or Hardayal for offence under Sections 302 and 307 of IPC, hence, no such offence is made out against the applicants either directly or with help of Section 34 or 149 of IPC.It is not alleged against any of the applicants [Harcharan, Chotu, Matadeen and Dharmendra] that he set fire on any house and hence prima facie no offence under Section 436 of IPC is made out against them.Under these circumstances, the applicants pray for bail.Learned Public Prosecutor opposes the application. | ['Section 302 in The Indian Penal Code', 'Section 436 in The Indian Penal Code', 'Section 307 in The Indian Penal Code', 'Section 149 in The Indian Penal Code', 'Section 325 in The Indian Penal Code', 'Section 148 in The Indian Penal Code', 'Section 323 in The Indian Penal Code', 'Section 147 in The Indian Penal Code', 'Section 34 in The Indian Penal Code', 'Section 294 in The Indian Penal Code', 'Section 341 in The Indian Penal Code'] | Analyze the legal case and identify the corresponding section it comes under. |
193,542,465 | As per complaint there was smell of diesel in the mouth of the deceased.It was also alleged that about 300 meters away one empty can of diesel was found.CRR No.1058 of 2013 The DIG, CID (West Bengal) Versus Kartick Ghosh Mr. Souvik Mitter ...for the petitioner Mr. Sanjoy Banerjee ...for the opposite party The DIG (CID) West Bengal has filed this application under Section 401 read with Section 482 of the Code of Criminal Procedure for quashing order dated 15th of January, 2013 passed by learned Additional Chief Judicial Magistrate, Durgapur in G.R. case No.885 of 2011 in connection with Kanksa Police Station case No.150 of 2011 dated 09.07.2011 under Sections 302 / 201 and 120 B of the Indian Penal Code.The O. P. Kartick Ghosh lodged a complaint dated 21st of June, 2011 in the Court of learned ACJM Durgapur alleging that on 10th of February, 2011 at about 7.30 P. M. his son Arup Ghosh went out from his house to purchase sweets but did not return home and on next day at about 7.30 A.M. his dead body was found by the side of a pond which was about kilometer away from 2 their house.It was alleged that though he informed local P.S. but except making arrangements for the post mortem examination of the dead body no specific case was started in spite of repeated requests by the complainant.The court accordingly forwarded the same to Kanska Police Station for starting an investigation under Section 156 (3) of the Code of Criminal Procedure.This initiated Kanska Police Station case No.150 of 2011 dated 09.07.2011 under Section 302/ 201/ 120 B of the Indian Penal Code.After investigation the second I. O. submitted a report in the final form dated 2nd of August, 2012 as no one could be connected with the unnatural death of the victim.Defacto complainant filed 'Naraji' petition praying for further investigation by CID (West Bengal).Mr. Sanjoy Banerjee appearing for O. P. complainant submits that the local P. S. did not entertain the O. P. / defacto complainant initially when he approached them for starting a case.He submits that the 4 local P. S. started investigation reluctantly only when the complaint was forwarded to them by the Court under Section 156 (3) of the Code of Criminal Procedure.It further appears from the enclosed letter of the defacto complainant addressed to the DIG (CID) West Bengal that there was scope for further thorough investigation to unearth the truth.The revisional application stands disposed of accordingly.Urgent photostat certified copy of this order be supplied to the learned counsels of the parties, if applied for. | ['Section 120 in The Indian Penal Code', 'Section 302 in The Indian Penal Code', 'Section 156 in The Indian Penal Code', 'Section 201 in The Indian Penal Code'] | Analyze the legal case and identify the corresponding section it comes under. |
193,545 | P.W. 1 Vijaya is the wife of P.W. 2 Kolanji.The appellant Rajendran is the younger brother of P.W. 2 Kolanji.Both the brother, the appellant and P.W. 2 were residing in adjacent houses in the same street.On 1-8-1987 at about 8.00 p.m., there was a quarrel one Jagathambal and one Vijayakumarti, the mother and wife of the appellant, as it was alleged that the said Jagathambal took away the sugarcane crops belonging to the wife of the appellant without her knowledge.P.W. 2 Kolanji, his father Amirthalingam and two others came there, pacified and separated them.At about 10.45 p.m. on the same day, the appellant Rajendran, who had been outside came back home.He was informed by his wife Vijayakumari stating that in the quarrel.She was assaulted by the parents of the parents of the appellant and P.W. 2 Kolanji.Having got enraged on hearing this the appellant took out an iron rod (M.O. 1) the length being 1 1/2 feet, and rushed towards the house of his mother, in order to beat her.On the way P.W. 2 Kolanji, his brother stopped him asked (Vernacular matter omitted).Then the appellant attempted to beat P.W. 2, his brother with M.O. 1 iron rod.Sensing danger, P.W. 2 ran immediately from the place.All the neighbours who gathered there caught hold of the appellant and prevented him from proceeding further.In the mean time, P.W. 2 Kolanji concealed himself by entering into his house.At that time P.W. 1 Vijaya the wife of P.W. 2, was standing at the entrance of the house with her one year old baby Vijayarani in her arm.When the appellant came running towards the house of P.W. 2, P.W. 1 Vijaya asked (Vernacular matter omitted).At that time, P.W. 1 Vijaya ducked by turning her head one side and unfortunately, the hit aimed at P.W. 1, fell on the head of the child the tip of the iron rod (M.O. 1) also hit the left chest of P.W. 1 Vijaya.The Child Vijayarani died at the spot itself.Then the appellant with M.O. 1 iron rod, after threatening the witnesses ran away from the scene of occurrence.At that time the electric bulbs in the house of P.W. 2 Kolanji and in the neighbouring houses were burning.At about 7.00 a.m., on the next day i.e. on 2-8-1987 P.W. 1 Vijaya and others came to Sethiyathope Police Station, P.W. 8 Sivagurunathan, Sub-Inspector of Police, who was then in charge of the Police Station, recorded the statement (Ex. P. 1) given by P.W. 1 and obtained her signature thereon.He registered the case in Cr. No. 177 of 1987 under Sections 302 and 324, I.P.C. Ex. P. 8 is the printed F.I.R. He sent Ex. P. 1 statement and Ex. P. 8 F.I.R., to the concerned Magistrate and the copies to higher officials.He sent P.W. 1 Vijaya along with Memo to the Hospital for treatment.P.W. 7 Doctor Rajeswari, examined P.W. 1 Vijaya at 8.00 a.m. and found a contusion of 1" in length x 1/2" in breadth on her left chest upper part, which according to P.W. 7 was a simple injury.She issued Ex. 7 accident Register.On receipt of copy of F.I.R. at 9.00 a.m. P.W. 9 Kandasany, Inspector of Police went to the spot at 9.30 a.m., and prepared Ex. P. 2 observation Mahazar and Ex. P. 9 rough sketch in the presence of P.W. 4 Kulasekaran, and another.Between 10.00 a.m. and 12.00 Noon, he conducted inquest over the dead body of the child Vijayarani.Ex. P. 10 is the inquest report.He examined P.W. 1 Vijaya P.W. 2 Kolanji, P.W. 3 Ramakrishnan and others.Thereafter he sent the dead body of the child along with Ex. P. 5 requisition through P.W. 6 Md. Jinna, Police Constable for post-mortem.P.W. 6 Doctor Sundaravadanam, at 3.15 p.m. conducted post-mortem on the body of the deceased Vijayarani and found the following injuries :-"(1) AM Diffuse swelling the right lateral aspect of head extending to the fore-head, vertex of scalp up to occipital region.On dissection the right parietal temporal bones were fractured into six pieces.This appeal is directed against the judgment dated 4-11-1989 in S.C. No. 25 of 1988 on the file of Additional Sessions Judge, South Arcot District at Cuddalore, convicting the appellant under Section 326, I.P.C. and sentencing him to undergo RI for three years and to pay a fine of Rs. 300/- in default to undergo R.I. for three months, also convicting him under S. 324, I.P.C., and sentencing to R.I. for six months.The substantive sentences were directed to run concurrently.Originally, the appellant was tried for the offences under Sections 302 and 324, I.P.C., on the allegation that on 1-8-1987 at about 11.00 p.m. he gave a fatal blow with an iron rod on the head of the deceased vijayarani, a one year old baby, and also caused simple injury with the same iron rod on the left chest of one Vijaya (P.W. 1) the mother of the child Vijayarani.On behalf of the prosecution 9 witnesses were examined, 10 exhibits were filed and M.O. 1, the iron rod was marked.The facts leading to the conviction need narration :-There was ecchymosis in the scalp.There was extra dural clot 200ml.Dura intact.Brain covered with blood.Brain 30 gms.Heart Chambers-empty pale, liver-pale 350 gms.Bladder empty.Hyoid bone intact.Eyes closed.Tongue inside mouth.Lungsboth lungs pale, stomach contained partially digested rice and curd like milk.Intestine distended with gas." He issued Ex. P. 6 post-mortem certificate and opined that the child died of shock and haemorrhage due to the head injury.On 13-8-1987 at 3.00 p.m. the appellant Rajendran was arrested by P.W. 9 Inspector of Police, in the presence of P.W. 4 Kulasekaran, village Administrative Officer and on the confession of the appellant, the admissible portion of which is Ex. P. 3, M.O. 1 iron rod was recovered by P.W. 9 Inspector in the presence of witnesses under Ex. P. 4 mahazar.After the completion of investigation P.W. 9 Inspector of Police filed the charge sheet in Court on 8-10-1987 against the appellant.After the examination of witnesses, the appellant was questioned under Section 313 Cr.P.C. to explain the incriminating circumstances found against him in evidence brought on record, he denied his complicity in the crime.On termination of trial, learned Additional Sessions Judge, found him guilty under Section 326, I.P.C. dealt with the appellant as referred earlier.Aggrieved over the same, the present appeal has been preferred by the appellant.Miss Rajeswari, learned Counsel representing Mr. R. Balasubramanian, learned Counsel for the appellant took me through the entire evidence and judgment of the trial Court and contended that there are various contradictions in the evidence adduced by the prosecution witnesses and so it cannot be contended that the prosecution has proved its case beyond reasonable doubt and as such the benefit of doubt accrued out of these vital contradictions must be given to the appellant and in that situation, the appellant is entitled for acquittal.I have heard, learned Government Advocate, who countered the submissions made by learned counsel for the appellant.P.W. 1 Vijaya and P.W. 2 Kolanji are the eye-witnesses in this case.Immediately after the occurrence, the first information report has been given by P.W. 1 to the police station, which has reached the concerned Judicial Magistrate without any delay.The evidence adduced by P.Ws. 1 and 2 is cogent and convincing and nothing has been elicited from their cross-examination to discredit their testimony.It is relevant to point out that the appellant happened to be the brother of P.W. 2 Kolanji.There is no necessity for P.Ws. 1 and 2 to speak falsehood against the appellant.It is a very unfortunate case, in which one year old baby, for no fault of her, has been subjected to death, because of the blind anger, that the appellant had against his mother, who alleged to have assaulted his wife.The evidence of ocular witnesses has been affirmed by the medical evidence, as spoken to by P.W. 6 Doctor Sundaravadanam, who conducted post-mortem over the body of one year old baby Vijayarani and by P.W. 7 Doctor Rajeswari, who gave treatment to P.W. 1 Vijaya, which proves the prosecution case to the hilt.It is also brought on record, that at the time of occurrence, the electric lights in the house of P.W. 2 Kolanji and in the neighbouring houses were burning, which fact has been mentioned in Ex. P. 2, observation mahazar and in Ex. P. 1, statement given by P.W. 1 to the police, which is the earlier document.In the above circumstances, there is no difficulty in coming to the conclusion that the appellant and the appellant alone has perpetrated this inhuman crime.The learned Additional Sessions Judge, Cuddalore, has elaborately discussed about the nature of the offence by referring various decisions of this Court, and come to the conclusion that the offence would only fall under Section 326, I.P.C. and not under Section 302, I.P.C. Though, I am not in agreement with the reasonings given by the trial Court, for convicting the appellant for the offence under Section 326, I.P.C., instead 302, I.P.C., I am confined in this appeal with the question, whether there are materials available on record to prove at least for the offence under Section 326, I.P.C. as there is no appeal from the State in respect of acquittal of the charge u/S. 302, I.P.C. In the light of the ample material available in this case, I have no hesitation to conclude that the case has been proved by the prosecution beyond reasonable doubt.In so far as the offence under Section 323, I.P.C. is concerned, the evidence of P.W. 1 Vijaya, the injured is clear enough to hold against the appellant.The ocular version of P.W. 1 and P.W. 2 coupled with the evidence of P.W. 7 Doctor would clinchingly prove the attack of the appellant on P.W. 1 Vijaya with M.O. 1 iron rod. | ['Section 326 in The Indian Penal Code', 'Section 324 in The Indian Penal Code', 'Section 302 in The Indian Penal Code', 'Section 323 in The Indian Penal Code'] | Analyze the legal case and identify the corresponding section it comes under. |
193,552,973 | -: 2 :-Brief facts of prosecution case are that on 30/03/2001 at about 11.30 AM to 12.00 Noon son of Ishwarlal and nephew of Vinod quarreled with each other.Ishwarlal intervened and separated them.After some time Shankar armed with iron pipe, Vinod armed with wooden stick, Sanjay armed with Farsa, Ravi and Kishore armed with iron pipe, Munnibai having a piece of stone came.Shankarlal asked Ishwarlal why he shouted on his grandson, he will not let him alive.Then they started beating Ishwarlal causing injuries on his jaw, face, head, back, chest and nose.Jitendra, Satyanarayan, Sohanlal saved them.Sohanlal also received injury during the incident.Ishwarlal was taken to Hospital in a injured condition.Report was lodged upon which crime No.150/2001 has been registered at P.S.-Manak Chowk, Ratlam.Ishwarlal and Sohanlal were sent for treatment to Hospital, Ishwarlal died.On receipt of confirmation of death of Ishwarlal, merg intimation was recorded and Panchanama of dead-body Ex.P/25 was prepared and dead-body was sent for postmortem examination.During investigation B.P. Chouhan (PW/12) recorded the statement of witnesses.Prepared the site map and collected the simple and blood stained earth.C.C. as per rules.(Delivered on 03nd day of September, 2015) PER PALIWAL, J. :-This criminal appeal has been preferred under Section 374 of Cr.P.C. Being aggrieved with the conviction recorded in S.T. No.182/2001 by III Additional Sessions Judge, Ratlam whereby the appellants Shankerlal, Vinod, Sanjay, Kishore, Ravi have been convicted under Section 302 of IPC and sentenced to undergo life imprisonment and to pay fine of Rs.500/-, in default of payment of fine aforesaid appellants has to undergo six months RI.Appellant Munnibai has been convicted under Section 302 read with Section 149 of IPC and sentenced to undergo life imprisonment and to pay fine of Rs.500/-, in default of payment of fine appellant Munnibai has to undergo six months RI.Appellants have also been convicted -: 2 :- under Section 148 of IPC and sentenced to undergo one year RI and to pay fine of Rs.100/-.In default of payment of fine appellants has to undergo one month RI.Appellants were arrested and weapon of offence has been seized from their possession.Seized articles were sent for examination by FSL.Human blood were found on the seized weapon and on clothes of the deceased.After completion of investigation charge-sheet has been filed.After committal learned trial Court framed the charges and explained to appellants who have abjured their guilt and claimed trial.Their defence was that they have been falsely implicated.The prosecution has examined as many as 10 witnesses to prove its case and in defence none has been examined.-: 3 :-After having scanned the evidence and material learned trial Court convicted the appellants and sentenced them as indicated in para 1 of this Judgment.Being aggrieved this appeal has been preferred.No independent witness have been examined though available.It is further submitted that the appellant Ravi was juvenile at the time of alleged incident, hence appellant Ravi ought to have been tried by the Juvenile Justice Board.It is further submitted that the learned trial Court failed to consider that the incident took place all of sudden without premeditation on account of quarrel taken place between the children while playing therefore the intention of the appellants was not to cause death of the deceased.Per contra, on behalf of the respondent/State Deputy Government Advocate supported the judgment of learned trial Court and submitted that Jitendra (PW/3), Satyanarayan (PW/5), Sohanlal (PW/9), Shugnabai (PW/10) have categorically stated that appellants came armed with weapons and gave beating to Ishwarlal.Testimony of aforesaid witness is consistent and cogent and also corroborated by the medical evidence, hence the trial Court rightly convicted the appellants.In the light of the submissions advanced on behalf of the learned counsel for the parties, we have carefully scrutinized the evidence and material available in record.Jitendra (PW/3) says that at about 12.15 noon he was sitting in his Mohallah.Son of Ishwar and nephew of Vinod quarreled with each other.Ishwar separated -: 4 :- them, thereafter Shankar, Ravi and Kishore armed with wooden stick, Sanju armed with iron pipe, Vinod armed with Dhariya and Munnibai armed having a piece of stone came and started beating Ishwar.Ishwar received injuries on his jaw, both legs, head, back and chest.Ishwar was taken to Hospital, thereafter he lodged the report Ex.Satyanarayan (PW/5), Sohanlal (PW/9), Shugunabai (PW/10) in one voice deposed that son of Ishwar and nephew of Vinod were quarreling.Ishwar separated them.Thereafter Shankar, Vinod, Kishore, Ravi and Munnibai armed with iron pipe, piece of wood, piece of stone gave beating to Ishwar on his jaw, head, chest and back.Shugna Bai received injuries.Sohanlal sustained injury on his finger.Ishwar was taken to Hospital.-: 4 :-Shugnabai is the sister-in-law of deceased, her presence at the time of incident appears to be natural.Shuganbai remained firm on the material point in her cross-examination.The testimony of Shugnabai is fully corroborated by medical evidence and also by the independent witness Jitendra (PW/3), Satyanarayan (PW/5), Sohanlal (PW/9) and Shugunabai (PW/10).Satyanarayan (PW/5) denied the suggestion that at the time of incident Shankarlal was on duty in Nagar Nigam.He further denied the suggestion that Ravi and Kishore were present in shop at the time of incident.Presence of this witness has been challenged but he denied that he was not present at the spot and giving false statement.No suggestion has been given in cross-examination to this witness that he has any grudge against the appellants or he is interested with the family members of the deceased.This witness seems to be an independent witness.Testimony of this witness is corroborated on material point with the testimony of Shugnabai (PW/10) and also by the medical evidence.-: 5 :-Jitendra(P.W.3) lodged the report.Testimony of this witness is corroborated by Satyanarayan (PW/5), Sohanlal (PW/9) and Shugunabai (PW/10) as well as by medical evidence.No suggestion has been given to this witness in cross-examination that he was not present at the spot.Jitendra (PW/3) in para 8 has admitted that Ravi and Kishore runs a cycle shop at Amrath Sagar Bagicha and Munnibai and Shankarlal are the employees of Nagar Nigam but denied that on the date of incident Munnibai and Shankarlal were on duty.He denied that accused Kishore and Ravi were present in their shop.This witness has been cross-examined at length.On the material points the credibility of this witness has not been shaken in his cross-examination.9. Sohanlal (PW/9) belongs to Village-Pir Jhalar, P.S.- Barnagar, District-Ujjain.His presence on the date of incident in the house of Ishwar has not been challenged in his cross-examination.Considering that the testimony of Jitendra (PW/3), Satyanarayan (PW/5), Sohanlal (PW/9) and Sugnabai (PW/10) is corroborated by each other on material particulars their statement also finds corroboration from the postmortem report, the presence of these witness is fully established, they stood firm in their cross- examination, nothing has been come out in their cross-examination to make a dent in their reliability, their evidence is consistent and cogent in our opinion there is no reason to doubt the testimony of the aforesaid witness.The deceased pacified them and separated them, thereafter appellants came and gave beating to Ishwar.The matter should be considered prima facie on the touchstone of preponderance of probability.The arrest memo of Ravi S/o Shankarlal reveals that his age has been mentioned as 17 years.Thus according to prosecution version Ravi was aged 17 years on the date of alleged incident.The Juvenile Justice (Care and Protection) Act, 2000 came into force from 1/4/2001 The appellant Vijai according to prosecution was 17 -: 11 :- years old on the date of his arrest on 18/09/2001 and the offence has been committed on 30/03/2001 hence he could not be tried alongwith the other appellants in criminal court.-: 11 :-Appellant/Ravi remained under custody for more than one and half year, we do not think it proper to remand the case for trying by the Juvenile Justice Board.Vijai Singh vs State of Delhi (2012) 8 SCC 763 (Relied on).In view of aforesaid discussion, this appeal is partly allowed.Appellants/Kishore, Vinod, Sanjay and Shankarlal have served the sentence of more than 10 years, hence they shall be -: 12 :- released forthwith, if not required in any other case.She is directed to surrender and serve out the remaining jail sentence.-: 12 :-Accordingly, this Criminal Appeal No.1290/2002 stands disposed. | ['Section 300 in The Indian Penal Code', 'Section 302 in The Indian Penal Code', 'Section 148 in The Indian Penal Code', 'Section 149 in The Indian Penal Code', 'Section 304 in The Indian Penal Code'] | Analyze the legal case and identify the corresponding section it comes under. |
193,555,842 | Heard on admission.Learned Government Advocate for the respondent State accepts notice on behalf of the State; as such, no further notice is required.Heard on I.A. No.6682/2017 under Section 389 (1) of the Cr.P.C. filed on behalf of the appellants Chandrika Prasad Biyar, Surajlal Biyar and Lavlesh for suspension of sentence and grant of bail.A perusal of the record reveals that the aforementioned appellants stand convicted and sentenced as follows:-Learned counsel for the appellants submit that the jail sentence of the appellants have already been suspended by the appellate Court till 15.05.2017 and during that period, they have not misused the liberty granted to them; therefore, it has been prayed that the jail sentence of the appellants be suspended.Learned Government Advocate for the respondent State has opposed the application.Keeping in view the facts and circumstances of the case in their entirety, particularly the quantum of sentence imposed upon the appellants and the fact that during trial, they were on bail, in the opinion of this Court, the jail sentence of the appellants deserve to be suspended.Consequently, this application (I.A.No.6682/2017) for suspension of sentence and grant of bail filed on behalf of the appellants is allowed.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 each to the satisfaction of the trial Court for their appearance before the Registry of this Court on 06.12.2017 and on all other subsequent dates fixed by the Registry in this regard, the remaining part of the substantive jail sentence imposed upon the appellants shall stand suspended and they shall be released on bail.Certified copy as per rules.(C V SIRPURKAR) JUDGE sh | ['Section 389 in The Indian Penal Code'] | Analyze the legal case and identify the corresponding section it comes under. |
193,558,313 | (i) Criminal Bail Application No.129 of 2019, is allowed;(ii) Applicant is directed to be released on bail in connection with C.R.No.417 of 2018, registered with Mira Road Police Station, District - Thane, on his furnishing P.R.Bond in the sum of Rs.25,000/-, with one or more sureties in the like amount;::: Uploaded on - 12/02/2019 ::: Downloaded on - 16/03/2019 15:48:40 :::::: Uploaded on - 12/02/2019 ::: Downloaded on - 16/03/2019 15:48:40 :::(v) Bail Application stands disposed of.(PRAKASH D. NAIK, J.)::: Uploaded on - 12/02/2019 ::: Downloaded on - 16/03/2019 15:48:40 :::::: Uploaded on - 12/02/2019 ::: Downloaded on - 16/03/2019 15:48:40 ::: | ['Section 376(2) in The Indian Penal Code', 'Section 417 in The Indian Penal Code', 'Section 504 in The Indian Penal Code', 'Section 506 in The Indian Penal Code'] | Analyze the legal case and identify the corresponding section it comes under. |
193,567,960 | P.Sathasivam,J.1) This appeal has been filed against the judgment and order dated12.04.2006 passed by the High Court of Judicature at Madras in CriminalAppeal No. 1861 of 2002 whereby the High Court dismissed the appeal filedby the appellants therein and confirmed the order of conviction andsentence dated 20.12.2002 passed by the Court of Additional District andSessions Judge-cum-Chief Judicial Magistrate, Cuddalore in Sessions CaseNo.2) Brief facts(a) The case relates to the death of a person by name Pasupathy, residentof Periya Irusampalayam village, committed by Sivaraman (A-1), Mano (A-2),Nagappan (A-3) and Tamil@Tamilvanan (A-4) on account of enmity between thedeceased-Pasupathy and Sivaraman (A-1).At one point of time, there was aquarrel between Sivaraman (A-1) and one Srinivasan (DW-1) which waspacified by Pasupathy and thereby A-1 had an impression that Pasupathy isin support of Srinivasan (DW-1).Due to this kind of impression, A-1planned to eliminate Pasupathy.(b) In order to materialize the same, on 08.05.2000, at 08:30 p.m., A-1to A-4, assembled near the road leading to the graveyard of PeriyaIrusampalayam village with an ulterior motive of killing Pasupathy.At therelevant time, Sivaraj (PW-1) and Ganapathy (PW-3), who are brothers andrelatives of Pasupathy, along with Vijayan, Murugan, Babu and Veerappanwere having conversation near the electric post on the way to graveyard andPasupathy was coming towards the same direction.On seeing Pasupathy, theaccused persons, in order to grab the opportunity of killing him, attackedhim using knives, stick and iron pipe.A-1 and A-2 inflicted injuries onthe deceased using knives from behind on the head and neck respectively.A-3 attacked Pasupathy with a stick whereas A-4 attacked him using iron pipeover the rear portion of his neck.When PW-1 and others came to rescuePasupathy, the accused persons ran away from the spot leaving behind theweapons used in the incident.Pasupathy was immediately taken to thehospital but he died on the way.(c) On the very next day, i.e., on 09.05.2000, at 05:00 a.m., PW-1 lodgeda complaint at Reddichavadi Police Station which came to be registered asCrime No. 132 of 2000 under Section 302 of the Indian Penal Code, 1860 (inshort ‘the IPC’).The Additional District and SessionsJudge, by order dated 20.12.2002, convicted A-1 to A-4 for the offencepunishable under Section 302 read with Section 34 of IPC and sentenced themto undergo imprisonment for life along with a fine of Rs. 4,000/- each, indefault, to further undergo rigorous imprisonment (RI) for 1 (one) year.(e) Aggrieved by the said order, A-1 to A-3 preferred Criminal Appeal No.1861 of 2002 before the High Court.The Division Bench of the High Court,by order dated 12.04.2006, dismissed their appeal by confirming theconviction and sentence imposed by the trial Court.(f) Against the said order, Nagappan (the appellant herein and A-3therein) has filed this appeal by way of special leave before this Court.3) Heard Mr. K.K. Mani, learned counsel for the appellant-accused andMr.M. Yogesh Khanna, learned counsel for the respondent-State.5) On the other hand, Mr. M. Yogesh Khanna, learned counsel for theState submitted that merely because the eye-witnesses in the case on hand,namely, PW-1 and PW-3, are brothers/related to the deceased, their evidencecannot be eschewed.He also pointed out that in addition tothe evidence of said eye-witnesses, medical evidence through Doctor (PW-10)also supports the prosecution case, and hence, there is no valid ground forinterference.6) We have carefully considered the rival submissions and perused allthe relevant materials.7) As regards the first contention about the admissibility of theevidence of PW-1 and PW-3 being closely related to each other and thedeceased, first of all, there is no bar in considering the evidence ofrelatives.It is true that in the case on hand, other witnesses turnedhostile and not supported the case of the prosecution.The trial Courtand the High Court, in view of their relationship, closely analysed theirstatements and ultimately found that their evidence is clear, cogent andwithout considerable contradiction as claimed by their counsel.ThisCourt, in series of decisions, has held that where the evidence of“interested witnesses” is consistent and duly corroborated by medicalevidence, it is not possible to discard the same merely on the ground thatthey were interested witnesses.In other words, relationship is not afactor to affect credibility of a witness.[ vide Dalip Singh & Ors.State of Punjab, AIR 1953 SC 364, Guli Chand & Ors.In categoricalterms, PWs 1 & 3 asserted before the Court that Sivaraman (A-1) and Mano (A-2) caused cut injuries to Pasupathy (deceased) using knives (M.Os 9 & 10)and Nagappan – the appellant herein (A-3), attacked the deceased with astick and caused extensive injuries upon the head, neck and other placesresulting into his death on the way to hospital.No doubt, they mentionedthat the appellant (A-3) attacked Pasupathy with a stick, however, ouranalysis shows that the evidence of PW-1 and PW-3 clearly implicated A-1and A-2 and the courts below have rightly accepted the case of theprosecution.Insofar as the role of the appellant (A-3) is concerned, evenaccording to the eye witnesses, viz., PWs 1 & 3, he attacked the deceasedwith a stick.There is no specific assertion about the exact blow on thehead by use of stick by the appellant (A-3).They merely stated that A-3used the stick and hit on the back.There is not even a whisper that thestick used by the appellant (A-3) hit on the neck or head of the deceased.9) Now let us consider the medical evidence.Doctor (PW-10), whoconducted the post mortem on the dead body, in his evidence, has statedthat he conducted the post mortem at 12.30 p.m. on 09.05.2000 and found thefollowing injuries on the dead body:Bluish discolouration and swelling present over right upper eye lid.2. Lacerated injury of 4 cm x 1 cm bone deep present over left Parietal region of head with fracture of underlying bone.3. Lacerated injury of 5 cm x 1 cm bone deep over left occipital region of head.Lacerated injury of 4cm x 1 cm bone deep present over left occipital region of head.Obliquely placed incised wound 10 x 1.5 bone deep with fracture of underlying bone present over back of neck behind left ear.”PW-10 further stated that the deceased appeared to have died of the woundson the head 6 to 24 hours before the post mortem.In other words, heasserted that the deceased died due to head injuries.He explained thatthe deceased had 4 injuries on the head and one swelling injury over theright eye.He further explained that out of 4 injuries on the head, twowere on the rear left side, one injury was found on the rear of the headand one injury was found near the left ear.According to him, injury Nos.2 to 5 were at bone depth.He also stated that the 5th injury was cutinjury.Injury Nos. 2 to 4 were lacerated injuries.………….…………………………J.(P. SATHASIVAM) ………….…………………………J. | ['Section 302 in The Indian Penal Code', 'Section 34 in The Indian Penal Code'] | Analyze the legal case and identify the corresponding section it comes under. |
193,569,123 | 2 The victim girl and the petitioner were in love and the victim girl cohabited with the petitioner voluntarily.And In the matter of : Sk. Mojahar Ali.... Petitioner Mr. Aniket Mitra Mr. Pradip Kumar Ghosh .. for the Petitioner Ms. Kakali Chatterjee .. For the State Apprehending arrest in connection with Maipath Coastal Police Station Case No. 67 of 2016 dated 2.6.2016 under Sections 363/366/120B of the Indian Penal Code, corresponding to G.R. case No. 3922 of 2016, this application for anticipatory bail has been filed under Section 438 of the Code of Criminal Procedure.Accordingly, the prayer for anticipatory bail is allowed and the application is, thus, disposed of.Certified copy of this order, if applied for, be given to the parties on priority basis.( Patherya, J.) ( Debi Prosad Dey, J. ) 4 | ['Section 120B in The Indian Penal Code', 'Section 363 in The Indian Penal Code', 'Section 366 in The Indian Penal Code'] | Analyze the legal case and identify the corresponding section it comes under. |
193,572,459 | Through: Mr.Sanjay Lao, APP for the State.HON'BLE MR.JUSTICE P.K. BHASIN HON'BLE MR.The prosecution version as unfolded during trial is as follows:-On 21st March, 2011, the prosecutrix (PW-2) lodged a complaint which is Ex.PW2/A wherein she stated that she was residing with her father (appellant), sister Usha and brother Ganesh.Her elder brother Ajay was residing at Paschim Vihar with his wife.Her mother had died about 7/8 years ago.The appellant had been forcibly committing rape upon her from the last 2/3 years.The appellant used to rape her by establishing physical relations against her wishes.He also used to beat her and threaten her not to disclose the fact of physical relations to anyone.The last occasion when appellant raped her was on 12/13.02.2011 at about 2-3 p.m. About 4-5 days before lodging the complaint, she decided to disclose the facts to someone as her elder sister was also raped by her father due to which she left home.She disclosed the factum of rape to her paternal aunt (Tai), who then gave her Rs.20/- and asked her to visit her brothers place and disclose the above mentioned facts to him.Prosecutrix along with her sister then went to her brothers place and disclosed all the facts to the wife of her brother.Her sister-in-law (bhabhi) took her to Police Station Sarai CRL.A. No. 777/2012 Page 2 of 15 Rohilla to lodge a complaint.Thereafter, they went to the hospital for medical examination.The said statement has been exhibited as Ex.The statement of prosecutrix under Section 164 Cr.P.C., Ex.We have given our anxious thought to the rival submissions made by learned counsel for the appellant and learned Additional Public Prosecutor for the State and have carefully gone through the material on record.The prosecutrix while appearing as PW-2 on 19.10.2011 deposed on the same lines as she had stated in her complaint.She stated that the appellant under the influence of liquor used to rape her.She used to cry a lot but the appellant never cared and kept on raping her.Due to the threats extended by the appellant, prosecutrix did not CRL.A. No. 777/2012 Page 3 of 15 disclose the fact of immoral act of her father to anyone.Once Aarti, her cousin noticed marks on her breast and asked the reason for the same, but she did not disclose anything to her.However, Aarti told her mother and when prosecutrix visited their house, on asking of mother of Aarti, prosecutrix disclosed her about the dirty acts of her father.The prosecutrix along with her sister then went to her brothers place and disclosed the facts to wife of her brother.The appellant then came there and forced them to leave the house to which prosecutrix refused.At this, appellant got furious and lodged a complaint against her paternal aunt and brother.She also stated that the appellant has been raping her since she was only 8 years old.In her cross-examination she stated that the appellant used to rape her only under the influence of liquor and sometimes it was on 2-3 occasions in a month and sometimes more than that.Kamla (PW-3) deposed that the appellant is her brother-in-law (Devar).The appellant was residing at Jhuggi No.502, Phase-II, Shahzada Bagh, Inderlok, Delhi with his minor daughter (prosecutrix) and Usha and minor son.About 4-5 days prior to registration of the case, prosecutrix came to her house and told her that her father CRL.A. No. 777/2012 Page 4 of 15 (appellant) was committing rape on her for the last two years.She gave Rs.20/- to the prosecutrix and asked to tell her bhabhi, Sapna, at Paschim Vihar about the factum of rape.Then, prosecutrix left for Paschim Vihar with her sister.On 22.03.2011, prosecutrix came back with her bhabhi Sapna and thereafter she and Sapna took the prosecutrix to the police station and stated the entire facts of rape and then case was got registered.In her cross-examination, she stated that she was not on visiting terms with the appellant although the children of the appellant used to visit them.She love prosecutrix and her sister in the same way as she love her children.She denied the suggestion that she has given false statement at the instance of prosecutrix.CRL.A. No. 777/2012 Page 4 of 15In her statement, she had indicted the appellant inter alia, stating that she along with her husband had been living separately and her sister-in-law (prosecutrix) and other sister-in-law and her younger brother-in-law used to live separately with the appellant.On 20th March, 2011, her both sisters-in-law came to her house and stayed with them.On 21st March, 2011, the appellant came to their house and asked her sister-in-law to come home with him, however, her sisters- in-law refused to go with him.When she asked them about the reason as to why they were not willing to go, they told her that the appellant CRL.A. No. 777/2012 Page 5 of 15 used to commit rape on the prosecutrix and the prosecutrix also told her that the appellant has been doing the immoral act with her for the last two years.Then the matter was reported to the police and the paternal aunt also accompanied them to police station.Her sister-in- law (prosecutrix), was medically examined.On 22nd March, 2011, the appellant was arrested from Inderlok Metro Station and his personal search was conducted.In her cross-examination, she has stated that she had got married in November 2009 and her mother-in-law was alive at the time of her marriage.Gynae, Hindu Rao Hospital, Delhi (PW-11) on 31st March, 2011, at about 7.50 p.m. The MLC of the prosecutrix has been exhibited as Ex.PW11/C. As per MLC, there were no signs of any external injuries on the body of the prosecutrix, hymen ruptured was old and one finger can be easily inserted.Therefore, MLC clearly shows that prosecutrix was being sexually assaulted since long.JUSTICE VED PRAKASH VAISH VED PRAKASH VAISH, J:The appellant-Tek Bahdur @ Tekender Nath has filed the present appeal against judgment dated 13th January, 2012, whereby the appellant has been convicted for the offence under Sections 376 and 506-II of the Indian Penal Code (hereinafter referred to as IPC) for having committed rape on his daughter (hereinafter referred to as prosecutrix).Vide order on sentence dated 20th January, 2012, the appellant has been convicted to undergo rigorous imprisonment for life and fine of Rs.25,000/- for the offence under Section 376 IPC, in default of payment of fine, to undergo simple imprisonment for three months.He has also been sentenced to undergo rigorous imprisonment CRL.A. No. 777/2012 Page 1 of 15 for five years and fine of Rs.5,000/- under Section 506-II IPC and in default of payment of fine, to undergo simple imprisonment for one month.Both the sentences to run concurrently.CRL.A. No. 777/2012 Page 1 of 15On the basis of the said complaint, the present FIR was registered.CRL.A. No. 777/2012 Page 2 of 15The statement of prosecutrix was recorded under Section 164 of the Code of Criminal Procedure (hereinafter referred to as Cr.PW2/B, is similar and identical to the statement made by the prosecutrix in the complaint lodged by her.She stated that she had spoken and narrated the truth and had not made the statement at the instance of her elder brother and paternal aunt.CRL.A. No. 777/2012 Page 3 of 15She had been living separately since her marriage as relations between her husband and appellant were not cordial and neither she was on visiting terms to the house of the appellant nor her sisters-in-law or any other family members used to visit them.She denied that she in collusion with her sisters- in-law falsely implicated the appellant.CRL.A. No. 777/2012 Page 5 of 15There are no material contradictions in the statements of prsoecutrix made to the police, statement under Section 164 Cr.CRL.A. No. 777/2012 Page 6 of 15CRL.A. No. 777/2012 Page 6 of 15The prosecutrix was medically examined by Dr.Meetu, Sr.According to learned counsel for the appellant, the factors which render the prosecution version vulnerable are firstly, there was unexplained delay in lodging the FIR.The delay has the effect of putting the Court on its guard to search, if any explanation has been offered for delay, and if offered, whether it is CRL.A. No. 777/2012 Page 7 of 15 satisfactory or not.If the prosecution fails to satisfactorily explain the delay and embellishment in the prosecution version on account of such delay, the same would be fatal to the prosecution.If such grotesque offence of rape has been committed by CRL.A. No. 777/2012 Page 8 of 15 anyone, other than the father himself, the victim would have had every opportunity to cry for solace in her father or mother.No question with respect to the appellant was put to her.The second would be the trauma inflicted, other than the trauma of rape, for example, where the rape victim is beaten or threatened with death, is battered etc. The third would be where the offender is in a dominating position and breaches the confidence of a victim for example, in near relation of the victim being the offender.CRL.A. No. 777/2012 Page 13 of 15The sanctity of father and daughter relationship gets polluted.It becomes an unpardonable act.It is not only a loathsome sin, but also abhorrent.The case at hand is a sad reflection on the present day society where a most platonic relationship has been soiled by the pervert and degrading act of the father.The evidence on records clinchingly nails the appellant as the offender.CRL.A. No. 777/2012 Page 14 of 15CRL.A. No. 777/2012 Page 14 of 15We also maintain the order on sentence dated 20th January, 2012 passed by the learned trial Court.Ex consequenti, the appeal, being sans merit, stands dismissed.The appellant is in judicial custody, a copy of this judgment be delivered to him through concerned Superintendent Jail.(VED PRAKASH VAISH) JUDGE (P.K. BHASIN) JUDGE October 04, 2013 gm CRL.A. No. 777/2012 Page 15 of 15 | ['Section 376 in The Indian Penal Code'] | Analyze the legal case and identify the corresponding section it comes under. |
193,577,072 | Consequently, the other respondents i.e. the Lt. Governor (LG) and Mr. Ramesh Thakur will be Respondents 1 and 2 respectively.WP(C) No.1637/2010 Page 1 of 20Paras 2 to 4 of the complaint narrate what, according to Mr.Thakur, happened thereafter and read as under:I offered him chair.For a minute or two he enquired about some petty works of tubewells of his constituency.Suddenly without any provocation or any argument, he started shouting and asked "Who runs Delhi Jal Board".I replied that it is run by Delhi Government.At the top of his voice he said that in my areas of Mahipalpur and Rangpuri your Zonal Engineer is telling that I am under WP(C) No.1637/2010 Page 2 of 20 pressure to continue the boring work at Rangpuri first, instead of Mahipalpur, whereas I (MLA) want this to be done at Mahiplapur.WP(C) No.1637/2010 Page 2 of 20It would be important to mention that DJB had awarded works of drilling of Tubewells one each at Rangpuri and Mahipalpur on 17.09.09 respectively, and the drilling machine had gone to Rangpuri to execute the work.I told the MLA that I was not aware about the stark of work at Rangpuri or at Mahipalpuri.Immediately after this Sh.Rana started giving choicest abuses, got up from his chair and started hitting me.I was totally stunned by such ferocious attack.He had hit me so badly that I started feeling severe pain and pleaded to stop this nonsense."Thakur further stated in his complaint that on hearing the noise the members of his staff rushed into the room whereupon the Petitioner accompanied by his associates left even while threatening that he would kill Mr.Thakur if he lodged an FIR with the police.Thakur gave a statement to the police at Police Station (P.S) R.K. Puram on the basis of which FIR No.486 dated 1 st October 2009 was registered against the petitioner under Sections 186/353/332/506 read with 34 IPC.On 19th October 2009 the Petitioner was issued a notice by the Office of the Lokayukta enclosing a copy of Mr.Thakurs complaint dated 7th October 2009 together with a copy of the above FIR.The notice mentioned that as the Petitioner was a public functionary the Lokayukta had "taken cognizance of the above incident for an inquiry under Section WP(C) No.1637/2010 Page 3 of 20 7 read with section 2 (b) of the Delhi Lokayukta and Uplokayukta Act, 1995" (DLAU Act).WP(C) No.1637/2010 Page 3 of 20The Lokayukta was quoted as saying that "this is all the more necessary in our country in the wake of such incidents and the clamour for accountability in society for those in public life or holding public office".The news item also referred to the fact that the Lokayukta had issued notice to the Petitioner.While not disputing that at around 4.45 p.m. he arrived at the office of Respondent No.2, the petitioner volunteered the information that he was accompanied by Mr. Anil Yadav, Municipal Councillor of his area and Mr. Inder Pal Rana both of whom according to him stayed back in the car.He claims that only he went to meet Respondent No.2 at his office which was on the first floor of the building.He claims to have found four or five other persons sitting in the office room.He states that he greeted Respondent No.2 "with folded hands".Thereafter, I straight away went to the Police Station, Sector-12, R.K. Puram to file my complaint.That the concerned Duty Officer sent me to the Safdarjung Hospital for MLC.The said MLC is annexed herewith and marked as Annexure-A1."The Petitioner further stated in his reply that the ASI from police Station, Sector 12, R.K. Puram took down his statement but did not register any formal FIR.He also seeks the quashing of two separate orders dated 17th February 2010 passed by the Lokayukta in the said case.Although the Lokayukta, Delhi was impleaded as Respondent No.1 in this writ petition and was also represented by counsel, this Court is of the view that an authority whose orders are under challenge, ought not to be made a party to the proceedings.Accordingly, the name of the Lokayukta , Delhi is deleted from the array of parties in the present case.The proceedings before the Lokayukta are traceable to a complaint dated 7th October 2009 filed before him by Respondent No.2 Mr. Ramesh Thakur, a Superintending Engineer (SW) of the Delhi Jal Board (DJB) working at Sector 4, Booster Pumping Station, R.K. Puram.In his complaint Mr.Thakur stated that on the evening of 1st October 2010 when he was in his office, the Petitioner who is an MLA elected from the Bijwasan Constituency barged into his room at around 5.10 p.m. The complaint alleged that the Petitioner enquired about some petty works of tubewells of his constituency and then without provocation began shouting.The Petitioner is WP(C) No.1637/2010 Page 4 of 20 supposed to have pointed out to Respondent No.2 that the latter had not taken any action "despite his repeated promises regarding the proper performance of the contractors assigned for connecting pipelines in Raj Nagar Part-II".Respondent No.2 is supposed to have "retorted in a very rude manner that it was not the only thing he had to do, and that as and when he finds time he will look into the matter." The version of the Petitioner as to what happened thereafter is contained in paras 8 to 11 of the reply which read as under:WP(C) No.1637/2010 Page 4 of 20That I objected to his way of talking and an argument ensued.His colleagues in the room joined in and started to misbehave with me.Ramesh Thakur further instigated them by saying loudly "SAALAY KO MAR MAR KAR ISKI NETAGIRI NIKAL DO".That at this point one of these other persons slapped me and the rest of them joined to attack me.Ramesh Thakur then held my neck and started to beat me and also tore my clothes.That hearing the commotion, Shri Anil Yadav and Shri Inderpal Rana, who were waiting in the car came upstairs to see what was happening and only then, I was rescued from Ramesh Thakur and his associates.He further stated that the Respondent No.2 "is a habitual offender and accused in an FIR No.610 dated 09.06.2007 under Section 376 G/354/506/384/34 IPC".He accordingly prayed that the complaint of Respondent No.2 should be dismissed as being a fabricated one.An application was filed by the Petitioner before the Lokayukta on 27th January 2010 seeking dismissal of the proceedings.On that date, the Lokayukta directed notice to be issued in the application and directed the case to be listed for 17th and 19th February 2010 "for disposal of application and further proceedings as before".The said order was challenged by the Petitioner before this Court by way of Writ Petition (Civil) No. 979 of 2010 which was dismissed as withdrawn with liberty to the Petitioner to urge the points raised in the said petition before the Lokayukta. | ['Section 2 in The Indian Penal Code'] | Analyze the legal case and identify the corresponding section it comes under. |
193,583,225 | One minor victim of offence under Section 376 of I.P.C. and 5/6 of POCSO Act was admitted on 27.06.2018 in M.Y. Hospital for medical examination and treatment.Firstly she was admitted in ward No.15 of the hospital thereafter she was shifted to private ward No.307, in which one woman constable was deployed for the security of the victim.She was instructed not allow to anyone to go inside the room with a mobile phone.It is alleged that when the constable asked the applicant for her mobile phone then she has refused to hand over her phone.However upon the instructions of Hospital Superintendent she has given her mobile phone to the woman constable 2 and upon opening the gallery of her cellphone two photo of victim and some photographs of her treatment documents were found.Thereafter on the instructions of the Superintendent of M.Y. Hospital an FIR was registered against the applicant for the commission of offence under Section 228-A of I.P.C., Section 23 (4) of POCSO Act and Section 74 of Juvenile Justice (Care and Protection of Children) Act 2015 against the applicant.(4).Learned Public Prosecutor for the respondent/State opposed the application by contending that the applicant is working as Nurse in the M.Y. Hospital and when the minor victim with relates to the offence under Section 376 of I.P.C. and Section 5/6 of POCSO Act was admitted in the said hospital a lady constable was deputed for her protection and carrying mobile phone in the said ward was prohibited.When the lady constable asked the applicant to hand over her mobile phone before entering the ward, she refused to do so.(6).It is admitted fact that applicant is working as nurse in the M.Y. Hospital and she was taking care of one minor victim of the offence of rape.When the victim was admitted 4 in the private ward No.307 of M.Y. Hospital, a lady constable who was deployed for security of the victim asked the applicant to hand over her mobile phone but she refused.(2).After completion of investigation, charge sheet was filed before the competent court.(3).Learned counsel for the applicant has submitted that applicant is innocent and she has not committed any offence.None of the offences as charged against the applicant are made out.Learned counsel for the applicant further submitted that although pictures of victim have been found in the mobile phone of applicant but there is no allegation that she has printed or forwarded the said photographs or contents regarding the victim in social media.Some of the medicines were not available in hospital and for bringing them from outside the campus, the photo of the prescription and victim were taken and saved in the gallery of the mobile phone.If the allegation made in the charge sheet against the applicant is accepted in its face value there is nothing on record to establish that the applicant has printed, forwarded or circulated the name or photographs of the victim, therefore prima facie no offence is made out against the applicant.The registration of the FIR against the applicant is clear abuse the process of law.Hence, learned counsel for the applicant prays for 3 quashment of FIR and all other consequential proceedings.Lady constable complained about this to the Superintendent of hospital then on his instructions applicant given her mobile phone and upon opening the gallery of mobile phone two photographs of the victim was found saved.According to section 228-A of I.P.C. disclosure of identity of rape victim is offence and the argument advanced by the learned counsel clearly indicates that the applicant saved the photographs of the victim to show it before the medical shop at the time of bringing the medicine from outside the campus, therefore, at this stage it cannot be said that no offence under Section 228-A of I.P.C. section 23(4) of POCSO Act and Section 74 of J.J. Act, 2015 are not made out against the applicant.Hence, he prays for rejection of the petition.(5).I have heard learned counsel for the parties and perused the documents alongwith petition. | ['Section 376 in The Indian Penal Code'] | Analyze the legal case and identify the corresponding section it comes under. |
1,935,862 | The secondaccused is the husband of the deceased.The first accused is the father of thesecond accused.The third accused is the mother of the second accused.P.W.1 who isthe sister of the deceased stated that she was married to one Sankar aliasSankaralingam, seven years prior to the date of occurrence and his husband wasdoing business in milk.The deceased was married 3-1/2 years prior to the dateof occurrence with the second accused.P.W.1's husbandborrowed a loan from the Kurumbur Co-operative Bank and he was unable to settlethe loan amount.Three days prior to the date of occurrence, the Co-operativeBank had taken action to attach the property and at that time P.W.1's husbandwas not at the house.Bank officials insisted to pay the loan amountimmediately.Thereafter, P.W.1 by pledging her gold chain settled the duestowards the loan obtained by her husband from the Co-operative Bank.On thereturn of her husband, P.W.1 informed him and asked him why he left her alonewhen the bank officials came for attachment which resulted in a wordy quarreland she was also beaten by her husband on that date.(d) The deceased having heard about the above said incident, a dayprior to the date of occurrence said to have come to the house of P.W.1 and tookher to the house of another sister one Velammal's house and from there thedeceased left for her house.On 27.9.2003at 10.30 a.m., P.W.1 heard that her sister deceased committed suicide by hangingherself and immediately went to the house of the deceased and the deceased wasfound lying in the hall.At that time P.W.1 found only A.1, father-in-law ofthe deceased, in the house and other accused were not present.Thereafter, A.3- mother-in-law of the deceased, A.2 - husband of the deceased and otherrelatives came to the house.A.4 also arrived at the scene house.When P.W.1questioned A.1, A.1 informed that he had been to the shop and on his return hefound the deceased hanging.P.W.1 requested the accused to take the deceased tothe hospital and they brought the doctor P.W.7 to their house.P.W.7 examinedthe deceased and he declared that the deceased died.P.W.1 also further claimedthat she found some injuries on the thigh and chest of the deceased and also aburn injury on the neck and as such she was under the impression that thedeceased could not have committed suicide.(e) P.W.1 also claimed that she was informed by the neighbours ofthe deceased viz., P.Ws.2 and 3 that since the deceased visited the house ofP.W.1 on the previous day, A-1 to A-3 quarrelled with her.Thereafter, theparents and brother of the deceased arrived at the scene of occurrence and theyalso found the deceased lying dead.(f) P.W.1 thereafter, went to Kurumbur Police station on 27.09.2003at 4.30 p.m. along with her brother Lakshmanan and gave a report Ex.P.1 toP.W.11, Sub-Inspector of Police.Since the deceased died within 4-1/2 years from the date of marriage,P.W.11 sent the reports Ex.P.1 and Ex.P.9 to Tiruchendur R.D.O. - P.W.12 forconducting inquest and he has also sent the reports to the higher officials.(g) P.W.12, R.D.O, conducted inquest on 27.9.2003 in the presence ofwitnesses.He recorded their statementsindependently and obtained their signatures.It is also further specificallymentioned by the parents of the deceased to P.W.12 that their daughter, thedeceased, was not subjected to dowry harassment and cruelty and further they arenot aware about the reason for the death of the deceased.It is alsospecifically stated by the parents of the deceased before P.W.12, R.D.O., thatA-1, A-2 and A-3, father-in-law, husband and mother-in-law of the deceased arenot responsible for the death of their daughter.The very same report, Ex.In that report, it is stated by P.W.12 thatthe dowry harassment is not the reason for the death of the deceased and thedeceased might have been assaulted by her father-in-law(A-1), mother-in-law (A-"(1) A ligature mark of width 2 c.m. running transversely at the level of lowerend of thyroid cartilage, completely encircling the neck.(2) Another ligature mark of same width starts below the left angle of jaw,running parallel to the first ligature mark ending below 2 behind the right earlobe.(3) A bruise of 3 X 2" in the inner aspect of right thigh.On dissection of the ligature mark 2 bruise there is extravasation ofblood in the subcutaneous tissue.P.W.8 - Doctor has stated in Ex.P.4, postmortem certificate that the deceasedwould appear to have died of 36 to 48 hours prior to the postmortem and he alsoreserved his opinion pending report of chemical analysis as the viscera was sentfor chemical examination.The same doctor on receipt of the chemicalexamination report issued postmortem report Ex.P.6 by giving final opinion thatthe deceased would appear to have died of asphyxia due to strangulation.(i) P.W.13, Deputy Superintendent of Police received FirstInformation Report in this case on 27.9.2003 at 5.30 p.m. and took upinvestigation.He went to the scene of occurrence at 6.00 p.m. and examinedP.W.6 and Thoondilmuthu.He prepared observation Mahazar, Ex.P.2, and roughsketch, Ex.P.13 in the presence of witnesses and recovered M.Os.1 and 2 ropeand wooden door piece under Ex.He received the report of the R.D.O. Ex.P.12 and on receipt ofEx.P.12, P.W.13 came to know that the death is not due to dowry demand andtherefore, sent the case for further investigation to the Inspector of Police.Ex.P.14 is Express F.I.R. and he sent the same to the JudicialMagistrate Court, Srivaikundam.He also sent the R.D.O.'s reports, Ex.P.10 andEx.P.12 and the statement recorded by him to the Magistrate's Court.Hearrested A.2 on the same day at Nalloor bus stop at 7.00 a.m. in the presence ofP.W.6 and another.He has recorded his confession in the presence of witnesses.At 8.30 a.m. he arrested A.1, A.3 and A.4 and he also recorded the confession ofA.1 and thereafter remanded all the accused to judicial custody.He alsoexamined Marimuthu, P.Ws.2 and 3, one Karunakaran, one Thoondilmuthu, P.W.6 andthe constable, P.W.11 and recorded their statements.On 5.10.2003, he examinedP.Ws.4 and 5 and recorded their statements.On 6.10.2003 he examined one Sankarand recorded his statement.On 2.12.2003 he examined the doctor P.W.8 andrecorded his statement.He received the post-mortem certificates Ex.Thereafter on the return of herhusband P.W.1 informed him and asked him why he left her when the bank officialscame for attachment which resulted in a wordy quarrel between P.W.1 and herhusband and she was beaten by her husband.On hearing about this episode, thedeceased said to have come to the house of P.W.1 on the previous day of theoccurrence and took P.W.1 to her another sister one Velammal's house and afterleaving P.W.1 in her sister's house the deceased returned to her matrimonialhouse.Injuries found on the deceased : P.W.1 claimed that she has found certaininjuries on the right thigh and chest on the deceased and also found injuryencircling the neck therefore she suspected that her sister could not havecommitted suicide on her own.(3).Evidence of P.Ws.2 and 3 : The evidence of the neighbours of the house ofthe deceased, P.Ws.2 and 3, is to the effect that they heard shouting from thehouse of the deceased on the previous day of the occurrence viz., on 26.09.2003.(4).The report of R.D.O., P.W.12, under Exs.(Judgment of the Court was delivered by K.N.Basha,J.) The first accused, Sudalaiyandi, who is the appellant has comeforward with this appeal challenging his conviction and sentence passed by thelearned Principal Sessions Judge, Tuticorin, in S.C.No.261 of 2004 dated14.03.2005 convicting him to suffer life imprisonment and also imposing a fineof Rs.1,000/-, in default to undergo Rigorous Imprisonment for a period of oneyear for the offence under Section 302 I.P.C. and also convicting under Section201 I.P.C. and sentencing him to undergo one year Rigorous Imprisonment andimposing a fine of Rs.500/- in default to undergo three months RigorousImprisonment and the learned Trial Judge ordered the sentences to runconcurrently.There are four accused in this case and four charges were framedagainst them.(i) The first charge is against A-1 to A-4 for conspiracy to committhe murder of the deceased, Parvathi under Section 120 (b) I.P.C.(ii) The second charge is against A-1 with the intention to kill thedeceased Parvathi and strangulated her neck with rope and caused her deathpunishable under Section 302 I.P.C.(iii) The third charge is against A-2 to A-4 as A-4 said to havetaken the rope and handed over to A-1 and at that time A-2 and A-3 accompaniedwith A-1 and A-4 and as such punishable under Section 302 r/w 34 I.P.C.(iv) The fourth charge is against A-1 to A-4 that A-1 to A-4 knowingthat the deceased was murdered, in order to escape from the punishment spreadthe news that the deceased died due to suicide by hanging herself on 27.09.2003at 10.00 a.m. and as such punishable under Section 201 I.P.C.On 15.02.2005 A-4 Sankaranarayanan, reported dead and therefore,the charges against him abated.The learned trial Judge found A-1 to A-3 notguilty under the first charge of conspiracy under Section 120 (b) I.P.C. Thefirst accused was found guilty under Section 302 I.P.C., as per the secondcharge.A-2 and A-3 found not guilty under Section 302 r/w 34 I.P.C. In respectof the third charge.The first accused was found guilty under Section 201I.P.C., as per the fourth charge and the second and third accused found notguilty under that charge.The learned trial Judge convicted the firstaccused/the appellant herein and sentenced him, as stated above.A-1, father-in-law of thedeceased, specifically stated to P.W.12 that on the date of occurrence he leftthe home for the purchase of vegetables at 10.15 a.m. and on his return after 20minutes he found that the front door of the house was locked and he heard thecrying of the child and thereafter he went to the back side and even that doorwas also found locked and as a result he broke open the door and went inside andfound the deceased hanging.In that report, P.W.12, R.D.O., stated that the parentsof the deceased stated that there is no dowry harassment and any cruel treatmentfrom the accused 1 to 3 against their daughter and further they have stated thatthey are not suspecting anyone in respect of the death of the deceased.P.W.12stated that the reason for the death was not known.3) and A-4, the maternal uncle of A-2, husband of the deceased and thereaftershe might have been hanged and as a result there is a suspicion.Thereafter,P.W.12 sent the body of the deceased for post-mortem with a requisition Ex.(h) P.W.8 - Doctor attached to Srivaikundam Government Hospitalconducted postmoretm on the body of the deceased on 28.9.2003 at 1.00 a.m. andhe found the following injuries on her.P.4 andEx.P.6 and also examined other doctors and recorded their statements.He alsoexamined P.W.11 and one Kaliappan and recorded their statements.The prosecution in order to bring home the charges against theaccused, examined P.Ws.1 to 14, filed Exs.P.1 to 14 and marked M.Os.The accused 1 to 4 were examined under Section 313 Cr.P.C. inrespect of the incriminating materials made against them through the evidenceadduced by the prosecution witnesses.The accused 1 to 4 denied each and everycircumstances put to them and they have stated that they have been falselyimplicated in this case.S.Ashok Kumar, learned Senior counsel appearing for theappellant while assailing the judgment of conviction of the learned Trial Judgesubmitted that the prosecution has miserably failed to establish thecircumstances by clear and cogent evidence and there are several missing links.It is stated by A-1 to P.W.12, R.D.O. that on the date ofoccurrence at 10.15 a.m. he left the home for buying vegetables and on hisreturn he found the front door of the house was locked and having heard thecrying of the child he went to the back side and found that door also locked andthereafter he broke open the door and entered inside and found the deceasedhanging.This earliest version of A-1 is also probabilised by the admission ofthe Investigating Officer, P.W.14 that during his visit to the scene ofoccurrence he found the back door of the house was broken and he was informed bythe witnesses present at that time that A-1 by breaking open the door wentinside the house and attempted to save the deceased, his daughter-in-law.(3)The non-examination of the witnesses who have informed the InvestigatingOfficer, P.W.14 regarding the conduct of A-1 by breaking open the back door andthereafter attempting to save the deceased is fatal to the prosecution case.(4)Even assuming and if not admitting, the presence of A-1 at the time of thealleged occurrence at the scene house itself is not sufficient to establish theguilt in the absence of further evidence regarding the actual commission of thecrime.In the first report, Ex.P.4, theDoctor simply stated that the deceased died 36 to 48 hours prior to the post-mortem and he has not given any opinion regarding the cause of death.In thesecond report, Ex.P.6, the Doctor, opined that the deceased would appear to havedied of asphyxia due to strangulation.The post-mortem certificate disclosedthat hyoid bone is intact and there is no symptoms of strangulation.Per contra, the learned Additional Public Prosecutor submittedthat the prosecution has come forward with the clear and cogent version.It iscontended that there is no missing links in the circumstances put forward by theprosecution.It is further contended by the learned Additional PublicProsecutor that regarding the motive, the prosecution has proved through theevidence of P.W.1 and P.Ws.2 and 3 as both P.Ws.2 and 3 heard the shouting fromthe house of the accused on the previous day.We have given our careful and anxious consideration to the rivalcontentions put forward by either side as well as perused the entire materialsavailable on record.Two children alsoborn to them out of their wedlock.Even P.W.1 in her earliest statement viz., the report, Ex.P.10 and 12 :Ex.P.10, the report is dated 27.09.2003 and also singed by P.W.12 on the sameday.The parents and sister(P.W.1) of the deceased categorically stated that there is no demand of dowry orthe deceased was not subjected to ill treatment by any one of the accused.Thenext day i.e. on 28.09.2003, P.W.12 incorporating the very same statements ofparents of the deceased including P.W1, sister of the deceased and A-1 to A-3and added further that the deceased could not have committed suicide by hangingand she might have been assaulted and murdered by someone.(5) Medical Evidence : As per the post-mortem Doctor, P.W.8, the deceased couldnot have sustained injuries due to self-hanging and the deceased died due toasphyxia due to strangulation.(6) The presence of the first accused along with the body of the deceased :P.W.1 stated that while she went to the matrimonial house of the deceased shefound only A-1 along with the body of the deceased which was lying on the floor.In respect of the first circumstance viz., motive, it is thecase of the prosecution that the accused said to have questioned the conduct ofthe deceased visiting the house of P.W.1 on the previous day of the occurrenceas the in-laws of P.W.1 and the accused family were not in talking terms.The evidence of P.Ws.2 and 3, the neighbours is to the effect that they simplyheard some shouting from the scene house on the previous day of occurrence.Though it is claimed by P.W.1 that A-1 to A.3 quarrelled with the deceased abouther conduct of visiting P.W.1's house on the previous day of the occurrence,P.Ws.2 and 3 not whispered a word about it except stating that they have heardsome shouting from the house of the accused on the previous day.P.W.1 merelystated in the report, Ex.P.1 that the in-laws of the deceased quarrelled withthe deceased questioning her conduct of visiting P.W.1's house and as a resultthe deceased committed suicide due to depression.It is relevant to note that theearliest statement of the parents of the deceased to the R.D.O., P.W.12, asalready stated, there is absolutely no demand of dowry or any cruel treatmentmeted out by the deceased at the hands of the accused 1 to 3 and further theyhave categorically stated that A-1 to A-3 are not responsible for the death ofthe deceased.Therefore, in our considered view that the prosecution hasmiserably failed to prove the motive in this case.The second circumstance relied by the prosecution is theinjuries said to have been found on the deceased, as per the evidence of P.W.1.It is relevant to be noted that P.W.1 has not whispered a word about theinjuries said to have been sustained by the deceased in the earliest report,Ex.P.1 though she has claimed that she has seen the injuries on the deceasedeven before giving the report, Ex.The R.D.O., P.W.12 has not statedanything about the external injuries on the deceased in his report, Ex.P.10 andEx.P.12 except a ligature mark said to have been found by him on the neck of thedeceased.It is further relevant to be noted that the Post-mortem Doctor,P.W.8, as per the Post-Mortem report, Ex.P.4, found three injuries on thedeceased.First two injuries are the ligature marks found on the neck and thethird injury is a bruise on the right thigh.The Doctor has not found anyinjury, as claimed by P.W.1, on the neck of the deceased.It is admitted by theDoctor, P.W.8 that the R.D.O., P.W.12, has not mentioned anything about thethird injury in his report.It is further relevant to note that the Doctor,P.W.8, is not able to say about the age of the third injury.Therefore, even onthe basis of the third injury said to have been found on the right thigh, itcannot be stated that such injury was caused by some persons much less theaccused in this case.It is admitted by P.W.2even this statement was not given by her during her examination by the police.Further, P.W.3 also simply stated that she heard the shouting from the house ofthe accused on the previous day of the occurrence i.e. on 26.09.2003 at 9.00a.m.She has not stated anything about the reason for the shouting.She hasstated that she was examined by the police three days after the occurrence.Therefore, the evidence of P.Ws.2 and 3 is also not helpful to the case of theprosecution.The fourth circumstance relied by the prosecution is the reportof the R.D.O., P.W.12 under Ex.It is relevant to be notedthat the first report of the R.D.O., is dated 27.09.2003 and the second reportis also dated 27.09.2003 which was signed by the R.D.O., P.W.12 on 28.09.2003.In the first report, Ex.P.10, the statements of the witnesses viz., the parentsand sister (P.W.1) of the deceased and accused 1 to 3 and other statements ofthe witnesses incorporated.The parents of the deceased categorically statedthat the deceased said to have committed suicide.It is also categoricallystated by them that there is no demand of dowry or the deceased was subjected toany cruel treatment by the accused.They have also categorically stated that A-1 to A-3 are not responsible for the death of the deceased and they are notsuspecting anyone.Only in the second report, Ex.P.12, R.D.O., P.W.12 raised asuspicion that this is not a case of suicide and the deceased might have beenmurdered by some one by kicking and thereafter hanging her after the death.Itis further stated by P.W.12 that there is a suspicion that A-1, father-in-law,A-3, mother-in-law of the deceased and the deceased sister's husband's maternaluncle, A-4 might have assaulted and caused the death of the deceased.It is relevant to be noted that P.W.8 has not able to give the opinionimmediately after conducting the post-mortem.In the first report, Ex.P.4, theDoctor, P.W.8 simply stated that the deceased would appear to have died of 36 to48 hours prior to post-mortem.The Doctor, P.W.8, reserved the final opinionpending report of the chemical analysis as he has sent the viscera for chemicalanalysis and after receiving the report of the chemical examination, the Doctor,P.W.8 has given the final opinion to the effect that the deceased died due toasphyxia due to strangulation.The chemical examination report, Ex.P.5 onlyruled out the consumption of poison, as it is reported that in the examinationof the items 1 to 5 viz., Stomach contents, intestine contents, liver, kidneyand preservative (sodium chloride), poison has not deducted.It is furtherrelevant to be noted that the Doctor, P.W.8, has not given any reason forarriving at the conclusion that this is a case of strangulation.The Post-Mortem Certificates, Ex.P.4 and Ex.P.6 disclose that the hyoid bone found to beintact and there is no other symptoms of strangulation said to have been foundby the Doctor.The Hon'ble Supreme Court of India has held in MAIN PAL VS.STATE OF HARYANA reported in AIR 2004 SC 2158 that,"The opinion of the doctor cannot have any binding force and cannot be said tobe the last word on what he deposes or meant for implicit acceptance.On theother hand, his evidence is liable to be sifted, analysed and tested".Therefore, the opinion of the Doctor, P.W.8 cannot considered to be theconclusive proof of strangulation as claimed by the prosecution in view of theoverwhelming materials available on record to show that this is a case ofsuicide.As already pointed out, the parents of the deceased categoricallystated that A-1 to A-3 are not responsible for the death of the deceased andfurther P.W.1, none else than the sister of the deceased stated in her earliestversion before P.W.12, R.D.O., that her sister, the deceased, committed suicide.P.W.1 also re-iterated the same version even in her report, Ex.P.1 to the effectthat the deceased has committed suicide.Even assuming and if not admittingthat this is a case of strangulation and the deceased died due to homicidalviolence, there is absolutely no materials available on record to show that thedeceased died only at the hands of the accused much less at the hands of A-1/theappellant herein.The last but not the least circumstance relied by theprosecution is the presence of the first accused at his house with the body ofthe deceased.The prosecution heavily placed reliance on this circumstance.Itis pertinent to be noted that the second accused, husband of the deceased, hascome forward with the version at the earliest point of time viz., during theinquest conducted by the R.D.O., P.W.12 that on the date of occurrence i.e. on26.09.2003 at 10.15 a.m., he left for his business work and his father, A-1,also left at the same time for the purchase of vegetables.The first accusedalso categorically stated to the R.D.O., P.W.12, that on the date of occurrence,he left the house at 10.15 a.m. for the purchase of vegetables and on his returnafter 20 minutes he found the front door of the house was locked and he heardthe crying of the child and thereafter went to the backside of the house andalso found even that door was also locked and thereafter he broke open the doorand found the deceased hanging and thereafter he has cut the rope and laid thedeceased on the floor.We searched in vain for the evidence in supportthereof but found not an iota of it.The evidence on record only indicates thatafter assaulting the deceased - as a result of which she became unconscious -the appellant left the house along with his daughter at 8.00 pm.and came backhome sometime later.While according to the prosecution the appellant came at apoint of time when his wife was still alive, his version, as noticed earlier,was that when he came back he found her hanging. | ['Section 302 in The Indian Penal Code', 'Section 201 in The Indian Penal Code', 'Section 120 in The Indian Penal Code', 'Section 34 in The Indian Penal Code', 'Section 114 in The Indian Penal Code'] | Analyze the legal case and identify the corresponding section it comes under. |
1,935,907 | They were theresidents of Tholaiannur.The deceased Maheswari was given in marriage to onePalanisamy, the son of the first accused.They were the residents ofMoongithapatti.A-2 is the wife of the first accused.The third accused is thedaughter of A-1 and A-2. A-4 is related to all other accused.At the time ofmarriage, she was given 9 souverigns of gold jewels and after the marriage, herhusband left for earning in Singapore.From that time onwards, all the accusedhave been harassing her and torturing her for getting more jewels.She came toher parental home.There was panchayat convened, in which they were pacified andshe was sent back to her marital home and they were all living together.b)While the matter stood thus, on the date of occurrence, namely on20.09.2004, all the accused, the deceased Maheswari and her child were in thesame house.In the evening at about 3.00 p.m., P.Ws.15 and 16, who went over tothe said village in order to see the deceased Maheswari, found there was aquarrel between the first accused and the deceased Maheswari and they also foundthat A-1 was closing the door.P.W.14, who belonged to Ammapatti, came there topurchase cattle from the first accused.P.W.9, who was working in the field atabout 4.00 p.m., found that all the accused were shouting and he turned back andfound that fumes were coming from the house.He was informed that both Maheswariand her child died.c)A-1 informed the same to P.W.9 and P.W.9 intimated to P.W.1.Immediately, P.W.1 accompanied with others came to the village.On seeing thather daughter and grandson died, he proceeded to Thirumayam Police Station andgave Ex.P.1 complaint to P.W.21, the Sub Inspector of Police.On the strengthof the same, P.W.21 registered a case in Crime No.7 of 2004 under Sections304(B) and 302 IPC.P.15, the F.I.R. was despatched to the concerned JudicialMagistrate.d)P.W.24, the Deputy Superintendent of Police, on receipt of the copy ofthe FIR proceeded to the spot and prepared Ex.P.19, the rough sketch.Both the dead bodies, following the inquest, weresent for the purpose of autopsy to the Government Hospital, Thirumayam.e)P.W.10, the Doctor attached to the Government Hospital, Thirumayam, onreceipt of the requisition, has conducted autopsy on the dead body of Maheswariand has issued Ex.P.2, the post-mortem certificate, wherein he has opined thatthe deceased would appear to have died of asphyxia due to compression around theneck.Then, he conducted autopsy on the dead body of child Hariharan and hasissued Ex.P.4, the post-mortem certificate, wherein he did not give finalopinion, since the whole body was extremely in burnt condition.Following thesame, the viscera of both the deceased were sent for Chemical examinations andExs.P.11 and P.14, the Chemical Examination reports were received.f)Pending investigation, the Investigating Officer arrested A-1 to A-3 on25.09.2004 in the presence of the witnesses.A-1 gave confessional statement,which was recorded in the presence of the witnesses, the admissible part ofwhich was marked as Ex.Pursuant to the same, the material objects wererecovered in the presence of the witnesses under a cover of mahazar. A-4 wasalso arrested on the same day.He also gave a confessional statement in thepresence of the witnesses, the admissible part of which was marked as Ex.(The judgment of the court was made by M.CHOCKALINGAM, J.) This appeal challenges the judgment of the learned Additional District andSessions Judge, Fast Track Court, Pudukkottai made in S.C.No.106 of 2005, dated02.08.2006, whereby the appellant along with the other three accused stoodcharged as follows:A-1 to A-3 - 498(A) IPC and Section 4 of Dowry Prohibition Act. A-1 - Section 302 IPC (2 counts) A-1 and A-4- Section 302 r/w S.201 IPC (2 counts)On trial, A-1 was found guilty under Sections 302 IPC (2 counts) and 302 r/wS.201 IPC (2 counts) and awarded with life imprisonment for each count alongwith fine of Rs.10000/- and in default to undergo 6 months RI for each countsand three years RI for each counts along with a fine of Rs.5000/- each indefault to undergo 6 months RI for each counts, respectively.In respect of theother charges, the first accused and all other accused were acquitted of all thecharges.Hence, this appeal has arisen at the instance of the first accusedbefore this court.2.The short facts necessary for the disposal of this appeal could bestated as follows:P.21.Pursuant to the same, he produced a gold chain, which was recovered under acover of mahazar.All the accused were sent for judicial remand.The statementof the witnesses under Section 164 Cr.P.C. were recorded.P.W.24, theInvestigating Officer, on completion of the investigation, filed the finalreport.3.The case was committed to the court of sessions and necessary chargeswere framed.In order to substantiate the charges, the prosecution examined 24witnesses and relied on 21 exhibits and 5 M.Os.On completion of the evidence onthe side of the prosecution, the accused were questioned under Section 313Cr.P.C. as to the incriminating circumstances found in the evidence ofprosecution witnesses, which they flatly denied as false.On the side of theaccused, two witnesses were examined as D.Ws.1 and 2 and no exhibits or materialobjects were marked.On completion of evidence on both sides, the lower courtheard the arguments of either counsel and took the view that the chargeslevelled against A-1 in respect of Sections 302 IPC (2 counts) and 302 r/w S.201IPC (2 counts) were proved and in respect of the other charges, the firstaccused and the other accused were acquitted.Under these circumstances, A-1 hasbrought forth this appeal before this court.4.Advancing arguments on behalf of the appellant, the learned counselwould submit that the entire case is rested on the circumstantial evidence; thatno one circumstance was proved, pointing to the guilt of the accused; thataccording to the prosecution, the occurrence has taken place on 20.09.2004 atabout 3.30 p.m.; and that first, the case of prosecution was that there wasdowry harassment, but the lower court was not prepared to accept the evidenceand has acquitted all the accused in this regard.Secondly, P.Ws.14,15 and 16 at that timefound A-1, quarreling with his daughter-in-law, pushing her inside and closingthe door and thereafter, the fumes were coming out and thus, A-1 was last seenalong with the deceased Parameswari.The prosecution relied on post-mortemcertificate given by P.W.10, the Doctor in respect of D-1 and D-2 and the Hyoidbone examination found ante-mortem fracture in respect of the deceasedMaheswari.Further, the prosecution relied on the recovery of M.Os, pursuant tothe confessional statement made by the first accused.5.Added further the learned counsel that in the instant case, P.W.9 wasexamined to the effect that it was he, who came to the village of P.Ws.1 and 2to inform the incident.According to the learned counsel for the appellant, noone circumstance was pointing to the guilt of the accused.So far as P.Ws.15 and16 are concerned, they were closely related to the deceased and they belonged toAthirapatti.They came to the village of the deceased Maheswari to see her andthus, P.Ws.14, 15 and 16 came to the place of occurrence and they found thequarrel between A-1 and his daughter-in-law at the time of occurrence and also,they saw the first accused pushing her inside and closing the door.Theprosecution has no explanation to offer as to why such delay has happened.6.The learned counsel for the appellant further added that so far as theextra judicial statement was concerned, it was given by A-1 to P.Ws.6 and 7.Though they claimed to be the independent witnesses, they have turned hostile.The extra judicial confession, even assuming to be true, once it has been givenamong all the villagers, it loses its importance.So far as the medical reportwas concerned, though the prosecution claimed that immediately, the post-mortemwas conducted, the post-mortem reports have been given only in the month ofDecember, 2004 and under these circumstances, the prosecution had no explanationto offer as to how such delay has happened and that the reports areinconsistent.7.Added further the learned counsel, in the instant case, the evidence ofthe prosecution as to the dowry harassment was not accepted by the lower court.The Sub Collector, on receipt of the copy of the complaint, immediately came tothe spot, conducted inquest, examined the witnesses, recorded their statementsand has found that it was only the death due to dowry harassment and nototherwise.P.W.9, on information from A-1, went over to the place of P.Ws.1 and 2and informed about the incident.P.W.9 has given evidence, stating that A-1 toA-3 were working with him in the field from 9.00 a.m. to 4.00 p.m. and they sawthe fumes and they went over and found the dead bodies.P.W.9 was not treatedas hostile and hence, his evidence could not be binding on the prosecution.Allwould go to show that the prosecution has no case at all.The lower court shouldhave recorded an order of acquittal in respect of A-1 also and hence, justicehas got to be rendered.8.The court heard the learned counsel for the respondent on the abovecontentions.9.The court has paid its anxious consideration on the submissions made.Inthe instant case, it is not in controversy that both the deceased, namelyMaheswari and her one year old child, were found dead inside the house of A-1.The case of the prosecution was that there was all along dowry harassment by allthe accused and that at the time of occurrence, it was A-1 with the assistanceof the other three accused, has actually killed them inside the house.Thecircumstance relied on by the prosecution is the evidence of P.Ws.14, 15 and 16and their evidence would indicate that there was quarrel between the father-in-law, namely A-1 and the daughter-in-law, namely Parameswari and it was he, whopushed her inside and closed the door.Immediately thereafter, the occurrencehas taken place within half an hour or one hour.If really, such anoccurrence has taken place, there could not be any impediment for them to informthe same to P.W.1 or to anybody.But, they have not informed the same toanybody.For the first time, the police has examined them only on 24.09.2004.One would expect the Investigating Officer to despatch the statements of thosewitnesses, who according to the prosecution were the strong circumstances,immediately or within a reasonable time, but the statements were sent to thecourt after a period of six months and no explanation has been tendered by theprosecution.10.Secondly, P.W.9 was the witness on the side of the prosecution.It washe, who was sent by A-1 to inform about the death of D-1 and D-2 to P.Ws.1 andP.W.9 was not treated ashostile.According to the evidence of P.W.9, he was working along with theaccused Nos.1 to 3 in the field.At the time of occurrence, they saw the fumescoming out of the house and all went over there and saw the dead bodies.Thus,from his evidence, it is highly improbable to hold that A-1 was inside the houseand caused the death.The prosecution had no explanation to offer contraevidence.11.Further, in the instant case, the origin of the case was dowryharassment.The Sub Collector, on receipt of the copy of the complaint, hasconducted inquest and has given a report that the death was due to dowryharassment and not otherwise.The post-mortem Doctor has given fourcertificates, namely two certificates in respect of each deceased.The post-mortem was conducted, according to the prosecution, immediately after theinquest was over.Had it been true, there could not have been any delay ingiving the final opinion, but the final medical opinion was not given and wasdelayed and after a few months, another report has been given.Initially,opinion about the hyoid bone was not given, but in a later report, the opinionwas that the hyoid bone was found broken.At this juncture, a medical theorywas brought to the notice of the court.Once fracture on the hyoid bone isnoticed, it cannot be stated that whether it was broken prior to ante-mortem orbefore post-mortem.Had it been true, it would have been immediately found, butnot found so.This fracture would have been subsequently found whenmicroscopic test was caused at the time of post-mortem.Thus, it would not beconclusive also.12.In the instant case, so long as the evidence of P.W.9 is available thathe found all the accused along with him in the field, it is highly improbablethat A-1 was inside the house and caused the death of both the deceased.Theadded circumstance is that the specific case of the prosecution was thatdeceased No.2 was aged about 1 year and he was in the cradle and he was dashedagainst the wall and hence, he died.But, not even one external injury wasnoticed.Thus, the prosecution case requires rejection in this regard.13.So far as the recovery of M.Os pursuant to the confessional statementsare concerned, the court has to outrightly reject the same for the simple reasonthat immediately after the case was registered, the Investigating Officer tookup the investigation and proceeded to the spot.They took charge of the houseimmediately and all the M.Os were inside the house and A-1 was very well presentand he also went to police station and on the next day, he was very wellavailable.But, A-1 was arrested after a few days.The police wanted to tutorthat there was arrest of A-1, following which he gave confessional statement andconsequent upon the same, M.Os., which were available inside the house, wererecovered, which is nothing but farce in order to support the prosecution case,but in vain.It is a settled proposition of law that in a given case like thiswhere the prosecution rested its case on circumstantial evidence, thecircumstances must constitute a chain without a snap and point out thehypothesis that except the accused none else could have committed the offence.The law does not mandate that in a given case, number of circumstances must beproved and even one circumstance would suffice to prove the prosecution case.When the prosecution rested its case on number of circumstances, a duty is castupon the prosecution to establish each and every circumstances and it shouldform a complete chain without a snap.In the instant case, the court has nooption than to reject the case of prosecution, since it has not proved the case.14.In the result, the judgment of conviction and sentence imposed on theappellant/A-1 by the lower court is set aside and he is acquitted of all thecharges levelled against him.He is directed to be released forthwith unlesshis presence is required in connection with any other case.The fine amount, ifany, paid by the appellant/A-1 shall be refunded to him.Accordingly, thiscriminal appeal is allowed.1.The Additional District and SEssions Judge, Fast Track Court, Pudukkottai.2.The Deputy Superintendent of Police, Ponnamaravathi Division, Thirumayam All Women Police Station, Pudukottai District.3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. | ['Section 302 in The Indian Penal Code', 'Section 304 in The Indian Penal Code'] | Analyze the legal case and identify the corresponding section it comes under. |
193,590,934 | Case of the prosecution, as set out in the chargesheet is that, on 06.10.2007 on receipt of DD no. 25-A, at 08:30pm, police officials namely, Inspector Ganga Singh along with SI R. D Pandey, ASI Ikramuddin, HC Devender, Constable Satpal, Constable Ram Gopal and Constable Brij Lal of Police Station Greater Kailash, New Delhi reached at the house of accused situated at N-115, IInd floor, GK-I, New Delhi.Police found place of occurrence i.e. house no. N-115, IInd floor, GK-I, locked from inside.Police broke open the door and found accused Salim Hussain in an injured condition and there seemed a gunshot wound on the right side of his chest.Another person namely, Kailash Chand Sethi was lying dead and his throat had a deep injury.Chance prints and other exhibits were lifted and photographs of the spot were taken.Videography was conducted and accused Salim Hussain, the injured was shifted to AIIMS hospital.(ii) On 09.10.2007, injured Salim Hussain (accused herein) was declared fit for statement by the doctor but he chose not to make any statement to the police.Salim Hussain in his statement, stated, that on 06.10.2007 at about 06:45 pm, Ms. Nagma and some other persons namely, Liyakat Ali, Irshad Ahmed, Sadiq, Matloob Ahmed and Firasat came to his house.He had a dispute with Irshad and thereafter, he was hit by Irshad and then, started discussing business matter.When they were discussing the business transaction, his accountant-Kailash Chand Sethi was making call to his mobile from Crl.Appeal No. 524/2014 Page 2 of 39 his mobile but he did not pick up his call as Kailash Chand Sethi was called in the morning and wanted to come to collect tax money but Sadiq saw at the screen of the phone that Kailash Chand Sethi was calling.Sadiq and other persons insisted to call Kailash Chand Sethi and one of three unknown persons took out gun and put it on his neck.On this threatening, he called his accountant Kailash Chand Sethi to come to his house.Thereafter, according to accused (who lodged the complaint) those persons ransacked his house.In the meantime, the doorbell rang.When he got up to open the door thinking that Kailash Chand Sethi would have reached, those persons allegedly put him under threat of gun and came with him to the door.Accused Salim Hussain further stated that Kailash Chand Sethi was drunk.He went to the balcony of his flat overlooking the main street and called his wife Parul, who told him that she was near the flat.Accused asked her not to come as 8-9 persons had come to his house.He threw the keys after tying them in a handkerchief, which were picked up by his wife-Parul and she left.Salim Hussain further stated that when he was making call from balcony, he saw Matloob Ahmed, Aizaj Ahmed- his son in a black colour Quails.There was another Santro car behind Quails car and Usman came out of this car and walked to the stairs to his flat where Babboo was already standing.On seeing these persons, he immediately went inside and saw that Nagma was talking to Abbas Bhai.Thereafter, Nagma and her father left from his flat.According to the accused, on gun point, he was asked by Irshad to sign 15 cheques, which he signed.One of the three persons asked him to switch on the TV and then asked to increase it to full volume which he did.Then, third person brought a mutton chopper from kitchen and put it on Sethi's neck.Salim Hussain stated that he tried to hold the Crl.Appeal No. 524/2014 Page 3 of 39 hand of third person, who tried to stab him in the stomach but as he tried to save himself, the knife was stabbed in his thigh.In the scuffle, knife dropped from the hand of third person, which was picked up by him.He tried to hit back the third person.On which, he fell down and became unconscious.Case of the prosecution is that initially, police believed the story of Salim Hussain.Mobile call details and locations of mobile phone of Liyakat and Firasat were collected and it was established that all suspects named by accused were present at their native places i.e. out of Delhi in Bareilly at UP at the time of incident except suspect Irshad Ahmed.During those days I was investigating the case, FIR No. 141/07, under Section 307, P. S. Anand Parvat in which accused Salim, present in court and his brother whose names I do not remember were accused.One Naseem was injured in this case.On 06/10/2007 at noon time accused Salim Hussain had called me on my mobile phone having no. 9868554889 from his mobile phone and told me that Nagma, wife of injured Naseem was making call to him frequently to comprise the matter and demanding money on that account.Accused Salim further told me that the said Nagma would be coming to him in the evening of same day.I told accused Salim that it was his personal matter and I have nothing to do with the same.On 6.10.07, at about 7.45 p.m., my husband Sh.Amitabh Sen Gupta was going out for evening walk.Lot of noise was coming from the opposite flat i.e. N- 115, IInd Floor, right side, Greater Kailash, Part-I. My husband asked me to tell the occupants of the opposite flat to stop the noise.I rang the door bell of the opposite flat and Mr. Saleem whom I knew as Mr. Hussain as then I was not knowing his first name, to stop the noise of music.Mr. Saleem had opened the door and agreed to stop the music and he closed the door of the opposite flat immediately.The music was not stopped.After 10/15 minutes, the police came knocking at my door and said, "idhar khoon hua hai".I was taken aback and I opened the door of my flat for them to see.Then they said, "Saleem Saleem".I told them I do not know Saleem but I know someone by name of Hussain who stays opposite my flat.The police asked me to close the door.They were three police persons.I closed my door.I could hear them bang open the door of the opposite flat.Nothing more I know.The accused present in JC is that person whom I know as Mr. Hussain and later on I came to know that he is Saleem Hussain."On 06.10.07, I was working as a servant at the guest house being run by Sh.Virender Chopra at premises no. N-115, Ground Floor, GK-I, New Delhi.On that day, a party was going on.It was started at about 6- 6.30 pm.At about 7.30 - 8.00 pm, I received a call from the wife of the accused, present in the court that somebody was beating her husband/accused at IInd Floor whereon she alongwith her husband was residing.I was further asked to go to IInd Floor and see what was happening.When I reached Ist floor, I heard loud sound of TV which was coming from IInd floor.To establish the guilt on the part of persons implicated by the appellant in his statement, brief outline of testimonies of Prosecution Witnesses are as under:-First of all, Nagma (PW-22) in her testimony deposed that on 06.10.2007 she was present at her house for the whole day.On that day the appellant had not made any call to her.HC Sita Ram (PW-51) Incharge of PCR Van Eagle-41 along with Ct.Satbir and driver Surender reached the spot around 8:26 p.m. on receipt of a call at 08:23 p.m. from PCR to the effect that "8/9 ladke mujhe goli mar ke bhaag gaye".Door of the flat was found Crl.Burden of ProofThe prosecution witnesses i.e. Nagma (PW-22), Liyakat Ali (PW-4), Irshad Ali (PW-7) Sadiq (PW-5) and Firasat (PW-25) have proved that they were not in Delhi on the day of incident nor present at the spot of incident.Present appeal filed by the appellant under Section 374 (2) of the Code of Criminal Procedure, is directed against the impugned judgment dated 30.10.2013 and order of sentence dated 12.12.2013 passed by the Learned Additional Sessions Judge in Sessions Case No. 61/2012 imposing sentence of imprisonment for life and a fine of Rs. 5,00,000/- for the offence punishable under Section 302 read with Section 120-B of Indian Penal Code and in default of payment of fine, to further undergo simple imprisonment for three years.The appellant was also sentenced to undergo rigorous imprisonment for two years for the offence punishable under Section 203 of Indian Penal Code.Appeal No. 524/2014 Page 1 of 39He came to senses on hearing ring of his mobile phone and noticed that his accountant-Kailash Chand Sethi was lying over him and an almirah was lying over both of them.He called police at 100 number from his phone.Appeal No. 524/2014 Page 2 of 39Appeal No. 524/2014 Page 3 of 39(iii) Accused Salim Hussain further stated that during incident, door bell was pressed by his aunty and when he opened the door a little, at that time, one person had placed knife on his back.Aunty asked him to slow down the volume.(iv) During investigation, it was found that accused Salim Hussain named aforesaid persons falsely as he had to make payment of Rs. 60-70lacs to those persons and in order to avoid the said payment, he intentionally falsely named those persons in his statement to implicate them in the false case.During investigation, it was revealed that accused Salim Hussain had a business dealings with the persons against whom, he made allegations in his statement and accused Salim Hussain owed a substantial amount of money towards all these persons and also owed Rs. 70,000/- to Kailash Chand Sethi.Appeal No. 524/2014 Page 4 of 39(v) A medical board was constituted to opine about the nature of injuries sustained by accused Salim Hussain.Medical Board opined that injuries found on the body of accused Salim Hussain could be self-inflicted.Apart from this, FSL report confirmed that blood found on the clothes of Kailash Chand Sethi (deceased) also matched with blood found on the clothes of accused Salim Hussain.As per FSL report, injuries on the body of Kailash Chand Sethi (deceased) could be produced by the recovered knife.(vi) It is alleged that initially, accused Salim Hussain tried to mislead the investigation and made efforts to falsely implicate some persons.It was revealed that at about 09:30 am on 06.10.2007, accused Salim Hussain called Kailash Chand Sethi (deceased) and asked him to come to his flat in the evening.This fact is corroborated by the statement of Smt. Kiran Sethi, wife of Kailash Chand Sethi.It is further the case of prosecution that the analysis of call details of accused Salim Hussain showed that he was using his mobile phone to make and receive calls, whereas, as per his version of incident, he was under threat of gun and many persons were present, some were waiting downstairs and at the same time, he was being allowed to use his mobile phone from his balcony.Version of Salim Hussain that Nagma was calling him on his mobile was not established.The version of accused Salim Hussain that he threw the key bunch to Parul Singh-his wife from the balcony was found not true.Cell ID chart showed that Parul Singh did not come to Greater Kailash.(vii)Case of prosecution is that accused Salim Hussain along with one Rashid planned and conspired to kill Kailash Chand Sethi.They cut the throat of Kailash Chand Sethi and then accused Salim Hussain managed the knife and gunshot injuries on his body.He implicated Nagma and other persons with whom he had Crl.Appeal No. 524/2014 Page 5 of 39 enmity and owed them money.The fact that he planned to kill Kailash Chand Sethi is proved by his conduct on 06.10.2007 as he called SI Santosh Kumar, Investigation officer of Police Station Anand Parbat during the day and tried to create evidence in his favour by telling him that Nagma was calling him and wanted to come to his house to settle the case.Accused Salim Hussain called his lawyer, so that he could also become a witness that Nagma was planning to come to his client's house.It is the case of prosecution that all the persons against whom accused Salim Hussain made allegations in his statement, had no opportunity to be present at the scene of crime at the time of commission of murder of Kailash Chand Sethi and it was he, who committed murder of Kailash Chand Sethi.Presence of Salim Hussain at House no. N-115, IInd Floor, Greater Kailash-I on 06.10.2007 along with his accomplice Rashid was proved.It is stated that accused Salim Hussain along with his accomplices Rashid and Irshad Ahmed conspired to kill Kailash Chand Sethi (deceased).Appeal No. 524/2014 Page 5 of 39On 08.10.2009, charges u/s 120- B IPC, 302 r/w 120-B IPC and 301/203 IPC were framed against accused to which he pleaded not guilty and claimed trial."Appeal No. 524/2014 Page 6 of 39In such a situation the accused cannot be questioned and his answers cannot be used to supply the gaps left by witnesses in their evidence.In such a situation counsel for accused No. 5 Jinda strongly submitted that his examination under Section 313 should be totally discarded and his admissions, if any, wholly ignored for otherwise it may appear as if he was trapped by the court.According to him the rules of fairness demand that such examination should be left out of consideration and the admissions made in the course of such examination cannot form the basis of conviction".Learned counsel for the appellant further submitted that the Learned Trial Court has failed to appreciate that there is no evidence on record to prove the alleged conspiracy between the appellant and one Rashid (who is absconding) to commit the Crl.Appeal No. 524/2014 Page 7 of 39There is another point of law which must be considered before dealing with the evidence in this case.The prosecution case against accused No. 1 rests on circumstantial evidence.Appeal No. 524/2014 Page 8 of 39Per contra, Mr. Feroz Khan Ghazi, APP for State argued that it has been established that Nagma (PW-22), Liyakat Ali (PW-4), Irshad Ali (PW-7), Sadiq (PW-5), Firasat (PW-25), Matloob Ali, Ijaz Ali and three other unknown persons, named by appellant in his statement as accused were in Bareilly on the day of incident i.e. 06.10.2007; that PW Nagma, resident of Delhi was not present at the spot on the day and time of incident; that the appellant intentionally refused to make his statement to the Investigating Crl.Appeal No. 524/2014 Page 9 of 39 Officer (PW-63) on 09.10.2007 despite being fit and stated that he would give his statement only after consultation with his counsel; that the appellant had minor injuries but stayed in AIIMS for 29 days to delay the investigation; that the appellant concocted an unconvincing story; that according to the appellant he was shot at in his house but no neighbour or public witness was examined to corroborate it; that the appellant also failed to lead any defence evidence to prove that there was a gunshot in the house; that the conduct of the appellant was unnatural as he called his wife despite the threat extended by Nagma (PW-22), Liyakat Ali (PW-4), Irshad Ali (PW-7), Sadiq (PW-5), Firasat (PW-25), Matloob Ali, Ijaz Ali and three other unknown persons but failed to inform the police; that in furtherance of his concocted story he scattered papers in an unusual manner in the room in which the crime took place with a design to save himself.Appeal No. 524/2014 Page 9 of 39We have heard learned counsel for both the parties and considered their rival submissions.The case presented by the prosecution is that the appellant and one Rashid (absconding) conspired to kill the deceased Kailash Chand Sethi with the motive to falsely implicate Nagma (PW-22), Liyakat Ali (PW-4), Irshad Ali (PW-7), Sadiq (PW-5), Firasat (PW-25), Matloob Ali, Ijaz Ali and three other unknown persons.. In pursuance of the same, the appellant invited the deceased to his house, got him drunk and cut his throat with a knife after which the appellant managed to self inflict the gun shot and knife injuries.The prosecution puts forth that in order to cultivate the evidence in his favour, the appellant called SI Santosh Kumar and his lawyer Crl.Appeal No. 524/2014 Page 10 of 39 on 06.10.2007 and informed them that Nagma wanted to come to his house to settle the accounts.An extract from the testimony of SI Santosh (PW-37) is given as under :Appeal No. 524/2014 Page 10 of 39"In the month of October, 2007 I was posted as SI at P. S. Anand Parvat.In order to bring home the guilt of appellant it would be appropriate to examine the evidence of some of the prosecution witnesses and the documents placed on record.Smt. Madhushree Sen Gupta (PW-27) and Ranjan Das (PW-28) did not see anybody coming or going into the house and unnatural conduct of the appellant who did not inform police or raised any alarm despite having an opportunity to do so.Smt. Madhushree Sen Gupta (PW-27) did not see any outsider coming or going to the flat of the appellant or passing through the staircase and the appellant did not seek her help or came out or raised noise or alarm, when he opened the gate at the time when Crl.Appeal No. 524/2014 Page 11 of 39 she had come and requested him to reduce the volume of the T.V. PW-27 deposed that :Appeal No. 524/2014 Page 11 of 39During the time, I had knocked at the door of the opposite flat, I had not seen any outside coming or going to the opposite flat or passing through the staircase.On 08.10.07, police inquired and recorded my statement".Ranjan Das (PW-28), a servant working in the Ground Floor of the said building, deposed that the wife of the appellant had called him twice and requested him to check whether anybody is beating her husband and further deposed that he did not see anybody coming Crl.Appeal No. 524/2014 Page 12 of 39 or going to the second floor of the said building.I did not go to IInd floor and came back to ground floor.Again I received call of the wife of accused on my mobile phone.I told the aforesaid facts to her.I had not seen any person going or coming back from IInd floor of the building no. N- 115, GK-I. I had not heard or seen any quarrel taking place that evening.The wife of accused was having number of my mobile phone as she used to call me to inquire about maid Munni who used to work in our guest house as well as in the house of the accused".Testimony of both these witnesses proves that Nagma (PW-22), Liyakat Ali (PW-4), Irshad Ali (PW-7), Sadiq (PW-5), Firasat (PW-25), Matloob Ali, Ijaz Ali and three other unknown persons were not present at the place of occurrence and despite having ample opportunity to raise alarm or call the police, the appellant did not do so which shows the unnatural conduct of the appellant.Regarding last seen evidence it would be useful to peruse the depositions of Smt. Kiran Sethi (PW-2), the wife of the deceased Smt. Kiran Sethi (PW-2) and the Investigating Officer (PW-63).Appeal No. 524/2014 Page 13 of 39Smt. Kiran Sethi (PW-2) in her testimony deposed that the deceased received a call on his mobile from the appellant asking to meet him up at 7 pm.The appellant admitted in his statement that the deceased came to his residence at around 7:30 pm.The Investigating Officer (PW-63) deposed that on 06.10.2007, pursuant to registration of DD no. 25-A and DD no. 24-A (Ex.PW- 63/A) he reached the place of incident i.e. N-115, Second Floor, G.K.-I, New Delhi and found the gate of the floor closed and it appeared that the door was locked from inside and TV was on high volume or somewhat similar object was being heard from inside and that the door of the second floor was broke opened and two persons were lying in an injured condition on the floor in front of the sofa.He further deposed that he picked up the person who was lying over the other one whose name was revealed as Salim and he turned the second person who was lying with his face downwards.Neck of that person was cut and a blood stained knife was also found lying on the floor under the body of that person.Some documents were also found scattered over the sofa set.PW-63 also deposed that he found one bullet lying on the floor, which had hit the wall before falling on the floor.In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases.In this case there is positive evidence that the deceased and the accused were seen together by witnesses PWs 3 and 5, in addition to the evidence of PW 2."Appeal No. 524/2014 Page 15 of 39Appeal No. 524/2014 Page 16 of 39 tried to hit the said person, the appellant fell down and became unconscious.The appellant further stated that he came to senses on the vibration of his phone and found Kailash Chand Sethi lying dead over him.Appeal No. 524/2014 Page 16 of 39Munna (her nephew) along with his friend had come to her house at about 5 pm.They prayed 'Namaz' and left at about 9 p.m. after 'Roza Iftar'.PW-22 further deposed that she had not gone to the house of appellant on 06.10.2007 and also deposed that she had not called the appellant for 20-25 days before the date of incident which was proved by the call detail records of her phone number.As per Liyakat (PW-4) on 06.10.2007 he was present in Bareilly and on that day Bareilly police had called him to the police station in connection with a cheating case and he went to the police station at about 5 p.m. where SI obtained his signatures on some documents and thereafter he came back to his house for Roza Iftar at about 6 p.m. He further deposed that thereafter he performed prayer in Masjid with his brother and relatives and performed Tarabi in the Masjid upto 9:30 p.m. and smentioned that he also met Badrul Islam Imam, Saddik Beg and Yamin Beg at Masjid.Appeal No. 524/2014 Page 17 of 39As per Firasat (PW-25) on 06.10.2007, he was present at his house since morning to evening and was doing job of alteration of sarees and after completion of alteration job he had taken the sarees to the shop of one Panditji in Bada Bazar, Bareilly for delivery at around 6:00 p.m. or 6:15 p.m. He further stated that he was present at the shop of the said Panditji and had opened his fast at the shop of Panditji by eating Samosa and drinking tea and returned home at around 8:00 p.m. or 8:30 p.m. Irshad Ali (PW-7) deposed that on 06.10.2007, Babbu, Usman, Nawab Ali and Shamshad were with him.It was the month of Ramzan and he prayed Namaz at 4:00 p.m., 4:30 p.m. and 8:30 p.m. and they had not left Bareilly.Further Shamshad (PW-8), Babbu (PW-10) and Usman (PW-9) also deposed on the same lines of Irshad Ali (PW-7).Badrul Islam (PW-31) deposed that on 06.10.2007, Liyakat (PW-4) invited all the namazees for biryani after Maghrib Namaz as it was the first death anniversary of his grandfather and he also made an arrangement for Iftar on that day as it was the month of ramzan.He further deposed that about 100 people including Liyakat (PW-4) broke their fast together at Masjid and thereafter, they all had dinner after Maghrib Namaz and also deposed that Liyakat (PW-4) remained with him in the Masjid from 5:00 p.m. to 9:00 p.m.The prosecution witnesses namely, Naeem (PW-6), Irshad Ali (PW-7), Shamshad (PW-8), Usman (PW-9), Babbu (PW-10), Nawab Ali (PW-11), Mohd. Nafees (PW-12), Parvez Khan (PW-14) and Qumar (PW-15) have deposed that the persons named by Crl.Appeal No. 524/2014 Page 18 of 39Hence, on scrutiny of evidence, it stands established that Liyakat Ali (PW-4), Irshad Ali (PW-7), Sadiq (PW-5), Firasat (PW-25), Matloob Ali, Ijaz Ali and three other unknown persons were not present in Delhi on the date of incident and had not visited the residence of the appellant on the said day in the evening hours and further it cannot be said that Nagma (PW-22) could be the perpetrator of the crime even though she was present in Delhi on the day of the incident but her CDR shows that she was located far from the scene of the crime on that day.Appeal No. 524/2014 Page 19 of 39 locked and the SHO got it forcibly opened with the help of staff wherein two injured persons were found.He took injured Salim Hussain to the AIIMS hospital.Appeal No. 524/2014 Page 19 of 39Dr. Raghvendra Kumar (PW-29) conducted the post-mortem of the deceased and noted the following injuries in the postmortem report (Ex.PW-29/A) :-Injury No.1 - Cut throat wound present over the neck in front measuring 13 cm in length, 2 cm in breadth, organ deep, 10 cm below chin and 4 cm above the sternal angle, clotted blood present around the wound.Injury No.2 - Incised wound measuring 2.5 cm X 0.4 cm X skin deep present over right side of neck, 1 c.m. above injury no. 1, PW-29 opined that the cause of death as "shock as result of hemorrhage" and opined that injury no.1 was sufficient to cause death in ordinary course of nature.Dr. Imtiakum (PW-30), SR Surgery, AIIMS, New Delhi noted the following injuries on Salim Hussain as per MLC:-Injury No. 1 - Tattooed dirty in injury 1cm X 1cm X 1 cm at the sixth inter costal space between mid clavicular line and anterior axillary line.Injury No. 2 -Small injury 1cm X 1 cm X 1cm at the seventh inter costal space at anterior axillary line.Injury No. 3 -Incised wound at inner right thigh, 2 cm X 2 cm X 2 cm.It was made clear from his statement that injuries no. 1 and 2 could be gunshot injuries while the Crl.Appeal No. 524/2014 Page 20 of 39 injury no. 3 could not be a gunshot injury and was likely to be caused by sharp edged weapon.Appeal No. 524/2014 Page 20 of 39Dr. Sudhir Gupta (PW-58) opined vide his report Ex.PW58/C about the possible use of knife seized from the spot in causing the injuries to the deceased which resulted in death.Medical Board was constituted to opine about the injuries sustained by the appellant.The report of the medical board has been proved as Ex.PW34/A.Dr. N. K. Aggarwal (PW-34) stated that he headed the Medical Board as Chairman and the Members of the board given the following opinion :-(i) The patient was admitted on 06.10.2007 and ICD (inter costal drainage tube) was inserted on the same day and ICD was removed on 11.10.2007 at 4:00 pm, X-Ray of chest done post ICD, removal was not showing Haemo - Pneumothorax.So the patient's stay in the hospital after X-Ray chest i.e. from 12.10.2007 to 30.10.2007 was not justified.(ii) On admission ICD tube was inserted without any X-Ray chest done.IT was opined that the reason for putting an ICD tube without an X-ray chest and normal vital signs was not justified.Thus no definite opinion regarding nature of injuries no. 1 and 2 can be given.Injury no. 3 was simple in nature.(iii)The injuries could be self-inflicted and there were only two superficial wounds over the right side of the chest.Appeal No. 524/2014 Page 21 of 39The injuries found on the body of the appellant could be self-inflicted.Dr. N. K. Aggarwal (PW-34), Member of Board deposed that injuries could be self inflicted and there were only two superficial wounds over the right side of the chest.Wound No. 1 was stated to be having tattooing but it was nowhere mentioned whether these wounds entered the chest cavity or not.Injury No. 3 was on the right side of the thigh.Medical evidence on record shows that the injuries on the person of the appellant were superficial in nature and could be self inflicted and his extended stay w.e.f. 12.10.2007 to 30.10.2007 was not justified.In view of the above, we are of the opinion that the appellant was under influence of sedatives or pain killers and was not in a position to give statement, is not tenable.It needs to be noticed that the appellant despite being declared fit for statement refused to make his statement to the Investigating Officer (PW-63) on 09.10.2007 without consulting his legal counsel and also did not join the investigation.As a matter of fact, the appellant knew that he was the culprit and wanted to give his statement after consulting a legal person in order to manipulate his statement and save himself.As per the statement of the appellant, the persons named by him visited his house on the day and time of incident.However there are no witnesses from the neighbourhood of the appellant who Crl.Appeal No. 524/2014 Page 22 of 39 have come forward to depose that the said persons visited the flat of the appellant.Smt. Madhushree Sen Gupta, neighbour of the appellant (PW-27) and Ranjan Das, servant at the ground floor (PW-28) clearly deposed in their testimony that they did not see any person / outsider coming or going to the flat of the appellant or passing through the staircase of the flat.Hence this proves that the statement made by the appellant is false and cannot be relied upon.Appeal No. 524/2014 Page 22 of 39The other plea of the appellant that he was under the threat of gun has no force as it has emerged on record that during the said period, he was receiving and making calls from his mobile.The other plea of the appellant is that his wife had come to take the keys of the house and he threw the bunch of keys to his wife from the IInd Floor of the house which is lie as the Cell ID Chart of his wife's mobile suggests her location outside Greater Kailash at the relevant time.33. Law with regard to the conviction on the basis of circumstantial evidence has been discussed in detail by the Supreme Court in the case of Harishchandra Ladaku Thange Vs.It would be useful to reproduce the relevant paras:-Regarding burden of proof it will be useful to peruse the testimony of Smt. Kiran Sethi, wife of the deceased (PW-2) who clearly deposed that on the day of incident, her husband i.e. the deceased had gone to meet the appellant after receiving his call.Smt. Kiran Sethi, wife of the deceased (PW-2) deposed that :"On 06.10.2007, my husband had come home at about 2-3 pm.After taking meals he took rest for quite Crl.Appeal No. 524/2014 Page 27 of 39 sometime.Then between 5/6 pm he called Saleem bhai on his phone telling him that he is not coming to his office.Saleem told him that he had called him at 7 pm.My husband started getting ready to visit the office of Saleem Hussain.He left the home at about 5.30/6 pm.When I asked him why he is going at 6 pm when he had been called at 7 pm, he told that he would first go to Defence Colony, then a Paan shop, then board a bus and by the time he would reach Saleem's office it would be 7 pm.When he left home he told me that he would be back by 9 pm.My husband did not come home at 9 pm.I kept on waiting for him.Then I called him on his mobile phone.The phone was picked up by some police officer who told that my husband had a quarrel with someone and he has been injured on his head and he asked me to come".Appeal No. 524/2014 Page 27 of 39We consider it necessary at this stage to refer to a decision of the Supreme Court of India reported in State of Rajasthan v. Kashi Ram AIR 2007 SC 145, where the law on this subject has been discussed Crl.Appeal No. 524/2014 Page 28 of 39 in detail.The appellant did not give any plausible explanation to prove that he did not murder the deceased although he was present at the spot of the incident and the persons named by him who according to him visited his house are the persons who murdered the deceased.On the basis of medical evidence on record it stands proved that the injuries on the body of the appellant were self-inflicted so as to free himself from the doubt of murder of the deceased.Appeal No. 524/2014 Page 33 of 39In the present case, the prosecution examined Liyakat Ali (PW-4), Sadiq (PW-5), Irshad Ali (PW-7), Nagma (PW-22) and Firasat (PW-25) to prove that they had business dealings with the appellant and the appellant owed them money.The appellant in his statement admitted that he had an Export - Import Business in the name of M/s. J. Brothers Zari Exports, which was a proprietorship firm and the deceased was accountant of his firm.The above named witnesses examined by the prosecution have deposed that the appellant owed money to them and in order to get rid of the debts he planned to implicate them in a false case and named them for the murder of his own accountant whereas they were not even present at the place of occurrence."I went upto his second floor.His servant Rashid had opened the door.We sat on the sofa.Appeal No. 524/2014 Page 34 of 39 brought the juice.I know Rashid as he used to come at Vinobha Puri to meet accused Saleem and I met him there".Appeal No. 524/2014 Page 34 of 39Raj Kumar (PW-3) categorically deposed that he knew Rashid servant of the appellant and it was he who had served juice to him and opened the door.It is therefore established that Rashid was also present around the time of incident in the house and the appellant failed to throw any light on the disappearance of Rashid.The investigating officer had deposed that when he broke open the door of the second floor he found the appellant lying over the deceased and one Almirah was also lying fallen on the appellant.Admittedly the gun with which the appellant was injured could also not be found/traced.The entire material on record shows that the appellant was not alone and the only inference which could be drawn from the circumstances is that he had taken the help of someone else.There is evidence to establish that Rashid was present at the spot of incident and the effect of all the circumstances is that it was he who helped the appellant in the commission of crime and took away the gun with which the injuries were inflicted by the appellant.As far as the argument of the learned counsel for the appellant with regard to the failure on the part of the prosecution to link the appellant with the gun, it has come on record from the statement of the appellant that one person attacked him on his thigh with a chopper and the other person shot him by taking the gun from Crl.Appeal No. 524/2014 Page 35 of 39 Liyakat (PW-4) and he was hit on the chest on the right side.ASI Veer Sain (PW-21) also deposed in his statement that on 06.10.2007 when he reached the spot he found two persons lying there in injured condition and one of them was the appellant who was having a bullet like injury on his right side of the chest.Dr. Imtiakum (PW-30) who conducted the MLC corroborated the fact of gunshot on the appellant and opined that there were three injuries on his body and injury no. 1 & 2 were gunshot injuries.Appeal No. 524/2014 Page 35 of 39However, it is to be examined as to whether there is any lapse by the IO and whether due to such lapse any benefit should be given to the accused.The law on this issue is well settled that the defect in the investigation by itself cannot be a ground for acquittal.If primacy is given to such designed or negligent investigations or to the omissions or lapses by perfunctory investigation, the faith and confidence of the people in the criminal justice administration would be eroded.Where there has been negligence on the part of the investigating agency or omissions, etc. which resulted in defective investigation, there is a legal obligation on the part of the court to examine the prosecution evidence dehors such lapses, carefully, to find out whether the said evidence is reliable or not and to what extent it is reliable and as Crl.From the evidence adduced by the prosecution we are of the view that the appellant made a false complaint against Nagma (PW-22), Liyakt Ali (PW-4), Irshad Ali (PW-7), Sadiq (PW-5), Firasat (PW-25), Matloob Ali, Ijaz Ali and three other unknown persons and had concocted a story to falsely implicate all the above named persons to whom he owed payments for his business dealings.The prosecution was able to prove its case against the appellant as the above named persons took the plea of alibi which stands proved.Further from the testimony of Smt. Kiran Sethi, the wife of the deceased (PW-2), it stands proved that it was the appellant who had called the deceased to his house before his death and the deceased and appellant were present in the house of the appellant before the death of the deceased.The Appellant also failed to explain the circumstances in which the death of the deceased took place.The unnatural conduct of the appellant and the medical evidence on record show that there was every possibility that the injuries were self inflicted and all these circumstances prove the case of the prosecution.The plea taken by the learned counsel for the appellant that the examination of the appellant under Section 313 was wholly unnecessary and improper does not hold ground.For the reasons stated above and on the basis of the testimonies of the witnesses and in congruence with the last seen theory it stands Crl.Appeal No. 524/2014 Page 38 of 39 established that none else but the appellant is the author of the crime.Appeal No. 524/2014 Page 38 of 39Accordingly, the judgment dated 30.10.2013 and order on sentence dated 12.12.2013 passed by the Learned Trial Court against the appellant are upheld.The present appeal is dismissed.The Registry shall transmit the Trial Court records forthwith.Appeal No. 524/2014 Page 39 of 39 | ['Section 120B in The Indian Penal Code', 'Section 313 in The Indian Penal Code', 'Section 307 in The Indian Penal Code'] | Analyze the legal case and identify the corresponding section it comes under. |
193,592,439 | Learned counsel for the rival parties are heard.The petitioner has filed this first application under Section 439, Cr.P.C. for grant of bail.The petitioner has been arrested by Police Station Bajranggarh, District Guna (M.P.) in connection with Crime No. 104/15 registered in relation to the offences punishable under Sections 307, 427, 342, 323, 294 and 506- B/34 of I.P.C.Learned Public Prosecutor for the State opposed the application and prayed for its rejection by contending that on the basis of the allegations and the material available on record, no case for grant of bail is made out.The allegation against the petitioner is of causing head injury with lathi to Govind, the injured.The fracture of left frontal region of the head has been discovered, constituting an offence under Section 307 of I.P.C. against the petitioner. | ['Section 307 in The Indian Penal Code'] | Analyze the legal case and identify the corresponding section it comes under. |
193,597,618 | The conclusion of the trial will take sufficiently long time.Under these circumstances, learned counsel for the applicant prays for grant of bail to the applicant.Learned Public Prosecutor for the non-applicant / State of Madhya Pradesh opposes the bail application by contending that no sufficient ground is made out for releasing the applicant on bail; hence he prayed for rejection of the application. | ['Section 3 in The Indian Penal Code'] | Analyze the legal case and identify the corresponding section it comes under. |
193,602,157 | There has to be proper consideration 9 and appreciation for recording the satisfaction which has to be passed on true materials.The respondent No.3, Collector has referred list of 23 cases registered against the petitioner from the year 1998 to 2017:Crime Number/Offence Date of incident No.No order as to costs. | ['Section 506 in The Indian Penal Code', 'Section 294 in The Indian Penal Code', 'Section 323 in The Indian Penal Code', 'Section 5 in The Indian Penal Code', 'Section 324 in The Indian Penal Code', 'Section 34 in The Indian Penal Code', 'Section 341 in The Indian Penal Code', 'Section 509 in The Indian Penal Code', 'Section 427 in The Indian Penal Code', 'Section 450 in The Indian Penal Code'] | Analyze the legal case and identify the corresponding section it comes under. |
193,604,362 | "Statement of Dalbir Singh led to the registration of the FIR under section 302 IPC.The crux of the complaint lodged was that on 03.02.2011 at about 10.30pm while members of the extended family of Dalbir Singh were coming back home after attending a marriage function in the vicinity of their residence at Raju CRL.A. 1317/2015, 351/2015, 762/2015 497/2015 (All connected matters) Page 3 of 61 Park, Devli, Khanpur, Delhi, nephew of Dalbir namely Narender @ Naveen, son of Dayal Singh was shot dead by some unknown persons.Assailants had shot Naveen on his head from nearly a point blank range.The victim Naveen was taken to the hospital by the complainant Dalbir Singh in his Maruti van, but the victim Naveen could not be saved, where he was declared brought dead.Her conduct was objected by her husband and as a result of the same, she had to leave her job in a Call Centre and thereafter from the Khajani Institute, too where she had started working, due to some financial misappropriation.She used to take a particular bus every day as that suited her schedule.The bus belonged to one of the coaccused Rishi Bhati, who was not only the owner of the bus but was taking care as conductor also.The regular travel led to interaction between Rishi Bhati and Aarti and thereafter an amorous relationship developed.According to the case of the prosecution the accused Rishi provided a SIM card and separate mobile phone instrument to accused Aarti, which was being used by Aarti to maintain the liaison with Rishi Bhati.Philanderings of Rishi with Aarti somehow came to the knowledge of the husband Aarti, that is the deceased Naveen.Obviously, as any husband would have objected such behavior so was done by Naveen.However, Rishi and Aarti were so blindly and passionately involved with each other that they thought it fit to have the husband of Aarti eliminated.That is how the conspiracy took birth.Accused Rishi then roped in the services of Praveen @ Kalu, who was approached to carry out the execution against a consideration of Rs.3 Lacs, who in turn associated Sumit too.Accused Rishi informed all these things to Aarti but stated that a sum of Rs.5 Lacs would be required to execute this plan.Aarti agreed to provide the money after 20 days of the execution and also stated that she would tell the right time to carry out or execute the plan.CRL.A. 1317/2015, 351/2015, 762/2015 497/2015 (All connected matters) Page 4 of 61CRL.A. 1317/2015, 351/2015, 762/2015 497/2015 (All connected matters) Page 5 of 61He had attended the ceremony with his family members.After attending the ceremony all of them were coming back to their home at about 10:00/10:15pm.The other members of family were ahead of him because he (PW-6) had stayed for a while as he was talking to someone.He was at a distance of about 20-25 paces from other family members.The other members of the family who were walking ahead of him were his brother Dalbir Singh, wife of Dalbir Singh (Smt Savitri), his wife (Jamuna Devi), his son (Navender Singh) and his daughter-in-law (Anuradha).When he had reached near Taneja Garments, which is situated near his house, he saw a Maruti 800 car in a start condition and a boy aged about 30-32 years was standing near the same.As he moved ahead, he saw two cars parked in front H.No.One of the two boys was of dark complexion (sanwla) and the other boy was a lean one.When he had reached near Taneja Garment, he saw his family members taking turn towards their house.At the same time, he saw the dark complexion man shooting his son Navender from country made pistol.He got stunned and could not understand as to what happened.Thereafter, those two boys came running towards him and sat in the white colour Maruti 800 car, which he had seen in a start condition.The boy whom he had seen earlier standing near the Maruti car had driven that car and taken those two boys with him.During his examination in court, this witness has correctly identified appellant Rishi Kumar and stated that this accused was standing near the Maruti Car and had driven away the same.He has also correctly identified appellant Praveen @ Kalu as the one who had shot his son dead.He has also correctly identified appellant Sumit Kumar and deposed that he was standing near the dark complexion boy, who had shot his son.In his examination in chief, this witness has further deposed that on 06.02.2011, in the evening time, police came to his house and after interrogating his CRL.A. 1317/2015, 351/2015, 762/2015 497/2015 (All connected matters) Page 21 of 61 daughter-in-law Aarti, took her with them to the police station.When Aarti did not return till morning from the police station, then on 07.02.2011, he went to police station Neb Sarai and there he came to know that police has arrested Aarti in the murder case of his son and three more accused persons have also been arrested in this case.He also came to know that police has taken all the four accused persons to Saket Court.Thereafter, he went to court and saw all the three accused persons, who had fled away from the spot after committing murder of his son.He had stated this fact to the police.The names of the three accused persons were told to him by the police official.It has categorically come in the testimony of PW-6 Dayal Singh that when he was present near Taneja Garment, he saw his family members taking turn towards their house, and at the same time, he saw the dark complexion man shooting his son Navender from country made pistol.He got stunned and could not understand as to what happened.Thereafter, those two boys came running towards him and sat in the Maruti 800 car of white colour, which was seen by him in a start condition.The boy whom he had seen before near the Maruti car had driven away that car and taken those two boys with him.In his examination in chief, he has also identified those two boys as Praveen and Sumit and the third boy who was standing near Maruti 800 as accused Rishi.In his cross examination he further deposed that the vehicle was parked at the left side ahead of Taneja garments.The distance between the CRL.A. 1317/2015, 351/2015, 762/2015 497/2015 (All connected matters) Page 25 of 61 Taneja garment and the vehicle was 2 or 3 yards.He was moving towards his house when he had heard the sound of gunshot and he had not crossed the vehicle.PW18/G and CDRs of mobile connection no. 9718975053 as Ex.PW19/B.As per CDRs Ex.Then, in these circumstances, how come there are outgoing and incoming calls beyond 07.00 A.M. to 10.00 P.M. It is pertinent to note here that as per prosecution mobile NO. 9899703677 was provided to Aarti by accused Rishi.The testimonies of PW-18 Sh.Deepak, Nodal Officer, Vodafone Mobile Services Ltd. have proved the CDRs Ex.PW18/A, Ex.PW18/E, Ex.PW18/C, Ex.PW18/G and Ex.Vijay Singh is relevant.In his deposition, PW-26 Insp.After analyzing the CDR of IEMI of the handset being used by Aarti, he found another mobile phone number being used in the handset (used by Aarti).He had also collected the call detail records of this mobile phone number.Thereafter, he had ascertained the ownership of the aforesaid number and found the owner of the mobile phone no. 9711841072 and 9899703677 as Rishi S/o Mahipal, R/o D1/10, Sangam Vihar.The location of the mobile phone number 9899703677 was generally coming as that of Raju Park, Devli Road, Delhi and thereafter he came to know that the person holding this mobile phone or its user is resident of area of Raju Park, Devli Road, Delhi.It has come in the testimony of PW-26 Insp.Vijay Singh that Accused Praveen @ Kalu was arrested at the instance of accused Rishi Kumar Bhati from Village Salarpur near Ganda Naala.BRIJESH SETHI, J1. Vide this judgment, we shall dispose of all the appeals bearing nos. CRL.A. 1317/2015, CRL.A. 351/2015, CRL.A. 762/2015 & CRL.A. 497/2015 as these arise out of the same judgment of Learned Trial Court in FIR No.20/2011, registered under Sections 302/120-B read with Section 34 of the Indian Penal Code (hereinafter referred to as 'IPC') and under Section 25/54/59 Arm Act.The present appeals have been filed under Section 374 (2) of the Code of Criminal Procedure (hereinafter referred to as 'Cr.P.C.') assailing the judgment dated 28.01.2015 and order on sentence dated 19.02.2015 passed by the learned Additional Sessions Judge- 02, South District, Saket Courts, New Delhi, in Sessions Case CRL.A. 1317/2015, 351/2015, 762/2015 497/2015 (All connected matters) Page 2 of 61 No.27/2011, arising out of FIR No.20/2011, registered under Sections 302/120-B/34 IPC and under Section 25/54/59 Arms Act at Police Station Neb Sarai, whereby all the appellants have been held guilty under Section 302/120-B IPC.CRL.A. 1317/2015, 351/2015, 762/2015 497/2015 (All connected matters) Page 2 of 613. Vide the order on sentence dated 19.02.2015, all the appellants have been sentenced to rigorous imprisonment for life.Convicts Aarti and Rishi Kumar Bhati were further sentenced to pay a sum of Rs. 20,000/- as fine, in default of which they were directed to further undergo simple imprisonment for a period of six months whereas appellants Praveen @ Kalu and Sumit were also sentenced to pay a sum of Rs. 10,000/- as fine, in default, they were directed to further undergo simple imprisonment for a period of six months.Before the rival submissions of learned counsels for the parties can be considered, we deem it appropriate to outline the case of the prosecution as discussed by learned Trial Court and it reads as under:-CRL.A. 1317/2015, 351/2015, 762/2015 497/2015 (All connected matters) Page 3 of 61The investigations in the matter brought in the role of Aarti, wife of the deceased Naveen into the incident which led to the apprehension and arrest of other coaccused persons namely Rishi, Praveen @ Kalu and Sumit.The investigating agency pieced together the information, evidence and came to the conclusion that the murder was the result of a criminal conspiracy hatched primarily by Rishi and Aarti, who in turn, engaged other two i.e. Sumit and Praveen to carry out the execution of the conspiracy by shooting Naveen dead against a consideration / promise of Rs.3 Lacs.Chargesheet, containing the details of the investigation carried out by police was filed in respect of the accused persons Sumit, Rishi and Praveen under section 302/34 IPC and under section 25 of the Arms Act and qua accused Aarti Rawat under Section 120B IPC.After committal of the case to the court of sessions, accused persons were charged under section 120B and 302 IPC on the basis of evidence gathered by the investigating agency.All four accused persons pleaded not guilty and claimed trial to the charges framed against them respectively.Before proceeding further a brief narration of the indispensable facts emerged during the investigation and trial, is required.The victim Naveen and accused Aarti were married but their married life was not smooth.It seems that Aarti was not able to reconcile with the CRL.A. 1317/2015, 351/2015, 762/2015 497/2015 (All connected matters) Page 4 of 61 relationship and was suspected to be involved into extra marital affair(s).What has been in the knowledge of some of the family members of the deceased vizaviz the strained relations between Aarti and her husband Naveen came to the notice of the IO.This angle was probed which provided clues and that led to the apprehension of Rishi, who spilled the beans and the entire conspiracy was unearthed.The call detail report provided the clue to this and recovery of two mobile instruments from Aarti further brought credence to the theory of conspiracy and involvement of Aarti and Rishi.Thereafter, one after the other all the accused persons were arrested and police was able to recover the weapon of offence i.e. a country made pistol from accused Praveen @ Kalu, who then led to the apprehension and arrest of accused Sumit, who had provided the vehicle i.e. Maruti car to come and escape from the scene.Aggrieved by the impugned Judgment dated 28.01.2015 and order on sentence dated 19.02.2015, all the appellants preferred their respective appeals on the following grounds:-Common arguments made on behalf of all the appellants:-It is argued by learned Counsels for the appellants that Ld. Trial Court has failed to appreciate that the witnesses cited by the police in the present case are the family members of the deceased who apparently had strained relations with the appellant Aarti and had motive to implicate her in the present false case.They were CRL.A. 1317/2015, 351/2015, 762/2015 497/2015 (All connected matters) Page 6 of 61 interested witnesses and there are material contradictions in their testimonies and taking all these cumulatively, it can be inferred that the story as floated by PW-1, PW-2 and PW-6 and other family members is unreliable and untrustworthy and appellants have been nailed to save real culprit.CRL.A. 1317/2015, 351/2015, 762/2015 497/2015 (All connected matters) Page 6 of 61It is next argued that PW-6 Dayal Singh is a concocted witness as his presence at the spot is doubtful.PW-1 Savitri (Aunt of deceased) is silent about presence of Sh.Dayal Singh at the spot though she has named other members of the family who were present at the spot.Sequence of events given by PW6 Dayal Singh, contradicts his own version and shows his blatant lies.He has made vital improvements and there are inconsistencies and contradictions in his testimony which makes him an unreliable and untrustworthy witness.It is further argued that there are many discrepancies in the testimony of PW-6 Sh.Dayal Singh.According to him, he was behind the other family members and he allegedly reached at the spot after some time.He was at a distance of about 60 feet from the shooting place.It is contended that it is not possible that the other CRL.A. 1317/2015, 351/2015, 762/2015 497/2015 (All connected matters) Page 7 of 61 family members who were allegedly walking with the deceased had only heard the voice of crackers/Dhamaka and had not seen the assailants but an old man of around 60 years, who was sixty feet away from the spot, had seen all the assailants/appellants.CRL.A. 1317/2015, 351/2015, 762/2015 497/2015 (All connected matters) Page 7 of 61It is next argued that the Ld. Trial Court has failed to appreciate that according to the first information, allegedly delivered by brother of deceased namely Sh.Praveen Singh, some biker had killed his brother and that information was recorded vide DD no.37A dated 03.02.2011 at the P.S. Neb Sarai but the police during investigation seized the car instead of motorcycle and apprehended the other co-appellants namely Praveen @ Kalu and Sumit Kumar on the allegation of using the said car in the commission of the alleged murder.It is further argued that prosecution has not mentioned the name of brother of deceased i.e. Sh.Parveen in the array of list of witnesses, consequently he was not examined for the reason that prosecution knew the fact that under the given circumstances, the prosecution will not able to prove the case against the accused persons beyond reasonable doubt and to fulfil this lacuna, the prosecution has planted PW6 Dayal Singh alleging CRL.A. 1317/2015, 351/2015, 762/2015 497/2015 (All connected matters) Page 8 of 61 him to be an eyewitness.The Ld.Trial Court has failed to consider the fact that Praveen (Brother of deceased Naveen, who is also known by the name of Navender) was not cited as a witness, hence the prosecution version is doubtful from the day one.CRL.A. 1317/2015, 351/2015, 762/2015 497/2015 (All connected matters) Page 8 of 61It is further argued that the Ld. Trial Court has failed to appreciate that the present case is based on the CDRs of the mobile phones allegedly used by the accused persons/appellants before and at the time of alleged incident but the same have not been proved in accordance with law and, therefore, cannot be relied upon.Moreover, no certificate under section 65B of the Evidence Act is on record regarding the location chart of the phones of the accused persons which is a mandatory requirement of the law before such charts could be read in evidence.It is further argued that CDR may be used to corroborate other evidence appearing on record or to complete a sequence of chain of evidence of crime but cannot be used as a conclusive evidence.CRL.A. 1317/2015, 351/2015, 762/2015 497/2015 (All connected matters) Page 9 of 61CRL.A. 1317/2015, 351/2015, 762/2015 497/2015 (All connected matters) Page 9 of 61Though appellant Parveen was arrested from a densely populated area yet no independent witness was called before or after arrest of the appellant.Submissions made on behalf of appellant Aarti:- CRL.A. 1317/2015, 351/2015, 762/2015 497/2015 (All connected matters) Page 10 of 61CRL.A. 1317/2015, 351/2015, 762/2015 497/2015 (All connected matters) Page 10 of 61Apart from the above common arguments, addressed by all the learned defence counsels, it is further argued by learned counsel for the appellant Aarti that learned Trial Court has failed to appreciate the fact that PW-6 Dayal Singh has furnished car number as '5363' driven by assailants in his deposition before the court but he did not give this number to the police.PW-1 and PW-2 who were also allegedly present at the spot at the time of incident, did not disclose number of the offending vehicle.Moreover, this number was given only on 08.02.2011, i.e., after 5/6 days of occurrence and has not been stated by any other family member who claim to be present at the spot at the time of incident.It is further argued that the PW-6 has nowhere stated that the appellant Aarti was employed anywhere or she had strained relations with her husband or that she had any illicit relations with co-accused/appellant.It is further argued that if the deceased husband had come to know about alleged illicit relationship, this fact would have been known to PW-1 Smt Savitri (Aunt of deceased), PW-2 Sh.Dalbir Singh (uncle of deceased) and PW-6 Sh.Dayal Singh (father of deceased) and they would have expressed CRL.A. 1317/2015, 351/2015, 762/2015 497/2015 (All connected matters) Page 11 of 61 their suspicion about her involvement without any delay.There is no reliable evidence of illicit relations of appellant Aarti with co- appellant Rishi.CRL.A. 1317/2015, 351/2015, 762/2015 497/2015 (All connected matters) Page 11 of 61It is further argued that the arrest memo of appellant also has various discrepancies.Initially her place of arrest was shown as PS Neb Sarai but later on it was changed to A-113, Devli Road, Khanpur, Delhi.Hence the arrest memo has been tampered with.It is further argued that Ld. Trial Court has erred in not appreciating the fact that as per MLC, the time of alleged incident is mentioned as 10:30 p.m. whereas the first information report was given to PCR at 11:05 p.m. The injured/deceased had already reached Batra Hospital at 10:45 p.m. and giving the information of the incident after about 35-45 minutes shows that information was given to the PCR after everything was manipulated by the family members.It is further argued that there might be phone conversations between appellant Aarti and Rishi Kumar Bhati from mobile no. 9711381995 (registered in the name of Aarti) and mobile no. 9899703677 (registered in the name of Rishi) and mobile no. CRL.A. 1317/2015, 351/2015, 762/2015 497/2015 (All connected matters) Page 12 of 61 9711841072 (registered in the name of Rishi Kumar Bhati) on or prior to the date of incident but no conversation had taken place after the incident between appellant Aarti and Rishi Kumar Bhati.Moreover, from such conversation alone, it cannot be inferred that appellant Aarti had entered into a conspiracy to kill her husband Naveen.Apart from telephonic conversation, no other evidence was adduced by the prosecution to prove the fact that the appellant Aarti hatched conspiracy with the co-appellant.Moreover, the SIM of mobile no. 9899703677 (registered in the name of Rishi Kumar Bhati) which was allegedly used by the appellant Aarti to talk to co- accused Rishi Kumar Bhati was not recovered by the police.There is no material on record to show that appellant Aarti was aware of the conspiracy hatched by the appellant Rishi Kumar Bhati with co- appellant Praveen @ Kalu and Sumit Kumar to murder deceased Naveen.It is also argued that there is no material on record against the appellant Aarti that she has paid any consideration to the co- accused persons/appellants to eliminate the deceased.CRL.A. 1317/2015, 351/2015, 762/2015 497/2015 (All connected matters) Page 12 of 61vs. State of West Bengal (MANU/SC/0549/2015: (2015) 11 SCC 178);4) Bimla vs. State (NCT) of Delhi, MANU/DE/6662/2011 Submissions made on behalf of appellant Rishi Kumar Bhati:-Apart from the arguments, as referred earlier, it is also argued by learned counsel for appellant Rishi Kumar Bhati that learned Trial Court has failed to appreciate the fact that in order to connect the appellant Rishi with co-convict Praveen, the police has seized phone number 9718975053 but said phone is in the name of one Smt. Savadesh W/o Sh.Dude Ram and there is no evidence on record to show that said mobile phone was, in any manner, related to the appellant Praveen @ Kalu, nor the said customer or any other person was examined as a witness to prove the fact that the said mobile phone was being used by accused Praveen @ Kalu at the time of alleged incident.There is no link evidence between the appellant Rishi and co- accused Parveen @ Kallu.Thus, the prosecution has failed to prove the alleged conspiracy beyond reasonable doubt.The chain of CRL.A. 1317/2015, 351/2015, 762/2015 497/2015 (All connected matters) Page 14 of 61 conspiracy should be proved from the beginning to the end and if the said chain is missing at any point then same cannot be considered as proved as per law.CRL.A. 1317/2015, 351/2015, 762/2015 497/2015 (All connected matters) Page 14 of 61Submissions made on behalf of appellant Praveen @ Kalu:-CRL.A. 1317/2015, 351/2015, 762/2015 497/2015 (All connected matters) Page 15 of 61CRL.A. 1317/2015, 351/2015, 762/2015 497/2015 (All connected matters) Page 15 of 61It is next argued that bullet allegedly recovered from the body of deceased was not proved as the same was not put before doctor who conducted Postmortem.Further, the bullet was also not sent for biological examination to detect blood and to further match it with the blood of the deceased to rule out the possibility of any foul play.It is next argued by learned counsel that CDRs of Mobile Number 9718975053 do not show the location of appellant at the place of incident.of Police, Tamil Nadu vs. Sait @ Krishnakumar, (2008) 15 SCC 440;8) Mukesh vs. State, Crl.A No. 102/2013;Submissions made on behalf of appellant Sumit Kumar:- CRL.A. 1317/2015, 351/2015, 762/2015 497/2015 (All connected matters) Page 16 of 61His vehicle is, however, falsely shown to be involved.It is further argued that prosecution has failed to prove any motive on the part of appellant Sumit in commission of the offence.There is no evidence to connect him with the crime as all the facts of the case points towards alleged involvement of Aarti, Rishi Kumar Bhati and Praveen @ Kalu.The prosecution has wrongly shown the recovery of vehicle at the instance of appellant Sumit.Prosecution has proved commission of the offence with the testimonies of reliable witnesses, medical as well as forensic evidence.PW-6 Sh.Dayal Singh, father of the deceased, has deposed each and every fact and has given details of the entire sequence of event.The CDRs have duly proved the connection of all the appellants with each other.The disclosure statements of appellants and recovery of weapon and vehicle used in the crime proves the prosecution version beyond reasonable doubt.It is lastly submitted that since, the prosecution has proved its case beyond reasonable doubt, the present appeals be dismissed and the judgment of learned Trial Court be upheld.CRL.A. 1317/2015, 351/2015, 762/2015 497/2015 (All connected matters) Page 17 of 61We have heard learned counsels for both the parties and considered their rival submissions, carefully examined the testimonies of the witnesses on record and the impugned judgment given by the learned Trial Court.CRL.A. 1317/2015, 351/2015, 762/2015 497/2015 (All connected matters) Page 18 of 61CRL.A. 1317/2015, 351/2015, 762/2015 497/2015 (All connected matters) Page 18 of 61All the appellants have been convicted for the offence punishable under Section 302/120B IPC.Let this court now examine the fact whether learned Trial Court has rightly convicted all the four appellants for the offence charged and the prosecution has proved its case with the help of ocular and trustworthy evidence.Let this court first examine the evidence and other material available on record and the findings of learned Trial Court.The first argument addressed by all the learned counsels for the appellants is that PW-6 Dayal Singh is not an eye witness to the incident.He is a planted, interested and related witness and his presence at the spot is doubtful.Though, learned Trial Court has given a detailed finding on this fact, let this Court examine the evidence to find out if the evaluation of evidence by learned Trial Court is in accordance with law.At the outset, it would be useful to discuss the testimony of PW-6 Dayal Singh who was examined as an eye-witness to the incident and was star witness of the prosecution.Though, learned counsels for the appellants have vehemently contended that PW-6 Dayal Singh was not present at the spot but we are not in agreement CRL.A. 1317/2015, 351/2015, 762/2015 497/2015 (All connected matters) Page 19 of 61 with this submission of learned Counsels for the appellants.We have carefully perused the testimony of PW-6 Sh.Dayal Singh appearing on record.A-112 and two persons were standing between these two cars.The age of those two boys might be 20-22 CRL.A. 1317/2015, 351/2015, 762/2015 497/2015 (All connected matters) Page 20 of 61 years.He further deposed that in the PS Neb Sarai, he had seen a white colour Maruti 800 car, bearing registration no. 5363 and told the police that it was the same car on which the appellants had fled away after committing murder of his son.He has further deposed that it was the same car which he had seen while coming back from the function to his house.He was thoroughly cross examined and in his cross examination, he has deposed that at about 1.00 PM, he had gone alone to Jawahar Park to attend the ceremony as he was supposed to do some arrangements for the CRL.A. 1317/2015, 351/2015, 762/2015 497/2015 (All connected matters) Page 22 of 61 function.The other family members had come in the evening at about 7.00 pm approximately.They all had left the place of function together but he had stayed behind as one Yashpal Singh Rawat had met him and had talked to him for about 1 minute.He has further deposed that he was supervising the halwai work and remained at the venue of function till the conclusion of the party.The factum of his presence at the function and also at the spot is further corroborated by PW-2 Sh.Dalbir Singh who in his examination in chief has deposed that they had left the marriage venue at about 10.00 pm and were coming back on foot.At that time, he was accompanied by Naveen, Naveen's mother, Naveen's chhoti chachi, badi chadhi i.e. his wife, whereas his elder brother Dayal Singh was behind them.Confirming the presence of PW-6 Dayal Singh at the spot, PW-7 Jamuna Devi has deposed that her husband Dayal Singh was following them and he was at some distance behind them.PW-8 Smt. Anuradha has also deposed in her examination in chief that her jeth Dayal Singh was standing at a distance of 20-22 feet when this incident happened.In her cross examination, she has further deposed that Dayal Singh had not gone CRL.A. 1317/2015, 351/2015, 762/2015 497/2015 (All connected matters) Page 23 of 61 with them but he was in the function since morning.In view of above statement of witnesses appearing on record, it is difficult to disbelieve the fact that PW-6 Sh.Dayal Singh had not attended the function or he was not present at the spot at the time of alleged incident and he is a planted witness.Though PW-1 Smt Savitri had not named Dayal Singh in her examination in chief but in her cross examination, she has categorically stated that her jeth i.e. PW-6 Sh.Dayal Singh and nephew also attended the ceremony.The cogent and trustworthy evidence of PW-6 Sh.Dayal Singh corroborated by the testimonies of PW-2 Sh.Dalbir Singh, PW-7 Jamuna Devi and PW-8 Anuradha prove beyond reasonable doubt that he was present at the spot.Though, there may be some minor contradictions in the testimonies of prosecution witnesses but if read as a whole, their deposition clearly proves presence of PW-6 at the spot.Thus, PW-6 Dayal Singh cannot be said to be a dubious or planted witness.CRL.A. 1317/2015, 351/2015, 762/2015 497/2015 (All connected matters) Page 19 of 61CRL.A. 1317/2015, 351/2015, 762/2015 497/2015 (All connected matters) Page 20 of 61CRL.A. 1317/2015, 351/2015, 762/2015 497/2015 (All connected matters) Page 21 of 61CRL.A. 1317/2015, 351/2015, 762/2015 497/2015 (All connected matters) Page 22 of 61CRL.A. 1317/2015, 351/2015, 762/2015 497/2015 (All connected matters) Page 23 of 61It was also vehemently argued by learned counsels for the appellants that it was not possible that the other family members who were allegedly walking with the deceased had only heard the voice of crackers/Dhamaka but had not seen the assailants but an CRL.A. 1317/2015, 351/2015, 762/2015 497/2015 (All connected matters) Page 24 of 61 old man of around 60 years at around 10.30 p.m. who was 60 feet away from the spot had seen all the assailants/appellants.CRL.A. 1317/2015, 351/2015, 762/2015 497/2015 (All connected matters) Page 24 of 61We have carefully perused the testimonies of all the witnesses who were allegedly present at the spot, particularly the statement of PW-6 Dayal Singh in this regard.He had tried to run towards his house after hearing the sound of gunshot but stayed at Taneja Garments itself because he had seen his son falling down at a distance of 60 feet.There was a light at the Taneja Garments itself.CRL.A. 1317/2015, 351/2015, 762/2015 497/2015 (All connected matters) Page 25 of 61In view of above testimony of PW-6, it is clear that he was at such a place from where it was feasible for him to see the scene of crime clearly particularly the assailants/appellants, who had run away in a car parked just 2-3 yards away from the place where he was standing at the time of incident.The way in which he has narrated the entire scene of incident i.e. consistency in his deposition which is not shaken by detailed cross-examination, appears to be natural and cannot be said to be a concocted story prepared by him just to falsely implicate the appellants.This witness was extensively cross examined by learned counsel for the appellants but nothing beneficial to the defence could emerge out of the same.Since the firing was sudden and the incident happened so fast that other members who were present near the deceased could CRL.A. 1317/2015, 351/2015, 762/2015 497/2015 (All connected matters) Page 26 of 61 not have noticed the details of the assailants and the exact manner in which the incident has taken place.The murder of a near and dear one can leave the relatives in a stake of shock.PW-6 has deposed that he was present at Taneja Garments at the time of incident and his house was at a distance of around 60-62 feet from Taneja Garments.Moreover, it has also come in the cross-examination of the witness that both the appellants i.e. Praveen @ Kalu and Sumit had run towards the car which was parked just 2 or 3 yards from Taneja Garments and had run away with appellant Rishi Kumar Bhati who was waiting for them with head lights of the car on.In our view learned Trial Court has given a very cogent and detailed finding regarding presence of PW-6 Dayal Singh at the spot and his being an eye-witness of the incident, we find no infirmity, illegality and ambiguity in his statement.The observations given by learned Trial Court runs as follows:-CRL.A. 1317/2015, 351/2015, 762/2015 497/2015 (All connected matters) Page 26 of 61There seems to be a valid explanation as to why the persons walking along with deceased Naveen could not see the accused persons clearly and why Dayal Singh was able to see them.It can be put up in a different manner that those who were walking side by side were taken by a surprise that too in the night leaves CRL.A. 1317/2015, 351/2015, 762/2015 497/2015 (All connected matters) Page 27 of 61 therewith practically no time to react or understand as to what exactly has happened.The scene needs to be visualized in order to appreciate the correct position.The family was coming back to their place after attending a function leisurely and Naveen was suddenly shot.The assailants immediately ran away.Before the family members could realize as to what has happened, the assailants managed to cover a safe distance.However, since Dayal Singh was not with them rather was at a distance, therefore he was in a position to see as to what has happened.In this context, site plan Ex.PW25/A can be referred to where the position of the deceased and others, who were there with him have been shown together with the position of Dayal Singh, the two sodium lights and inter alia the vehicle parked by the assailants for their escape.Praveen Singh, was that some biker had killed his brother.At the time of alleged incident, he was present inside his house.He was not the eye-witness to the incident, he must not have been aware about the fact that who had committed the murder of his brother.CRL.A. 1317/2015, 351/2015, 762/2015 497/2015 (All connected matters) Page 34 of 61It has come in the evidence of PW-17 Sh.He has also proved customer application form (CAF) as Ex.PW-17 has further deposed that as per customer application forms, mobile phone no. 9711841072 and 9899703677, were issued to Rishi S/o Mahipal and has proved the said forms as Ex.PW17/B and Ex.PW17/C respectively.According to the prosecution, mobile connection no. 9899703677 was gifted by appellant Rishi to Aarti so that he can talk to her secretly.It has also come in the testimony of PW-19 Sh.In order to prove the CDRs of mobile connection numbers 9711381995, 9899703677, 9711841072 and 9718975053, prosecution has examined PW-18 Sh.Anuj Bhatia.In his testimony PW-18 Sh.Anuj Bhatia has proved the CDRs of mobile connection number 9899703677 as Ex.PW18/A, CDRs of mobile connection no. 9711381995 as Ex.PW18/E, CDRs of mobile connection no. 9711841072 as Ex.PW18/A in respect of mobile connection no. 9899703677 (allegedly gifted by appellant Rishi Kumar Bhati to Aarti) and CDRs Ex.PW18/E in respect of mobile connection CRL.A. 1317/2015, 351/2015, 762/2015 497/2015 (All connected matters) Page 36 of 61 number 9711381995 (in the name of Aarti), it has come on record that calls were being made from the above mobile to the mobile phone no. 9711841072 (which is in the name of Rishi Kumar Bhati) and vice versa.Even on the date of incident i.e. on 03.02.2011, number of calls from morning till night and even after the incident were exchanged between these numbers which clearly show that both appellant Aarti and Rishi Kumar Bhati were in regular touch with each other.The record further reveals that there were telephonic calls between mobile no. 9711381995 (of Aarti) to the mobile no. 971841072 (Rishi Kumar Bhati).However, Aarti in her statement recorded under Section 313 Cr.P.C. has denied the fact that she even knew Rishi which is contrary to the phone call records.The defence in support of its case has examined one Surender Singh as DW-1 who was helper in the bus which was being operated on route no. 34 and where Rishi was working as conductor.It is the case of the appellant Rishi that above phone bearing no. 9899703677 was given to and was being used by DW-1 Surender Singh.However, DW-1 Surender Singh in his cross examination has categorically stated that Mob.Phone in question was also used to be taken by Aarti from him and returned sometimes within five minutes and sometimes after one or two days.He has further deposed that on the day of incident, the mobile phone was not with him.This belies the defence version that the said mobile phone was not used by Aarti.So far as mobile phone no. 971895053 is concerned, it is argued by learned counsel for appellant Praveen @ Kalu that it was in the name of one Smt. Savdesh and was, therefore, not being used by him.However, PW- 26 IO Insp.Vijay Singh in his statement has categorically deposed that the said mobile phone was recovered from appellant Praveen vide seizure memo Ex.PW13/O and there is no cross examination of the PW-26 IO Insp.Vijay Singh on the said point by learned counsel CRL.A. 1317/2015, 351/2015, 762/2015 497/2015 (All connected matters) Page 38 of 61 for the appellant.Meaning thereby that the said factum was never questioned or disputed by him.CRL.A. 1317/2015, 351/2015, 762/2015 497/2015 (All connected matters) Page 36 of 61CRL.A. 1317/2015, 351/2015, 762/2015 497/2015 (All connected matters) Page 37 of 61CRL.A. 1317/2015, 351/2015, 762/2015 497/2015 (All connected matters) Page 38 of 61The CDRs of the above mobile phones reveal that not only Aarti and Rishi Kumar Bhati were in regular touch with each other, appellant Praveen @ Kalu was also in touch with appellant Aarti and Rishi and it strengthens the case of the prosecution that appellant Aarti, Rishi Kumar Bhati and Praveen @ Kalu were in regular touch with each other.Learned Trial Court has also given its finding regarding the use of mobile phone by Aarti and her contention that she did not know Rishi and it runs as follows:-"The stand taken by accused Aarti in her statement under section 313 Cr.P.C. further strengthens the case of the prosecution as the two very prominent facts asserted repeatedly by Aarti are that she was not having any mobile phone or connection at all leave alone having two, one of which was provided by Rishi and that she did not know Rishi at all.Incidentally, Rishi says he knows Aarti.As per the evidence on record i.e. CAF Ex.PW17/A qua the phone number 9711381995, belonging to Aarti, her documents including photo, PAN card on record, which incidentally answers the argument that no proof of job of Aarti at HCL is there as raised by her Counsel besides showing that she had mobile phone connection and that she is lying."CRL.A. 1317/2015, 351/2015, 762/2015 497/2015 (All connected matters) Page 39 of 61So far as locations of mobile phone of appellants at the time of incident and they being in contact with each other is concerned, learned Trial Court has discussed this fact in detail and the relevant portion of its finding runs as follows:-"9...Testimony of PW17 Sh.Israr Babu, PW18 Sh.Anuj Bhatia and PW32 Sh.Deepak, latter two being Nodal Officers and the first one being the Associate Nodal Officer from Vodafone Company, is relevant qua the data relating to the mobile phones.The total and cumulative effect is that it supports prosecution case that accused persons were in touch with each other even on the date of incident, there location was also in that very area at the relevant time and that the accused Rishi and Aarti were into a kind of relationship, evident from their long continuous / regular talks even at odd hours.The stand taken by accused Aarti in her statement under section 313 Cr.P.C. further strengthens the case of the prosecution as the two very prominent facts asserted repeatedly by Aarti are that she was not having any mobile phone or connection at all leave alone having two, one of which was provided by Rishi and that she did not know Rishi at all.Incidentally, Rishi says he knows Aarti.As per the evidence on record i.e. CAF Ex.Anuj Bhatia, Nodal Officer, Vodafone, PW-19 Sh.Pawan Singh, Nodal Officer, Idea Cellular Ltd. and PW-32 Sh.PW19/A pertaining to mobile connection numbers 9899703677, 9711381995, 7838501424, 9711841072 and 9718975053 respectively.They also proved the certificates under section 65B of Indian Evidence Act Ex.PW18/B, Ex.PW18/F, Ex.PW18/D, CRL.A. 1317/2015, 351/2015, 762/2015 497/2015 (All connected matters) Page 42 of 61 Ex.PW18/H and Ex.PW19/C. So far testimony of PW-18 Sh.Anuj Bhati is concerned, he could not be cross examined and the CDRs and certificates proved by him have been later on proved by PW-32 Sh.This witness has categorically deposed in his testimony that CDR which is a computer generated version is correct as per their system and CAFs are also as per their original records.This witness has also identified the signature of Sh.Anuj Bhatia and Israr Babu.Thus, though the certificates issued u/s. 65-B of the Indian Evidence Act are in accordance with law, however, even if it is assumed for the sake of arguments that these are not correctly proved, the same being procedural in nature does not vitiate the trial.The Hon'ble Supreme Court in Shafi Mohammad vs. The State of Himachal Pradesh, Special Leave Petition (Crl.) No. 2302 of 2017, decided on 30th January, 2018, has held that the applicability of requirement of certificate being procedural can be relaxed by court wherever interest of justice so justifies.CRL.A. 1317/2015, 351/2015, 762/2015 497/2015 (All connected matters) Page 42 of 61CRL.A. 1317/2015, 351/2015, 762/2015 497/2015 (All connected matters) Page 43 of 61CRL.A. 1317/2015, 351/2015, 762/2015 497/2015 (All connected matters) Page 43 of 61In the regard, the testimony of PW-26, IO Insp.CRL.A. 1317/2015, 351/2015, 762/2015 497/2015 (All connected matters) Page 44 of 61On 09.02.1011, he had moved an application to the Nodal officers of the telecom operators of concerned mobile phone numbers and collected the CDRs and other related documents.CRL.A. 1317/2015, 351/2015, 762/2015 497/2015 (All connected matters) Page 45 of 61It is next argued by learned counsel for the appellant Praveen that the recovery of the alleged weapon i.e. country made pistol from the appellant is doubtful.It is the case of the prosecution that in order to eliminate Naveen, appellant Rishi and Aarti had hatched a conspiracy and appellant Rishi had roped in the service of Praveen @ Kalu for carrying out the execution, who had then approached appellant Sumit for arrangement of vehicle.Accordingly to the prosecution, appellant Praveen @ Kalu had opened fire on deceased Naveen with country made pistol which was later on recovered at his instance and seized by the IO vide seizure memo Ex.PW13/M. It has also categorically come in the CRL.A. 1317/2015, 351/2015, 762/2015 497/2015 (All connected matters) Page 46 of 61 testimony of PW-6 Dayal Singh that he saw the dark complexion man shooting his son Naveen from country made pistol and later on he also identified him in the court as the person who had opened fire on his son.PW-15 Dr Akhilesh Raj has categorically deposed that the cause of death in this case was shock due to carnio cerebral injury caused by bullet (fire arm injury).He has further opined that injury no. 4 was sufficient to cause death in ordinary nature.All injuries were anti-mortem in nature and the range is near short range (10-90 cm).Now, it is to be examined whether the country made pistol recovered from the possession of appellant Praveen was the same which was used for committing murder of deceased Naveen.Personal search of accused Praveen was conducted and one 'katta' was recovered from his right pocket of his trouser and on opening the katta, one live cartridge was found inside it.Sketch of country made pistol and live cartridge Ex.PW13/L was CRL.A. 1317/2015, 351/2015, 762/2015 497/2015 (All connected matters) Page 47 of 61 prepared and the same were seized vide memo Ex.PW13/M and were also sent to the FSL for its forensic examination.FSL report Ex.PW31/A categorically states that the individual characteristics of striations marks on bullet marked exhibit 'EB1' and on recovered test fired bullet marked as 'TB1' were examined and compared under the Comparison Microscope Model Leica DMC and were found identical.Hence, the exhibit 'EB1' has been discharged through the country made pistol .315" bore marked exhibit 'F1' above.Thus, in view of FSL report Ex/PW31/A, it is clear that the bullet marked 'EB1' recovered from the body of deceased was fired from the country made pistol marked as 'F1' which was recovered from the possession of appellant Praveen at the time of his arrest.In view of above, it is duly proved that it was Praveen @ Kalu who had opened fire with his country made pistol on deceased Naveen who later on succumbed to his injuries.So far as contention of learned counsel for the appellants that the bullet allegedly recovered from the body of deceased was not proved as the same was not put for identification purposes to doctor CRL.A. 1317/2015, 351/2015, 762/2015 497/2015 (All connected matters) Page 48 of 61 who conducted Postmortem is concerned, we are of the opinion that a postmortem is conducted only to determine the cause of death.It is not the duty of doctor concerned who conducted the postmortem to give findings on the genuineness of the recovered bullet.He is an expert witness of Autopsy/postmortem and not an expert in forensic science.Thus, it is not expected from a doctor to give finding on bullet recovered from the body of the deceased as it is within the domain of forensic expert.Moreover, when there is ocular evidence corroborated by forensic evidence, we find no reason to disbelieve the case of the prosecution as it has remained uncontroverted for the reason that learned defence counsels were unable to impeach the creditworthiness of the material witnesses.Learned Trial court has also rightly appreciated the FSL report and has given the following reasoning regarding the weapon of offence and we find no infirmity in the same:-CRL.A. 1317/2015, 351/2015, 762/2015 497/2015 (All connected matters) Page 48 of 61A vital piece of evidence is the CFSL report Ex.PW31/A which is to the effect that country made pistol which was recovered from the possession of accused Praveen @ Kalu is the weapon which was used in the offence.In this context the medical documents, including the postmortem report of Naveen Ex.PW15/A which clearly reflects that a bullet was recovered from the body of the deceased, when CRL.A. 1317/2015, 351/2015, 762/2015 497/2015 (All connected matters) Page 49 of 61 read together with FSL report Ex.PW31/A to Ex.PW31/C then it is evident that the weapon recovered from Praveen was used in the murder of Naveen.And if the evidence or series of events is looked into in a reverse order then also the complicity of all the accused persons surface."CRL.A. 1317/2015, 351/2015, 762/2015 497/2015 (All connected matters) Page 49 of 61The disclosure made by Rishi Kumar Bhati has led to the apprehension of Praveen @ Kalu with a countrymade pistol and cartridge, therefore that part is admissible and the CFSL report Ex.PW31/A, B and C read with PW13/D which is the covering letter alongwith the report containing the sample seals brings on record that the bullet recovered from the body of deceased Naveen was fired from the pistol which was recovered from accused Praveen @ Kalu.This fact brings more credence and credibility to the case of the prosecution and binds all the persons into the conspiracy."It is also argued by learned counsel for the appellant Sumit that he has been falsely implicated in the present case as there is no linking evidence to connect the appellant with the commission of offence and also the fact that PW-6 Dayal Singh has furnished car number as '5363', only on 08.02.2011, i.e., after 5/6 days of occurrence.Moreover, the car number was not disclosed by him in his statement recorded under section 161 Cr.P.C and, thus, it throws grave doubt on prosecution version and it has failed to prove its case beyond reasonable doubt.CRL.A. 1317/2015, 351/2015, 762/2015 497/2015 (All connected matters) Page 50 of 61CRL.A. 1317/2015, 351/2015, 762/2015 497/2015 (All connected matters) Page 50 of 61Having perused the entire material available on record, we are not in agreement with the above submission of learned counsel.On his arrest, appellant Sumit had disclosed that he was resident of Chirodi Village and he had arranged a vehicle on the request of his associate Praveen.At the pointing out of Sumit, vehicle bearing no. UP 16-5363, Maruti 800 of white colour was recovered from the plot near the house of Sumit.Thereafter, Sumit was arrested and offending vehicle was seized.In view of deposition of PW-26 Insp.Vijay Singh, it is clear that appellant Sumit was also involved in committing the murder of deceased Naveen.It is difficult of believe the argument of learned Counsel for the appellant Sumit that there is no linking evidence against him with the commission of offence.Perusal of evidence of PW-26 IO Insp.Vijay Singh reveals that he has categorically deposed that the vehicle involved in the offence bearing no. UP 16-5363 was recovered from him.However, there is no cross-examination on the said point by the learned defence counsel.Even no suggestion has been given to the effect that CRL.A. 1317/2015, 351/2015, 762/2015 497/2015 (All connected matters) Page 51 of 61 appellant was not arrested from Meethapur and he had not taken an amount of Rs. 1 lac for arrangement of vehicle from appellant Praveen @ Kalu.In the absence of cross examination, it cannot be held that appellant Sumit was not involved in the commission of offence and he was not part of criminal conspiracy to commit murder of deceased Naveen.CRL.A. 1317/2015, 351/2015, 762/2015 497/2015 (All connected matters) Page 51 of 61Now the next question to be examined is whether the prosecution has proved that all the appellants were involved in criminal conspiracy of committing the murder of deceased Naveen.As discussed earlier, the call details of appellant Aarti, Rishi Kumar Bhati and Praveen @ Kalu reveal that they were constantly in contact with each other.The location of the mobile phones at the relevant time, date and details of the area concerned are also matching.Appellant Rishi Kumar Bhati knew Aarti and this fact is not only clear from the mobile phone calls but also from the evidence of DW-1 Surender Singh who has categorically deposed in his cross examination that he used to give phone having SIM no. 9899703677 to Aarti and appellant Rishi knew Aarti as he (Rishi Kumar bhati) was conductor of the bus where DW-1 Surender Singh CRL.A. 1317/2015, 351/2015, 762/2015 497/2015 (All connected matters) Page 52 of 61 was working as a helper.There is absolutely no explanation from the side of appellant Rishi Kumar Bhati as to why he had allowed the use of his phone by Aarti.He had never objected as to why DW-1 Surender Singh used to give his phone to Aarti.Even though this fact was categorically told to him by DW-1 Surender Singh.The telephonic conversation between Aarti and Rishi for long time and particularly at odd hours gives rise to suspicion that there was something more between them than the mere relationship.A copy of the judgment be placed in all the appeal files.Trial Court record be sent back.BRIJESH SETHI (JUDGE) SIDDHARTH MRIDUL (JUDGE) OCTOBER 23, 2019 AK CRL.A. 1317/2015, 351/2015, 762/2015 497/2015 (All connected matters) Page 61 of 61CRL.A. 1317/2015, 351/2015, 762/2015 497/2015 (All connected matters) Page 61 of 61 | ['Section 302 in The Indian Penal Code', 'Section 120B in The Indian Penal Code', 'Section 34 in The Indian Penal Code'] | Analyze the legal case and identify the corresponding section it comes under. |
1,934,385 | Ram Samujh Shahi is the son of Vindhyachal Shahi.Ram Parshan Shahi and Gyanendra Shahi and Pranpati Shahi are alleged to be the relations of each other.Similarly, Abhay Shahi and Jeobodh Shahi are also relations The informant Vijai Pratap Shahi is the nephew of Raj Ballabh Shahi whose son is Ashok Shahi.The prosecution case precisely stated was that the acused Jeobodh Shani happened to be Pradhan of the village Garhwa, Rampur against whom a vote of no confidence was carried out successfully at the instance of the complainant Vijai Pratap Shahi, who was later on elected in place of the ousted Pradhan and the candidate set up by Ram Parashen Shahi, appellant No. 1 in the first appeal was defeated.They developed bad blood on account of the no confidence motion against the earlier Pradhan.In the morning of 6-6-1975 one Ashok Shahi, cousin of the complainant Vijai Pratap Shahi, took his cows for grazing towards the north-west of his village.Ext-Ka-8 is the extract of the General Diary.At about 11 a.m. Ram Samugh Shahi from the side of complainant raised a slogan of "Jain Bajrang Bali", and exhorted Ram Parshan Shahi, appellant No. 1 in the first appeal to fire from his gun killing his adversary whatever might be the result, and on that exhortation he fired from his gun which hit Nand Kishore Shahi, the deceased and the cousin brother of the complainant.The other gun shot hit Janageshwar Shahi and Bipin Bihari Shahi.When the complainant Vijai Pratap Shahi came forward to rescue members of his party, the second appellant in the first appeal assaulted him spear.He also assaulted Raj Ballabh Shahi with lathi.This occurrence was witnessed by Subhash, Kapil Deo, Jokhan and Hardeo Shahi.The appellants in the first appeal and the respondents in the second appeal thereafter went towards the south to repeat it again.Nand Kishore Shahi was murdered in this incident whereas Bipin Behari Shahi and Jangeshwar Shahi received gun shot injuries the complainant Vijai Pratap Shahi sustained spear and lathi injuries.Kedar Shahi also received spear and lathi injuries.The injured persons excluding Vijai Pratap Shahi proceeded to District Hosiptal Gorakhpur for medical examination.Vijai Pratap Shahi, the complainant, lodged a report (Ext. Ka-1).Sri Thakur Prasad Pandey, Head Constable prepared the Chik report (Ext. Ka-9) at 12-15 p.m. The entry was made in the General Diary (Ext. Ka-10).The Station Officer Juthan Singh P.W. 10 reached the spot and prepared the inquest report (Ext. Ka-12) on the dead body of the deceased and also the photo lash (Ext. Ka-13) and challan lash (Ext. Ka-14).The dead body having been sealed was handed over to constable Kaushal Kumar Pandey, P.W. 7 along with a letter (Ext. Ka-15) to the Chief Medical Officer, Gorakhpur.The Site plan (Ext. Ka-16) was prepared on the spot.The samples of blood stained Kharanja and its Fard (Ext. Ka-17) was prepared.JUDGMENT B.L. Yadav, J.These two analoguous appeals (Criminal Appeal No. 715 of 3979 -Ram Parshan Shahi v. State of U.P. and Government Appeal (against accquittal) No. 1708 of 1979 State of U.P. v. Ram Nayan (hereinafter referred to as the first appeal and second appeal respectively), are directed against the same judgment and order dated 19-2-1979 rendered by the III Additional District and Sessions Judge, Gorakhpur in Sessions Trial No. 448 of 1976, (for the offence under Section 302, 307, 147, 148, 149, and 324, I.P.C. and Section 27 of the Arms Act), convicting the appellants in the first appeal to the life imprisonment under Section 302, I.P.C. and for three years R.I. under Section 307, I.P.C. and 1½ years R.I. under Section 324, I.P.C. and six months R.I. under Section 27 of the Arms Act but these sentences were to run concurrently, and acquitting the respondent Ram Nayan and 6 others in the second appeal it isaccording convenient to dispose them of by a common judgment.The portrayal of the essential facts as contained in the F.I.R. are that in the occurrence that took place on 6-6-1976 at about 11 a.m. in village Garhwa Rampur, PPS.Barhaiganj, district Gorakhpur, one Nand Kishore Shahi was shot dead and Jangeshwar Shahi, Kedar Shahi and Vijai Pratap Shahi received injuries and the common object of the accused was to commit murder of Nand Kishore Shahi and to cause injuries to Jangeshwar Shahi, Kedar Shahi and Vijai Pratap Shahi.The prosecution case further was that Ram Parshan Shahi and Ganendra Shahi, appellants No. 1 and 2 in the first appeal were armed with licenced gun and spear respectively and they along with other accused including the accused in second appeal caused injuries to the deceased and other injured persons.A Government appeal, the second appeal has been preferred by the appellant, State of U.P. against Ram Nayan and 6 others.The respondents in the Government Appeal were charged under Section 302 read with Section 307, I.P.C. with the aid of Section 149, I.P.C. and all the accused were, however, charged under Section 323 read with Section 149,I.P.C. for having caused simple hurt to Vijai Pratap Shahi, Raj Ballabh Shahi and Bipin Bihari Shahi.The appellants in the first appeal gave lathi blows to the cows of Ashok Shahi and the hot words were exchanged between appellants in first appeal and Ashok Shahi.A report of this incident was lodged at the police station (vide Ext. Ka-7) by Dilip Shahi.With a view to teach lessons to Ashok Shahi, the accused persons formed a common object.They appeared at the house of Raj Ballabh Shahi.The appellant No. 1 in the first appeal was armed with the licensed gun and the second appellant in that appeal was armed with spear.The respondents in the second appeal were armed with lathis.Tikli and Wads were collected from the spot and Fard (Ext. Ka-18) was prepared and taken in possession.The Investigating Officer interrogated the prosecution witnesses.It is convenient to set out the post mortem-report, on the dead body of Nand Kishore Shahi carried out by, Dr. P.N. Shukla, P.W. 9 on 7-6-1975 at 4-30 p.m. and the following anti-mortem injuries were found:Circular punctured wound, two in number on the right side of face 2" apart above 1 3/4" from outer canthus of right eye 3/10" x 3/10" tissue deep.No charring, no tattooing.Circular punctured wound two in number lying close to each other over the right side of neck 3" from mustoid process 1/10" x 3/10" tissue deep each.Circular punctured wound 3/10" x 3/1-" tissue deep left side neck 2 3/4" below mustoid process.Abrasion 1 1/2" x 1" area back of right elbow.The details of other injured persons with their injuries are set out below :-Kedar Shahi.1. Contusion on the left upper eyelid.2. Contusion 2" x 1" on the top of head.Incised wound 1" x 1/4" bone deep on the left side forehead just above left eye brow.Jangsher Shahi.Lacerated wound 1 1/2" x 3/4" on the back of right shoulder 2Vi" below the root of the middle of the neck." below from the injury .No.1 Adv.X-ray.Two gun shot wounds 1/2" x 1/2" each in an area of 1 1/2" x 1" on the front of shoulder 3 1/2" above and at to the sternaclascicutor joint.Two gun shot injury 1/2" x 1/2" each on the front of the shoulder and bleeding on the top.X-ray.Vijai Pratap Shahi.Medical examination took place on 7-6-1975 between 3 to 4 a.m. (Ex. Ka-4 to Ex. Ka-6).Contusion 1/2" x 1" on the back of right shoulder on the upper scapular region.2. Contusion 3" x l/2" on the upper side of left scapular region.Contusion 3" x 3/4" on the middle of the.right thigh.C/o pain in the chest.Raj Ballabh Shahi.Contusion 3" x 1/4" on the joint of the left knee.2. Contusion 2" x 1/2" on the joint right knee front side C/p in both the scapular region.Bipin Behari Shahi.Abrasion 1" x 1/10" and contusion 1 1/2" x 3/4" on the right side in between the shoulder and right side knee.A charge-sheet was submitted against all the appellants in the first appeal and the respondents in the second appeal.The charges against the appellants in the first appeal were also under Section 27 of the Arms Act. The appellants in the first appeal and the respondents in the second appeal have pleaded not guilty.Eye witnesses examined at the trial were Vijai Pratap Shahi, P.W. 1 (injured witness) (page 28 of the paper book), Jangsher Shahi, P.W. 2 (injured witness)(page 44 of the paper book), Kedar Nath Shahi, P.W. 4 (injured wit ness) (page 55 of the paper book),'Subhash Shahi, P.W. 5 (page 62 of the paper book The other witnesses arc P.W 3-Dr.N. Swaroop.Other witnesses are more or less formal witnesses.The learned Additional District & Sessions Judge relied upon the statement of eye witnesses against the appcallartts in the first appeal, whereas he disbelieved these witnesses as against the respondents in the second appeal.The appellants in the first appeal were convicted as indicated above, whereas the respondents in the Government appeal were acquitted.The government preferred an appeal (second appeal) against the respondents Ram Nayan whereas the convicted appellants have preferred the first appeal.Sri G. S. Chaturvedi, learned counsel for the appellants in the first appeal urged that even though P.W. 1 Vijai Pratap Shahi, P.W. 2 Jangsher Shahi, P.W. 4 Kedamath Shahi and P.W. 5 Subhash Shahi were injured witnesses, but their statements contain so many discrepancies and they have made such Constradictory statements that even though they might have been present at the time of occurrence, but then statements would indi- cate that the prosecution did not come with true rather concealed the material facts and they have tried to create embellisnmcnt in the prosecution version.11 was further urged that the acquittal of respondents in Govt. appeal was correct.and his 1indings in respect of the acquittal of the respondents in the second appeal are perverse and no reasonable person can take the view taken by the learned Additional Sessions Judge; there was no embellishment of the case set up by the prosecution, nor there was any infirmity so as to disbelieve the prosecution witnesses leading to acquittal of the respondents in.the second appeal.We proceed first to decide the first appeal against the judgment and order of conviction.Before we proceed further it would be in the fitness of things to state that appellant No. 1 Ram Parshan Shahi is dead.Similarly other criminal appeals except an appeal from the sentence of fine, also abate.In the present case an application was filed after the death of appellant No. 1 in the first appeal by the son of the appellant.With a view to remove the obstacles in the ways of the heirs to receive such amount and to get rid of the odium, in case the appeal is allowed and conviction and sentence are set aside, this salutary provision was enacted.Reverting to the merits of the case in the first appeal against the judgment and order of conviction, no doubt, P.W. 1 Vijai Pratap Shahi is the complainant and the injured witness, the statement of an injured witness need not be easily disbelieved.But other statements have to be scrutinized in detail under our plenary powers of scrutiny under Section 386 of the Code.He proved the relationship and topography of the occurrence.He further stated that the appellants belong to one group.He also stated the prosecution version about the occurrence in the morning of 6-6-1975 that Ashok Shahi, the cousin brother of the complainant had taken his cow to the North-West of the Village and the appellants in the first appeal had given lathi blows to the cows which was followed by exchange of hot words.A report of this incident was lodged at the police station.But no eye witness has lodged that report about the morning occurrence.We proceed to consider the statement under para 23 (page 3 of the paper book), where the P.W. 1 stated that in his F.I.R. he has stated about Ashok Shahi having taken his cow for grazing, but no time was mentioned, He stated that he has told the time at about 9 a.m., but why not the Investigating Officer noted it down was not known.Again he stated that the accused had followed Ashok Shahi up to his door and at that time Gyanendra and Ram Parshan Shahi have lathis in their hands (vide para 25, page 38 of the paper book).But the appellants in the first appeal did not give any blow to Ashok Shahi.This appears to be against human conduct that in case they have followed Ashok Shahi up to the door, in all possibility they would have also given blows.Further these witnesses tried to pacify the sentiments.Thereafter the appellants in.the first appeal went to their residence and they did not extend any abuse to Ashok Shahi.But the same was not mentioned in the F.I.R. He did not state this fact to the Investigating Officer, as he did not ask about it.He again stated that he did not remember the time when Dilip was given abuses and as to when Dilip went to Police Station, whereas Ashok Shahi has stated that Dilip was sent to Police Station.He further stated that before the deceased was shot, P.W. 1 and some other persons tried to intervene and pacified the sentiments and at that time the appellant No. 1, in the first appeal did not use his gun nor the appellants gave beating to anybody.This statement also appears to be in-consistent and unbelievable.His statement further was that the first gun shot hit Nand Kishore Shahi who fell on the spot and died, whereas the second shot hit Jangsher Shahi and Bipin Behari Shahi, and the third shot was made in-the air.Gyanendra Shahi, appellant No. 2" in the first appeal assaulted Kedar Shahi with spear, whereas Ram Nayan, the first respondent in the second appeal has assaulted Kedar Shahi with lathi.In case that was so, he could have been assaulted before the deceased was shot dead.This witness also stated that his party was not armed with any weapon.In all human experience, in case the assailants, the appellants in the first appeal and the respondents in the second appeal were armed with gun, spear and lathies why not the prosecution party was also armed with certain weapons.Similarly we have considered the statement of Kedar Nath Shahi, P.W. 4, who was also an injured witness.We have also kept in mind the nature of injuries as indicated above.He has received two contusions, one on the left upper eyelid, the third injury is incised wound.These injuries appears to be self inflicted.He has denied the statement which the aforesaid eye witnesses stated to him during the investigation.Preparation of site plan was also not satisfactory.There was no indication about the earlier occurrence which took place in the morning when Ashok Shahi had taken his cow for grazing. | ['Section 394 in The Indian Penal Code'] | Analyze the legal case and identify the corresponding section it comes under. |
193,486,082 | (06.01.2017 ) The applicant is aggrieved by the order dated 19.01.2016 passed by Additional Sessions Judge, Ganj Basoda, District Vidisha (MP), in Sessions trial 325/2015, whereby the trial Court has framed charge against the applicant for commission of offence punishable under Section 306 of the Indian Penal Code, 1860 (in short, 'IPC') on four counts.The facts leading to the filing of the present case are that on 05.08.2015, the Police received an intimation regarding the unnatural death of four persons namely, Maharaj Giri aged about 50 years, Sachin Giri aged about 29 years, Yashoda Giri aged about 48 years and Poonam Giri aged about 21 years.The Police registered Merg No. 28, 29, 30 and 31 of 2015 respectively, under Section 174 of the Code of Criminal Procedure, 1973 (in short, 'CrPC').During the course of investigation and from the material which was collected from the place of incidence, the Police found enough evidence against the applicant and accordingly, a charge sheet was filed before the-( 2 )- CRR No. 336/2016 Court of Judicial Magistrate First Class, Ganj Basoda.The offences sought to be charged against the applicant was triable by the Court of Session.Accordingly, the case was committed to the Court of Session for trial.The trial Court vide the impugned order dated 19.01.2016 framed charge against the applicant for commission of offence punishable under Section 306 of IPC on four counts.Learned counsel for the respondent supported the impugned order and prayed for dismissal of the revision application.Before adverting to the contentions raised by the parties, it is appropriate to observe the factual background in which the entire incidence in question has taken place.It is an admitted position that the deceased had a quarrel with accused persons namely, Govardhan Sharma, Akhilesh Sharma and Gopal Sharma, during which the deceased was manhandled and when the matter was intimated to the police, FIRs bearing Crime No. 38/2015 and 39/2015 were registered by the Police against the accused persons. | ['Section 306 in The Indian Penal Code', 'Section 107 in The Indian Penal Code'] | Analyze the legal case and identify the corresponding section it comes under. |
193,642,861 | 1. Learned counsel for the petitioner prays for withdrawal of I.A. No.5696/18 an application for suspension of jail sentence of the petitioners.Prayer is allowed.I.A. No.5696/18 stands dismissed as withdrawn.With the consent of both the parties, hard finally.This is a revision petition against the judgement and order dated 16.07.2018 passed by Sessions Judge, Sendhwa in Criminal Appeal No.5/2014 whereby the learned Appellate Court has confirmed the conviction of the petitioners under Sections 148, 324/149 and 326/149, but modified the sentence of these offences and awarded 3-3 months R.I. in place of 6-6 months R.I. for the offence under Section 148 of IPC, 6-6 months R.I. in place of 1-1 year R.I. for the offence under Section 324/149 of IPC and 1-1 year R.I. in place of 3- 3 years R.I. for the offence under Section 326/149 of IPC and confirmed fine of Rs.500/-, 1,000/- and Rs.5,000/- each for the offence respectively.The case of prosecution in brief is that on 16.06.1995, on the dispute of possession of particular agricultural land, when Dhansingh was calculating the same land, all the petitioners alongwith Dwarka, Kahariya, Barka and Khumla assaulted on him.They were armed with bow and arrow, axe, gofhan and sticks.They asked him to vacate possession of High Court of M.P. Bench at Indore the land and started beating him (Dhansingh).Ratansingh caused injury on right hand of Dhansingh by arrow shot, Barka shot an arrow on left arm of Gajju and Kahariya inflicted axe on the head of Goga @ Ganga and caused grievous injury above his left eye, Hari threw a bolder which caused injury to Ganga on his left hand and all other accused persons have beaten Goga @ Ganga by sticks.Khoomsingh, Dhansingh, Gajju and Raghu sustained injuries.Maniya and Janubai, wife of the complainant Khoomsingh have seen the incident.After beating them, the accused persons ran away from the spot threatening them to kill in future.Khoomsingh lodged the report with the police-station Sendhwa.The police registered the crime under Sections 148, 324/149 and 326/149 of IPC.The petitioners were charged U/s 148, 324/149 and 326/149 of IPC.They abjured their guilt.After appreciating the evidence, the learned trial Court held them guilty and punished as stated in para 5 above.Learned counsel for the petitioners prayed that he does not want to press merits of the case.He prayed that sentence awarded to the petitioners is too harsh.His prayer is limited to the sentence awarded for offence under Section 326/149 of IPC.It is averred by the learned counsel that the incident took place way back in the year 1995 and since 23 years, the petitioners are facing trial.The allegations of causing grievous injury to Goga @ Ganga is against Kahariya who died during trial.No specific allegations are made against the petitioners.At the most, it is stated by the witnesses that they have beaten the injured persons, but no corresponding injury High Court of M.P. Bench at Indore was found caused by them to the victims.The injured Goga also died during trial and he could not be examined before the trial Court.The learned trial Court has convicted the petitioner only on the basis of statement of his brother Gajju and other witnesses who claimed to be eye-witnesses.All the petitioners are in their advance age and their entire family comprising their growing children and wife are dependent on them.He further submitted that both the parties are of the same village, there was a petty dispute between them regarding their agriculture fields.The petitioners are first offender and have no criminal history.The incident happened all of a sudden only on a petty issue.Therefore, no ground for interference is made out and the petition deserves to be dismissed.I have considered averments made by the petitioners and have gone through the record and evidence produced by the prosecution and its appreciation done by the Courts below.Considering the statements of the witnesses, nature of incident, nature of injuries caused to the victims/injured persons, act attributed to the petitioners and other facts and circumstances of the case, in my considered opinion, ends of justice would be sub-served if the sentences of the petitioners High Court of M.P. Bench at Indore is reduced to some extent.In view of the aforesaid, the petition is partly allowed. | ['Section 149 in The Indian Penal Code', 'Section 326 in The Indian Penal Code', 'Section 148 in The Indian Penal Code', 'Section 324 in The Indian Penal Code'] | Analyze the legal case and identify the corresponding section it comes under. |
193,726,489 | Allowed md.And In Re:-The petitioner claims that the petitioner was in love with the victim and there was no element of force or coercion.2 3 A certified copy of this order be immediately made available to the petitioner subject to compliance with all requisite formalities. | ['Section 323 in The Indian Penal Code', 'Section 417 in The Indian Penal Code', 'Section 109 in The Indian Penal Code'] | Analyze the legal case and identify the corresponding section it comes under. |
1,938,007 | JUDGMENT S.K. Agarwal, J.This petition under Section 482 Cr.P.C. is directed against the order dated 18th January, 2002, passed by the court of Sh.Rajinder Kumar, Metropolitan Magistrate, Tis Hazari, Delhi, cancelling the bail of the petitioners in the case FIR No. 780/2001, under Sections 406/498-A, IPC, P.S. Punjabi Bagh, Delhi.In September, 2000, Gunjan and her husband, Sachin Mahajan, shifted to D-8/8077, Vasant Kunj, Delhi.They could not pull on even there.On account of differences above noted case was registered on the complaint of respondent No. 2 in which petitioners were also involved.Learned Metropolitan Magistrate found that the allegations of torture against the petitioners were vague and that there was no likelihood of their fleeing from justice and admitted them to bail, on each of them furnishing personal bonds in the sum of Rs. 50,000/- with one surety each in the like amount.However, bail application of husband of complainant, Sachin Mahajan was declined.Thereafter vide order dated 18th January, 2002, taking into consideration the report of the police that petitioners failed to join investigation as well as report lodged by the complainant at P.S. Punjabi Bagh, the learned Metropolitan Magistrate cancelled the bail of both the petitioners.This order is under challenge.I have heard learned counsel for petitioners, learned counsel for State as well as learned counsel for complainant.Learned Senior Counsel for petitioners argued that the petitioners were arrested during investigations, they were produced before the court, no police remand was sought and that they never refused to accept notice and that the same is manipulated.He argued that in any case petitioners have already participated in the investigation and that Respondent No. 2 and her husband had been living separately since September, 2001, so the question of petitioners' harassing the complainant did not arise; and that false report was lodged against the petitioners with a view to get their bail cancelled.It is thus argued that the allegations against the petitioners of alleged threats and refusal of notices are totally false.In reply, learned counsel for complainant, Ms. Pinky Anand, did not contest involvement of the complainant in other cases and argued that these are totally irrelevant.She vehemently argued that articles of Istridhan worth Rs. 70,00,000/- are yet to be recovered; and that complainant was shifted to Vasant Kunj, Delhi with a well hatched plan to get rid of her.She argued that impugned order cancelling bail is legal, valid and in accordance with law.Learned counsel for State, on instructions from Inspector, fairly conceded that petitioners are no longer required for investigation; and that the allegations contained in the report lodged by the complainant vide DD No. 56-B were not substantiated.He seeks to file affidavit of Mr. R.K. Ojha, SHO, P.S. Punjabi Bagh, Delhi in support of his submission.Let the same be taken on record.I have considered the rival contentions.In this case, as noticed above, the allegations contained in the report lodged by the complainant at P.S. Punjabi Bagh have not been substantiated.Bail cannot be cancelled merely on the ground that articles of Istridhan have not yet been recovered.Petitioners have already suffered police remand and were granted regular bail.For the foregoing reasons, revision petition is allowed.Order dated 18th January, 2002 cancelling the bail is hereby set aside.The order granting bail to petitioners is hereby confirmed.Petition stands disposed of. | ['Section 468 in The Indian Penal Code', 'Section 471 in The Indian Penal Code', 'Section 420 in The Indian Penal Code'] | Analyze the legal case and identify the corresponding section it comes under. |
193,838,463 | Learned A.G.A. has vehemently opposed the bail prayer of the appellant.Looking to the above argument and period of detention and the fact that the appeal is not likely to be heard in near future, I consider it appropriate to release the appellant on bail.Let the appellant - Nanhu @ Shishpal be enlarged on bail on his furnishing a personal bond with two sureties each in the like amount to the satisfaction of trial Judge concerned in the above sessions trial number for the above offences.As soon as personal and surety bonds are furnished, photocopies of the same are directed to be transmitted to this Court forthwith by trial Judge concerned to be kept on the record of this appeal.The appellant is allowed one month time to deposit entire amount of fine awarded to him.Order Date :- 3.9.2020 S Rawat | ['Section 148 in The Indian Penal Code'] | Analyze the legal case and identify the corresponding section it comes under. |
193,882,314 | It was also alleged that while committing robbery a wire and a knife lifted from the kitchen of the house was also used and a sum of Rs. 2.5 lakhs were taken by five persons including the appellants from the almirah of the complainant.This judgment shall dispose of the aforesaid two criminal appeals, one filed by the appellants Rajeev Kumar and Harish @ Crl.159 & 198 of 1998 Page 1 of 10 Hari and the other filed by the appellant Amit Kumar under Section 374 of the Cr.P.C. seeking reversal of a judgment of the Addl.Sessions Judge in sessions case no. 46/96 whereby the appellants were convicted for the offence under Section 392 as well as under Section 397 IPC and were sentenced to undergo R.I. for 3 years for an offence under Section 392 IPC and payment of fine of Rs. 2,000/- and in default of payment to undergo R.I. for 6 months and further to undergo R.I. for 7 years to pay a fine of Rs. 7,000/- each under Section 397 of IPC and in default of payment of fine to further undergo R.I. for 1 year.159 & 198 of 1998 Page 1 of 10The appellants have already undergone sentence awarded to them for a period of more than 2 years and 6 months.Briefly stating the case of the prosecution was that an FIR was registered against the appellant on a complaint made by one Surender Gupta alleging commission of a robbery at his residential premises when he came home for his lunch.Later on the appellant Rajiv Kumar was arrested along with Crl.159 & 198 of 1998 Page 2 of 10 Ramesh Kumar his co-accused in case FIR No. 191 & 192 of 1994 and on their interrogation appellant Amit Kumar and Harish Kumar were also arrested in this case from Hapur.After completing the investigation challan was filed and the appellants were sent for trial under Section 394/395 IPC read with Section 34 of IPC.Charges were framed against them for the offences punishable under Section 395/397 read with Section 34 of IPC to which the appellants pleaded not guilty.Number of witnesses were examined by the prosecution based upon evidence so recorded and after recording statement of the appellants under Section 313 Cr.P.C. the appellants and their co-accused were held guilty and convicted for the offences punishable under Section 392 & 397 read with Section 34 of IPC vide judgment dated 24.03.1998 and have been sentenced to undergo various punishments as stated above.159 & 198 of 1998 Page 2 of 10Sessions Judge impugned before this Court, the role assigned to the appellants is that they attacked the complainant after he reached his house and tried to strangulate him and after putting him under the threat of instant death they extorted a sum of Rs. 2.5 lakh from him.It is alleged that while convict Amit Kumar was standing outside and was helping others to commit, the other appellants were involved in the actual robbing in a broad day light and, thus, the Addl.A copy of the order be sent to the Jail Superintendent for information.MOOL CHAND GARG, J.March 13, 2009 ag Crl. | ['Section 397 in The Indian Penal Code', 'Section 392 in The Indian Penal Code', 'Section 394 in The Indian Penal Code', 'Section 34 in The Indian Penal Code', 'Section 395 in The Indian Penal Code'] | Analyze the legal case and identify the corresponding section it comes under. |
19,398,789 | /506/34/302 of the Indian Penal Code.And In the matter of : Alai Khan ... ... petitioner Mr. Asif Iqbal ... ... for the petitioner Mr. Madhusudan Sur, Mr. Dipankar Pramanik ... ... for the State The petitioner seeks anticipatory bail in connection with Khargram P.S. Case No. 348 of 2017 dated 22.09.2017 under Sections 341/323/325/308/506/34/302 of the Indian Penal Code.However, the petitioner refers to a subsequent order dated August 27, 2018 by which another co-accused has been granted anticipatory bail.The State says that the present petitioner is on the same footing as Edel Khan who is said to have dealt a serious blow on the head of the victim.A certified copy of this order be immediately made available to the petitioner, subject to compliance with all requisite formalities.(Suvra Ghosh, J.) (Sanjib Banerjee, J.) | ['Section 325 in The Indian Penal Code', 'Section 302 in The Indian Penal Code', 'Section 341 in The Indian Penal Code', 'Section 308 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'] | Analyze the legal case and identify the corresponding section it comes under. |
1,943,713 | JUDGMENT Manju Goel, J.The petition seeks quashing of the complaint u/s 500 of the Indian Penal Code and the order dated 23.4.2001 by which petitioner along with others have been summoned to stand trial for an offence u/s 499 & 500 of the Indian Penal Code read with Section 34 of the Indian Penal Code.The complainant/Respondent No. 1 Diwakar Pandey filed the complaint alleging inter alia that he was serving in the Adya Katyayani Shakti Peeth Mandir as a pujari, that the services of the complainant and some of his colleagues were terminated by the Adya Katyayani Shakti Peeth Mandir Trust/accused No. 1 that the complainant and his peers approached the trustees of the temple including the petitioner (being the Chairman of the Trust) for fulfillment of some legitimate demands, that the trustees nurtured a grudge against the petitioner and his colleagues because of those demands, that because of such grudge the complainant was roped in a case u/s 107/151 Cr.P.C. and another under The Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act and also pasted written notice at the entrance of the temple notifying that the complainant was debarred from entering the temple and that if he was found inside the temple suitable action would be taken against him and that the language of the notification is defamatory.1. Bhaskarananda | ['Section 34 in The Indian Penal Code', 'Section 500 in The Indian Penal Code'] | Analyze the legal case and identify the corresponding section it comes under. |
194,398,621 | The claimant Santosh Verma, a resident of Etawah in U.P., filed the aforesaid claim petition under Section 166 of the Motor Vehicle Act, !988 ( hereinafter referred to as the Act.) through his wife as next friend with the allegation that he had gone to Delhi in his chauffer driven Wagon R car and on 3.4.2008, as soon as the driver Saurabh Misra, got green signal on the traffic lights at the Delhi Gate intersection, he started moving but at the same time, a truck Dumper no. HR-38/ N-4733 being driven recklessly and negligently jumped its red light and crashed into his car at 4.30 A.M. resulting in multiple grievous injury to him and he fainted while the driver escaped with minor injuries.A P.C.R. Van whereupon admitted him in Lok Nayak Jai Prakash Narain Hospital at Delhi where he remained for about 4-5 hours and thereafter was shifted to Apollo Indraprashth Hospital also in Delhi where he remained hospitalized for about two months.During treatment, he was operated upon several times and a rod was implanted in his leg and a plate was fixed on his hip, his ribs were fractured.Spinal cord was damaged which led to damaging the nerves.He became paralytic and feeble.He was intubated in triage.Philadelphia collar in situ.He was given the following advice on discharge :- Diet- PEG feeds with oral supplementation. Activity:- Wheel chair mobilization.Hon'ble Mushaffey Ahmad,J.Heard learned counsel for the parties and perused the record and with their consent, both the Appeals are being finally decided.The appeal no. 3700 of 2011 has been filed by the Insurance Company (here-in-after referred to as 'Company') challenging the award on various grounds including its liability and quantum.The appeal no. 4336 of 2011 has been filed by the claimant seeking enhancement on various grounds including for the disability caused and future prospects.Since the facts and law involved in these two appeals are common both have been heard together and are being decided by a common judgment.After the parties had exchanged their pleadings, the Tribunal framed as many as four issues including with regard to insurance coverage, driving license and quantum.The claimant filed large number of documents and examined himself, his wife, Doctor etc. to prove his case.However, the Insurance Company did not lead any oral or documentary evidence.The Tribunal on the issue of negligence held that the offending Dumper was being driven negligently and rashly and held it responsible for causing the accident.It further went on to hold that the offending driver held a valid driving license on the date of the accident and that the vehicle was insured with the appellant Insurance Company and possessed all papers.On the question of quantum, it found that the claimant had spent Rs.7,41,173/- on medical treatment, it granted Rs. 5,000/- for mental and physical pain, Rs.10,000/- for nutritional diet and Rs.7800/- for transportation.Against disability certificate of 80% and 75%, it found 50% permanent disability and held the income to be Rs.10,000/- a month whereupon in total, it granted Rs.16,73,007/- as compensation.It is urged on behalf of the Company that the Tribunal did not frame any issue with regard to contributory negligence and whether the offending vehicle had a valid permit and therefore it could not assert its right of recovery from the owner.Contradicting the argument, it is contended on behalf of claimant that it was open to the Company to have led evidence with respect to contributory negligence under issue no.1, but it lead no evidence at all and did not even argue it before the Tribunal on any of the points.It is also argued that the Company did not lay any stress for framing any other issue.Initially, the Company denied the very factum of the accident and alternatively stated that if the accident is proved then it was a case of contributory negligence without specifically denying the story as set up in the claim petition that the offending vehicle had jumped the red signal and dashed against the car of the claimant when it was crossing over on green light.However, to the contrary, the contention of the claimant is that though the disability certificate was only for 80% permanent disability, but the injuries and the evidence of the doctor shows that the claimant has become a vegetable and thus loss of earning ought to have been adjudged at 100%.The claimant had filed two certificates, first disability certificate showing 80% dated 5.11.2009 and second dated 16.9.2010 showing 75% disability.Both these certificates were given by a Medical Board and countersigned by the Chief Medical Officer and both were proved by Dr. T.K. Jha, who was one of the three members of the Board.The wife has been examined as PW2, she has stated that her husband was a goldsmith and used to make jewellery at his house and sell it and used to earn about 1.5 to 1.75 lac a year, but he had no shop and after the accident, he cannot work and has become paralytic.She also disclosed that he used to file his Income Tax Returns.He was admitted in ICU and electively ventilated.Thomas splint was applied for femur fracture.MRI of Cervical spine revealed disc herniation C5 C6 with focal mild indentation of thecal sac and cord.He was gradually weaned off the ventilator, but in view of slow recovery PEG insertion was done and tracheostomy was also performed to assist in breathing.The pressure sore in occipital region was treated and NCCT head was repeated which revealed gradual regression in contusion and regression in intra-ventricular bleed.The condition of the injured at the time of discharge was as follows : A Febrile.CSC-E4M6V5, occasionally speaks irrelevantly.Ambulant on wheel chair.He was further advised for physiotherapy and wheel chair mobilization and use of Philadelphia collar and to take care of PEG, tracheostomy and condom catheter., and was asked to return after a month with fresh NCCT head and cervical spine.After return to Etawah, he again visited Appollo, SGPGI, Lucknow and SGPGI, Safai for follow up treatment.He was examined by a Medical Board of three members for disability on 5.11.2009 which assessed it as 80% and on advice he was re-examined by the same Board for fresh assessment on 16.9.2010 and found 75% disabled.Both these certificates were duly countersigned by the CMO.Dr. T.K.Jha, an orthopaedic and one of the members of the Medical Board, proved the two certificates and deposed that the medical history, treatment and other papers were examined.He went on to opine that disability was result of the damaged spinal cord and head injury.During cross examination, he says in clear terms that the injured is not capable to perform the work of a goldsmith and he has lost his power to think or understand and experiences difficulty while standing or sitting down.He has finally said that there is no possibility of improvement even by stem physiotherapy.This statement of the doctor was recorded on 29.10.2010 i.e. more than two and a half years after the accident.A perusal of the injury report, diagnosis, treatment and advice on discharge when read together with the deposition of the doctors, would show that the injured is incapable of performing the job of a goldsmith or for that matter any other work as he has reduced muscle power, loss of comprehension, no movement without help and no chance of improvement.It is apparent that spinal cord was damaged due to injuries to cervical spine leading to loss of coordinated movement of the upper limb.Total movement is hampered by the hip injury which resulted in fracture of right femur.No expert opinion is necessary to conclude that as far as spinal and brain injuries are concerned, physiotherapy would be of no help in recovery of upper limbs and hand, though to some extend there may be some improvement in the lower limbs.There is also loss of bladder and bowel control.This is his state even after 2 ½ years of regular treatment, so it is apparent that doctor's opinion is sound that there is no scope of any improvement.If he cannot be called a real vegetable in that sense of the word, he is surely a virtual 'vegetable'.In this background, let us examine the contrary arguments of the parties.Two disability certificates have been filed, one is dated 5.11.2009 showing 80% and the other dated 16.9.2010 showing 75% permanent disability.No doubt, the counsel for the Company is correct in submitting that the latter certificate cannot be relied upon in cases for compensation because it has been endorsed thereon that it cannot be used for the purpose of compensation.But there is no such endorsement on the former certificate dated 5.11.2009 which reveals 80% permanent disability.The counsel for the claimant is also correct in contending that the Tribunal has given no reasons for ignoring the first certificate showing 80% permanent disability, but the Tribunal did consider the latter certificate, however, it did not rely upon it for reasons other than those given by the counsel for the Company.The claimants had filed and proved the Income Tax returns for the Assessment Years 2005-2006; 2006-2007 and 2007-2008 disclosing gross total income as Rs.1,09,350/-; Rs.1,86,880/-; and Rs.1,38,377/- respectively.All three assessments are for nil tax after making deduction with respect to insurance premium and National Saving Certificates.In her cross-examination, she has stated that her husband was about 3 or 4 months older to her and she was married at the age of 17 and one year after marriage, she gave birth to a girl child whose age at the time of her statement was about 18 years.Her statement was recorded on 16.4.2010 i.e. 2 years after the accident, thus according to it the age of the claimant would be about 34 years.Considering the statement, the Income Tax return and the certificates, it can safely be said that the age at the time of the accident could not have been 40 years but between 35 and 40 years.Therefore, the argument appears to be correct that the multiplier of 16 should have been applied, and so it is held.It is then urged on behalf of the claimant that the Tribunal ought to have awarded 50% for future prospects, however, the counsel for the company contends that neither any amount was claimed under that head nor the claimant had a regular job, therefore, in view of Sarla Verma's case [2009 ACJ 1298 (SC)] no amount could have been paid under this head.Though these days no help is available for less than Rs.100 per day on the basis of 8 hour working, but taking a pragmatic approach, Rs.1500 a month for his life span would be just on the facts of this case.Therefore, he would be entitled to 1500 x 12 x 16 = Rs.2,88,000/- under this head.The contention of the counsel for the claimant that considering the nature of the injuries, the suffering, pain etc. the amount awarded by the Tribunal to the tune of Rs.5000/- is a pittance, appears to be correct.Considering the nature of the injuries, the pain, suffering, trauma, he had to undergo, Rs. One lac in total appears to be just.Accordingly the claimant would be entitled to the following amounts: | ['Section 337 in The Indian Penal Code', 'Section 279 in The Indian Penal Code'] | Analyze the legal case and identify the corresponding section it comes under. |
194,466,818 | He has been falsely implicated in the case.The trial will take time to conclude.The applicant shall not be released if he is suffering from 'Corona Virus disease'.For this purpose appropriate tests will be carried out.If it is found that the applicant is suffering from 'Corona Virus disease', necessary steps will be taken by the concerned authority by placing him in appropriate quarantine facility.This M.Cr.Case diary is available with the learned P.L. This is second application filed under Section 439 of Cr. P. C. for grant of bail to the applicant.The earlier bail application i.e. M.Cr.Applicant has been arrested in connection with Crime No.215/2020, registered at Police Station-Parvati Astha, District-Sihore (MP) for commission of offence punishable under Sections 363, 366, 376(2) (n) of IPC and Sections 5 and 6 of POCSO Act.The case of prosecution is that, on 4.6.2020, prosecutrix aged about 16 years and 8 months was disappeared from her residential house.On that basis a Crime No.215/2020 under Sections 363 of IPC has been registered against unknown person.Her statements under Sections 161 and 164 of Cr. P. C. have been recorded.In view of the outbreak of 'Corona Virus disease (COVID-19)' the applicant shall also comply the rules and norms of social distancing.Further, in view of the order passed by the Hon'ble Supreme Court in suo moto W.P.No.1/2020, it would be appropriate to issue the following direction to the jail authority :-The Jail Authority shall ensure the medical examination of the Signature Not Verified SAN applicant by the jail doctor before his release.Digitally signed by SANTOSH MASSEY Date: 2020.12.04 16:12:18 IST 3 MCRC-42452-2020 | ['Section 363 in The Indian Penal Code'] | Analyze the legal case and identify the corresponding section it comes under. |
193,727 | It is pleaded that complainant's father had expressed his inability to give TV, Fridge and Scooter or Rs. 20,000/- but had agreed to give remaining articles of dowry as consideration for marriage.It was pleaded that the parents of the complainant gave various articles of dowry as consideration of marriage but after three-four months of the marriage, the accused started harassing the complainant for not bringing the sufficient dowry and required her to put pressure on her parents to give remaining articles of dowry.It is pleaded that under pressure of the accused, complainant managed to get Rupees 1,000/- in cash on two occasions from her parents and given the same to her husband.Gursharan Kaur, respondent had filed a complaint dated July 7, 1984 against the petitioner Gursharan Singh and also against Harbans Singh and his wife Darshan Kaur with the allegations that complainant was married to Gursharan Singh on July 7, 1981 and that all the accused at the time of the settlement of the marriage through one Ajit Singh, retired Sub-Inspector of Delhi Police had demanded dowry articles namely T.V., Fridge, Scooter or Rs. 20,000/- and 21 sarees/suits for the girl and two suits for the husband, one suit for father-in-law, two suits for mother-in-law, 51 utensils, table fan and number of other articles which are generally given in dowry.It was further mentioned that on persuasion of Gursharan Singh she again came back and lived with the husband but harassment continued a the hands of her husband and on July 17, 1983 she made a report to the police for getting her dowry articles returned from the accused and with the interference of some panchayat people, some of the articles of dowry were returned.She pleaded that rest of the dowry articles as shown in Mark 'X' in Annexure 'A' filed along with the complaint had not been returned and thus the accused had committed an offence punishable under Section 6 of the Act.Petition partly allowed. | ['Section 406 in The Indian Penal Code'] | Analyze the legal case and identify the corresponding section it comes under. |
1,937,342 | JUDGMENT S.K. Mahajan, J.The marriage was arranged after the complainant had given an advertisement in a local newspaper for a bridegroom for his daughter.The father of petitioner No.2 had also given a similar advertisement looking for a bride for his son.About three months before the marriage, petitioner No.1, father of petitioner No.2, is alleged to have approached the brother-in-law of the complainant and demanded in dowry a motor car, fridge, television and other domestic items of luxury.The brother-in-law of the complainant did not agree to give car in dowry and the complainant who was also present at that time did not speak anything.On 16th November, 1993, the sagan ceremony had taken place in which the complainant is alleged to have given a colour television, re- 391 frigerator, Yamaha motorcycle, washing machine, a gold locket weighing about 27 gms.other jewellery, wrist watch and cash as well.Within a week of marriage, the petitioner No.2 and his father informed the daughter of the complainant to ask her father to give a car.As the complainant was not in a position to give a car, the petitioners are alleged to have started harassing her.The daughter of the complainant talked to the complainant on phone about the harassment meted out to her at which the complainant and his wife went to their daughter's matrimonial home to enquire as to why they were harassing their daughter, at which the father of petitioner No.2 told them that a car was demanded in marriage and as the same was not given, they did not want to keep other articles in their house.At this, the daughter of the complainant started weeping.Thereafter several phone calls were alleged to have been made by daughter of the complainant about the harassment which was meted out to her regarding the demand for a car.On or about 6th December, 1993 the daughter of the complainant is stated to have gone to Aurangabad along with her husband.From Aurangabad a telephone call is stated to have been received by the complainant from her daughter about some other woman who was staying in the hotel with whom her husband was allegedly having relations.However, during the conversation the telephone was disconnected.On 18th December, 1993 a telephone call was received by the complainant from his son-in-law informing the complainant that his daughter had expired at Aurangabad.The complainant reached Aurangabad and on the basis of his complaint a case under section 498-A/306/.34 Indian Penal Code was registered against the petitioners 1 & 2 and one Bhupinder Kaur at Ps Kanti Chowk, Aurangabad, Maharashtra.On a representation having been made by the complainant Section 304-B was subsequently added.(2) As the dowry articles which had been given to his daughter by the complainant were being mis-appropriated by the petitioners, he lodged a complaint on the basis of which an Fir under Section 406/120-B Indian Penal Code was registered against the petitioners.Aggrieved by the registration of a case under Section 406/120-B Indian Penal Code, the petitioners have filed this petition for quashing the same.R.K.Shrivastava. . ' (4) In Sardar Singh Vs.One of the books which was handed over to him at the time of taking charge was the receipt book.The case against the appellant was that he had committed a criminal breach of trust in respect of the receipt book and other documents as also an amount of Rs-26.50 paise which had been received by him in his capacity as Patwari for purposes of giving certified copies and which he failed to account for at the time when the charge was taken from him.The Supreme Court while dealing with the case held that an essential ingredient of an offence under Section 405 Indian Penal Code was that the accused being in any manner entrusted with the property or with the domain over property, dishonestly misappropriates or converts to his own use that property or dishonestly uses or disposes of that property in violation of any direction or law prescribing the mode in which such trust is to be discharged or of any legal contract, expressed or implied, which he has made touching the discharge of such trust.In the facts of that case it was held that though the appellant was admittedly entrusted with the receipt book but there was no evidence to establish that he dishonestly misappropriated the receipt book or converted it to his own use or dishonestly used or disposed of the receipt book.It was further held that it was quite possible that the appellant might have lost or mislaid the receipt book and hence he might have been unable to return it to-the superior authorities.In the present case, there are definite allegations made against the petitioners I to 4 that the property which had been entrusted to them is not being returned.The only inference that can be drawn is that the said persons are trying to dishonestly misappropriate the same to their own use. | ['Section 406 in The Indian Penal Code', 'Section 120B in The Indian Penal Code', 'Section 420 in The Indian Penal Code', 'Section 304B in The Indian Penal Code', 'Section 468 in The Indian Penal Code', 'Section 471 in The Indian Penal Code'] | Analyze the legal case and identify the corresponding section it comes under. |
193,736,715 | Applicant has filed this application under Section 439 of Cr.P.C. being aggrieved by the order dated 03/09/2019 passed by the Special Court constituted under the SC/ST (POA) Act.Perused the order.The offences under Sections 366-A, 376(1), 376(2) (N)(K), 506 of IPC and Section 3(1)(b)(i) and Section 3(2)(v-a) of the SC/ST (POA) Act, have been registered against the applicant at Police Station Harai, District Chhindwara.Accordingly, this application is dismissed as not maintainable.(VISHNU PRATAP SINGH CHAUHAN) JUDGE RS Digitally signed by RASHMI RONALD VICTOR Date: 18/10/2019 15:58:20 | ['Section 3 in The Indian Penal Code'] | Analyze the legal case and identify the corresponding section it comes under. |
193,743,565 | Heard the learned counsel for the parties and perused the case diary.This is first bail application filed by the applicants under Section 438 of Cr.P.C. for grant of anticipatory bail.The applicant is apprehending his arrest in connection with Crime No.98/17 registered at Police Station- Bhander District Datia for the offence punishable under Sections 452, 323, 294, 506-B/34 of IPC.As per prosecution story, the complainant has lodged a report on 21.06.2017 against the applicant and others to the effect that on 21.06.2017 at about 1.30 PM, he was sitting at his shop in Sarafa Bazar, Bhander along with his brother, at that time, all the accused came there and started abusing and thereafter beating the complainant and his brother.The applicant was having pistol in his and threatened the complainant and his brother.Learned counsel for the applicant submits that applicant has been falsely implicated.According to him, the prosecution version that applicant was having pistol in his hand is not correct as much as it is a fact that the applicant does not owned any armed licence in his name, therefore, it was not possible for him to show the pistol against the complainant.C. No.7775/2017 from the certificate issued by the Office Incharge of the Police Station, Dursada in which he is categorically stated that the applicant is not having any arms licence in his name.It is further submitted that applicant is permanent resident and there are no chances of his absconding or tampering with the prosecution evidence.He shall abide by the terms and conditions as may be imposed by this Court.Under these circumstances, applicant prays for anticipatory bail.2 M.Cr.Learned Public Prosecutor for the State opposed the application and prayed for its rejection by contending that on the basis of the allegations no case for grant of anticipatory bail is made out.It is directed that in the event of arrest, present applicant Balendu Dangi shall be released on bail on his furnishing a personal bond in the sum of Rs.50,000/- (Rupees Fifty thousand only) with a solvent surety of the like amount to the satisfaction of the Arresting Authority.The applicant shall make himself available for interrogation by a police officer as and when required.He shall further abide by the other conditions enumerated in sub-Section (2) of Section 438 of Cr.P.C.(Balendu Dangi Vs.State of M.P.) 3 M.Cr.C. No.7775/2017 This order shall remain in force for a period of 60 days and in the meanwhile, if the applicant so desires, may move an application for regular bail before the competent Court.3 M.Cr. | ['Section 438 in The Indian Penal Code', 'Section 437 in The Indian Penal Code', 'Section 323 in The Indian Penal Code', 'Section 294 in The Indian Penal Code', 'Section 452 in The Indian Penal Code', 'Section 34 in The Indian Penal Code'] | Analyze the legal case and identify the corresponding section it comes under. |
193,745,326 | PW-3, PW-9 and the deceased had barely moved four paces when all the four appellants attacked the deceased.The appellant Raj Kumar was wielding a Kirpan, Gajraj a hockey, Chattarpal Singh a Saria while Bharat Bhushan attacked the deceased with Soda Bottle.PW-3 told PW-9 to rush to the marriage spot and call persons.The case of the prosecution is that Pratap PW-3, Ashok Kumar PW-9 and the deceased had come from the marriage of his friend's sister Sohan Lal at Gaushala Road for purchasing cigarette for the deceased.The three persons reached Vijay Tea Stall where all the four appellants were standing.The deceased's foot fell into a Nali due to which muddy water got splashed on Gaj Raj Singh one of the appellants.On this Gaj Raj Crl. A. Nos.33 /1997, 34/1997 & 280/1996 Page 2 of 6 Singh stated "Dekh Kar Nahi Chal Sakta".This resulted in hot words being exchanged inter se the parties at which Chattarpal, one of the appellants, incited other co-apellants to teach a lesson to the deceased.But by the time PW-9 returned, the appellants had run away from the spot.The deceased was taken to the hospital where the doctor declared him brought dead.A. Nos.33 /1997, 34/1997 & 280/1996 Page 2 of 6The prosecution case has been proved primarily by the two eye-witnesses, PW-3 and PW-9, coupled with the medical evidence of Dr. P.C.Dixit, PW-20, who conducted postmortem on the dead body and proved his report PW-20/A. In the opinion of the PW-20, injury No.10 caused with Kirpan was sufficient in the ordinary course of nature to cause death.The recovery of the weapons, being the Kirpan and hockey stick, was effected at the behest of Gaj Raj.Learned counsel for the appellants state that they have obtained instructions from the appellants and the appellants admit their guilt insofar as the incident is concerned and do not seek to challenge the findings in the judgment on that behalf.A. Nos.33 /1997, 34/1997 & 280/1996 Page 3 of 6Learned APP has opposed above submission, though he does not dispute that there is nothing on record to show that there was any pre-animosity between the two groups or the incident was a consequence of any premeditation.His only submission is that the number of injuries have been inflicted on the deceased, which has sufficient indication of the intent of the appellants to cause death of the deceased.In order to properly appreciate the submissions made on behalf of the parties, it would be useful to have a look of Exception IV to Section 300:Exception 4-Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offenders having taken undue advantage or acted in a cruel or unusual manner."On examination of the evidence of the ocular witnesses and the finding in the impugned judgment, it is apparent that the unfortunate incident is a consequence of unnecessary over- reaction of the appellants.The incident occurred as a result of hot words being exchanged between the two groups when one Crl.A. Nos.33 /1997, 34/1997 & 280/1996 Page 4 of 6 of the appellants Gajraj asked the deceased as to why he was not careful?A. Nos.33 /1997, 34/1997 & 280/1996 Page 4 of 6The incident occurred in the heat of passion in a sudden quarrel on account of the hot words being exchanged between the parties.There is nothing on the record to suggest that the appellants took undue advantage or acted in an unusual manner.The result of the aforesaid is that while upholding the conviction of the appellants, we modify the same to one under Section 304 Part I of the IPC as against the order of the trial court convicting them under Section 302 of the IPC.Now on the question of sentence.So far as appellant Raj Kumar, who inflicted the Kirpal wound which proved to be fatal is concerned, he is directed to pay a fine of Rs.60,000/-, in default of payment of fine he shall undergo RI for a further period of one and a half year.It is further directed that out of fine realized from the appellants, a sum of Rs.1,00,000/- shall be paid as compensation to the closed legal heirs of the deceased.A. Nos.33 /1997, 34/1997 & 280/1996 Page 5 of 6 | ['Section 300 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'] | Analyze the legal case and identify the corresponding section it comes under. |
193,767,943 | The petitioner has filed this petition under Section 482 Cr.P.Cchallenging the complaint filed by the first respondent in S.T.C.No.500 of2011, pending on the file of the learned Judicial Magistrate, Thiruchendur.Here the question involved in this case is whether the factsdisclosed in the complaint or the final report constitute the offence withwhich accused have been charged.3.The brief facts of the petitioner's case that leading to file thisCriminal Original Petition is as follows:3(1).The petitioner is a member of All Merchants Association,Thiruchendur.Initially, the first respondent Law Enforcing Agency, based onthe complaint given by the second respondent, registered FIR against 16 namedaccused along with 150 unnamed members for unlawfully assembling before the Thiruchendur Bus Stand and made demonstration to remove the unlawful erection of digital banner lift up by a political party in front of the shops owned bythe Members of the All Merchants Association, on the ground that the digitalbanners erected by a political party, caused hindrance to public, traffic andtheir business, for that purpose, the petitioner and the members of thepetitioner's Association assembled in front of the Thiruchendur bus standand made demonstration.3(2).Aggrieved by the demonstration, the Law Enforcing Agencyregistered the First Information Report.After completing the investigation,final report has been filed before the Judicial Magistrate, Thiruchendur.Thereafter, the said Court take the final report on file in S.T.C.No.500 of2011, implicating 75 persons as accused.The petitioner is arrayed as AccusedNo.39, in the said S.T.C.The learned counsel appearing for the petitioner would submit thaton the day, when the demonstration was made by the petitioner, there was noban as referred under Section 144 Cr.PC and there is no promulgation by thefirst respondent police.However, after informing to the first respondent,the petitioner and other members assembled before the Thiruchendur Bus Stand and made demonstration against the political party, who erected flex bannersillegally.The learned counsel for the petitioner would further submit that thebanners erected by the concerned political party is an unauthorized one.Asper this Court vigilance, the aggrieved party is entitled to remove the same,if the same cause hindrance to the general public.The petitioner and othermembers are aggrieved parties as against the illegal erection of banners infront of the shops, that also give hindrance to the general public, for theiringress and egress.15.Accordingly, the Criminal Original Petition is allowed andS.T.C.No.500 of 2011 on the file of the Judicial Magistrate, Thiruchendur,is quashed.Consequently, the connected Miscellaneous Petition is closed.1.The Judicial Magistrate, Thiruchendur2.The Inspector of Police, Thiruchendur Police Station, Thiruchendur.3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. | ['Section 341 in The Indian Penal Code', 'Section 188 in The Indian Penal Code', 'Section 147 in The Indian Penal Code', 'Section 143 in The Indian Penal Code', 'Section 482 in The Indian Penal Code'] | Analyze the legal case and identify the corresponding section it comes under. |
193,769,471 | This petition has been filed to quash the F.I.R. in Crime No.1620 of 2020 registered by the respondent police for the offences under Sections 430 & 379 of IPC, as against the petitioners.2.The case of the prosecution is that the petitioners along with others had transported five units of river sand without any valid licence.Hence the complaint.The learned Counsel appearing for the petitioners would submit that the petitioners are innocent person and they have not committed any offence as alleged by the prosecution.Without any base, the respondent police registered a case in Crime No.1620 of 2020 for the offences under Sections 430 and 379 of IPC as against the petitioners.Hence he prayed to quash the same.The learned Additional Public Prosecutor would submit that the investigation is almost completed and the respondent police have only to file final report.http://www.judis.nic.in 2/6 CRL.O.P.No.14979 of 2020Heard Mr.9. Having heard the learned Senior Counsel and examined the material on record, we are of the considered view that the High Court ought not to have set aside the order passed by the Trial Court issuing summons to the Respondents.A perusal of the complaint discloses that prima facie, offences that are alleged against the Respondents.The correctness or otherwise of the said allegations has to be decided only in the Trial.Accordingly, this Criminal Original Petition stands dismissed.However, considering the crime is of the year 2020, the respondent is directed to complete the investigation in Crime No.1620 of 2020 and file a final report within a period of eight weeks from the date of receipt of copy of this Order, before the jurisdiction Magistrate, if not already filed.Consequently, the connected Criminal Miscellaneous Petition is closed.24.09.2020 Internet : Yes / No Index : Yes / No Speaking / Non Speaking order mpa ToThe Inspector of Police, Valangaiman Police Station, Thiruvarur District.The Public Prosecutor, High Court, Madras.CRL.O.P.No.14979 of 2020 and Crl.M.P.No.5698 of 2020http://www.judis.nic.in 6/6 | ['Section 379 in The Indian Penal Code'] | Analyze the legal case and identify the corresponding section it comes under. |
193,773,047 | CRM 4221 of 2019 Court No.2 In Re:- An application for bail under Section 439 of the Item No. 05 snandy Code of Criminal Procedure filed on 11.04.2019 in connection with Burwan P.S. Case No. 24 of 2019 (CORRECTION) dated 20.01.2019 (GR Case No. 86 of 2019) for committing offence punishable under 341/326/307/302/ 34 of the Indian Penal Code read with Sections 25/27 of the Arms Act.Item No. 05And In the matter of : Ashar Sk. @ Anarul Haque & Ors.......Petitioners None appears.This matter has come up on the mentioning of the petitioner for correction of the order dated April 22, 2019 wherein the "Section 302 of the Indian Penal Code" has been omitted inadvertently while transcribing the order.Office is directed to rectify such mistake by inserting "Section 302 of the Indian Penal Code" at the relevant portion of the order dated April 22, 2019 and issue certified copy accordingly.The other portion of the order dated April 22, 2019 shall remain same.(Hiranmay Bhattacharyya, J) (Harish Tandon, J) | ['Section 302 in The Indian Penal Code'] | Analyze the legal case and identify the corresponding section it comes under. |
193,782 | JUDGMENT M.S. Joshi, J.(1) One Ram Chand Chopra filed a complaint against Amrik Singh and the facts alleged tended to make out offences under sections 420 and 406 Indian Penal Code .To support the complaint Ram Chand gave his own statement and offered some documentary evidence.The magistrate passed an order for the summoning of the accused because on Consideration of the evidence a prima facie case under section 420 I. P. C. was made out against him.The accused approached the Session Court impugning the magistrate's order on the ground it was not a speaking order and deserved, therefore, to be quashed.The revision petition came up before Ansari, J. for hearing.The argument did not find favor with the Additional Sessions Judge and he dismissed the revision petition.Raja Ram then moved this Court through Cr. R. No. 9 of 1974 and prayed for the quashing of the relevant order under section 439 Criminal Procedure Code .The conflicting decisions of Safeer, Aggarwal, V. D. Misra and Yogeshwar Deyal, JJ. | ['Section 34 in The Indian Penal Code', 'Section 500 in The Indian Penal Code', 'Section 406 in The Indian Penal Code', 'Section 420 in The Indian Penal Code', 'Section 342 in The Indian Penal Code', 'Section 323 in The Indian Penal Code', 'Section 120B in The Indian Penal Code'] | Analyze the legal case and identify the corresponding section it comes under. |
1,937,863 | JUDGMENT (1).Ram Sarup, a Police Constable, attached to Police Station, Tilak Nagar, had been convicted by the Special Judge, Delhi on 8-3-1966 under Section 5(2) of the Prevention of Corruption Act and under S. 161 (Indian Penal Code, and sentenced to one year's rigorous imprisonment under each count, the two sentences running concurrently).(2) The case against him is that one Prem Singh went to Tihar Jail on 23-7-1965 to interview Ganga and tohers.The accused-appellant also used to visit the said jail in connection with his duties.The accused contacted Prem Singh and asked him to accompany the accused to the Police Station.Prem Singh had earlier been involved in a criminal case by the Najafgarh police and he felt that Tilak Nagar police might also do the same.The accused thereupon asked Prem Singh that if he was desirous of avoiding to go to the police station, then he should pay the accused Rs.50 by way of bribe.Prem Singh offered a sum of Rs.30 but on Ram Sarup's persistence in demanding Rs.50, Prem Singh paid him Rs.40 because that was all the amount that he had on his person.The accused thereupon asked Prem Singh to pay him the balance of Rs.10/- on the following day and also demanded a buttle of liquor.This amount and the buttle of liquor were to be handed over to the accused at the same place between 4 and 6 P.M.Prem Singh thereafter went to the Deputy Superintendent of Anti Corruption branch of Police and narrated the aforesaid incident.His statement was recorded and the numbers of the two currency ntoes which he had brought with him for payment to the accused were ntoed in the presence of two non-police officials, Madan Lal and R.A. Massey.Shri Har Narain Singh, Deputy Superintendent of Police, then sent Prem Singh to the accused person for paying the bribe along with the witnesses mentioned above.The D.S.P. himself stayed a little distance away.The accused was found sitting on a chair near the jail canteen.Prem Singh and Madan Lal buth sat on a vacant chair lying nearby.Massey standing behind them.The accused told Prem Singh that he had been waiting for him.The complainant after expressing his gratefulness for his nto having been involved in a case, handed over a ten rupee ntoe to the accused.The accused reminded Prem Singh about a buttle of whisky to which Prem Singh replied that he could nto purchase one but instead he handed over antoher ten rupee ntoe.The accused then enquired from Prem Singh whether the former should purchase a buttle of illicit or licit liquor, to which the latter replied that it was the pleasure of the accused.The accused observing that they had now become friends and that Prem Singh would nto be implicated in any case in future, he put one of the currency ntoes in his pocket and was holding the toher one in his hand when the D.S.P. on receiving a signal from Madan Lal came to the spto and recovered the currency ntoes from Ram Sarup.Pw 6 is Prem Singh who has deposed on oath about the story.In the cross examination, it has been elicited that three cases are pending against him, one under S 342/376, Indian Penal Code, antoher under S. 406/420, Indian Penal Code and a still third one under S. 363, Indian Penal Code.The first and the third cases appear to be connected.He owns a petrol pump at Najafgarh road.Appeal dismissed. | ['Section 161 in The Indian Penal Code'] | Analyze the legal case and identify the corresponding section it comes under. |
193,787,078 | The detenue had recorded before the Court that she has solemnized Nikah with accused Md. Adil and she is not willing to go with her parents.The further submission of learned counsel for the applicant is that presently Manvi Soni @ Amayra is living with family of Md. Adil, therefore, he may be granted bail as no direct role has been assigned against him.Learned counsel for the applicant has drawn attention of this Court towards Annexure no. 3 which is statement of prosecutrix, namely Manvi Soni @ Amayra and as per her statement under section 161 Cr.P.C. she has not levelled any allegation against anyone but has herself stated that she got married with Md. Adil.Considering the fact that the statement of prosecutrix has been recorded before the Division Bench of this Court wherein she had stated that she had married with Md. Adil and the present applicant has not been assigned any direct role except aiding Md. Adil to kidnap the prosecutrix.Learned A.G.A. opposed the prayer for bail but could not dispute the aforesaid facts as argued by the learned counsel for the applicant.Therefore, without entering into the merits of the case, the applicant is entitled to be released on bail in this case. | ['Section 229A in The Indian Penal Code', 'Section 174A in The Indian Penal Code'] | Analyze the legal case and identify the corresponding section it comes under. |
193,789,054 | sm C.R.R.1877 of 2013 Alok Ranjan Das Vs.The State of West Bengal None... for the petitioner.The petitioner has assailed the proceeding in G.R. No.80 of 2007 pending before the learned Additional Chief Judicial Magistrate at Haldia, Purba Medinipur arising out of Bhabanipur Police Station Case No.12 of 2007 under sections 147/148/149/341/186/ 332/333/ 353/323/325/364/367/302/201/379/411 of the Indian Penal Code and under section 9(b) of the Indian Explosive Act.The prosecution case as alleged is to the effect that information was received from the mobile officer that on 07.02.2007 at about 10.30 hrs., miscreants had cut one morrum road near Iswardha-Jalpai and were obstructing the police personnel from refilling the road.Thereafter, around 11.45 hrs., one and half kilometers from the said spot, villagers variously armed with lathis and sword assembled in an agitated manner, the de facto complainant, who was the Officer-in-Charge of Bhabanipur Police Station tried to pacify the mob, but the mob started throwing brick-bats and explosives at the police parties.The said mob comprised of the accused persons including the 2 petitioner, who was alleged to be the leader of the mob.As a result of such attack, an Assistant Sub-Inspector of Police, Rafique Khan, suffered grave injury and ultimately succumbed to his injuries.Pursuant to investigation, charge sheet has been filed in the instant case.The petitioner has assailed the impugned charge sheet on the ground that apart from naming the petitioner as a leader of the unlawful assembly, no overt act has been attributed to him.Accordingly, prayer has been made to quash the impugned criminal proceeding.I have perused the FIR as well as the charge sheet annexed to the application. | ['Section 325 in The Indian Penal Code', 'Section 147 in The Indian Penal Code', 'Section 201 in The Indian Penal Code', 'Section 302 in The Indian Penal Code', 'Section 186 in The Indian Penal Code', 'Section 341 in The Indian Penal Code', 'Section 353 in The Indian Penal Code', 'Section 411 in The Indian Penal Code', 'Section 332 in The Indian Penal Code', 'Section 364 in The Indian Penal Code', 'Section 148 in The Indian Penal Code', 'Section 379 in The Indian Penal Code', 'Section 323 in The Indian Penal Code', 'Section 149 in The Indian Penal Code'] | Analyze the legal case and identify the corresponding section it comes under. |
193,793,767 | Both the parties prosecution and defence belong to the same family.With regard to certain land dispute, some hot talks were exchanged between the parties and also on the point of grazing of the Urad crop by cattle of Jagannath on 28.7.1986, all the accused-appellants came on 28.9.1986 to the shop of Chunni Lal where in panchayat, it was settled that none of the parties will damage the crop of other through their cattle.After the panchayat, Jagannath went to his house abusing opposite party and at about 11.00 A.M. Jagannath armed with kanta, Ram Bilas, Chunni, Ujagar and Ram Swaroop armed with lathi and Malik armed with Sooja came near the shop of Chet Ram and started assaulting Misri Lal and Stm.Buddha wife of Misri Lal.Hearing hue and cry, Dwarika elder brother of Misri Lal, Katori sister of Misri Lal and her husband Raghubar and Ram Autar came there and saw all the accused-appellants assaulting Misri Lal and Smt. Buddha causing serious injuries on the body of these two person.On exhortation of complainant and other witnesses, the accused-appellants ran towards south.The complainant party arranged bullock cart and brought the injured Misri Lal and Smt. Buddha in bullock cart and when they were carrying for medical treatment and reached near rice mill of Mohamdi, Misri Lal died as a result of injuries received in this incident.Written report was prepared by one Rajendra Kumar on the dictation of Shyam Babu and same was lodged with the police station Mohamdi and after that Smt. Budha was sent for medical examination with one of the home guard to Primary Health Centre Mohamdi.The first information report was lodged and entered into the G.D. and statement of the witnesses were recorded by the I.O. Dead body of the deceased Misri Lal was brought to the police station by bullock cart and inquest report was prepared.After preparing connected police papers i.e. photo lash, challan lash, letter to C.M.O., dead body was sealed and sent through constable Babu Lal and Homeguard Anoop Ram for post mortem.Challenge in this appeal is the order dated 9.10.1998 passed by Session Judge Lakhimpur Kheri in Session Trial No. 581 of 1998 under Sections 147, 148, 149, 323, 304 II of IPC, P.S. Mohamdi, District Kheri whereby and whereunder the accused appellant Jagannath and Malik @ Lal Bahadur were convicted under section 148 IPC and sentenced to undergo rigorous imprisonment for one year.Accused Ram Bilas and Chunni were convicted under section 147 IPC and sentenced to undergo six months rigorous imprisonment.Accused appellant Jagannath, Ram Bilas, Malik alias Lal Bahadur and Chunni were further convicted under Section 304 IPC part II read with section 149 IPC and each one of them was sentenced to undergo rigorous imprisonment for ten years.They were further convicted under Section 323 IPC read with section149 IPC and each one of them were sentenced to undergo rigorous imprisonment for six months.All the sentence were directed to run concurrently.The brief facts giving rise to the present appeal is that Misri lal, Chunni Lal, Ram swaroop and Dwarika Prasad were brothers.Accused-appellants Jagannath and Ram Bilas are son of Chunni Lal.Malik is son of Ram Swaroop.After recording statement of witnesses and completing the investigation, the investigating officer submitted charge sheet.The Magistrate took cognizance and committed the case to the court of Session where accused appellants were summoned and charges were levelled against them under Sections 148, 302/149, 307/149 IPC for which they pleaded not guilty and claimed for trial.In the statement recorded under Section 313 Cr.P.C., all the accused-appellants have submitted that they have been falsely implicated in this case due to the reason of inimical relation between the parties.I have heard Sri.K.S. Rastogi learned counsel for appellant and learned Additional Government Advocate and also carefully gone through the record and judgment impugned.It is version of the prosecution that he died due to injuries caused on that date and time by the accused-appellants as narrated in the prosecution story and just after the incident, when arrangement was made for taking injured through bullock cart through police station for medical hospital, Misri Lal died and his dead body was taken to the police station and after that inquest report was prepared and dead body was sent to medical hospital for post mortem report.Post mortem of the dead body of Misri lal was conducted by Dr. R.C. Singh the then Surgeon, District Hospital Lakhimpur Kheri.He found the following ante- mortem injures on the person of the deceased and prepared the post mortem report.(i) Penetrating wound 1.2 cm x 0.8 cm x 5 cm on medial aspect of right leg 8 cm from knee joint.(2) Contusion 8 cm x 2 cm on dorsal aspect of right forearm 5 cm above wrist joint with fracture of both bones.(3) Incised wound 1 cm x 0.5 cm x bone deep on the posterior aspect of left forearm.(5) Raptured wound 2.5 cm x 0.8 cm on the backside of left side head on parietal and occipital bones 8 cm above left ear.(6) Abrasion 5 cm x 0.8 cm on scapular region.PW-1 Shyam Babu was examined before the court who had stated on oath that before the aforesaid incident, there was certain altercation between the parties and with regard to dispute between the parties, a panchayat was called to resolve the problem and it was resolved that the parties will not damage crop of other person by their cattles.All the members agreed to the proposal of panchayat but the accused-appellants Jagannath did not agree and went to the house abusing prosecution witnesses and at about 11.00 A.M. all the accused persons having kanta, lathis and Suja in their hands called Chet Ram and brutally beaten Chet Ram and Smt. Buddha.They also caused injuries to other prosecution witnesses.In the mean time, after hearing hue and cry, Smt. Buddha, Dwarika, Katori and Ragubar with Ram Autar reached there but accused appellants were continuously assaulting the deceased and Smt. Buddha by Kanta, lathi and Suja, as a result of which, they received injuries and fell on the ground.On certain exhortation, they ray away towards south of kharanja and after that a bullock cart was arranged but in the mean time injured Misri Lal died due to injuries received in the incident.This witness has proved the first information report which was given to the police station for lodging the first information report and taking legal action.In his statement PW-2 Smt. Buddha has stated that she got injuries in the incident where all the accused appellants were beating the deceased.She had stated that all the accused appellants came and started to assault her husband and due to receiving injuries in the incident, he died.She has further stated that after the panchayat, when Chet Ram was in the shop all the accused-appellants came there with Kanta, Lathi, Suja and other instruments and started assaulting her husband Misri Lal and herself also with their weapons.When her son and witnesses challenged, the accused appellants ran towards south.Her husband received injuries from Kanta, lathi and Suja and thereafter when bullock cart was brought to carry the injured, her husband, to the medical hospital, her husband died in front of the Rice Mill in Mohamdi.Thereafter her son submitted a report to the police station for taking proper legal action.Due to these injuries, one of the injured died during the treatment.Thus a serious charges of culpable homicide/murder was also framed against the appellants.In order to prove the prosecution case, PW-1 had stated that on a simple matter of saving crops from animals grazing and damage certain altercation took place between the parties and all the appellants started to beat the complainant and his family members.PW-1 Shyam Babu had stated that he lodged the first information report and the injured were medically examined.The injuries found on the person of PW-2 and the fact that PW-2 was injured in the same occurrence lends assurance to his testimony that he was present at the time of the occurrence.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 this case, we find that the trial court had rejected the evidence of PW1 and PW2 merely because they were interested witnesses being the brother and father of the deceased.But it is well settled that evidence of a witness cannot be discarded merely on the ground that he is either partisan or interested or closely related to the deceased, if it is otherwise, found to be trustworthy and credible.It only requires scrutiny with more care and caution, so that neither the guilty escape nor the innocent wrongly convicted.If on such careful scrutiny, the evidence is found to be reliable and probable, it can be acted upon.If it is found to be improbable or suspicious, it ought to be rejected.Where the witness has a motive to falsely implicate the accused, his testimony should have corroboration in regard to material particulars before it is accepted.(Vide Hari Obula Reddy Vs.State of A.P., Ashok Kumar Pandey, Vs.State of Delhi, and Bijoy Singh Vs.State of Bihar).Nothing had been elicited in the cross-examination of PW1 and PW2 to discredit their evidence.Their evidence finds corroboration in Ex.Therefore, the High Court rightly held that the evidence of PWs1 and 2 could not be rejected, even though they were closely related to the deceased and inimically disposed towards the accused.This injury was sufficient in the ordinary course of nature to cause his death.PW-4 P.L. Shakya investigating officer was examined before the court and stated that the F.I.R. was lodged by the complainant and on that basis, first information report was entered into G.D. After recording the statement of witnesses and on the basis of post mortem report, he has submitted the charge sheet against the accused appellants.The version of the learned counsel for appellants that the rest of the witnesses were not examined has no relevance as no number of witnesses is required to prove any case.Prosecution story has been corroborated from the medical evidence and the evidence of prosecution witnesses.Accordingly, the appeal deserves to be partly allowed.Thus the appeal is partly allowed. | ['Section 149 in The Indian Penal Code', 'Section 342 in The Indian Penal Code', 'Section 148 in The Indian Penal Code', 'Section 147 in The Indian Penal Code', 'Section 304 in The Indian Penal Code', 'Section 323 in The Indian Penal Code', 'Section 302 in The Indian Penal Code', 'Section 308 in The Indian Penal Code', 'Section 307 in The Indian Penal Code'] | Analyze the legal case and identify the corresponding section it comes under. |
1,937,951 | The accused to surrender to his bail. | ['Section 161 in The Indian Penal Code', 'Section 409 in The Indian Penal Code'] | Analyze the legal case and identify the corresponding section it comes under. |
193,795,855 | Mukesh Mathur also received injuries on account of lathi blow and stone pelting.Other constables Vikas Solanki, Rambaran, Phool Singh, Ravikant and Dharmendrahave also received injuries.Co-accused Harendra took out a Katta (country made pistol) and fired, which hit the right thigh of constable Bhikarilal who fell down .The accused person thought him to be dead fled from the spot.This is the first bail application under Section 438 of the Cr.P.C. for grant of anticipatory bail.The applicant apprehends his arrest in connection with Crime No.436/2014 registered at Police Station Dehat ,District Bhind (M.P.) for the offence punishable under Sections 307, 353, 333, 332, 224, 294, 186, 187, 147,148, 149 of IPC.As per prosecution story,it is alleged that on 30.10.2014 at village Udotpura a gambling was going on.On the tip from the informant, police party raided alongwith the witnesses.The accused persons were playing an act of gambling.With the common object of protesting the police party, they started pelting stones and bricks.They were also manhandled because of which constable Vinod Rajoriya received injuries.Learned counsel for the applicant prays that if he files regular bail application before the concerned trial Court, the same may be directed to be decided on the same day.It is directed that if the applicant surrenders before the learned trial Court within seven days and files an application for regular bail, the same may be decided as expeditiously as possible. | ['Section 147 in The Indian Penal Code', '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 294 in The Indian Penal Code', 'Section 149 in The Indian Penal Code', 'Section 186 in The Indian Penal Code'] | Analyze the legal case and identify the corresponding section it comes under. |
19,379,884 | "On 27.05.2011 at 8.40 am, an information was received in PS Okhla Industrial Area.The informant told about murder of his niece at Tehkhand Balmiki Mohalla,Gopal Ji Ka Makaan near Railway Line.The information was recorded as DD No. 2A. It was marked to ASI Ranpal.The IO reached at spot alongwith Ct.At 9.02 pm, another information was received about a lady having committed suicide at House No. 203, Balmiki Mohalla and it was recorded as DD No. 3A. Copy of it was also sent to ASI Ranpal.Dead body of one lady known as Smt. Poonam was found lying at House No. 13/2, Third Floor, Gupta Colony, Balmiki Mohalla, Tehkhand.Pieces of condom, one quarter bottle (half filled) on which golden border whisky was written, one tumbler and one bottle containing some water were found near the dead body.Apart from all this, one bottle of limca (half filled) an another water bottle were lying near western side wall of room.Two used condoms of pink colour were lying behind the doors.Dinesh Singh, brother of deceased met at spot.xxxx Crime team was called at the spot, who lifted chance prints.IO picked exhibits from the spot.Same were sealed by seal of P.K. photographer clicked photos from different angles.Dead body was sent to mortuary of AIIMS.IO collected call details of mobile phone belonging to Anoop Singh and his relatives.From inspection of call details, IO came to know that someone contacted deceased from three numbers belonging to one Shailesh.The latter was operating an STD booth.Further, learned counsel drew attention of this court to the fact that DNA profiling was conducted only upon one of the two condoms found at the spot even though they were collected from the same place at the same time sand sent to FSL at the same time.Further, there is nothing on record to suggest that the samples were kept under sanitary conditions at the police station.I used to play cricket in the village and the injuries may have been caused while playing."In his statement under Section 313 of the Code of Criminal Procedure, the appellant has specifically denied the recovery of any such mobile phone and mentioned that this recovery was CRL.A.1728/2014 Page 26 of 30 planted and pictures of his family were transferred from his personal mobile phone to the allegedly recovered mobile phone by the police.The appellant stated as under:CRL.A.1728/2014 Page 26 of 30"Q19 : It is in evidence against you that two mobile phones, one make of NOKIA (black colour) and other make of LAVA were recovered from your possession and you stated that the phone make NOKIA was being used by deceased and on being checked it was found having no SIM however, some photographs were in it, both of these mobile phones were seized vide seizure memo Ex.PW18/D (of Nokia) and Ex.PW18/E (of Lava).What do you have to say?It is incorrect as only mobile of make Lava was recovered from my personal search.xxxx Q49 : It is in evidence against you that on 27.06.2011 Virender Singh (PW-27) examined one NOKIA mobile phone model 2700-C-2(1) along with 2 GB memory SD card and prepared his report Ex.The present Criminal Appeal has been filed under Section 374(2) of the Code of Criminal Procedure against the impugned judgment dated 25.11.2013 and order on sentence dated 15.01.2014 passed by the Additional Sessions Judge, Saket Court, New Delhi in Sessions Case No. 70/11, by virtue of which the appellant has been convicted under Section 302 of the Indian Penal Code and sentenced to imprisonment for life and to pay a fine of Rs. 20,000/- and in default of payment of fine to further undergo simple imprisonment for a period of one year for the offence punishable under Section 302 of the Indian Penal Code.CRL.A.1728/2014 Page 1 of 30From CRL.A.1728/2014 Page 2 of 30 scrutiny of call details of Anoop Singh, the latter was found in contact with co-accused Prem Singh at the relevant time.After completion of investigation, both of accused were indicted by police for offences punishable U/s 302/120B/34 IPC."CRL.A.1728/2014 Page 2 of 30After the investigation was complete, charges under Section 302/120B/34 of the Indian Penal Code were framed against the appellant and the co-accused, to which they pleaded not guilty and claimed trial.To bring home the guilt of the appellant and the co-accused, the prosecution examined 31 witnesses in all.The statements of the appellant and the co-accused were recorded under Section 313 of the Code of Criminal Procedure wherein they denied all the incriminating evidence and their involvement in the commission of the said offence.No defence witness was examined to substantiate their defence.The learned trial court, after scrutinising the arguments addressed by the counsel for the parties and evidence adduced by them, concluded that no offence is made out against co-accused Anoop Singh and acquitted him of all the charges whilst, holding that the prosecution has been successful in establishing the guilt of the appellant beyond reasonable doubt and held him guilty under Section 302 of the Indian Penal Code.CRL.A.1728/2014 Page 3 of 30The learned counsel vehemently argued that the trial court has grossly erred in not considering the inherent contradictions in the case of the prosecution, for which benefit of doubt ought to have been given to the appellant, as was given to the co-accused.To substantiate his argument, learned counsel for the appellant has relied upon a decision of the Apex Court in Sukhram vs. State of Madhya Pradesh reported in AIR 1989 SC 772, wherein the Honble Supreme Court held that where benefit of doubt has been given to a co-accused, the other co- accused would also be entitled to acquittal.The relevant paragraphs are as under:Consequently, the appellant's convictions can be sustained only if the High Court had sustained the convictions awarded to accused Gokul also.Inasmuch as the High Court has given the benefit of doubt to accused Gokul and acquitted him, it follows that the appellant's convictions for the two substantive offences read with Section 34 IPC cannot be sustained because this is a case where the co-accused is a named person and he has been acquitted and by reason of it the appellant cannot be held CRL.A.1728/2014 Page 4 of 30 to have acted conjointly with anyone in the commission of the offences.The learned counsel went on to submit that no independent witness has been examined by the prosecution to prove the presence of the appellant at the spot.He also contended that no recovery of any kind of weapon was made from the appellant.Furthermore, the recovery of the mobile phone of the deceased from the appellant was planted and pictures of his family from his personal mobile phone were transferred to the mobile phone of the deceased.We, accordingly, endorse the conclusions of the High Court on Circumstance 9."CRL.A.1728/2014 Page 11 of 30The then Station House Officer, Inspector Baldev Singh, who was examined as PW 1, was posted at Police Station Ajnala on the date of occurrence.Exhibit 2 : Foetus with umbilical cord and fleshy material.Exhibit 7 : Gauze cloth piece having brown stains described as gauze of accused Prem Singh.Exhibit 8 : Gauze cloth piece having few brown stains described as gauze of accused Anoop Singh.CRL.A.1728/2014 Page 18 of 30However DNA profile could not be prepared for the exhibits 1a and 6 due to non amplification.RESULTS OF EXAMINATION The alleles as from the source of exhibit 7 (Gauze cloth piece of accused Prem Singh ) are accounted in the alleles as from the source of exhibit 1b (condom).However the alleles as from the source of exhibit 7 (Gauze cloth piece of accused Prem Singh) are not accounted in the alleles as from the source of exhibit 2 (foetus).The alleles as from the source of exhibit 8 (Gauze cloth piece of accused Anoop Singh) are not accounted in the alleles as from the source of exhibit 1b (condom) and exhibit 2 (foetus).CONCLUSION The DNA profiling (STR analysis) performed on the exhibits provided is sufficient to conclude that the source of exhibit 7 (gauze cloth piece of accused Prem Singh) is responsible for the biological stains i.e. seminal fluid present on the source exhibit 1b (condom)"In the light of the above, the testimony of PW-26 Ms. Shashi Bala, Senior Scientific Officer, FSL, Delhi (who conducted the forensic CRL.A.1728/2014 Page 19 of 30 examination) assumes importance wherein she proved the results of the FSL report.PW-26 deposed as under:CRL.A.1728/2014 Page 19 of 30"Upon examination, I came to the conclusion that the Alleles from the source of exhibit 7 i.e. gauze cloth piece of accused Prem Singh are accounted in the Alleles as from the source of Ex. 1b (condom), however, the Alleles as from the source of Ex. 7 (gauze cloth piece of accused Prem Singh) are not accounted in the Alleles as from the source of Ex. 2 (foetus).The Alleles as from the source of Ex. 8 (gauze cloth piece of accused Anoop Singh) are not accounted in the Alleles as from the source of Ex. 1b (condom) and Ex. 2 (foetus).The DNA profiling (STR analysis) performed on the exhibits provided is sufficient to conclude that the source of Ex. 7 is responsible for the biological stand i.e. seminal fluid present on the condom (1b)."PW-26 Ms. Shashi Bala in her cross examination stated as under:"Q48 : It is in evidence against you that on 17.06.2011 Ms. Shashi Bala (PW-26) examined the exhibits sent to FSL and prepared a report Ex.PW26/A in this regard.What do you have to say?The condoms which were sent by the IO to the FSL in one of the condoms my semen was forcibly taken by the CRL.A.1728/2014 Page 20 of 30 IO during my police custody in the police station.What do you have to say about those injuries.?A. I do not know how the injuries were caused.CRL.A.1728/2014 Page 21 of 30After perusal of the medical/scientific and forensic evidence, we are of the considered view that the presence of semen of the appellant on one of the condoms i.e. exhibit 1b found at the spot of incident is established.Whilst, there is no explanation accorded to why DNA profiling was done only on one condom i.e. exhibit 1b and not on exhibit 1a raises a doubt as to the admissibility of this evidence as both the condoms were collected from the same spot at the same time and sent to FSL at the same time.The fact that the prosecution itself has failed to adduce any evidence on record to prove the motive on part of the appellant to commit the said offence convinces us to draw an adverse inference in this regard.Accused Anoop Singh had requested to allow me for stay of Prem Singh at my house on that day.It is wrong to say that I am deliberately not identifying accused Prem Singh today.Vol: as it was 10.30 pm, I could not see him properly.CRL.A.1728/2014 Page 25 of 30Similarly, I could not identify the person who was brought by the police on 13.06.2011 along with accused Anoop Singh.It is true that I have signed documents mentioned above in police station."From the above testimony of PW-2 Shiv Muni Singh Yadav, it is clear that he failed to recognize the appellant who allegedly came to his house (jhuggi) to ask for permission to stay in the intervening night of the day of incident.The appellant is ordered to be released forthwith if not wanted in any other case.SANGITA DHINGRA SEHGAL, J G. S. SISTANI, J th DECEMBER 8 , 2016 gr// CRL.A.1728/2014 Page 30 of 30 | ['Section 302 in The Indian Penal Code', 'Section 34 in The Indian Penal Code', 'Section 436 in The Indian Penal Code', 'Section 120B in The Indian Penal Code'] | Analyze the legal case and identify the corresponding section it comes under. |
193,799,570 | gv CRL.O.P.No.3709 of 2020 and Crl.MP.No.2144 of 2020 04.08.2020http://www.judis.nic.in 8/8This petition has been filed to call for the records relating in Cr.No.34 of 2020 on the file of Inspector of Police, Ramanathapuram Police Station, Coimbatore and now been investigated by All Women Police Station (East), Coimbatore and quash the same.The learned counsel appearing for the petitioners would submit that the petitioners are innocent persons and they had not committed any offence as alleged by the prosecution.Without any base, the first respondent police registered a case in Crime No.34 of 2020 for the offences under Sections 323 and 498(A) of IPC, as against these petitioners.Hence he prayed to quash the same.The learned Additional Public Prosecutor would submit that the investigation is almost completed and the respondent police have only to file final report.http://www.judis.nic.in 2/8 CRL.O.P.No.3709 of 2020Heard Mr.The correctness or otherwise of the said allegations has to be decided only in the Trial.If the ingredients of the offence alleged against the accused are prima facie made out in the complaint, the criminal proceeding shall not be interdicted."http://www.judis.nic.in 5/8 CRL.O.P.No.3709 of 2020Accordingly, this Criminal Original Petition stands dismissed.However, considering the crime is of the year 2020, the first respondent is directed to complete the investigation in Crime No.34 of 2020 and file a final report within a period of twelve weeks from the date of receipt of copy of this Order, before the jurisdiction Magistrate, if not already filed.Consequently, connected miscellaneous petition is closed.04.08.2020 Internet : Yes / No Index : Yes / No Speaking / Non Speaking order gvhttp://www.judis.nic.in 6/8 CRL.O.P.No.3709 of 2020The State rep by The Inspector of Police, Ramanathapuram Police Station, Coimbatore.Now Investigating by The Inspector of Police, All Women Police Station (East) Pulliyakulam, Coimbatore.2.All Women Police Station (East), CoimbatoreThe Public Prosecutor, High Court, Madras.http://www.judis.nic.in 7/8 CRL.O.P.No.3709 of 2020 G.K.ILANTHIRAIYAN, J. | ['Section 498 in The Indian Penal Code', 'Section 323 in The Indian Penal Code'] | Analyze the legal case and identify the corresponding section it comes under. |
1,938,012 | JUDGMENT Uma Nath Singh, J.This appeal impugns the judgment dated 19-3-96 passed by the learned Additional Sessions Judge, Harda in S.T. No. 131/95, whereby the accused/appellant was convicted of offence under Section 304-II, IPC and sentenced to undergo R.I. for five years and to pay a fine of rupees two thousand, in default, to further undergo one month's simple imprisonment.The prosecution case in brief is that on 4-11-94, the date of incident deceased Rajaram was given fists and legs blows on his chest and abdominal regions by his real brother accused Dadu.The report of the incident was lodged next day, i. e,, on 5-11-94 by the deceased and he was sent for medical examination on the same day.As per the evidence of Dr. A.K. Chandravansi (P.W. 2) in para 9 of his cross-examination when the deceased Rajaram was brought to him for medical examination, he gave him necessary treatment and allowed him to go home thereafter.The deceased did not complain of any severe pain in his chest or abdominal region.The deceased died on 12-11-94, after seven days of the incident, in his house and marg intimation in that respect, namely Ex. P-12 was recorded by Dinesh Barhai (P.W. 9), Police Station Incharge.Chhotelal, a cousin of the deceased, who gave the marg showed ignorance about the cause of death.Heard Shri Imtiyaz Hussain, Advocate for the appellant and Shri Sanjeev Shukla, Panel Lawyer for the State.Mr. Hussain contended that the nature of offence is not such as to be covered under Section 304-II, IPC because the deceased died after seven days of the incident and his health condition was normal on that day.Shri Hussain further contended that at no point of time the deceased was hospitalized nor did the doctor (P.W. 2) say in his cross-examination that the health condition of the deceased showed any sign of deterioration or severe pain when he was brought for treatment and that is why, he was allowed to go home thereafter.Mr. Hussain placed reliance on the evidence of Sukhiabai (P.W. 4), wife of the deceased.In para 3 of her cross-examination she categorically stated that her husband Rajaram was an old patient of some abdominal disorder and he used to complain of Stomachache for which he had undergone treatments at several places.She also stated that the deceased was alcoholic.She further stated that she did not see the incident of quarrel and clarified that her husband did not die of assault but due to some ailment.This witness was not declared hostile.Mr. Hussain also contended that it is a case of misplaced conviction as in no circumstances, it would be covered under Section 304-II, IPC and that too, by placing reliance on the evidence of hostile witness Parasram (P.W. 5).Mr. Hussain further contended that Ex. P-6 (Notice for inquest), and Ex. P-7 (Inquest Panchnama) exhibit that the dead body of the deceased was last seen lying inside his house.But these exhibits do not notice the cause of death.Out of nine witnesses of the prosecution, five were declared hostile.Even the material witnesses lack precision to support the conviction under Section 304-II, IPC.The doctor did not notice any external or internal injury on the body of the deceased during initial medical examination.Thirdly, the medical evidence does not support the prosecution case inasmuch as Doctor A.K. Chandravansi (P.W. 2) in para 9 says that when the deceased was brought for treatment, he was not complaining of any severe pain.That is why, he was allowed to go home.The doctor further says that on post-mortem a small rupture of the small intestine was noticed which could be caused by assaults with legs and fists as also by an abdominal disease.Thus the prosecution is not able to establish the assaults as being the cause of death.Further neither the medical nor any other evidence including the Marg (Ex. P-12) and the Inquest Paachayatnama (Ex. P-7) substantiate the findings of the learned Trial Judge.However, the first report (being in the nature of a dying declaration) recorded in Rojnamcha (Ex. P-10), the initial medical examination report (Ex. P-11) and the Marg (Ex. P-12) are descriptive about the incident of assaults alleged to have been caused with fists and legs by the accused.Hence, the accused is held guilty of causing assaults to the deceased, but since the medical opinion, as also the direct evidence of Sukhiabai (P.W. 4), and other corroborative materials do not prove the assaults being the cause of death and that a small rupture of the small intestine could be caused even by an abdominal disease, the accused/appellant is held guilty of causing simple hurt to the deceased.This conclusion is further fortified by the absence of any external injury on the body.The relevant portion of the post-mortem report reads:-"No external injury detected over the body, except multiple burn scars, very small in size, present all over the abdomen.This act is done probably by himself for the removal of abdominal pain.No other external injury present over the body."In the premises discussed hereinabove, I find that the order of conviction and sentence of the accused/appellant under Section 304-II, IPC is not sustainable in law as well as on facts and at the most, it comes within the ambit of Section 323, IPC.Accordingly, his conviction and sentence under Section 304-II, IPC, are hereby set aside and instead, he is convicted under Section 323, IPC, and sentenced to six months rigorous imprisonment and a fine of rupees one thousand, in default, to further undergo one month's simple imprisonment.From the application for bail, it appears that during trial the appellant was in custody for four months, i.e., from 6-12-1994 to 6-4-95 and again after the impugned judgment, from 19-3-96 to 16-7-96 when he was granted bail by this Court.But by the same order dated 16-7-1996, his prayer for stay of depositing the fine amount was refused.Under the circumstances, his bail bonds shall stand discharged.With this modification, the criminal appeal is allowed in part. | ['Section 323 in The Indian Penal Code'] | Analyze the legal case and identify the corresponding section it comes under. |
193,802,339 | The convictions and sentences dated 07.04.2005 passed in Sessions Case No.292 of 2004 by the First Additional District and Sessions Court, Krishnagiri are being challenged in the present Criminal Appeal.The case of the prosecution is that on 03.11.2003, at about 5 p.m., while the witnesses viz., Chinnaraj and Samugan have been travelling on a bicycle, whereas the deceased Kanagaraj has been travelling on a separate bicycle in front of Sentharapalli Government High School, both the accused have deterred them and indiscriminately attacked by using deadly weapons and due to their overtacts, the witnesses viz., Chinnaraj and Samugan have sustained injuries.The said Kanagaraj had sustained fatal injuries and subsequently passed away.The complaint given by him has been marked as Ex.On receipt of Ex.P.1, the Investigating Officer viz., P.W.16 has taken up investigation, examined connected witnesses and also made arrangements to conduct autopsy and accordingly doctor Aswath Narayana (P.W.10) has conducted autopsy on the body of the deceased and found the following external and internal injuries:-External Injuries:- (1) Lacerated injury posterior outer scalp in the parietal occipital region 5 cms x 14 cms x bone depth.(2) Lacerated injury of 31/2 cms x 1 cms 2 bone depth at Right Parietal region in the scalp.(3) Lacerated injury post outer part to occipital region at the right side of the scalp 1 cms x = cms x 1.2 cms.(4) Abrasion on outer right eye brow 4 cms x 2 cms.(5) Contusion posterior external to right eye 2 cms x = cms.(6) Diffuse injury on the right leg betwith knee joints both leg.Internal Injuries:- Thorax- No fracture ribs.Heart : Wt 200 gms.Lungs : Rt Lung 330 gms Lt lung 300 gms.Hyoid bone- Intact.Stomach-Empty.Liver 1200 gms Pale.Spleen-100 gms Pale.Kidney each 100 gms Pale. Skull:- No facture skull.The Post Mortem certificate has been marked as Ex.The Judicial Magistrate, Krishnagiri, after considering the facts that the offences alleged to have been committed by both the accused are triable by sessions court, has committed the case to the court of sessions, Krishnagiri Division and taken on file in Sessions Case No.292 of 2004 and subsequently made over to the trial court.The trial court, after hearing arguments of both sides and upon perusing the relevant records has framed 1st charge against both the accused under Section 341 of the Indian Penal Code (hereinafter called as IPC); 2nd charge under Section 302 of the IPC and 3rd and 4th charges under Section 324 of the IPC and the same have been read over and explained to them and the accused have denied the charges and claimed to be tried.On the side of the Prosecution, P.Ws.1 to 16 have been examined, Exhibits 1 to 24 have been marked and Material Objects 1 to 9 have been marked.When the accused have been questioned under Section 313 of the Code of Criminal Procedure, 1973 as respects the incriminating materials available in evidence against them, they denied their complicity in the crime.No oral and documentary evidence have been adduced on the side of the accused.The trial court, after hearing arguments of both sides and upon perusing the relevant evidence, has found both the accused guilty under Section 324 of the IPC and sentenced them to undergo 3 years rigorous imprisonment and also imposed a fine of Rs.1000/- with usual default clause.Both of them have also been found guilty under Section 304(2) of the IPC and sentenced them to undergo 7 years rigorous imprisonment and also imposed a fine of Rs.5,000/- with usual default clause.Against the convictions and sentences passed by the trial court, the present criminal appeal has been preferred at the instance of the 2nd accused as appellant.The consistent case put forth on the side of the prosecution is that on 03.11.2003, at about 5 pm., in front of Sentharapalli Government High School, while the witnesses viz., Chinnaraj and Samugan have travelled on a bicycle together, whereas, the deceased Kanagaraj has travelled on a separate bicycle, both the accused have unlawfully detained them and by using deadly weapons, indiscriminately attacked them and thereby, caused injuries and due to injuries sustained by the said Kanagaraj, he has passed away.Both of them have consistently stated the factum of occurrence, details of attacks and also weapons used by the accused in the place of occurrence.The doctor, who conducted autopsy on the body of the deceased has been examined as P.W.10 and he clearly opined that the deceased would have sustained injuries as spoken by the prosecution.Therefore, from the evidence given by P.Ws.1 and 3, coupled with evidence given by P.W.9, who has marked Ex.P.14-Post Mortem Certificate, the court can very well come to a conclusion that the occurrence has taken place as spoken by the prosecution and in the place of occurrence, both the accused have attacked deceased by using deadly weapons and due to their overtacts, death has occurred.The learned counsel appearing for the appellant/2nd accused has made an inert attempt to the effect that with regard to weapon alleged to have been used by the 2nd accused, in between evidence of P.Ws.1 and 3, some discrepancy is in existence and therefore, the presence of the 2nd accused has not at all been established on the side of the prosecution and the trial court, without considering such kind of discrepancy with regard to weapon alleged to have been used by the 2nd accused has erroneously found him guilty under Sections 324 and 304(2) of the IPC and therefore, the convictions and sentences passed by the trial court are liable to be interfered with.The learned Additional Public Prosecutor, has meticulously contended that in the instant case, P.Ws.1 and 3 are injured witnesses and their specific evidence is that in the place of occurrence, both the accused have attacked them and also, indiscriminately attacked the deceased Kanagaraj by using deadly weapons and since P.Ws.1 and 3 are injured witnesses, their evidences cannot be discarded nor rejected.The trial court, after considering the overwhelming evidence available against them has rightly found both of them guilty under Sections 324 and 304(2) of the IPC and therefore, the convictions and sentences passed by the trial court need not be interfered with.It is an admitted fact that P.Ws.1 and 3 are injured witnesses and in fact, they have spoken about the factum of attacks made on their persons as well as on the person of the deceased, by both the accused.Even if there is any slight discrepancy with regard to weapon alleged to have been used by the 2nd accused in between the evidence of P.Ws.1 and 3, the same cannot be a basis for rejecting the case of the prosecution and the same is nothing but nugae and further as rightly pointed out by the learned Additional Public Prosecutor, more credence can be given to the testimonies given by injured witnesses.Therefore, viewing from any angle, the convictions and sentences passed by the trial court cannot be impinged on the basis of the arguments put forth on the side of the appellant/2nd accused.The learned counsel appearing for the appellant/2nd accused, as a residual contention has contended that the appellant/2nd accused has attained the age of 37 years and also having 2 children and the trial court has imposed 7 years rigorous imprisonment under Section 304(2) of the IPC and therefore, some leniency may be shown in awarding sentence under the said section.Considering the age of the 2nd accused/appellant and also considering that the entire occurrence has taken at the spur of the moment, this court is of the view to modify quantum of sentence imposed by the trial court against the 2nd accused/appellant under Section 304(2) of the IPC as stated infra and to that extent, this Criminal Appeal is liable to be allowed in part.In fine, this Criminal Appeal is allowed in part.The conviction and sentence passed by the trial court against the appellant/2nd accused under Section 324 of the IPC are confirmed.1.The Inspector of Police Kandikuppam Police Station Cr.No.238/2003 Krishnagiri District.2.The First Additional Sessions Court, Dharmapuri District at Krishnagiri.A.SELVAM, J.nvsriCrl.A.No.144 of 200702.11.2015 | ['Section 304 in The Indian Penal Code', 'Section 324 in The Indian Penal Code', 'Section 341 in The Indian Penal Code', 'Section 302 in The Indian Penal Code'] | Analyze the legal case and identify the corresponding section it comes under. |
193,807,814 | DATE : SEPTEMBER 29, 2018PER COURT Heard the learned Counsel for the applicant and the learned APP for the respondent.The applicant has sought the relief of bail in connection with Crime No.452 of 2018 registered in Police Station, Newasa, Dist.Ahmednagar for the offences punishable under Sections 307, 329, 504 read with Section 34 of the Indian Penal Code ("the I.P.C.", for short).::: Uploaded on - 29/09/2018 ::: Downloaded on - 30/09/2018 02:52:28 :::::: Uploaded on - 29/09/2018 ::: Downloaded on - 30/09/2018 02:52:28 :::2 9-BA.1116-18It is alleged that on 03.08.2018 at about 10.30 p.m., accused no.1 namely, Akash @ Deva Jalindar Lashkare, accused nos.2 to 4 and the present applicant came near the cash counter of the hotel and when the informant Sachin Ashok Navthar, the proprietor of the hotel, asked accused no.1 Akash to pay the bill of Rs.800/-, accused no.1 Akash Lashkare refused to pay the bill and started hurling abuses.When the informant asked him not to hurl abuses, accused no.1 Akash took out a liquor bottle from his own pocket and gave a blow thereof on the head of the informant with intent to kill him.The informant sustained bleeding injury.The applicant and accused nos.2 to 4 started throwing chairs and tables, which were inside the hotel.Accused no.1 Akash further snatched a mobile handset and cash amount of Rs.7,000/- from the informant.On the basis of the report lodged by the informant, the above-numbered crime came to be registered.::: Uploaded on - 29/09/2018 ::: Downloaded on - 30/09/2018 02:52:28 :::::: Uploaded on - 29/09/2018 ::: Downloaded on - 30/09/2018 02:52:28 :::3 9-BA.1116-18The learned Counsel for the applicant submits that the main allegations are against accused no.1 Akash Lashkare only.The present applicant did not assault the informant.He, therefore, prays that the applicant may be granted the relief of bail.The learned Counsel for the applicant produced a copy of the order dated 07.09.2018 passed in Bail Application No.1025 of 2018, whereby accused nos.2 to 4, who are similarly situated to the present applicant, have been ordered to be released on bail.The learned Counsel submits that since the same role has been attributed against the present applicant, he is entitled for grant of relief of bail on the ::: Uploaded on - 29/09/2018 ::: Downloaded on - 30/09/2018 02:52:28 ::: 4 9-BA.1116-18principle of parity.He, therefore, prays that the applicant may be granted the relief of bail.::: Uploaded on - 29/09/2018 ::: Downloaded on - 30/09/2018 02:52:28 :::The learned APP opposed the application.He submits that since the applicant also participated at the time of the incident, he is not entitled to get bail.Perused the FIR as well as the statements of the witnesses.The main allegations are against accused no.1 - Akash Lashkare.Accused nos.2 to 4 and the present applicant are alleged to have thrown chairs and tables which were inside the hotel.Accused nos.2 to 4 have been released on bail by this Court.In the circumstances, on the principle of parity, the present applicant also is entitled to the relief of bail.It is made clear that the above observations are prima facie in nature and shall not influence any other proceedings arising out of the above-numbered crime.::: Uploaded on - 29/09/2018 ::: Downloaded on - 30/09/2018 02:52:28 :::::: Uploaded on - 29/09/2018 ::: Downloaded on - 30/09/2018 02:52:28 :::5 9-BA.1116-18In the result, I pass the following order:-Crime No.452 of 2018 registered in Police Station, Newasa, Dist.Ahmednagar for the offences punishable under Sections 307, 329, 504 read with Section 34 of the Indian Penal Code, on his executing bail bonds in the sum of Rs.20,000/- (Rupees Twenty Thousand) with one solvent surety in the like amount, on the following conditions :-(ii) The applicant shall not indulge in any criminal activity.(C) Bail bonds shall be furnished before the remand/committal Court.::: Uploaded on - 29/09/2018 ::: Downloaded on - 30/09/2018 02:52:28 :::::: Uploaded on - 29/09/2018 ::: Downloaded on - 30/09/2018 02:52:28 :::::: Uploaded on - 29/09/2018 ::: Downloaded on - 30/09/2018 02:52:28 ::: | ['Section 34 in The Indian Penal Code', 'Section 307 in The Indian Penal Code', 'Section 504 in The Indian Penal Code'] | Analyze the legal case and identify the corresponding section it comes under. |
193,808,591 | 2 Brief facts of the case is that on 13/04/1996, the prosecutrix was returning to her house from the dance programme organized at village - Baikheda alongwith her friends Suganbai and Krishnabai.On the way, when the prosecutrix reached in front of the house of the appellant /accused, he caught hold her and took her to vacant house of Poonam Pujari, where he Cr.A. No. 1310/1997 2 committed rape upon her and threatened her that if she narrated the incident to anybody, then he will ruin her entire family.After that, the prosecutrix came to her house and she narrated the story to Harinarayan and her mother Ayodhyabai.At that time, Ayodhyabai was ill and father of the prosecutrix was out of station.On 15/04/1996, the prosecutrix committed suicide by setting herself at fire for the aforesaid reason.The matter was reported to the police station - Biora and the police registered merg intimation under section 174 of Cr.P.C. The dead body of the deceased was sent for postmortem.Dr. B.K. Athwal ( PW-11) performed the postmortem and found burn injuries on the body of the deceased.He opined that due to the burn injuries, the deceased has died.It was also found that hymen of the prosecutrix was torn, two slides of her vagina were prepared and sent to FSL for chemical analysis.3 On the basis of the merg inquiry, the police registered FIR at Crime no. 136/1996 under sections 376, 506 and 306 of IPC against the appellant.The investigation was initiated by Sub-Inspector B.S. Rajpal.The accused / appellant was arrested.( Passed on 16 /04/2018) The appellant has preferred this criminal appeal under section 374(2) of Cr.P.C against the judgment dated 25/11/1997 passed by Additional Session Judge, Biora, Dist- Rajgarh in Session Trial no. 135/1996, whereby the appelalnt has been convicted for the offence punishable under sections 376, 506-II and 306 of IPC and sentenced to undergo R.I for eight years , two years and eight years respectively.After due investigation, charge-sheet was filed before the JMFC, Biora, who committed the case to the Court of Session and ultimately, it was transferred to the Additional Session Judge, Biora, Dist - Rajgarh.Cr.A. No. 1310/1997 24 The appellant abjured his guilt and took a plea that he is an innocent person and falsely implicated in the matter due to previous enmity.In defence, he examined Damodardas (DW-1) and Jagdish (DW-2).The trial Cr.A. No. 1310/1997 3 Court after considering the evidence adduced by the parties, convicted and sentenced the appellant for the offence as mentioned hereinabove.5 I have heard learned counsel for the parties and perused the record.Cr.A. No. 1310/1997 36 To bring home the charges, the prosecution examined as many as ten witnesses, however, Suganbai ( PW-2) and Shyambabu ( PW-4) have not supported the prosecution version.Goverdhan (PW-7) has deposed that in the year 1996 at about 10 - 11 pm, dance programme was organized in the marriage ceremony of Kailash and the prosecutrix along with other ladies went to attend the same.At 11 pm, Harinarayan brother of the prosecutrix informed him that the prosecutrix is missing, then he searched her, but she was not found.After that, some ladies, who were coming from temple, saw the prosecutrix coming out from the house of Radheshyam Bairagi and she went to her house.On the next day, the prosecutrix died due to burn injuries.He had heard that the accused committed rape upon the prosecutrix, therefore, she set herself at fire.7 Harinarayan (PW-3) deposed that one year ago at about 8-9 pm he went to temple of Anjanilal where Gayatri, Sugan and Krishna had also come for taking prasad.After that, he came to his house, but he did not found her sister.He informed her mother that the prosecutrix is not in house, therefore, he searched the prosecutrix in the house of Ramprasad, Ratanlal and Shyambabu, but his sister did not get there.After sometime, Shyambabu Cr.A. No. 1310/1997 4 informed him that his sister has come home, then he reached his house and asked her sister, then she informed him that the accused / appellant committed rape upon her.At that time, his mother was ill and his father had gone out of station.Then the prosecutrix committed suicide by pouring kerosene upon herself and set at fire.Jagannath ( PW-6) has also supported the statement of the Harinarayan.Cr.A. No. 1310/1997 4From the statement of the Harinarayan (PW 3), it appears that before committing the suicide, deceased told him about the rape committed by the appellant/accused upon him.Nothing has been put in his cross-examination to controvert his statement, meaning thereby that no attempt is made on behalf of the appellant to challenge the testimony of Harinarayan (PW 3) regarding dying declaration given by the deceased before him.Under these circumstances his evidence was found to be natural and he with stood in the cross-examination, which is not bring out any contradiction or any ommission in his version, apart from the fact that he had not axe to grind against the appellant.Further, when based on the evidence of Dr. B.K. Athwal (P.W. 11) and the post mortem report, the incriminating circumstances that existed against the appellant, were put in his examination recorded under Section 313 of the Cr.P.C. and he had no explaination to offer.Moreover, the evidence of Harinarayan (P.W. 3) is also corroborated the version of Goverdhan (PW 7) to considerable extent regarding the involvement of the appellant in the alleged crime.Although, the deceased has Cr.A. No. 1310/1997 5 committed suicide after 36 hours of the commission of rape.However, from the statement of Harinarayan (PW 3), it reveals that at the time of incident his mother-Ayodhyabai was ill and father was out of station, therefore, FIR could not be lodged immediately after the incident of rape, therefore, it is quite possible that the deceased feeling ashamed due to that incident and because of that she has committed suicide.Cr.A. No. 1310/1997 5Accordingly, this appeal is dismissed in limine.The appellant is on bail, his bail bonds stands discharged and he is directed to surrender before the concerned trial Court for serving out remaining jail sentence imposed against him.Let a copy of this judgment be sent to the concerned trial Court for information and necessary compliance.(S.K. AWASTHI) JUDGE skt Digitally signed by Santosh Kumar Tiwari Date: 2018.04.17 10:26:39 +05'30' | ['Section 306 in The Indian Penal Code', 'Section 376 in The Indian Penal Code', 'Section 506 in The Indian Penal Code'] | Analyze the legal case and identify the corresponding section it comes under. |
193,812 | The prosecution story, briefly stated is as below.Appellant Brij Bhushan Sharma original resident of village Khusalpur, P.S. Gulawati, district Bulandshahar was a Constable in Central Industrial Security Force (in brief CISF).Out of the above wedlock two daughters Indu Sharma (7 years) deceased and Monika Sharma (2 ½ years) deceased were born.During his service the appellant was posted at different places like Gauhati, Burdwan and from 1996 up to the date of occurrence of this case, he was posted in Fertiliser Corporation of India, Gorakhpur.He was residing along with his wife and minor daughters in Quarter No. E 788 Fertiliser Corporation Colony, P.S. Chiluwatal, Gorakhpur.It is alleged that the appellant was not satisfied with dowry given by parents of his wife and he was not happy with the behaviour of his wife with his mother and younger brother.On 16-6-1997 at about 8 p.m. the appellant was deputed on patrol duty from 1 p.m. to 9 p.m. But he was seen roaming near his quarter in Fertiliser Corporation Colony by Surender Kumar (PW-6) who was residing in quarter No. 778 of fertiliser Corporation Colony.At that time he was wearing "Baniyan" and pant.At about 10.30 p.m. on the same night Shyam Dutta Pandey (PW-9) resident of quarter No. 790 Fertiliser Corporation Colony heard cry of appellant Brij Bhushan Sharma that his wife got electric shock.Shyam Dutta Pandey (PW-9) rushed to the quarter of appellant and found it locked from out side.He tried to break open the lock, but was stopped to do so by another persons.At about 10.30 or 11 p.m. appellant Brij Bhushan Sharma came to Dinesh Chandra Joshi (PW-12) a Constable in C.I.S.F. at his quarter and told him that his wife and children had been murdered.Getting the said information Dinesh Chandra (PW-12) along with Satish and the appellant came to the quarter of appellant and found that main door of his quarter was locked and window was open.Ceiling fan and the lights were on in the room.Peeping through the window he observed that wife of appellant was lying on the floor by her head and blood had spread near her mouth.Her daughters were also lying on the floor.The quarter of appellant was locked from out side.The appellant was crying that his wife and children had been murdered.At 11.15 p.m. Constable R.K. Ram, Santary of unit line, knocked the doors of Sri K.K. Mohanan Inspector, C.I.S.F. and on his coming out told him that wife of appellant B.B. Sharma had died inside his house and his quarter was locked from outside.On enquiry Constable R.K. Ram told that he was informed about it by Company Hawaldar Major, Head Constable Satish Chandra.Sri K.K. Mohnan (PW-1) informed about the incident on telephone to Sri R.C. Prasad Company Commandant at his residence who directed Sri Mohanan to send information to P.S. Chiluwatal and to reach at the spot with some other constables Shri Mohanan then directed Sub Inspector Sri B.B.S. Chauhan to lodge report of the occurrence at P.S. Chiluwatal and reached on the spot along with 10-12 Constables.On the spot he found Head Constable Satish Chandra standing in front of the quarter of the appellant.He tried to get details of occurrence, but none was in a position to tell the details Sri B.B.S. Chauhan, Sub Inspector, CISF (PW-8) prepared report of the occurrence (Ext. Ka-8) and lodged the same at P.S. Chiluwatal at 23.45 p.m. On the basis of above report Constable Shesh Narain (PW-14) prepared chick F.I.R. (Ext. Ka-24) and got the endorsement of the same made in G.D. No. 41 at 23.45 p.m. (Ext. Ka-25) through Constable Upendra Sharma and registered a case against the unknown persons.The investigation of the case was entrusted to Vijay Shankar Singh (PW-21).He was not present at the police station.The copies of F.I.R., G.D. report and inquest register were received by him at village Sikhaur through Constable Prem Shankar Yadav.On receiving the papers he reached the spot were he interrogated witnesses, visited place of occurrence and prepared site plan (Ext. Ka-26).There was a crowd on the spot arid appellant Brij Bhushan Sharma was also present, but he was brightened.The I.O. remained at the spot during night.In the morning he appointed Punchas and conducted inquest of the dead body of Smt. Vimlesh Sharma, Km.Monika Sharma and Km.Indu Sharma and prepared inquest reports, (Ext. Ka-1 to Ka-3) and other relevant papers, sealed the dead bodies of the three deceased and sent the same for post mortem.I.O. also obtained photographs of the dead bodies.He took into possession Pahsual (iron made implement for cutting vegetables), which was kept on the chair after wash.He also took into his possession blood stained pillow cover, blood stained Khakhi pant, which the appellant was wearing, electric heater with cable, small broken piece of chain of wrist watch, broken pieces of bangles, blood stained parts of floor and plain piece of cement floor and sealed the same separately and prepared recovery memo (Ext. Ka-4 to Ka-7).He also checked the duty register of the appellant in CISF Unit and found that on the day of occurrence duty of appellant was from 1 p.m. to 9 p.m. The appellant had put his signature on entry of the duty, but there was no signature on leaving the duty.He also obtained extract of the said register (Ext. Ka-27).The I.O. interrogated other witnesses.Help of dog squad was also taken.Autopsy on the dead bodies of Smt. Vimlesh Sharma, Km.Monika Sharma and Km.Indu Sharma was conducted on 17-6-1997 between 4.30 p.m. and 5.30 p.m. by Dr. R.A.L. Gupta (PW-11), who found incised wounds on the persons of the deceased and the cause of death as Coma due to head injuries.The Doctor prepared post mortem reports (Ext. Ka-9 to Ka-11).The appellant was apprehended by the police and after completion of investigation charge sheet was submitted against him Under Section 302, I.P.C.The appellant was tried by the learned Sessions Judge for having committed murder of his wife and two minor daughters for the offence punishable Under Section 302, I.P.C. He pleaded not guilty and contended that relations between him and his wife were cordial and he was living with his wife and daughters happily.On the night of occurrence he was on patrol duty from 1 p.m. to 9 p.m. After his duty hours he came to his quarter along with his colleague Arup Kalsena at about 9.30 p.m. when he reached at the quarter he found no light in the quarter and main door was locked.He was very much perturbed.On peeping through the window he observed his wife and two daughters lying on the floor with blood spread on the floor.He entered into the room from the back door.Due to paucity of light he slipped on clotted blood and therefore his uniform came into contact with blood.Finding his wife and children dead he came out side, fell down and started weeping.Several persons of the locality including security people and police officers came to the spot and lock was broken at late night.The above lock did not belong to him.Dog squad was also called.The Inspector of police with the help of dog squad apprehended two boys of butcher.He told to the police that the boys of butcher.On receipt of the report of Chemical Examiner (Ext. C-I) the appellant was again examined Under Section 313, Cr.Sri R.K. Mohanan, Inspector CISF (PW-1) stated in his evidence that on 16-6-1997 at about 11.15 p.m. Sri.R.K. Ram, Constable, Unit Lines came to his quarter and awoke him.When he came out of his quarter the above Constable told that wife of Constable B.B. Sharma died inside her quarter and that the quarter was locked from outside.When he inquired as to how the occurrence took place and who gave the information then he told that information was given to him by Hawaldar Major of the Company and he was not knowing about the details of occurrence.Head Constable Satish Chandra was the Company Hawaldar Major.Thereafter he informed Company Commandant Sri.R.C. Prasad on telephone, who directed him to lodge report at the Police Station Chiluwatal and to reach at the quarter of B.B. Sharma along with some other Cosntables.He directed Inspector B.B.S. Chauhan to lodge report at P.S. Chiluwatal and reached at the quarter of B.B. Sharma along with 10-12 Constables.Constable B.B. Sharma and Head Constable Satish Chandra were standing in front of the quarter of accused.He tried to know about the occurrence from B.B. Sharma and Satish Chandra, but they told that they had no knowledge.He consoled B.B. Sharma and stayed there for about 20 minutes.In the meantime, other Officers of the Company also came there.Police also came on the spot and told that without giving information to higher Officers lock could not be broken.Senior Superintendent of Police and Additional Superintendent of Police and dog squad came on the spot.Then the lock was broken.Dog squad got arrested two persons.In his cross examination, the witness stated that he got information about the occurrence at 11.05-11.10 p.m. orally at his house.The police of P.S. Chiluwatalcame to the spot at 11.40-11.45 p.m. The lock was broken between 1-2 a.m. He did not know the persons, who were arrested with the help of dog squad.The accused B.B. Sharma remained on the spot till whole night.Sri R.B. Pandey (PW-2), Sri Ram Vyas (PW-3), Sri Ram Nagina (PW-5) and Sri Ghanshyam Bajpai (PW-4) are the witnesses of inquest.They have not stated any thing about the occurrence.Ghanshyam Bajpai (PW-4) further stated that the l.O. had also taken into possession broken pieces of bangles, a red coloured heater, switch board, broken piece of wrist watch lying near the dead bodies of the deceased, sealed the above articles on the spot and had prepared recovery memo (Ext. Ka-4), which was attested by him.Besides it, the I.O. had also taken into possession blood stained plaster of the floor and simple plaster of floor, sealed it and had prepared recovery memo (Ext. Ka-5).One 'Pahsul', (a sharp edged implement for cutting vegetables) electric heater and cable were also taken into possession by the I.O. and recovery memo (Ext. Ka-6) was prepared, which was attested by him.The I.O. had also taken into possession two pillow covers, which were blood stained and khaki pant of the accused, which was blood stained, sealed them and prepared recovery memo (Ext. Ka-7), and it was attested by him.Sri Surendra Kumar (PW-6) stated that in the year 1997 he was residing along with his brother-in-law (Sala) in quarter No. 778, Fertiliser Colony, Gorakhpur and was practising law in Civil Courts, Gorakhpur.He was not knowing B.B. Sharma but on the next day of occurrence he came to know that wife and two dughters of B.B. Sharma were murdered.How and under what circumstances above persons were murdered was not know to him.He further stated that on the night, of 16-6-1997 at about 8 p.m. he was walking in the colony (Fertiliser Colony) along with a person and when he reached near the quarter of B.B. Sharma, he observed him roaming near his quater and at that time he was wearing a pant and baniyan and had kept one cloth on his shoulder.The prosecution declared the above witnesses hostile.In his cross examination by the prosecution the witness denied to have told before the I.O. that the accused was suspecting fidelity of his wife and quarrel between the accused and his wife often took place till 2 in the night.Sri Ram Dutta Pandey (PW-7), R/o quarter No. 790 Fertiliser Colony and a Medical Practitioner stated that he had no knowledge about the murder of wife and daughters of accused B.B. Sharma.Sri B.P.S. Chauhan, Sub Inspector CISF (PW-8) stated that on 16-6-1997 at about 10.30 p.m. he was called by Inspector K,K. Mohanan who told him that wife of Constable B.B. . was murdered in quarter No. E-778 and his quarter was locked from outside and that he should lodge report at the police station.He went to police station Chiluwatal and lodged written report (Ext. Ka-8).In his corss examination, the witness stated that P.S. Chiluwatal was at a distnace of 2 ½ Km.from Unit Lines and after returning from police station he went to the spot where there was a great crowd, but no proceeding took place before him nor he participated in any one of them.Shyam Dutta Randey (PW-9) a residents of quarter No. 790 FCI Colony, Gorakhpur, a student stated that on the night of 16-6-1.997 between 10.11 p.m. he heard cries that fire had taken place and a person was electrocuted.That Brij Bhushan Sharma was raising alarm that his wife got electric shock.He came out of his quarter and his mother told that at the time the person should be helped.Knowing that some one had got electric shock in the house of Brij Bhushan Sharrna he rushed with a hammer to his quarter and gave one or twp blows on the lock, but the person residing above his quarter came out and peeped into window.He stopped him from breaking open lock saying that it was a murder case and he would be involved.Thereafter he retreated back, but remained on the spot till arrival of police.In his cross examiantion the witness stated that quarter of B.B. Sharrna is situate after one quarter at a distance of 20-25 paces and he was studying when he heard the cries as his examination was to start from next 20th.That B.B. Sharma was crying and weeping but he had no talk with him.He had told what he had seen to the I.O. on next day.Multiple incised wound over right side head 10 cm x 8 cm x bone deep, 5 cm above and posteriority to right ear.Second and third toe of right foot were burnt.On internal examination right side occipito parietal bone was found fractured into pieces.Scalp and membrane contained haematoma.Brain contained profuse haematoma.The Stomach contained 6 ounce semi digested food materials.8 cm.above left ear.On internal examiantion fronto parietal bone was found fractured.Haematoma was present in scalp, membane and brain.The stomch contained three ounce semi digested food material.That incised wound and fracture of bones of head indicated that a heavy sharp cutting weapon would have been used.Fracture of bones of children was possible due to ordinary knife, but it was not possible for fracture of bones of Smt:.Vlmlesh Sharma.However, It would have been possible due to butcher's knife.Constable Dinesh Chandra Joshl (PW-12) stated that on the night of 16-6-1997 between 10.30 and 11 p.m. constable Brij Bhushan Sharma came to his quarter and told that his wife and children have died.Constable Satish.Hawaldar CISF was also with him.How his wife and children died, was not told to him by the accused.At that time he was packing his house hold articles as he was transferred.On getting information from B.B. Sharma he along with B.B. Sharma and Satish came to the quarter of accused and found there that one window was open and fan and light in the room were on.He saw from the window that wife of accused was lying on the floor and her mouth was blood stained and her two daughters were also lying on the floor.The quarter of B.B. Sharma was locked from the outside.Accused B.B. Sharma was weeping and crying that his wife and children died, but was not telling how it was done.He also did not try to open the lock of house.Other persons and civil police came on the spot in the night.Dog squad also came and when the dog squad returned police had arrested two persons, whom he was not knowing.In his cross examination the witness stated that lock of the door of accused was of medium size and was locked by key.Chandrapal Sharma (PW 13) the father-in-law of the accused stated that his daughter.Quarrel had taken place about the dowry at the time of marriage.Bhupendra, the brother of accused had written a letter (Ext. Ka-12) on 29-9-1986 regarding demand of dowry.On 31-8-1996 B.B. Sharma had written a letter (Ex. Ka-16) to his daughter condemning her conduct.He also proved letters (Ext. Ka-17), (Ext. K-18) (Ext. Ka-19) and (Ext. Ka-20) written by accused to his wife.His daughter Vimlesh Sharma had also written letter (Ext. Ka-21) to him complaining about the conduct and behaviour of the accused.Constable Moharrier Shesh Narain Tiwari (PW-14) is the scribe of chick, F.I.R. (Ext, Ka-24) and stated that he prepared chick F.I.R. (Ext. Ka-24) on the basis of written report (Ext, Ka-8) and endorsement of the lodging of F.I.R. and registration of the case against the accused was made by Constable Upendra Sharma in G.D. report (Ext. Ka.-25).In his cross examination he stated that after lodging of the report he sent papers of the case inquest report book and other papers to the I.O. through Constable Prem Shankar Yadava.Constable Hridya Nand (PW-15) stated that he escorted the sealed dead bodies -of Smt. Vimlesh Sharma, Km.Indu Sharma and Km.Monika Sharma from the spot to the mortuary and produced before the Doctor, who conducted post mortem.Constable Sibbon Lai (PW-16), Rajendra Pandey (PW-17), Smt. Vasant (PW-18) and Km.Para (PW-19), who were examined by the prosecution to State about the conditions in which the accused was seen roaming outside his house after the occurrence had not supported the prosecution story and were declared hosile.Sri C.D. Basnet, Constable of, CISF (PW-20) stated that at the time of occurrence he was residing In quarter No. E-792 FCL Colony and his quarter was on upper story.Accused B.B. Sharma was residing on the ground iloor portion of the quarter.On the night of occurrence he was sleeping on the open roof of his quarter.At about 9.30-10 p.m. his wife awoke him and told that entire family of B.B. Sharma accused had been finished.He awoke and rushed to the quarter of the accused.Several persons had assembled there.He peeped through broken glass of window and saw that wife and daughters of accused were lying dead and his quarter was locked from outside.B.B. Sharma was not present there, Hawaldar Major Satish Chandra Yadava told him to send information to the Lines.He immediately went to Lines and informed to Lines Santary and returned to his quarter.At about 4.30-5.00 p.m. on the same day he had seen wife and two daughter of B.B. Sharma in front of Kitchen garden of their house and thereafter he saw them dead.When he returned from Lines he found B.B. Sharma accused weeping in front of his quarter and saying that his entire family was ruined.Neither B.B. Sharma nor any other person tried to open the lock.Sub Inspector Vijay Shankar Singh Yadava (PW-21) is the I.O. of the case.He stated the papers regarding the case were received by him on the night of occurrence at village Sikhaur.He reached the spot and started investigation.First of all he prepared site plan (Ext. Ka-26).Several persons were present on the spot.Accused B.B. Sharma was also present there and he was frightened.He had not enquired of him at that time.He conducted inquest of the dead bodies in the morning and prepared inquest report and other papers.From the spot he recovered one 'Pahsul', which was washed and placed at chair, blood stained pillow covers, blood stained khaki pant, which the accused was wearing, electric heater, cable wire, a broken chain of wrist watch, broken pieces of bangles, blood stained and simple piece of floor, sealed above articles on the spot and prepared recovery memo.On examination of the person of the accused he found that there was scratch on his left hand, which was probably due to breaking of chain of wrist watch.On 16-6-1997 the Sub Inspector inspected duty register of the Unit of accused and found that on the night of occurrence his duty was from 13 p.m. to 21 p.m. The accused had singed at the time of joining duty and but had not signed while leaving the duty.He obtained extract of duty register (Ext. Ka-18).It is not disputed that deceased Smt. Vimlesh Sharma was wife of appellant and Km.Indu Sharma and Km.Monika Sharma were his daughters.(1) The relations between the appellant and his wife Smt. Vimlesh Sharma deceased, were strained as it was apparent from the evidence of Chandrapal Sharma (PW-13) father-in-law of the appellant and the letters written by the appellant and Smt. Vimlesh Sharma deceased to each other.(2) On the date of occurrence the appellant and three deceased were living in quarter no. E-778 FCI Colony, Gorakhpur and no other person was residing there.(3) Duty hours of appellant on the day of occurrence was from 1 p.m. to 9 p.m. The appellant had signed the duty register at the time of arrival on duty, but had not signed the register while leaving the duty.(4) Surendra Kumar (PW-6) had seen the appellant at about 8 p.m. in the night of occurrence roaming near his quarter and wearing pant and baniyan.(5) At about 10-11 p.m. in the night of occurrence, the appellant was raising alarm that his wife got electric shock, while Medical evidence showed that all the three deceased died due to coma as a result of ante mortem head injuries and all the three deceased had multiple incised wounds on their head.Still an attempt was made to give a false picture that Smt. Vimlesh Sharma got electric shock through electric heater to pretend that Smt. Vimlesh Sharma died due to electric shock, which she got at the time of preparing some food on electric heater.(6) Inspector K.K. Mohanan (PW-1) enquired from the appellant about the occurrence, but he did not disclose any thing about the occurrence.The appellant had also written letter dated 11-7-1987 (Ext. Ka-18) to his wife Smt. Vimlesh Sharma saying that he was an angry person and would not pardon her of any mistake.Smt. Vimlesh Sharma had also written a letter dated 30-10-1992 (Ext. Ka-20) to her mother that Satyendra, brother of accused had misbehaved with her and when she told this to her mother-in-law, she tried to hush up the matter but she mentioned this fact in the letter to her husband that she was apprehending that Satyendra might repeat his misbehaviour and it was not appreciated by the appellant, who showed his anger.The appellant came to his house at Aligarh at 9 p.m. on 16th and was very angry.Smt. Vimlesh Sharma had also written letter dated 26-2-1997 to him (her father) that appellant often quarrelled on account of dowry given in the marriage as his younger brother recieved more dowry in his marriage and he also threatened her to kill.The above letters were proved by Chandrapal Sharma (PW-13).It is not disputed that quarter No. E-778 FCI Colony, Gorakhpur was allotted to the appellant in which he was residing along with his wife Srnt.This conduct of appellant is a factor which points towards his guilt.The appellant examined Manoj Kumar Das Inspector CISF (DW-3) who stated that on 16-6-1997 appellant Brij Bhushan Sharma had reported for duty at Control Room at 12.40 p.m. and his duty was to parol from Railway gate to Hower No. 4 and his duty hours were from 1 p.m. to 9 p.m. He further stated that from perusal of the General Diary of Control Room it is clear that the appellant remained on duty through out and there is no mention of his going outside.and murder was done during his absence.The fact that he was seen near his quarter at 8 p.m. when he claims himself on duty at that time, falsifies the defence of appellant that he left his duty hours at 9 p.m. and reached at his quarter at about 9.20-9.25 p.m. and indicates that the appellant had left his duty much before and had corne to his quarter to fulfil his evil design.The evidence of Shyam Dutta Pande (PW-9) a student and resident of quarter No. E-790 is on the point that on the night of 16-6-1997 he was busy in his studies as his examination was to commence from 20th.At about 10-11 p.rn.he heard alarm that fire had taken place.He also heard alarm that shock had taken place from electric courrent and Brij Bhushan Sharma was raising alarm that his wife got electric shock.He came out of his quarter and was standing in front of the quarter.His mother told that at such time person be helped.He was a student and his examination was to commence from 20th.Therefore, he must be busy in his studies.Being a young boy he had enthusiasm to reach the spot to help his neighbour.Therefore, his arrival on the spot was natural and probable and there is no ground to disbelieve him.The evidence of Shyam Dutta Patidey clearly indicates that the appellant wanted to spread a false story that his wife died due to electric whock.As mentioned above the I.O. found one electric heater with electric cable and plug near the dead body of Smt. Vimlesh Sharrna and Dr. R.A.L. Gupta (PW-11) found at the time of conducting autopsy on the dead body of Smt. Vimlesh Sharma that the second and third toe of right foot were burnt.This burning was due to electric current.A suggestion was also given to Dr. Gupta that death of Smt. Vimlesh Sharma was possible due to electric shock, but he repelled the above suggestion.The presence of electric heater near the dead body of Smt. Vimlesh Sharma and the evidence of Shyam Dutta Pandey show that appellant was aware of the fact as to how Snit.Vimlesh Sharma and his two dauthers were murdered, but he wanted to give a different picture of the occurrence to show his innocence.Inspector K.K. Mohanan (PW-l) on getting information about the death of wife and children of appellant came to the quarter of appellant and found him present there.He enquired from the appellant as to how his wife and children had died, but he kept mum and did not disclose any thing about the occurrence.Admittedly, the quarter of appllant was locked from outside.The appellant had told before the I.O. that the lock did not belong to him.It is also not disputed that the above lock was not broken when the appellant came to his quarter for the first time and found his room locked from outside.He did not try to get the lock open either himself or with the help of other persons, but he preferred to enter into the room from the back door, which according to him was open.This circumstance also shows that quarter was locked from out side to give impression to the neighbours and others that inmates of the house had gone out and it was also in the knowledge of appellant that back door was open.Admittedly, the khaki pant of the uniform of the appellant which he was wearing was blood stained.He told to the police that, the hoys of butcher were having evil eye on his wife and they might have murdered her.The above boys were taken to police station, but were released.His father-in-law a greedy man, had taken entire ornaments of his wife and had given in the marriage of his other two daughters.He had also taken Rs. 4,000/ - from him (appellant) for purchasing land and constructing house.His father-in-law was not coming to his house as he was apprehending that he would demand his money.No quarrel had taken place between him and his wife for last one year and he was falsely implicated for murder of his own wife and children.The prosecution in support of its case examined K.K. Mohanan, Inspector, CISF (PW-1), R.B. Pandey (PW-2), Ram Vyas (PW-3), Ghanshyam Bajpayee (PW-4), Ram Nagina (PW-5), Surendra Kumar (PW-6), Ram Dutta Pandey (PW-7) B.P.S. Chauhan (PW-8), Shyam Dutt Pandey (PW-9), Laxmi Prasad (PW-10), Dr. R.A.L. Gupta (PW-11) Constable Dinesh Chandra Joshi (PW-12), Chandra Pal Sharma (PW-13), Constable Shesh Narain Tiwari (PW-14), Constable Hridya Nand (PW-15), Sibbon Lai (PW-16), Rajendra Pandey (PW-17), Smt. Basnati (PW-18), Km.Pare Srivastava (PW-19), Constable C.D. Basante (PW-20) and Vijay Sharikar Singh, LO.(PW-21).The appellant examined his brother Bhupendra Kumar Sharma (DW-1), Constable Ram Suresh Singh (DW-2) and Manof Kumar Das (DW-3).The learned Sessions Judge on considering the evidence of the prosecution and that of defence held that circumstantial evidence adduced by the prosecution lead to infer the only inference that, the appellant committed murder of his wife Vimlesh Sharma and two minor daughters Km, Monika and Km.It was a cruel, gruesome and horrendous murder and it was a rarest of rare case.Therefore, the appellant was liable to be sentenced to death.With these findings he convicted the appellant under Section 302 and sentenced him to be hanged by his neck till dead.The learned Sessions Judge had made a reference for confirmation of the death sentence awarded by him.The appeal as well as reference are taken up together for decision.He again stated that he came to know about their murders on the next morning and prior to a day of the occurrence when he came but of his quarter he observed accused B.B. Sharma coming out of his quarter wearing a pant and "Bandi" and going towards mosque.He did not notice whether "Bandi" of the accused was soaked with sweat and was torn or not.He also did not noice whether accused was smoking "Bidi" or not.The prosecution declared the witnesses hostile.In his cross examination the witness denied to have told about the occurrence before the I.O.Dr. R.A.L. Gupta (PW-11) who conducted autopsy on the dead bodies of Smt. Vimlesh Sharma, Km.Monika Sharma and Km.Iridu Sharma on 17-6-1997 between 4.30 p.m. and 5.30 p.m. stated that sealed dead bodies of above persons were brought before him, which were identified by Constable Jamuna Singh and Hirdya Nand Singh of P.S. Chiluwatal, who brought the same.That he found following facts:--Post mortem of Smt. Vimlesh Sharma Smt. Vimlesh aged about 35 years had sustained following ante mortem injuries on her person.Multiple incised wound 4 in number over 10 cm x 9 ½ cm area over both side face, left side nose and adjacent and both eye brows.Size of smallest was 3 cm.x 1 cm.x bone deep and the biggest was 6 ½ cm.x 2 ½ cm x bone deep.Incised wound 6 cm x 1 cm x bone deep over left side head 10 cm above from left ear.The cause of death was due to coma as a result of ante mortem head injuries.Post mortem-of Km.Monika aged about 2 ½ years has sustained following ante mortem injuries on her person:--Incised wound 3 cm x 1 cm x bone deep over left side head.On internal examination ternporo parietal bone was found fractured.Membrane and brain contained haematoma.Two ounces fluid was found in the stomach and cause of death was due to coma, as a result of head injury.Post mortem of Km.Indu Sharma aged about 7 years had sustained following ante mortem injuries on her person:--Incised wound 3 cm x 1 cm x bone deep over left side forehead, 6 cm above from left eyebrows.cm x bone deep over left side head, 5 cm above from left ear.The cuase of death was due to coma, as a result of head injury.In his cross examiantion Dr. Gupta stated that in case the death of Smt. Vimlesh Sharma had taken place due to electric shock, there would have been different symptoms for the same, which was not found on her body.The lock at the quarter of the accused was got broken.On inspection of the quarter of the accused he did not find any sign of theft or dacoity in the quarter or entry of any outsiders.The murders appeared to have been committed patiently.No sign of resistance on the part of the deceased came to notice.A basket was found lying in the bath room, but no lock of the boxes inside the quarter was broken.In his cross examination, the witness stated that he reached the spot at about 12-12-15 in the night.He did not find any blood stains on the switch board inside the bath room.He noticed that some red coloured thing was washed in the bath room, but had not mentioned this fact in the case diary.On enquiry the accused told that lock belonged to him, but he had no key.The accused also told before him that when he entered into the room from back door by pushing it, he slipped and fell down on the floor.He was wearing uniform at that time.That he apprehended the accused on 19-6-1997 in village Bhagwanpur.He further stated that at the time of his visit he found back door of the quarter of accused open.This was the gist of evidence adduced by the prosecution.(7) The quarter of appellant was locked from outside to pretend that inmates of house had gone out.(8) Khaki pant (of uniform of appellant) which the appellant was wearing contained human blood.(9) The appellant gave false explanation that lock on outer door did not belong to him and regarding presence of human blood on his pant that when he came to his quarter and peeped from window found his wife and children dead, then he entered into the quarter from back door, which was open and slipped in darkness due to which his pant was soaked with blood.We will consider whether the above circumstances have been sufficiently proved and provide complete, chain of circumstances through which the hypothesis of guilt of appellant can be inferred.Regarding motive Chandrapal Sharma (PW-13) father in-law of appellant stated that the appellant was not saitsfied with the dowry given to him at the time of marriage as the appellant had demanded dowry of Rs. 5,100/- and he could provide only Rs. 2,100/-.Annoyed with it the appellant had left the articles given in dowry.He had also written letter dated 20-9-1986 (Ext. Ka-12) that he was not satisfied with the dowry given by the witness.Smt. Vimlesh Sharma had written letter in July, 1986 (Ext. Ka-14) to the appellant that her brother would pay the money of dowry.The appellant had written letter on 31-8-1986 (Ext. Ka-16) to Smt. Vimlesh Sharma condemning her conduct, which would be harmful for her and that he was also a bad person.From perusal of above letters, it appears that some tit bits often took place between the appellant and his wife, but the wife and children of apnellant were residing with him, at the place of his duty.It may be said that these letters do not.show that the appellant really wanted to get rid of his wife.Moreover, there is nothing in the above letters against the two minor daughters of the appellant, who were also murdered in the same incident.But what was going on between the appellant and his wife may not be known by the others and it was very difficult for the prosecution to collect evidence on the motive.Vimlesh Sharma deceased and two daughters Km.Monika Sharma and Km.P.C. as well as in the written statement filed by him that butcher's son was having an evil eye on his wife and he would have murdered his wife.There was also no sign regarding commission, of offence by outsider.The conditlpn of the dead bodies as noticed by the I.O. also indicated that the three deceased were murdered patiently and not a hit and run manner.Taking an overall view of the above circumstances it is clear that the above circumstantial evidence is conclusive on the point that there was no other inmate in the room of occurrence expet the deceased and the appellant.If the three deceased had died homicidal death none else but the appellant was their assassin.Admittedly on the day of occurrence the duty hours of appellant was from 1 p.m. to 9 p.m.I.O. Vijay Shankar Singh Yadava (PW-21) checked the duty register of the appellant and according to above duty register the appellant had signed the duty register on arrival of the duty, but he had not signed the same while leaving the duty.Extract of 'B' Shift duty register on 16-6-1997, 13.00 hours to 21 hours (Ext. Ka-27) shows that name of Sri B.B. Sharma appellant is shown at Sl.No. 7 and he signed the duty register at the time of arrival (at 12,40 p.m.) and there was no signature at the time of leaving the duty while other constables had signed the above register twice, on arrival of the duty and at the time of leaving the duty.It also shows that except appellant no other constable on duty had mentioned time of arrival (12.40 p.m.).This indicates that appellant with guilty mind was making his alibi from before the occurrence.In his cross examination he stated that he had not brought the original diary, but its carbon copy as the original General Diary was taken by the police and was sealed.However, he denied the suggestion that in case a person on duty leaves the duty with permission of the In-charge, no endorsement of it is made in the General Diary.The fact that the appellant had not signed duty register at the time of leaving of the duty itself indicates that the appellant had left duty much before 9 p.m. and his contention that he left his duty at 9 p.m. does not appear correct.Sri Surendra Kumar (PW-6) categorically stated that he was residing with his Brother-in-law (Sala) in quarter No. E-778 FCI Colony, Gorakhpur and was practising in Civil Court, Gorakhpur.That on 16-6-1997 at about 8 p.m. while he was walking in the Colony along with a person and reached near quarter of B.B. Sharma appellant, he observed the appellant roaming near his quarter and at the time he was wearing a pant and "Baniyan" and some clothe was kept on his shoulder.It is settled law that entire testimony of a hostile witness cannot be discarded simply because he was declared hostile by the party examining him and that much of his evidence will be relied on which is reliable.Therefore, the evidence of the witness that he had seen the appellant roaming near his quarter at about 8 p.m. can be safely relied upon as it had not been challenged by the appellant.The witness had no motive to depose falsely.As the witness was residing in the same colony and therefore had occasion to reach near the quarter of the appellant while walking in the colony,The learned counsel for the appellant argued that if the appellant as seen near his own quarter it was not unnatural arid is not an incrimianting circumstances.But contention of appellant was that he was on his duty from 1 p.m. to 9 p.rn.The I.O. had taken into possession the above pant of the appellant and had sent the same for chemical examiantion.The report of Chemical Examiner and Serologist (Ext. C-1) shows that the pant contained human blood.The appellant in his statement Under Section 313, Cr.P.C. was asked to explain about the presence of human blood on his pant and at first time he explained the same in an answer to question No. 5 that he knew only this much that after, three or four days of the occurrence Darogaji demanded pant from him and he handed over the same to him, but the evidence of I.O. and the recovery memo of pant (Ext. Ka-7) shows that pant was taken into possession by the I.O. on the next morning of the occurrence.The appellant had offered another explanation regarding this fact in his written statement (paper No. 60-B) submitted before the Trial Court on 5-10-1998 that when he came to his quarter along with his colleague Arup Kalsena at about 9.20 or 9.25 p.m. and found no light in the quarter and the quarter being locked.He wa;s frightened and peeping from window he saw his wife and daughters lying on floor in pool of blood.He became purturbed and entered into the quarter from back door, which was open.Due to dim light he slipped on blood on the floor and the above blood was soaked in his pant of uniform.The above explanation does not appear convincing as the appellant was seen cut side his quarter at 8 p.m. and was found wearing only pant and baniyan.The fact which is within the knowledge of the accused, the burden of proof of that fact lies on him and false answer to question put Under Section 313, Cr.P.C. is a missing link for completing the chain of circumstances.The false explanation given by the accused provided a missing link in the circumstances.However, in his cross examination he also stated about possibility of death at 7 or 8 p.m.The defence of the appellant was that on the date of occurrence he was on his duty from 1 p.m. to 9 p.m. and reached his quarter at about 9.20 or 9.25 along with his collegue Arup Kalsena and found his wife and children murdered.But evidence of Surendra Kumar (PW-6) and extract of Duty Registar (Ext. Ka-27) show that he had not signed duty register while leaving his duty and falsify the above defence theory.Moreover, Arup Kalsena with whom the appellant claimed to have come to his quarter at about 9.20 or 9.25 p.m. was not examined by him.This further indicates that Arup Kalsena was not prepared to depose falsely.In this way the circumstances enumerated above have been fully established by the prosecution.The above circumstances taken together complete the chain of events that appellant having planned to get rid of his wife left his duty on 16-6-1997 much before the scheduled time, came to his quarter, murdered his wife and two minor daughters patiently, gave electric burn on the foot of his wife to show that his wife died due to electric shock, washed pahsual, locked the room from outside to give an impression that inmates of the house had gone some where else, and after 9.30 which was usual time of his return from duty raised alarm that his wife got electric shock and informed officers of his Department that his wife and daughters were murdered by some one else.P.C. and the written statement filed by him that the appellant instead of making at least an attempt to exlain or clarify the incriminating circumstances inculpating him, and connecting him with the crime by his adamant attitude and set up a case of total denial and that he remained on his duty from 1 p.m. to 9 p.m. and reached his quarter at 9-30 p.m. by which time his wife and two daughters were murdered.Thus, he denied everything when those circumstances were brought to his notice.The above circumstances were personally arid exclusively within the knowledge of the appellant and only he could explain the same and as such it provides missing link for completing the chain of incriminating circumstances necessary to connect the appellant with the crime committed.Therefore, for the reasons stated above we have no hesitation to agree with the finding of the Trial Court holding the appellant guilty of the offence punishable Under Section 302, IPC for committing murder of his wife and two minor daughters.The next question, which arises for consideration is whether the sentence of death awarded to the appellant is appropriate.Learned counsel for the appellant submitted before us that after recording conviction of the appellant Under Section 302, IPC the learned Sessions Judge imposed death sentence on the same day only on hearing the learned counsel for the accused (Amicus Curiae) without giving real and effective opportunity of hearing on the question of sentence as envisaged by Section 235(2) Cr.We think as a general rule the trial Court should after recording the convinction adjourn the matter to a future date and call upon both the prosecution as well as the defence to place the relevant material bearing on the question of sentence before it and thereafter pronounce the sentence to be imposed on the offender.P.C. The appellant stated before us, which had been reduced in writing, that he had nothing to say and no evidence material was to be produced.We have also heard learned A.G.A. and Sri V.C. Tiwari, learned Senior Counsel appearing for the appellant on the question of sentence. | ['Section 302 in The Indian Penal Code', 'Section 313 in The Indian Penal Code', 'Section 354 in The Indian Penal Code', 'Section 323 in The Indian Penal Code', 'Section 326 in The Indian Penal Code'] | Analyze the legal case and identify the corresponding section it comes under. |
193,814,107 | This was not approved by the family members of Kanta and on account of that the relations between the two families were strained.This is said to be the motive behind the commission of the offence.The incident in question occurred on 29.8.1997 at about 9:00 p.m. when complainant Pandurang was at his house.It is said that respondent/original accused Kamlakar (since deceased) was passing by the road in front of his house when a pet dog of the complainant barked ::: Downloaded on - 04/07/2014 23:50:51 ::: apeal83.99.odt 3 at him, which led Pandurang, hitting the dog and abusing and threatening the complainant.The complainant came out of the house, there was some hot exchange of words.Thereafter, Kamlakar abused the complainant.The incident in question is said to have occurred at 'Pandhan' adjoining to the house of the complainant, where all the accused assembled.The respondent Deorao was having a stick, Prakash was having a knife and Deorao started assaulting Pandurang, Pundlik and Vitthal by stick.The respondent Prakash handed over a knife to Kamlakar and instigated him to assault.In consequence Kamlakar with the said knife assaulted Pandurang, Pundlik and Vitthal on their chest and abdomen etc. It is said that while Kamlakar was inflicting blows, respondents/accused Prakash, Sanjay and Gopal had caught hold of them.After that respondents went away.Pandurang thereafter lodged a report, on the basis of which an offence came to be registered.The injured were sent for medical examination.Initially, offence at Crime No.128/1997 was registered with Police Station, Wani under Section 307 r/w 34 of Indian Penal Code.During the course of investigation, the clothes of the injured persons were seized, spot panchanamas were drawn, certain seizures were made from the spot and the respondents came to be arrested.It is said that there were some injuries on the person of the respondents/accused as well.The is an appeal by the State against acquittal of respondents/original accused.The respondents were put on trial in ::: Downloaded on - 04/07/2014 23:50:51 ::: apeal83.99.odt 2 Sessions Case No.160/1997 on the file of the learned Sessions Judge, Yavatmal.Respondent nos.1 to 5 were charged under Section 148 of Indian Penal Code for having formed unlawful assembly armed with deadly weapons with the common object of committing the murder of Pundlik Ringole, Pandurang Ringole and Vitthal Bhoyar.In addition, respondent no.3/original accused no.3 Kamlakar (since deceased) was also charged under Section 302 of Indian Penal Code for committing the murder of Pundlik and under Section 307 of Indian Penal Code for attempting the murder of Pandurang and Vitthal.Respondent nos.1, 2, 4 and 5 were also charged under Sections 302, 307 r/w 149 of Indian Penal Code on the allegation that respondent no.3 - Kamlakar committed the act in prosecution of the common object of the unlawful assembly.::: Downloaded on - 04/07/2014 23:50:51 :::According to the prosecution, one Kanta, the niece of the complainant Pandurang and Pundlik and sister of Vitthal had love affair with original accused no.2 - Sanjay.They were also sent for medical examination, blood samples of the respondents and ::: Downloaded on - 04/07/2014 23:50:51 ::: apeal83.99.odt 4 the injured were collected.According to the prosecution, respondents Deorao and Kamlakar, while in custody, gave a confessional statement, which led to discovery of one knife and stick.Statements of the witnesses were recorded.The seized weapons were sent for opinion of the medical officer and the opinion was obtained.The seized articles were also sent for the report of the Chemical Analyzer.On completion of the investigation, a chargesheet came to be filed in the Court of the Judicial Magistrate First Class, Wani, which was committed to the Court of Sessions.::: Downloaded on - 04/07/2014 23:50:51 :::::: Downloaded on - 04/07/2014 23:50:51 :::The learned Sessions Judge framed charge against the respondents.The respondents pleaded not guilty to the charge and claimed to be tried.The defence of the respondents was of total denial and false implication.At the trial, the prosecution examined in all six witnesses and produced the record of the investigation.The respondents did not lead any evidence.The learned Sessions Judge by a judgment and order dated 3.9.1998 was pleased to convict and sentence the respondents as under :(i) Respondent no.3 - Kamlakar was convicted for the offence punishable under Section 302 of Indian Penal Code for committing murder of Pundlik and sentenced to undergo imprisonment for life.He was also convicted for the offence punishable under Section 307 of Indian Penal Code for committing the murder of ::: Downloaded on - 04/07/2014 23:50:51 ::: apeal83.99.odt 5 Pandurang and Vitthal and on each of these counts, he has been sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs.1,000/-, in default, to further suffer rigorous imprisonment for six months.The substantive sentences were directed to run concurrently.::: Downloaded on - 04/07/2014 23:50:51 :::(ii) Respondent - Kamlakar was, however, acquitted of the offence punishable under Section 148 of Indian Penal Code.(iii) Respondent no.1 - Prakash, respondent no.2 - Sanjay, respondent no.4 - Deorao and respondent no.5 - Gopal have been acquitted of the offences punishable under Sections 148, 302, 307 r/w 149 of Indian Penal Code.Feeling aggrieved by the acquittal of respondent nos.1, 2 , 4 and 5, the State has filed this appeal.It appears that respondent no.1 -Prakash Ghogle, respondent no.3 - Kamlakar @ Kashinath and respondent no.4 - Deorao Ghogle have died during the pendency of the appeal.By an order dated 4.3.2013 the appeal stood abated as against these respondents.Thus, the consideration of the appeal is limited to the challenge of acquittal of respondent no.2 - Sanjay and respondent no. 5- Gopal.It may be mentioned that respondent no.3, sole convicted accused, had filed Criminal Appeal No.421/1998 and by an order of even date that appeal also stood abated.We have heard the learned Additional Public Prosecutor for the appellant and the learned Counsel for the respondents.With the ::: Downloaded on - 04/07/2014 23:50:51 ::: apeal83.99.odt 6 assistance of the learned Counsel for the parties, we have gone through the entire evidence and the impugned judgment.::: Downloaded on - 04/07/2014 23:50:51 :::Perusal of the impugned judgment would show that in paragraph no.35 onwards the learned Sessions Judge has found that all the respondents/accused were not present at the spot since beginning and as such it has been held that there was no premeditated attempt to commit any offence.It was found that it was only respondent no.3 -Kamlakar who was alone at the spot while the other accused came there later on.It was also found that the prosecution evidence showed that the acquitted respondents came on the spot on hearing shouts.The learned Sessions Judge has noticed a decision of the Hon'ble Supreme Court in the case of Moti Das and others...Versus...The State of Bihar, reported in AIR 1954 SC 657 that an assembly which is not lawful at its inception can develop into one later on.In view of the learned Sessions Judge, the evidence was insufficient to hold that the respondents had formed unlawful assembly with the common object of committing the murder as alleged.The learned Sessions Judge has thereafter noticed certain improvements/discrepancies in the evidence of P.W.1 to P.W.3 and has proceeded to acquit the respondents.The learned Additional ::: Downloaded on - 04/07/2014 23:50:51 ::: apeal83.99.odt 7 Public Prosecutor has taken us through the evidence of P.W.1 to P.W.3 in order to submit that there was clear evidence of the respondents having formed unlawful assembly with the common object of committing the murder as alleged.::: Downloaded on - 04/07/2014 23:50:51 :::The learned Additional Public Prosecutor was at pains to point out that the evidence of P.W.1 to P.W.3 would be sufficient to hold respondent nos.2 and 5 guilty for the offence.::: Downloaded on - 04/07/2014 23:50:51 :::The learned Counsel has thereafter submitted that there is indeed a clear discrepancy as noticed by the learned Sessions Judge in paragraph no.35 onwards of the impugned judgment and the view taken being a plausible and probable one, does not call for any interference.At the outset, it may be mentioned that original accused no.3 - Kamlakar (since deceased) was convicted for the offences punishable under Sections 302 and 307 of Indian Penal Code, while rest of the accused have been acquitted.Out of these, two accused are already dead and the only question is whether the appellants-original accused no.2 - Sanjay and accused no.5 - Gopal have been rightly acquitted or whether their acquittal needs interference.Code is concerned from evidence on record it is clear that all the accused were not present at the spot since beginning.So, there was no preplan to commit any offence.Accused Kamalakar was alone initially and other accused came to the spot later on.When accused ::: Downloaded on - 04/07/2014 23:50:51 ::: apeal83.99.odt 9 nos.1,2,4 and 5 came to the spot evidence shows that they came on the spot on hearing shouts.So it cannot be said that when they came to the spot there was any unlawful assembly.Though the witnesses 1 to 3 have stated in their evidence the names of Gopal, Prakash and Sanjay as the persons who caught-hold of Pundlik at the time when Kamalakar inflicted blows there is no mention of this important fact in F.I.R. Though it is mentioned by Vithal that accused Deorao caused injuries by stick, there is no mention about it in F.I.R. and no injury which could be caused by hard and blunt object was seen on the person of Pundlik, Vithal or Pandurang.Though Vithal states that Pandurang was caught-hold by Prakash, Sanjay and Gopal when Kamalakar inflicted blows to Pandurang, Pandurang himself does not say about that.So also P.W.3 Bhaiyya who had also witnessed Kamalakar inflicting blows to Pandurang has not stated about catching hold by Prakash, Gopal and Sanjay Pandurang and there is no mention about it in F.I.R. Though Vithal states that Deorao had catch-hold of him when Kamalakar inflicted blows of knife to him.::: Downloaded on - 04/07/2014 23:50:51 :::::: Downloaded on - 04/07/2014 23:50:51 :::apeal83.99.odt 10 P.W. Pandurang and P.W.3 Bhaiyya do not state about that though they had witnessed the assault on Kamalakar and there is no mention about it in F.I.R. So far as catching hold by Prakash, Sanjay, Gopal and Pundlik when Kamalakar inflicted blows though Prakash and Vithal say like that, independent witness Bhaiyya does not state the name of Prakash, so there is difference.In such circumstances in view of omission of this material fact in F.I.R. and inconsistency in the evidence of witnesses who are eye witnesses to the incident, it is difficult to say conclusively that all the accused had taken part in commission of offence or assisted Kamalakar in committing the offence."The learned Sessions Judge has considered the discrepancies inter se between the prosecution witnesses P.W.1 -Pandurang, P.W.2 - Vitthal and P.W.3 - Bhaiyya in order to come to the conclusion that the prosecution has failed to prove conclusively that all these accused had taken part in commission of the offence or assisted Kamlakar in committing the offence.The various discrepancies noticed can be stated as under :(i) Although P.W.1 to P.W.3 state in their evidence the names of Gopal, Prakash and Sanjay as the persons who had caught hold of Pundlik when Kamlakar inflicted blows, there is absence of mention of the same in the F.I.R.::: Downloaded on - 04/07/2014 23:50:51 :::::: Downloaded on - 04/07/2014 23:50:51 :::ORDER The Criminal Appeal is dismissed.::: Downloaded on - 04/07/2014 23:50:51 ::: | ['Section 307 in The Indian Penal Code', 'Section 302 in The Indian Penal Code', 'Section 148 in The Indian Penal Code'] | Analyze the legal case and identify the corresponding section it comes under. |
193,817,173 | 3.The learned Additional Public Prosecutor appearing for the respondentsubmitted that based on the complaint given by the petitioner, the respondenthas registered a case in Crime No.235 of 2018 on 19.04.2018 for the offencesunder Sections 147, 148 and 324 of IPC.2.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. | ['Section 147 in The Indian Penal Code', 'Section 324 in The Indian Penal Code', 'Section 148 in The Indian Penal Code'] | Analyze the legal case and identify the corresponding section it comes under. |
193,821,702 | (JAGDISH GOSWAMI Vs THE STATE OF MADHYA PRADESH AND OTHERS) Gwalior, Dated : 08-01-2020 Shri Sushil Goswami, learned counsel for the appellant.Shri Ankit Saxena, learned Public Prosecutor for the State.Learned counsel for the rival parties are heard.The appellant has filed this appeal under Section 14 (A) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 being aggrieved by order dated 20/11/2019 passed by the Special Judge (Atrocities), District Vidisha; whereby, bail application u/S.439, Cr.P.C. of the appellant has been rejected.This is first bail application u/S.439 Cr.P.C. filed by the appellant for grant of bail.Appellant has been arrested on 02.08.2019 by Police Station Kurwai, District Vidisha (M.P.) in connection with Crime No.217/2019 registered in relation to the offence punishable u/Ss. 376 and 450 of IPC and Sections 3 (2) (5 Ka), 3(2)(5), 3(1)(w-i) and 3(1)(w-ii) of SCST Act.It is alleged by the counsel for the appellant that the appellant has been falsely implicated in the case and he has not committed any offece in any manner.It is alleged that the prosecution story as developed by the prosecution itself appears to be false story.As per prosecution the offence under Section 376 of IPC is said to be committed by the present applicant but from the prosecution story itself, it is clear that the husband of the prosecutrix was sleeping alongwith the prosecutrix.Therefore, there was no possibility of committing the offence under Section 376 of IPC.The applicant has been falsely implicated.Under these circumstances, counsel for the appellant prays for grant of bail to the applicant.Per contra, learned Public Prosecutor for the State has opposed the application stating that the prosecutrix as well as husband are dumb and could not speak.Taking advantage of the aforesaid position, the appellant has entered into house at 3 o' clock in the night and he committed the offence.The statement of the prosecutrix was recorded with the help of the expert, wherein she has categorically stated regarding the commission of offence against the present applicant, even the husband has categorically stated regarding the commission of offence against the present applicant.Accordingly, the bail application is rejected.(VISHAL MISHRA) JUDGE AK/-ANAND KUMAR 2020.01.09 17:58:42 +05'30' | ['Section 376 in The Indian Penal Code'] | Analyze the legal case and identify the corresponding section it comes under. |
193,832,362 | Urgent photostat certified copies of this order, if applied for, be given to the learned counsel for the parties, upon compliance of all formalities.(R.K. Bag, J.) | ['Section 406 in The Indian Penal Code', 'Section 420 in The Indian Penal Code', 'Section 468 in The Indian Penal Code', 'Section 467 in The Indian Penal Code', 'Section 120B in The Indian Penal Code', 'Section 471 in The Indian Penal Code'] | Analyze the legal case and identify the corresponding section it comes under. |
193,833,873 | This is an application under Section 439 Cr.P.C. by petitioner Ashok who has been arrested on 15.07.2016 in Crime No.242/16 of Police Station Dindayal Nagar, Distt.Ratlam concerning offences under Section 419, 420, 201, 467, 468, 120-b & 471/34 IPC.Heard the learned counsel for the parties and perused the case diary.Allegedly, one Ramesh Sharma a property broker persuaded complainant Biharilal Gwali to purchase the plot No.371, situated at Dindayal Nagar, Ratlam, belonging to one Kamla Bai.It is further the case of the prosecution that the complainant Biharilal, on persuasion of Ramesh Sharma, purchased the plot for Rs.4,50,000/-.Further the allegation is that the sale deed was not executed by Kamla Bai, but by some other lady, who appeared before the Sub-Registrar, and impersonated herself as Kamlabai.The allegation against the present applicant is that he assisted Ramesh Sharma, however, there is nothing specific as to what role exactly was played by the present applicant.Further, there is no allegation against the present applicant that he had persuaded to the complainant to purchase the plot or that the consideration was paid to him.Though prayer for bail is opposed by the learned counsel for the respondent/State, however, considering the aforesaid, it would be appropriate to enlarge the petitioner on bail.Accordingly, the petition is hereby allowed and it is directed that on furnishing personal bond in the sum of Rs.40,000/- with one solvent surety in the like amount to the satisfaction of the concerned Chief Judicial Magistrate/Judicial Magistrate First Class, the petitioner shall be released on bail, subject to the condition that he will make himself available to the Police, as and when required, in the course of investigation and will also remain present before the trial Court as and when directed in that behalf.CC as per rules.(VED PRAKASH SHARMA) | ['Section 201 in The Indian Penal Code', 'Section 468 in The Indian Penal Code', 'Section 471 in The Indian Penal Code', 'Section 419 in The Indian Penal Code', 'Section 420 in The Indian Penal Code', 'Section 467 in The Indian Penal Code', 'Section 34 in The Indian Penal Code'] | Analyze the legal case and identify the corresponding section it comes under. |
19,383,422 | Heard learned counsel for the applicant as well as learned A.G.A for the State and perused the record.By means of this application, the applicant who is involved in case crime no.398 of 2017, under Section 376 IPC Police Station-Mainather, District-Moradabad is seeking enlargement on bail during the trial.Submission made by learned counsel for the applicant is that the applicant is a fianc of the victim.The present FIR was got registered by the victim herself against the applicant with the allegation that the applicant was her fianc and would be husband.Keeping in mind that the applicant would be her future husband, she surrendered herself before the applicant and established physical relationship with him.She appears to be consenting party.Learned A.G.A opposed the prayer for bail.The submission made by learned counsel for the applicant, prima facie, is quite appealing and convincing for the purpose of bail only.Keeping in view the nature of the offence, evidence, complicity of the accused, submissions of the learned counsel for the parties and without expressing any opinion on merits of the case, I am of the view that the applicant has made out a case for bail.Let the applicant-Mohd.Bilal, involved in case crime no.398 of 2017, under Section 376 IPC Police Station-Mainather, District-Moradabad be released on bail on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice:-(i) THE APPLICANT WOULD FULLY COOPERATE IN THE CONCLUSION OF TRIAL WITHIN ONE YEAR AND ANY TEMPERING OR WILLING TACTICS ON THE PART OF THE APPLICANT TO DELAY THE TRIAL WOULD WARRANT THE AUTOMATIC CANCELLATION OF BAIL.(ii) THE APPLICANT SHALL FILE AN UNDERTAKING TO THE EFFECT THAT HE 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.(iii) 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 IPC.(iv) 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., 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. | ['Section 376 in The Indian Penal Code'] | Analyze the legal case and identify the corresponding section it comes under. |
193,835,523 | (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 00:36:20 ::: 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 00:36:20 ::: 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 00:36:20 ::: 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 00:36:20 :::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 00:36:20 ::: 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 00:36:20 ::: 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 00:36:21 ::: 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 00:36:21 :::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 00:36:21 ::: 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 00:36:21 ::: 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 00:36:21 ::: 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 00:36:21 ::: 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 00:36:24 ::: 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 00:36:26 ::: 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 00:36:36 ::: 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 00:36:36 ::: 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 00:36:36 ::: 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 00:36:36 :::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 00:36:37 ::: 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 00:36:37 :::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 00:36:37 ::: 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 00:36:37 ::: 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 00:36:37 ::: 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 00:36:37 ::: 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 00:36:37 ::: 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 00:36:39 ::: 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 00:36:39 ::: 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 00:36:40 ::: 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 00:36:41 ::: 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 00:36:41 :::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 00:36:42 ::: 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 00:36:42 :::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 00:36:42 ::: 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 00:36:43 ::: 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 00:36:48 ::: 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 00:36:50 :::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 00:36:50 ::: 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 00:36:50 ::: 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 00:36:53 ::: 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 00:36:58 ::: 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 00:36:58 :::(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 00:37:01 ::: 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 00:36:20 ::: 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 00:36:19 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:20 :::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 00:36:20 ::: 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 00:36:20 :::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 00:36:20 ::: 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 00:36:20 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:20 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:20 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:20 :::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 00:36:20 :::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 00:36:20 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:20 :::Original statement of the prosecutrix recordedby PW 23 Executive Magistrate was also sent to ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:21 ::: 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 00:36:21 :::(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 00:36:21 :::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 00:36:21 :::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 00:36:21 ::: 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 00:36:21 :::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 00:36:21 ::: 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 00:36:21 :::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 00:36:22 ::: 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 00:36:21 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:21 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:21 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:21 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:22 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:22 :::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 00:36:22 ::: 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 00:36:22 :::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 00:36:22 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:22 :::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 00:36:22 ::: 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 00:36:22 :::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 00:36:22 ::: 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 00:36:22 ::: 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 00:36:22 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:22 :::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 00:36:22 ::: 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 00:36:22 ::: 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 00:36:22 ::: 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 00:36:22 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:22 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:22 :::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 00:36:23 ::: 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 00:36:23 ::: 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 00:36:23 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:23 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:23 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:23 :::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 00:36:23 ::: 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 00:36:23 :::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 00:36:23 ::: 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 00:36:23 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:23 :::26 It is to be noted that the police from Limkheda police ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:23 ::: 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 00:36:23 ::: 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 00:36:23 ::: 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 00:36:23 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:23 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:23 :::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 00:36:24 :::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 00:36:24 ::: 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 00:36:24 ::: 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 00:36:24 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:24 :::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 00:36:24 ::: 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 00:36:24 :::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 00:36:24 ::: 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 00:36:24 :::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 00:36:24 :::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 00:36:24 ::: 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 00:36:24 :::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 00:36:24 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:24 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:24 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:25 :::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 00:36:25 :::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 00:36:25 ::: 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 00:36:25 :::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 00:36:25 ::: 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 00:36:25 :::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 00:36:25 ::: 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 00:36:25 :::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 00:36:26 ::: 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 00:36:26 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:26 :::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 00:36:26 ::: 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 00:36:26 ::: 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 00:36:26 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:26 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:26 :::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 00:36:26 ::: 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 00:36:26 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:26 :::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 00:36:26 ::: 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 00:36:26 :::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 00:36:26 ::: 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 00:36:27 ::: 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 00:36:27 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:26 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:27 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:27 :::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 00:36:27 ::: 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 00:36:27 ::: 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 00:36:27 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:27 :::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 00:36:27 ::: 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 00:36:27 ::: 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 00:36:27 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:27 :::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 00:36:27 ::: 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 00:36:27 ::: 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 00:36:27 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:27 :::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 00:36:27 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:27 :::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 00:36:28 ::: 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 00:36:28 :::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 00:36:28 ::: 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 00:36:28 :::On 5.3.2002 the prosecutrix was sent to CHC ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:28 ::: 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 00:36:28 ::: 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 00:36:28 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:28 :::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 00:36:28 ::: 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 00:36:28 ::: 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 00:36:28 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:28 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:28 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:28 :::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 00:36:28 ::: 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 00:36:28 :::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 00:36:28 ::: 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 00:36:28 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:28 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:28 :::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 00:36:29 ::: 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 00:36:29 ::: 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 00:36:29 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:29 :::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 00:36:29 ::: 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 00:36:29 :::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 00:36:29 ::: 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 00:36:29 ::: 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 00:36:29 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:29 :::SCENE OF OFFENCE:71 Mr. Ponda then submitted that according to the ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:29 ::: 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 00:36:29 :::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 00:36:29 ::: 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 00:36:29 :::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 00:36:29 ::: 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 00:36:29 ::: 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 00:36:29 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:29 :::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 00:36:29 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:29 :::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 00:36:30 ::: 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 00:36:30 ::: 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 00:36:30 ::: 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 00:36:30 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:30 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:30 :::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 00:36:30 ::: 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 00:36:30 :::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 00:36:30 ::: 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 00:36:30 ::: 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 00:36:30 ::: 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 00:36:30 ::: 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 00:36:31 ::: 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 00:36:31 ::: 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 00:36:30 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:30 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:30 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:30 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:30 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:31 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:31 :::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 00:36:31 ::: 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 00:36:31 ::: 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 00:36:31 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:31 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:31 :::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 00:36:31 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:31 :::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 00:36:31 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:31 :::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 00:36:31 ::: 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 00:36:31 :::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 00:36:31 ::: 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 00:36:31 :::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 00:36:31 ::: 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 00:36:32 ::: 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 00:36:31 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:32 :::86 Mr. Ponda argued that a photograph which is ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:32 ::: 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 00:36:32 :::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 00:36:32 ::: 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 00:36:32 :::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 00:36:32 ::: 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 00:36:32 ::: 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 00:36:32 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:32 :::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 00:36:32 ::: 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 00:36:32 :::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 00:36:32 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:32 :::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 00:36:32 :::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 00:36:32 ::: 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 00:36:32 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:32 :::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 00:36:33 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:33 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:33 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:33 :::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 00:36:33 ::: 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 00:36:33 :::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 00:36:33 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:34 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:34 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:34 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:34 :::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 00:36:34 ::: 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 00:36:34 :::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 00:36:34 ::: 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 00:36:34 :::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 00:36:34 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:34 :::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 00:36:34 ::: 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 00:36:34 :::Daroga Singh & Ors.reportedin AIR 2008 SC 320 and Subbu Singh Vs.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:34 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:34 :::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 00:36:34 ::: 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 00:36:34 :::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 00:36:35 ::: 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 00:36:35 :::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 00:36:35 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:35 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:35 :::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 00:36:35 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:35 :::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 00:36:35 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:35 :::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 00:36:35 ::: 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 00:36:35 :::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 00:36:35 ::: 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 00:36:35 :::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 00:36:35 ::: 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 00:36:35 :::"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 00:36:35 ::: 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 00:36:36 ::: 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 00:36:35 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:36 :::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 00:36:36 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:36 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:36 :::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 00:36:36 ::: 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 00:36:36 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:36 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:36 :::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 00:36:36 ::: 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 00:36:36 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:36 :::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 00:36:36 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:36 :::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 00:36:37 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:37 :::From there, he wastaken to Godhra Relief Camp in a police van.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:37 :::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 00:36:37 :::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 00:36:37 ::: 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 00:36:37 ::: 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 00:36:37 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:37 :::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 00:36:37 :::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 00:36:37 :::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 00:36:37 ::: 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 00:36:38 ::: 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 00:36:37 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:38 :::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 00:36:38 ::: 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 00:36:38 :::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 00:36:38 ::: 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 00:36:38 :::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 00:36:38 ::: 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 00:36:38 :::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 00:36:38 ::: 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 00:36:38 ::: 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 00:36:38 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:38 :::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 00:36:38 ::: 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 00:36:38 ::: 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 00:36:38 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:38 :::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 00:36:38 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:38 :::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 00:36:39 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:39 :::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 00:36:39 ::: 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 00:36:39 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:39 :::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 00:36:39 ::: 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 00:36:39 :::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 00:36:39 ::: 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 00:36:39 :::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 00:36:39 :::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 00:36:39 ::: 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 00:36:39 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:39 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:39 :::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 00:36:39 ::: 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 00:36:39 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:39 :::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 00:36:40 ::: 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 00:36:40 ::: 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 00:36:40 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:40 :::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 00:36:40 ::: 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 00:36:40 :::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 00:36:40 ::: 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 00:36:40 :::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 00:36:40 ::: 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 00:36:40 ::: 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 00:36:40 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:40 :::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 00:36:40 ::: 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 00:36:40 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:40 :::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 00:36:40 ::: 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 00:36:40 ::: 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 00:36:40 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:40 :::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 00:36:41 :::Statements to police not to be signed: Use of ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:41 ::: 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 00:36:41 :::Under subsection (3) ofsection 161, the police officer may reduce into writing any ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:41 ::: 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 00:36:41 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:41 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:41 :::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 00:36:41 ::: 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 00:36:41 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:41 :::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 00:36:42 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:42 :::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 00:36:42 :::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 00:36:42 ::: 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 00:36:42 :::188 The learned Counsel Mr. Ponda submitted that on ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:42 ::: 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 00:36:42 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:42 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:42 :::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 00:36:42 ::: 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 00:36:42 :::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 00:36:42 ::: 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 00:36:42 :::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 00:36:42 ::: 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 00:36:42 :::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 00:36:42 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:42 :::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 00:36:43 ::: 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 00:36:43 :::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 00:36:43 ::: 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 00:36:43 :::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 00:36:43 ::: 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 00:36:43 :::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 00:36:43 :::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 00:36:43 ::: 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 00:36:43 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:43 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:43 :::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 00:36:43 ::: 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 00:36:43 :::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 00:36:43 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:43 :::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 00:36:43 ::: 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 00:36:43 :::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 00:36:43 ::: 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 00:36:43 :::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 00:36:44 ::: 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 00:36:44 :::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 00:36:44 :::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 00:36:44 ::: 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 00:36:44 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:44 :::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 00:36:44 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:44 :::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 00:36:44 ::: 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 00:36:44 :::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 00:36:44 ::: 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 00:36:44 :::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 00:36:44 ::: 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 00:36:44 ::: 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 00:36:44 ::: 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 00:36:44 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:44 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:44 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:45 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:45 :::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 00:36:45 ::: 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 00:36:45 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:45 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:45 :::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 00:36:45 ::: 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 00:36:45 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:45 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:45 :::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 00:36:45 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:45 :::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 00:36:45 ::: 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 00:36:45 :::brothers Aslam and Irfan, uncles Majidbhai and Yusuf Musa Patel, aunt Sugraben, cousins ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:45 ::: 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 00:36:45 :::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 00:36:46 ::: 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 00:36:46 ::: 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 00:36:46 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:46 :::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 00:36:46 ::: 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 00:36:46 :::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 00:36:46 ::: 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 00:36:46 :::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 00:36:46 ::: 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 00:36:46 :::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 00:36:46 ::: 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 00:36:46 :::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 00:36:46 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:46 :::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 00:36:46 ::: 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 00:36:46 ::: 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 00:36:46 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:46 :::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 00:36:46 ::: 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 00:36:46 :::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 00:36:47 ::: 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 00:36:47 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:47 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:47 :::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 00:36:47 ::: 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 00:36:47 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:47 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:47 :::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 00:36:47 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:47 :::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 00:36:47 ::: 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 00:36:47 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:47 :::238 Mr. Ponda has submitted that the evidence of ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:47 ::: 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 00:36:47 ::: 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 00:36:47 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:47 :::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 00:36:48 ::: 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 00:36:48 :::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 00:36:48 ::: 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 00:36:48 :::They ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:48 ::: 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 00:36:48 :::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 00:36:48 :::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 00:36:48 ::: 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 00:36:48 :::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 00:36:48 ::: 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 00:36:48 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:48 :::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 00:36:49 ::: 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 00:36:49 ::: 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 00:36:49 ::: 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 00:36:49 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:49 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:49 :::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 00:36:49 ::: 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 00:36:49 :::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 00:36:49 :::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 00:36:49 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:49 :::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 00:36:49 ::: 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 00:36:49 :::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 00:36:49 ::: 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 00:36:49 :::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 00:36:49 ::: 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 00:36:50 ::: 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 00:36:50 ::: 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 00:36:50 ::: 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 00:36:49 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:50 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:50 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:50 :::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 00:36:50 ::: 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 00:36:50 :::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 00:36:50 ::: 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 00:36:50 :::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 00:36:50 ::: 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 00:36:50 ::: 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 00:36:50 ::: 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 00:36:51 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:50 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:50 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:50 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:50 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:51 :::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 00:36:51 ::: 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 00:36:51 ::: 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 00:36:51 ::: 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 00:36:51 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:51 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:51 :::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 00:36:51 ::: 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 00:36:51 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:51 :::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 00:36:51 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:51 :::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 00:36:51 ::: 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 00:36:51 :::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 00:36:51 ::: 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 00:36:51 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:51 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:51 :::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 00:36:52 ::: 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 00:36:52 :::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 00:36:52 ::: 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 00:36:52 ::: 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 00:36:52 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:52 :::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 00:36:52 :::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 00:36:52 ::: 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 00:36:52 :::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 00:36:52 ::: 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 00:36:52 :::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 00:36:52 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:52 :::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 00:36:52 ::: 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 00:36:53 ::: 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 00:36:52 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:52 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:52 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:53 :::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 00:36:53 ::: 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 00:36:53 :::"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 00:36:53 :::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 00:36:53 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:53 :::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 00:36:53 :::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 00:36:53 ::: 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 00:36:53 :::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 00:36:53 ::: 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 00:36:53 :::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 00:36:53 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:53 :::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 00:36:54 ::: 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 00:36:54 :::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 00:36:54 ::: 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 00:36:54 ::: 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 00:36:54 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:54 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:54 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:54 :::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 00:36:54 ::: 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 00:36:54 ::: 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 00:36:54 ::: 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 00:36:54 ::: 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 00:36:54 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:54 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:54 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:54 :::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 00:36:54 ::: 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 00:36:55 ::: 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 00:36:54 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:55 :::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 00:36:55 :::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 00:36:55 ::: 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 00:36:55 :::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 00:36:55 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:55 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:55 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:55 :::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 00:36:55 ::: 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 00:36:55 :::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 00:36:55 ::: 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 00:36:55 :::(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 00:36:55 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:55 :::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 00:36:56 ::: 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 00:36:56 ::: 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 00:36:56 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:56 :::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 00:36:57 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:57 :::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 00:36:57 ::: 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 00:36:57 :::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 00:36:57 ::: 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 00:36:57 :::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 00:36:57 ::: 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 00:36:57 :::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 00:36:57 ::: 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 00:36:57 :::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 00:36:58 ::: 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 00:36:58 :::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 00:36:58 ::: 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 00:36:58 :::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 00:36:58 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:58 :::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 00:36:58 ::: 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 00:36:58 ::: 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 00:36:58 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:58 :::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 00:36:58 ::: 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 00:36:58 :::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 00:36:58 ::: 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 00:36:58 ::: 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 00:36:58 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:58 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:58 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:58 :::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 00:36:59 ::: 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 00:36:59 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:59 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:59 :::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 00:36:59 ::: 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 00:36:59 :::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 00:36:59 ::: 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 00:36:59 :::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 00:36:59 ::: 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 00:36:59 :::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 00:36:59 ::: 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 00:36:59 :::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 00:36:59 ::: 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 00:36:59 :::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 00:36:59 ::: 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 00:36:59 ::: 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 00:36:59 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:36:59 :::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 00:37:00 ::: 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 00:37:00 :::(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 00:37:00 ::: 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 00:37:00 :::(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 00:37:00 ::: 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 00:37:00 :::(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 00:37:00 ::: 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 00:37:00 :::(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 00:37:00 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:37:00 :::(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 00:37:00 ::: 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 00:37:00 :::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 00:37:01 ::: 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 00:37:00 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:37:01 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:37:01 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:37:01 :::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 00:37:01 ::: 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 00:37:01 ::: 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 00:37:01 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:37:01 :::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 00:37:01 ::: 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 00:37:01 :::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 00:37:01 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:37:01 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:37:01 :::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 00:37:01 ::: 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 00:37:01 :::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 00:37:01 :::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 00:37:01 :::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 00:37:02 ::: 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 00:37:02 :::(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 00:37:02 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:37:02 :::(vi) Exhibit 148E dated 29.6.2002 is a letter by PW18 ::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:37:02 ::: 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 00:37:02 :::(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 00:37:02 ::: 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 00:37:02 :::(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 00:37:02 ::: 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 00:37:02 ::: 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 00:37:02 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:37:02 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:37:02 :::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 00:37:02 ::: 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 00:37:02 :::....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 00:37:02 ::: 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 00:37:02 :::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 00:37:03 ::: 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 00:37:03 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:37:03 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:37:03 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:37:03 :::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 00:37:03 :::365 In Inquest Panchnama Exhibit 123, it is mentionedas under:::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:37:03 :::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 00:37:03 ::: 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 00:37:03 :::postmortem was conducted on 5.3.2002 from 5.10pm to 6.20pm.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:37:03 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:37:03 :::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 00:37:03 :::Clause Nos.9, 10, 15, 16 are mentioned as per the inquest.::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:37:04 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:37:04 :::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 00:37:04 :::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 00:37:04 ::: 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 00:37:04 :::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 00:37:04 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:37:04 :::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 00:37:04 :::::: Uploaded on - 04/05/2017 ::: Downloaded on - 07/05/2017 00:37:04 ::: | ['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'] | Analyze the legal case and identify the corresponding section it comes under. |
1,938,369 | JUDGMENT V.B. Bansal, J.(1) By way of this application a prayer has been made by the C.B.L for modification of the order dated 17.12.1990 of Chawla, J, thereby confirming the interim bail order relating to Chandraswamy-respondent and it has been further requested that the conditions as imposed on co. accused K.N. Aggarwal may also be ordered to be imposed on the respondent.(2) Briefly stated the facts leading to the filing of this application are as under: ON25th of May, 1990FIR/Crim.No. 1 (SIG)(S)/90 was registered by Delhi Special Police Establishment for the offences under section 120-B.I.P.C. read with Sections 182/193/218/465/469/ 471 and 500 Indian Penal Code .(3) On a petition being Crl.M. (M) 2683/90 moved by Chandraswamy, respondent an order was passed on 23.11.90 to the effect that the petitioner shall not be arrested in this case.The case was adjourned to 26th of November, 1990 and thereafter on 17th of November, 1990 the interim order of the petitioner was confirmed in view of the fact that co-accused had already been granted bail vide order dated 17.7.1990 of Y.K. Sabharwal, J.(5) These submissions have been.strongly controverter by learned counsel for the non-applicant and has even referred to the reply dated 27.2.91 sent by him to the Investigating Officer copy of which has been filed by C.B.I. According to him it was a factual misrepresentation on the part of the Investigating Officer.I have gone through the notice given by the Investigating Officer, its reply by counsel for non applicant and the two orders of bail relating to K.N. Aggarwal and non-applicant.(6) Vide order dated 17.7.1990 relating to co-accused K.N. Aggarwal, he was granted anticipatory bail on the condition that he shall not leave India except with the permission of the Court and that he would report to the Investigating Officer on every Monday at 11 A.M. for a period of one month and and that he would also join the investigation as and when required.It is not disputed that it is in pursuance of the aforesaid condition that on an application moved by Chandraswamy he was permitted to go abroad for a period of six month subject to certain conditions including the conditions of his appearing before the I.O. on dates as suggested by him.The respondent was summoned on 6th of March, 1991 also which date was cancelled by the I.O. The respondent was also summoned for 27th of February, 1991, on which date he could not appear before the I.O. being busy in another case investigated by the C.B.I. Thus, there is only one date, i.e 21st January 1991 for which there was no reply.(9) Learned counsel for the respondent submits that the respondent would be available for interrogation as and when required and, in fact there has never been any intentional default on his part.Learned counsel for the petitioner submitted that the I.O. of this case' would like to interrogate the respondent on 1st April, 1991 and thereafter on the dates for which he would give notice Counsel for the respondent agreed that the respondent would appear before B.N. Misra Deputy S.P., Investigating Officer on 1st April, 1991 and that the time of such appearance would be communicated by the I.O. | ['Section 465 in The Indian Penal Code', 'Section 471 in The Indian Penal Code', 'Section 500 in The Indian Penal Code', 'Section 193 in The Indian Penal Code'] | Analyze the legal case and identify the corresponding section it comes under. |
1,936,446 | JUDGMENT V.B. Bensal, J.(1) Swaran Singh has filed this revision petition thereby challenging his conviction under Sections 279/338/104-A, I P.C. in F.I.R. No. 201 of 1985 Police Station, Ashok Vihar.The petitioner Was convicted by Shri Jaswant Singh, Metropolitan Magistrate, Delhi vide judgment dated 4th of February, 1984 and was sentenced to pay a fine to Rs. 500.00 or in default to undergo.(2) R.I. for one month under Section 279 I.P.C., to pay a fine of Rs. 1,000.00 or in default to undergo R.I. for two months under Section 338 I.P.C. and to R.I. For one year with a fine of RR.(3) The revision petition came up for hearing in this court when no one appeared for the petitioner while stated was represented by Shri G.S. .(4) Criminal appeal No. 29/90 arising out of Special Leave Petition No. 309/90 filed by Swaran Singh in the Supreme Court of India was allowed on 23rd of April, 1990 when the order of dismissal of his revision petition was set aside and the revision petition was restored with a request that it may be disposed of after affording an opportunity to the counsel of the accused of being heard.(5) It would be appropriate to refer to the facts in brief before referring to the arguments advanced at the bar.(6) According to the prosecution story Swaran Singh petitioner was a, driver in DT.C. on 4th of May, 1985at about 11.10 Am he was driving Dtc bus No. Dbp 8697 in a rash and negligent manner and when he reached on Ganda Nallah bridge, Shakti Nagar Extension, when Panna Lal was moving ahead of the bus driving his cycle and Smt. Harpiary his mother-in-law was sitting on the carrier.The bus hit the cycle from behind as a result of which both Smt. Harpiary and Panna Lal sustained injuries.Swaran Singh petitioner removed the two injured in his bus to Hindu Rao Hospital where Dr. G K. Tondon, Public Witness -5 declared Smt. Harpiary as brought dead vide Mlc Ext. Public Witness -5/A. Panna Lal was however, admitted in the hospital who had sustained grievous injuries.(7) Case was registered on the statement of Shri Sunil Kumar, Public Witness -3 who was a passenger in the bus driven by Swaran Singh petitioner.It was inter alia claimed by him that he was standing near the front exist gate of the bus when he noticed that the bus driven by the petitioner hit against the cyclist from behind while driving the bus in a rash and negligent manner and that the bus had also hit a car from behind.(8) In support of its case the prosecution examined 10 witnesses.Pleas takes up by the petitioner in his statement recorded under Section 313 Cr.P.C have been that it was a false case and he has falsely been implicated.According to him be was driving the bus from Laxmi Bai College side going towards Regal Cinema and that the cyclist came from right band side and was hit by one White Fiat car over-taking the cyclist from wrong side.According to the cyclist bad even bit a three wheeler scooter and, thus, received injuries from the scooter.It was claimed by him that be removed the injured persons to the hospital on a request made to him by the passengers of the bus and also passes-by and that the Investigating Officer failed to seize the said car for the reasons best known to him.He, however, did not produce any evidence.As already referred to, petitioner was convicted by the trial Court and his appeal has since been dismissed.(9) I have beared Learned counsel for the petitioner and learned counsel for the respondent.I have also gone through the record.(10) At the out-let learned counsel For the petitioner expressed his consciousness of his limitation to argue this matter which is the revision petition with concurrent findings of the two courts below against the petitioner.He has however submitted that according to the prosecution story one white fiat car was also involved in the accident but it was not seized during the investigation and no question has been put to the petitioner while recording his statement under Section 313 Criminal Procedure Code .about the car being involved in the accident on account of which the petitioner has been prejudiced and, thus, entitled to get acquittal by benefit of doubt.I have not been able to find any force in this submission.A suggestion was made to .Shri Sunil Kumar, Public Witness -3 and also Panna Lal, Public Witness -4 that the injuries were caused by the said car which has clearly been denied by them.Balwan Singh, Investigating, Officer, Public Witness -1O has made a categorical statement that he did not take into possession Fiat car since he did not find any car at the spot and its particulars were not available.The prosecution story has been that it was no account of rash and negligent driving of the bus by the petitioner that the bos bit the cyclist causing injuries.In these circumstances I failed to understand as to how the petitioner can be said to have been 'prejudice on account of the non putting to him the question with regard to a car being also involving in this accident.(11) Learned counsel for the petitioner has submitted that the courts below have recorded a finding about the guilt of the petitioner for the offence under Section 338 Indian Penal Code when in fact there is no evidence at all on record to show that Panna Lal sustained grievous injuries and on this account conviction of the appellant under section Indian Penal Code is bad.I have carefully examined the record and find force in this submission.According to the prosecution story Panna Lal sustained injuries including fracture which were declared to be grievous by the doctor.This endorsement has also been proved by the same record clerk.It is pertinent to note that Panna Lal PW-4 has no where stated that he sustained some fracture and for how long he remained admitted in the hospital.In this way the injuries of Panna Lal have to be held to be proved as simple only which would fall under Section 337 Indian Penal Code .(12) Learned counsel for the petitioner has also submitted that there has been a default on the part of the Investigating Officer in not getting a detailed report about the damages of the cycle and that had the petitioner been rash and negligent or driving bus at a fast speed the cycle would have .come under the wheel of the bus and the injured persons would have been crushed of the very fact that there was no crush injury would indicate that he was not rash and negligent.Sunil Kumar, Public Witness -3 and Panna Lal, injured Public Witness -4 to the effect that the accused was driving the bus in a rash and negligent manner and hit the cycle from behind.No doubt a suggestion was made during the cross-examination of the witnesses that the accident was casually a car which suggestion, however, has been denied by them.I have gone through the evidence on record and do not find any material discrepancy in the statements of the witnesses so as to hold that they were not truthful witnesses.(14) Learned counsel for the petitioner has also submitted that the petitioner took sympathy on the injured and on a request by the passengers and passers-by he removed the injured persons to the hospital inspite of the fact that he was not responsible for causing the injuries.(16) I have given my thoughtful consideration to the submissions and considering the all facts and circumstances I am of the opinion that the conviction of the appellant for the offence under section 338 Indian Penal Code .has to be converted to Section 337 Indian Penal Code The maximum sentence prescribed for the offence is 6 months imprisonment or fine which may extend to Rs. 500.00 or both.It would be appropriate to reduce the amount of fine for the offence under Section 337 to Rs, 500.00 .The sentence for other two offences calls for no interference.(17) As a result the revision petition is accepted inpart. | ['Section 337 in The Indian Penal Code', 'Section 338 in The Indian Penal Code', 'Section 279 in The Indian Penal Code', 'Section 304A in The Indian Penal Code'] | Analyze the legal case and identify the corresponding section it comes under. |
193,649,763 | Heard finally with consent.By this revision petition under Section 397 read with Section 401 of the IPC, the petitioner has challenged the order dated 10.12.2018 passed by the Special Judge SC/ST (Prevention of Atrocities Act), Indore framing the charge for offence under Section 109 of the IPC against the petitioner.As against this, learned counsel for the respondent has supported the impugned order.Having heard the learned counsel for the parties and on perusal of the record, it is noticed that the FIR dated 27.9.2018 was registered in the police station Banganga alleging commission of offence under Section 354, 354B and 34 of IPC and Section 7, 8 & 12 of POCSO Act, 2012 and Section 3(1)(w)(i) of SCST (Prevention of Atrocities) Act, 1989 with the allegation that co-accused Lucky Khatri had committed the alleged offences with the prosecutrix.There is no allegation against the present petition for commission of the aforesaid main offences under the provisions of POCSO Act and SCST (Prevention of Atrocities) Act. The only Digitally signed by Trilok Singh Savner Date: 05/04/2019 18:05:59 HIGH COURT OF MADHYA PRADESH 2 CRR No.998/19 allegation in the FIR against the petitioner is that when the mother of the prosecutrix was going to make a report in the police station, the petitioner had asked her to wait til the father of the prosecutrix comes and thereafter lodged the report.In the present case the only allegation against the petitioner is that after commission of the offence the Digitally signed by Trilok Singh Savner Date: 05/04/2019 18:05:59 HIGH COURT OF MADHYA PRADESH 4 CRR No.998/19 petitioner had asked the mother of the prosecutrix to wait for the father of the prosecutrix before lodging the FIR.Such an allegation does not constitute the commission of offence under Section 109 of the IPC.No other material has been pointed out by learned counsel for the State to show that the ingredients of the offence under Section 109 of the IPC are present in the case.4 CRR No.998/19 | ['Section 109 in The Indian Penal Code', 'Section 107 in The Indian Penal Code', 'Section 304 in The Indian Penal Code', 'Section 354 in The Indian Penal Code', 'Section 397 in The Indian Penal Code', 'Section 34 in The Indian Penal Code'] | Analyze the legal case and identify the corresponding section it comes under. |
193,657,342 | 1 S/L January 20, C.R.M. 17609 of 2014Versus The State of West Bengal ...opposite party....for the petitioner....for the State.We have heard the learned advocates appearing for the parties and perused the case diary.As such, the petitioner, namely, Shakti Mondal, shall be released on bail to the satisfaction of the learned Additional Chief Judicial Magistrate, Lalbagh, Murshidabad, upon execution of a bail bond of Rs. 5,000/- (Rupees five thousand) only with two sureties of like amount, one of whom must be local, on condition that the petitioner shall attend the court regularly on each and every occasion unless prevented by sufficient cause.The application for bail, thus, stands allowed.(Subhro Kamal Mukherjee, J.) (Ashis Kumar Chakraborty, J.) | ['Section 308 in The Indian Penal Code', 'Section 448 in The Indian Penal Code', 'Section 326 in The Indian Penal Code'] | Analyze the legal case and identify the corresponding section it comes under. |
193,665,345 | This Appeal has been directed against the Judgment and Order dated 3rd March 2007 delivered by the Adhoc Additional Sessions Judge, Wardha in Sessions Trial No. 163 of 2005, whereby the learned Judge has convicted the Appellant - Accused (hereinafter be referred to as 'Accused' for the sake of brevity) for the offence punishable under Section::: Uploaded on - 27/11/2019 ::: Downloaded on - 23/04/2020 07:22:15 ::: 2/7 223.Apeal.280.07.(Judg) 376 of Indian Penal Code and sentenced to suffer rigorous imprisonment for seven years and to pay a fine of Rs.1000/-, in default of payment of fine amount, sentenced to suffer rigorous imprisonment for two months.::: Uploaded on - 27/11/2019 ::: Downloaded on - 23/04/2020 07:22:15 :::The prosecution case in brief is that, prosecutrix (PW-1) was aged about 15 years studying in 8th Standard residing at Wadad, District Wardha.The Accused was residing in the same vicinity, whereby the prosecutrix was residing.It is the case of the prosecution that in the year 2004 Accused had asked her to marry with her.She replied that her parents would take decision regarding her marriage.Thereafter the Accused used to meet her intermittently and convinced her for marriage.There were love affairs between the prosecutrix and the Accused.Thereafter the physical relationship was established between them in May, 2004 in the house of the prosecutrix.On 25/3/2005 the prosecutrix informed the Accused that she was carrying pregnancy.The Accused said that he would marry with her.However, he had not kept his promise and finally refused to marry with her.In the meantime, the prosecutrix came to know about her preganancy.The prosecutrix then proceeded to the police station and lodged complaint::: Uploaded on - 27/11/2019 ::: Downloaded on - 23/04/2020 07:22:15 ::: 3/7 223.Apeal.280.07.(Judg) against the Accused.Then the prosecutrix was referred for her medical examination.The statement of the witnesses were recorded and after completion of formal investigation, police submitted chargesheet in the court of Judicial Magistrate First Class, Wardha.Thereafter the case was committed to the Court of Sessions.The learned Adhoc Additional Sessions Judge, Wardha after recording evidence of the prosecution witnesses and hearing both the sides, convicted the Accused as mentioned above.::: Uploaded on - 27/11/2019 ::: Downloaded on - 23/04/2020 07:22:15 :::I have heard Mr. Sonawane, the learned Counsel for Appellant - Accused and Ms. Haider, the learned APP for Respondent - State.With their able assistance, I have gone through the record and proceedings of the present case.The prosecution has examined in all nine witnesses.The prosecution has relied upon the testimony of PW-1 prosecutrix, PW-7 Satish Jagtap, who was the Head Master of the School where the prosecutrix had taken education and PW-9 Medical Officer Dr. Jayshree Gathe, who has examined the prosecutrix.::: Uploaded on - 27/11/2019 ::: Downloaded on - 23/04/2020 07:22:15 :::::: Uploaded on - 27/11/2019 ::: Downloaded on - 23/04/2020 07:22:15 :::4/7 223.Apeal.280.07.(Judg)To prove the said aspect, prosecution has examined PW-7 Satish Jagtap who was the Head Master of the school where the prosecutrix had taken education.According to him, he prepared the school leaving certificate of prosecutrix on the basis of the general admission register and previous school leaving certificate.PW-7 Satish Jagtap did not produce the previous school leaving certificate of the prosecutrix and also the school record of the previous school was not produced by the prosecution.Thus, the testimony of PW-7 Satish Jagtap indicates that the entry in the school register in respect of the date of birth of the prosecutrix was taken on the basis of the previous school leaving certificate which was not produced in the case.It is thus not proved as to on what basis the previous school leaving certificate was prepared.No evidence to that regard is produced by the prosecution.In view thereof, testimony of PW-7 Satish Jagtap cannot be relied upon.::: Uploaded on - 27/11/2019 ::: Downloaded on - 23/04/2020 07:22:15 :::The testimony of PW-1 prosecutrix on the point of incident shows that she was knowing the Accused as he was resident of the same locality and in the year 2004 in the month of May in afternoon the Accused committed rape on her in her house, when she was alone in the house.The Accused said that he will marry with her.She carried pregnancy due to the physical relationship between her and the Accused.Thereafter also the Accused had physical relationship with the prosecutrix in the house of one Manohar Satpudke on the pretext of performing marriage with her.In cross-examination PW-1 prosecutrix denied that since there was a quarrel between her father and father of the Accused, she had lodged false complaint against the Accused.The testimony of PW-1 prosecutrix does no throw any light on the aspect as to on which particular date and in what manner the alleged incident of rape had taken place.It further shows that thereafter the Accused promised to marry with::: Uploaded on - 27/11/2019 ::: Downloaded on - 23/04/2020 07:22:15 ::: 6/7 223.Apeal.280.07.(Judg) her.Thus, the testimony of prosecutrix in no manner shows that as the Accused promised to marry with her, the prosecutrix agreed to have physical relationship with him.It appears that there was love affairs between the prosecutrix and the Accused.The close acquaintance developed into the love affairs, and therefore, consensual sexual relationship was established and as the Accused failed to marry with the prosecutrix, she lodged complaint against him.::: Uploaded on - 27/11/2019 ::: Downloaded on - 23/04/2020 07:22:15 :::It is already discussed above that the age of the prosecutrix is not proved to be below 16 years.The prosecutrix was having the understanding of good and bad things.It appears that the prosecutrix willingly has physical relationship with the Accused, with the result, she conceived and as he failed to marry with her, she lodged complaint against him.No doubt, medical evidence shows that the prosecutrix carried pregnancy of 26-28 weeks at the time of lodging complaint.In the wake of above facts and circumstances, in my opinion, trial court should have assessed the evidence led by the prosecution::: Uploaded on - 27/11/2019 ::: Downloaded on - 23/04/2020 07:22:15 ::: 7/7 223.Apeal.280.07.(Judg) witnesses in its proper perspective.As such, the Judgment and order passed by the trial court needs to be set aside and Appeal deserves to be allowed.Hence, the following order.::: Uploaded on - 27/11/2019 ::: Downloaded on - 23/04/2020 07:22:15 :::Additional Sessions Judge, Wardha in Sessions Trial No. 163 of 2005 is hereby quashed and set aside.(C) Appellant - Accused is acquitted of the offence punishable under Section 376 of Indian Penal Code.His bail bonds shall stand cancelled.Criminal Appeal is disposed of accordingly.[MRS. SWAPNA JOSHI, J.] Yadav VG::: Uploaded on - 27/11/2019 ::: Downloaded on - 23/04/2020 07:22:15 :::::: Uploaded on - 27/11/2019 ::: Downloaded on - 23/04/2020 07:22:15 ::: | ['Section 376 in The Indian Penal Code'] | Analyze the legal case and identify the corresponding section it comes under. |
193,670,964 | Briefly stated, case of the prosecution is that on 31st August, 1995 at about 07:00 pm, Mashkoor Ahmed went to Police Post Shri Ram Colony, P.S. Gokalpuri and lodged a complaint that his wife Shahana was missing since 29th August, 1995 regarding which he had not lodged any missing report with the police as he had been searching for his wife on his own.About half an hour before his visit to the police post, he had noticed loose earth in a portion of his courtyard, so he got suspicious and dug that portion with the help of a phawra' (spade).On digging the earth, he noticed a human body.On digging further, knees of the dead body were exposed, which appeared to be of his wife, so he stopped digging and rushed to the police post to report the matter.His aforesaid statement was recorded as DD No. 20 dated 31st August, 1995 (Ex.PW1/A) at the police post.Copy of the DD report was entrusted to SI B.L. Phulwari (PW14), who went to the spot and got that and recovered the dead body of a lady which was identified by the complainant as the body of his wife Shahana.SI B.L. Phulwari appended his endorsement Ex.PW11/A on the copy of the DD report and sent it to the police station for the registration of the case and formal FIR Ex.PW6/A was recorded on 31st August, 1995 at 09:50 p.m. The Investigating Officer prepared the rough site plan of the spot from where the dead body was recovered.Later on during investigation, a Crl. A. No.283/1997 Page 2 of 15 scaled site plan was also prepared.The dead body was sent for post- mortem examination vide request Ex.PW14/B and as per the post- mortem examination, cause of death was opined as incised cut throat wound of neck.Crl. A. No.283/1997 Page 2 of 15During investigation, it was revealed that the complainant had developed intimate sexual relations with the appellant since long.The deceased came to know about their relationship.Few days prior to the occurrence, she also caught them indulging in sodomy.Thus, she protested and impressed upon her husband to tell the appellant to leave their house.This is projected as motive of the crime.It is further the case of the prosecution that on 29th August, 1995, the complainant claimed that he left his house for work in the morning and when he returned back, he found his wife missing.On 31st August, 1995 at about 06-06.30 am, he noticed the appellant pressing loose earth at the spot from where the body was dug out and asked as to what he was doing.The appellant explained that water had flooded the ground as a result of which earth in that portion had become loose.At 11:00/11:30 am, he again noticed the appellant repeating that exercise.Thereafter, he went in search of his wife and returned at 03:00/3.30 pm and found that the appellant was not there, so he got suspicious.Meanwhile, his brother-in-law Anis (PW4) and his sister came to find out about the deceased and at around 6:00 pm, they Crl. A. No.283/1997 Page 3 of 15 started digging that place, which ultimately resulted in the recovery of the dead body.Crl. A. No.283/1997 Page 3 of 15It is further the case of the prosecution that on 3rd September, 1995, the appellant was arrested.On interrogation, he made a disclosure statement Ex.PW1/C wherein he disclosed that he had buried the dead body of the deceased in the compound of the house of the complainant.He also disclosed that he had concealed his blood- stained clothes, which he was wearing at the time of murder, as also the knife used for committing the crime in the house of the complainant.Pursuant to said disclosure statement, he led the police party to the house of the complainant and pointed out the place where he buried the dead body and also got recovered the knife and blood- stained clothes hidden under a heap of cow dung cakes .Through: Mr.Sunil Sharma, Advocate CORAM:HON'BLE MR.JUSTICE A.K. SIKRI HON'BLE MR.JUSTICE AJIT BHARIHOKEWhether Reporters of local papers may be allowed to see the judgment?2. To be referred to the Reporter or not ?Whether the judgment should be reported in Digest ?AJIT BHARIHOKE, J (ORAL)It is further the case of the prosecution that the knife Ex.P-5 and the shirt Ex.P-6 of the appellant were sent to CFSL along with other exhibits and as per CFSL report, human blood was found on the knife Ex.P-5 as also the shirt of the appellant but the blood group could not be ascertained.On completion of the investigation, challan against the appellant was filed.He was charged for the offences punishable under Section 302/201 IPC.The appellant pleaded innocence and claimed to be tried.A. No.283/1997 Page 4 of 15Crl. A. No.283/1997 Page 4 of 15On perusal of the impugned judgment, it transpires that the learned Trial Court has convicted the appellant on the strength of the following circumstances taken to be proved:(i) That the deceased was last seen alive in the company of the appellant.(ii) That the appellant had a very strong motive to commit the murder of the deceased.(iii) That the appellant made a false representation to the complainant regarding whereabouts of the deceased.(iv) That the appellant was seen by the complainant trying to press the loose earth at the spot in the courtyard of house of the complainant from where the dead body of the deceased was recovered.(v) That the appellant absconded w.e.f. 31st August, 1995 after the complainant got suspicious that he may have buried the dead body in the courtyard.(vi) That the medical evidence of the Autopsy Surgeon to the effect that the fatal injury that was found on the neck of the deceased could have been caused by the knife purportedly recovered at the instance of the appellant.As regards motive, learned counsel for the appellant has submitted that it is not disputed that there was a gay relationship between the appellant and the complainant and the deceased was opposed to the complainant maintaining such relationship with the appellant and she in fact, had told the complainant to ask the appellant to leave their house for good.Learned counsel submitted that this has been taken as a motive on the part of the appellant to kill the deceased whereas this circumstance can equally be construed as the motive on the part of the complainant Mashkoor Ahmed because opposition of the deceased to the gay relationship between the complainant and the appellant would equally have deprived the complainant of sexual satisfaction which he had been deriving from his long drawn relationship with the appellant.In the instant case, since both the complainant and the appellant were consensual partners in gay relationship, they both had a motive.Last seen evidence in this case is provided by PW1 Mashkoor Ahmed who stated that on 29th August, 1995, he gave Rs. 45/- to the appellant to pay for the fare for going to his house at Deoband, District Saharanpur and left for work leaving behind his wife as well as the appellant and his two children.When he came back from work, he found his wife missing.The witness also stated that he asked his daughter Hina, about the whereabouts of his wife and she responded that when she left for the school in the morning at around 07:30 a.m, his wife was at home.From this, learned Prosecutor has urged us to infer that the appellant was last available in the house of the complainant alongwith the wife of the complainant, as Crl.Crl. A. No.283/1997 Page 9 of 15On careful consideration of the evidence, we find that as per the complainant, when he asked his daughter Hina about the whereabouts of his wife, she responded that when she left for the school at 07:30 a.m., the deceased was there in the house.If this version is true that Hina was the last person who saw the appellant and the deceased in the house, therefore, Ms. "Hina", who was a school going girl was the best witness to corroborate the version of the complainant and to establish the last seen circumstance.The prosecution has neither cited nor produced daughter of the complainant, "Hina" to prove that the appellant was the person last seen in the house with the deceased.Since the prosecution has withheld the best witness to establish the last seen circumstance, we are inclined to draw an adverse presumption that had said girl Hina been produced in the court, she would not have supported the version of the complainant Mushkoor Ahmed.Thus, we do not find it safe to rely upon the last seen evidence provided by PW1 Mushkoor Ahmed who, in view of the above discussion, falls within the category of a suspect as well as an interested witness.Crl. A. No.283/1997 Page 10 of 15Crl. A. No.283/1997 Page 10 of 15Another incriminating circumstance which weighed with the learned Trial Judge is that the prosecution, from the testimony of PW1 Mashkoor Ahmed, has been able to establish that in the evening of 29th August, 1995, when the complainant asked the appellant about his wife, he gave a misleading statement that the deceased had left the house wearing a burka immediately, soon after the appellant had gone for work.Learned counsel for the appellant has submitted that the learned Trial Judge has erred in relying upon the aforesaid uncorroborated version of PW1 Mashkoor Ahmed ignoring the fact that he himself had a motive to kill the deceased and as such, he fell within the category of an interested witness.Learned counsel for the State, on the other hand, submitted that there is no reason to suspect the credibility of above referred version of PW1 Mashkoor Ahmed as he had withstood the rigours of the cross-examination and his testimony could not be shaken.On careful consideration of the record, we find that the above referred finding regarding conduct of the appellant is based upon the uncorroborated testimony of PW1 Mashkoor Ahmed.In view of our discussion above, Mashkoor Ahmed also had a motive to get rid of the deceased, as such he can safely be termed as an interested witness.Thus, we do not find it safe to rely upon his testimony.Result is that the prosecution has not even been able to establish this circumstance.A. No.283/1997 Page 11 of 15Crl. A. No.283/1997 Page 11 of 15Learned counsel for the appellant further submitted that the next incriminating circumstance taken against the appellant that he absconded from the house of the complainant on 31st August 1995 is not firmly established.He contended that as per the case of prosecution, the wife of the complainant was murdered on 29th August 1995 and even thereafter the appellant continued to live with the complainant.In view of the aforesaid, there was no justification to conclude that the appellant had absconded after the occurrence.Learned counsel for the State has refuted this argument by submitting that till 31st August 1995 there was no reason for the appellant to abscond as by that time nobody was aware that the dead body of the deceased has been buried in the courtyard of the house of the complainant.It is only on 31st August 1995 when the complainant noticed the appellant trying to press loose earth above the site of burial initially at 6:00/6:30 am and thereafter again around 11:30 am, the appellant got afraid and thinking that the complainant had become suspicious, he absconded from the house of the complainant.We are not convinced with the argument of learned counsel for the State.The evidence of the PW1 Mashkoor Ahmed regarding the conduct of the appellant and his absconding on 31st August, 1995 is not worthy of credence, firstly because of the reason that PW1 Mashkoor Ahmed, the sole witness, is an interested witness who also had a motive to kill the deceased.Secondly, perusal of DD No.20 Crl.A. No.283/1997 Page 12 of 15 (Ex.PW1/A), which formed basis for registration of the case, reveals that in the evening of 31st August 1995 while reporting the matter to the police the complainant did not express his suspicion against the appellant nor did he say anything about the suspicious conduct of the appellant to the police.Thus, we do not find it safe to rely upon the sole testimony of PW1 pertaining to absconding of the appellant.Crl. A. No.283/1997 Page 12 of 15Coming to the recovery of incriminating articles.Case of the prosecution is that on 03rd September 1995, the appellant, on interrogation, made a disclosure statement detailing the manner in which he committed the crime and pursuant to said disclosure statement, he got recovered the knife Ex.P-5 and the blood-stained shirt Ex.PW1/C and Ex.PW1/E are the relevant disclosure statement and seizure memo claimed to have been prepared by the Investigating Officer.On perusal of these documents, we find that the recording of disclosure statement as well as recovery is witnessed by PW1 Mashkoor Ahmed (complainant) and Constable Inderjeet.Prosecution has not examined Constable Inderjeet to prove either the disclosure statement of the appellant or the recovery at his instance.This circumstance casts a doubt on his fairness.PW14/E reveals that though on analysis, human blood was found on the knife Ex.P-5 and the shirt Ex.P-6, the blood group of the human blood found on those exhibits could not be matched with the blood group of the deceased as the samples did not give any reaction for Crl.A. No.283/1997 Page 14 of 15 blood group.Thus, in our view, even this circumstance has not been firmly established.Crl. A. No.283/1997 Page 13 of 15Crl. A. No.283/1997 Page 14 of 15The result of above discussion is that the prosecution has failed to firmly establish the incriminating circumstances forming a chain so complete so as to lead to an irrefutable inference of guilt of the appellant.As discussed above, the complainant also had a motive to kill his wife, thus a possibility cannot be ruled out that the complainant, prompted by the said motive, got rid of his wife and in order to escape the blame, he lodged a report against the appellant vide DD No.20 (Ex.Thus, we find ourselves unable to sustain the impugned judgment of conviction and consequent order on sentence.We accordingly set aside the conviction of the appellant under Section 302 IPC and acquit him of the charge, extending the benefit of doubt to him.The appellant is on bail. | ['Section 302 in The Indian Penal Code', 'Section 201 in The Indian Penal Code'] | Analyze the legal case and identify the corresponding section it comes under. |
193,676,234 | Also heard on I.A. No.15570/2015, an application for suspension of remaining jail sentence and grant of bail to the appellant.The appellant has been convicted under Sections 354, IPC, Section 3 (1) (xi) of SC/ST (Prevention of Atrocities) Act and Section 8, Protection of Children From Sexual Offences Act, IPC and sentenced to undergo rigorous imprisonment for 4 years & fine of Rs.5,000/-, with default stipulation.Learned counsel for the appellant submits that the appellant was on bail during trial and has never misused the liberty granted to him.On account of inimical terms this false report has been lodged against the appellant.The fine amount has already been deposited.There is no likelihood of coming up of this appeal for final hearing in near future.List this case for final hearing in due course.C.C. as per rules.(SUBHASH KAKADE) | ['Section 3 in The Indian Penal Code'] | Analyze the legal case and identify the corresponding section it comes under. |
1,936,835 | By this judgment both the appeals (Criminal Appeal No. 319/83 and Criminal Appeal No. 320/83), challenging the order of Additional Sessions Judge, Datia, in Session Trial No. 27/82, dated 29-10-1983, whereby appellant Chhakki of Criminal Appeal No. 319/83 and appellant Lalai of Criminal Appeal No. 320/83 have been convicted Under Section 302/34 of the Indian Penal Code and sentenced to imprisonment for life, are being disposed of.According to the First Information Report (Ex.P.8), lodged by Ramshree (P.W.7), on 5-12-1981, at Police Station, Indergarh, in village Ekona, in the night of 4-12-1981, at about 8-9 P.M., Lokman, the deceased, went to the house of Balle (P.W.9), as they were sharing the agriculture, for taking money and for saying about diesal.After some time, shouts were heard, "DODIO RE MAR DARO BACHA OO"; and on hearing the shouts, Jagman went to the house of Balle (P.W.9).Ramshree (P.W.7) also followed Jagman and saw that, inside the Pour of Balle (P.W.9), Marpit of Lokman and Jagman, deceased persons, was done by four accused persons, viz., Lalai, Chhakki, Chhinga and Ramsewak.Chhakki was assaulting by Basula and Lalai by Kulhadi, Ramsewak and Chhinga had Lathis and both were causing marpit by Lathis.According to Ramshree, she herself, the daughter and wife of Balle, shouted for help but nobody paid any heed and all th5 four accused persons killed Lokman and Jagman and dragged the bodies from inside the Paur and threw them in the lane.Thereafter, Ramshree (P.W.7) went back to her house and remained there, the whole night.In the morning, she went to her brother-in-law, Dayaram (P.W.6) son of deceased Lokman, stated the incident to him and thereafter accompanied by him, lodged the report (Ex.P.-8) at P. S., Indergarh.After investigation, all the four accused persons were challaned and tried for the offence Under Section 302/34, Indian Penal Code.The learned trial Court, disbelieving the prosecution witnesses, acquitted the two co-accused persons, viz. Chhinga and Ramsewak, giving them the benefit of doubt, but the appellants, on the basis of the same evidence, have been convicted and they have preferred these two separate appeals.The prosecution case rests on the ocular evidence and particularly on the testimony of four eye-witnesses, viz., Dropadi, wife of Balle, (P.W.4), Swarupi d/o Balle (P.W.5), Ramshree (P.W.7) and Balle (P.W.9).5. Dropadi (P.W.4) has stated that Lokman, the deceased, and Balle had partnership in the agriculture and Lokman reached the house of Balle (P.W.9) for asking money and also diesel.At that time, Balle (P.W.7) was taking his food and she was cooking and serving him.When Balle (P.W.9) came to his Pour and was sitting with Lokman, the two appellants came there and Lalai asked Balle (P.W.9), "why have you not prepared the AANKURI?" to which he replied, "I am making it".On this, the appellant Chhakki tried to cause marpit of Balle.The other two co-accused persons also arrived there.Balle ran away from the house.Thereafter, all the four accused persons caused marpit of Lokman.She shouted for help and so also her daughter Swarupui.Lokman, who was being assaulted, also shouted for help.Thereafter, Jagman, his son, came in the Pour but he was also beaten by the four accused persons.Killing the two their bodies were dragged from the Pour and were thrown in the lane by the accused persons and thereafter all the four accused persons ran away from the spot.According to this witness Dropadi, there were 100-150 injuries on the body of Lokman and so also Jagman was badly injured.The deceased persons had injuries on ribs, head, both cheeks, back, stomach, hands and legs.She remained in the house and did not narrate the incident to anyone.JUDGMENT Shacheendra Dwivedi, J.6.The other witness Swarupi, who is daughter of Dropadi, also stated that all the four accused persons caused marpit of the deceased.She has given omnibus statement and has specified only one injury on Jagman by Lalai on his back (not found by the doctor).According to this witness, and also her mother Dropadi, nobody came at the spot in the night.Swarupi (P.W.5) has further stated that she went and narrated the incident to Charandas, Sambhu (both have not been examined).The other important witness on which the prosecution relies is eye-witness Ramshree (P.W.7).This witness too has given omnibus statement regarding the marpit of the two deceased persons.According to her, on hearing the shouts of Lokman, her husband Jagman left his house and came to the house of Balle, she followed him and saw that all the four accused persons were assaulting her father-in-law Lokman and when Jagman reached, they all assaulted him also by their respective weapons Basula, Kulhadi and Lathis.Presence of this witness is not admitted by other two eye-witnesses, viz. Dropadi and Swarupi.According to this witness, Ramshree (P.W.7), bodies of the two deceased persons were dragged from the Paur and were thrown in the lane.After witnessing the incident, she came to her house and closing the doors, she sat inside the house whole night.She did not narrate the incident to anyone and in the morning, she went to the brother-in-law Dayaram (P.W.6) and narrated the incident to him.Thereafter, accompanied by this witness, report was lodged by her at P.S., Indergarh.Last witness of the prosecution, who claimed himself to be an eye-witness is P.W.9 Balle.According to this witness, when Chhakki tried to assault him, he ran away from the Pour and was hiding himself in Khadera.He returned back after about 2 hours and found that the dead bodies were lying in the lane, yet he claims to have seen the assault on the two deceased persons by all the four accused persons.Now, when the evidence of these witnesses is assessed in the light of medical evidence, it stands contradicted and is not supported by the medical evidence.It was found by Dr. Brijendra Kumar Shrivastava (P. W. 3) that the deceased persons had only 3 injuries each on their body, out of which deceased Lokman had one injury which could be caused by hard and blunt object.No marks of dragging were found on the bodies of the two deceased persons.While the eye-witnesses are not corroborated by the medical evidence, the evidence of prosecution suffers from serious comradictions making them unreliable.Further in the instant case, the eye-witnesses have named and implicated four persons in the offence, but the learned trial Court found that the prosecution evidence with regard to two accused persons was unreliable and shaky.They were acquitted by the trial Court.The evidence of eye-witnesses is also in direct contradiction with the medical evidence and in such circumstances, Supreme Court in recent decision in B. N. Singh etc. v. State of Gujarat, AIR 1990 SC 1628 observed that when the witnesses have gone to the extent of implicating one accused falsely and when the evidence of eye-witnesses is contradicated by medical evidence no conviction could be based on such evidence.Dr. Brijendra Kumar Shrivastava (P.W. 3) found in autopsy that both the deceased persons had semi-digested food in the stomach and has further stated that process of digestion starts after 2 hours and the food remains semi-digested for 4 to 6 hours.For fixing time of death, scientific data is of much help and when the semi-digested food is found in the stomach, time of death can be ascertained and fixed at 3 to 5 hours after the food was consumed.In the instant case, there is evidence on record, with regard to deceased persons' consuming food.The statement of Ramshree (P.W. 7), wife of deceased Jagman, and daughter-in-law of deceased Lokman, is very specific on the point.She stated that her father-in-law Lokman left for the house of Balle soon after he took his dinner and her husband Jagman could not even take his full food as he rushed to the house of Balle after hearing the shouts of his father Lokman." In the instant case, the doctor found "semi-digested food" and with this circumstance, as well, the proseuction theory becomes doubtful.Shri Sharma argued that the time of assault on the deceased persons could only be late at midnight and not at that time which the prosecution has alleged.The other infirmity of the prosecution, which has been pointed out by Shri R. K. Sharma, counsel for the appellants, is that no blood was found at the spot, i.e., Paur of Balle, where the incident is alleged to have taken place.The absence of blood in the Paur also goes to discredit the prosecution version and when the blood was not found at the spot, the inference would be that Paur was not the place where incident took place, but it was the lane, where blood was found and from where the blood-stained earth was seized.Admittedly, the house of Balle is situated in the thickly populated area of the village and when the incident took place in the Paur of Balle, where the three ladies, viz., Dropadi (pw. 4), Swarupi (P.W. 5) and Ramshree (P. W. 7) were shouting for help all the time and when the shouts of the deceased Lokman attracted Jagman, who reached the spot on hearing the shouts, non-examination of any witness of the locality casts serious reflections on the investigation and makes the prosecution version further doubtful.According to Dayaram (P.W. 6), he was told by Ramshree that his wife Ramdulari, his daughter-in-law Kamla and other daughter-in-law (wife of his son Munna) and his children were present on the spot.If they had witnessed the incident it is most unnatural that they would not make any effort at the time of incident for saving the deceased persons and after the incident they would not narrate the story to any one in the village and would keep themselves confined in their houses.Even the conduct of Ramshree, wife of deceased Jagman, having gone to, the house after witnessing the remaining there, the whole night, without narrating the incident to any one, is most unnatural. | ['Section 302 in The Indian Penal Code', 'Section 34 in The Indian Penal Code'] | Analyze the legal case and identify the corresponding section it comes under. |
19,368,472 | CRL.A.1315/2019 Page 1 of 7As per the case of the prosecution Abhishek Jha (PW-9) recorded the subject complaint that, on 04.07.2012 at about 09:15 PM, while he was returning to his house from the market behind Joshi Colony Church, near Rajdhani Store, he saw the accused giving brick blows on the head and back of the deceased, who was lying on the ground with blood oozing out from his head.Abhishek Jha (PW-9) was consistent in his testimony throughout including the deposition that, although he tried to save the deceased and catch hold of the appellant, the latter ran away and disappeared.Om Pal (PW-4), who is the other eye-witness to the incident, deposed that, he was working as a Technician with M/s. D.G. Cables and was residing at Madhu Vihar at the relevant time.PW-4 further deposed that the cables of his company were inter alia installed at CRL.A.1315/2019 Page 2 of 7 Batla Apartments and, therefore, he used to visit the said location regularly for checking the connections.PW-4 also deposed that on 04.07.2012, when he was taking tea, at the tea shop of Neelu, on the footpath in front of Batla Apartments, he witnessed the appellant quarrelling with the deceased.PW-4 cogently deposed that he knew both the appellant and the deceased, since they also used to visit the said tea shop of Neelu.It was further deposed by PW-4 that, after taking tea as he left the shop, he heard some loud noises from behind him, and on turning back, saw the appellant hitting a brick on the head of the deceased, who had fallen down.It was categorically deposed by PW-4 that the appellant inflicted 2/3 more blows with the brick upon the deceased, and then fled away from the spot, when members of the public started gathering there.CRL.A.1315/2019 Page 5 of 7CRL.A.1315/2019 Page 5 of 7SIDDHARTH MRIDUL (JUDGE) C. HARI SHANKAR (JUDGE) MARCH 18, 2020 dn CRL.A.1315/2019 Page 7 of 7CRL.A.1315/2019 Page 7 of 7SIDDHARTH MRIDUL, JIn pursuance to the directions issued by this Court, Vishvajeet Dass alias Vishvanath Das alias Vishwa, the appellant has been produced in custody.The appellant stands convicted for the commission of the CRL.A.1315/2019 Page 1 of 7 offence under Section 302 of the Indian Penal Code, 1860 (hereinafter referred to as 'IPC') by the Trial Court by way of its judgement dated 20.07.2019; which further by way of its order on sentence dated 22.07.2019 has consequently directed him to undergo rigorous imprisonment for life with a fine of Rs.5,000/- and in default of payment thereof to further undergo simple imprisonment for a period of one month.CRL.A.1315/2019 Page 2 of 7The post-mortem conducted by Dr. Vinay Kumar Singh (PW-7) upon the body of the deceased inter alia clearly opined that, out of the eleven injuries found on the body of the deceased; injury No.1,2 and 3, i.e. (i) multiple abrasions of 13x11 cm over right side of face and temporal region; (ii) lacerated wound of 1x1 cm with surrounding abrasion of 3x3 cm over right side of forehead just above eyebrow medial end; and (iii) abraded bruise 6x6 cm around left temporal region; were individually and collectively sufficient to cause death in CRL.A.1315/2019 Page 3 of 7 the ordinary course of nature.PW-7 further opined, upon examination of the brick -- which was the weapon of offence -- that, the possibility of the fatal injuries having been caused upon the deceased with the same (Ex.4) -- seized by the police from the spot -- cannot be ruled out.CRL.A.1315/2019 Page 3 of 7Having heard learned counsel for the parties and perused the evidence on record, the trial court vide the impugned judgment has returned a finding that the prosecution was able to prove its case against the appellant beyond reasonable doubt.Mr. S.B. Dandapani, learned counsel appearing on behalf of the appellant, on instructions from the latter, states that they do not impugn the findings arrived at by the trial court, save and except to the limited extent to urge that, the commission of the offence by the appellant, was upon a sudden fight and occurred in the heat of passion at the spur of the moment, without any pre-meditation and whilst being under the influence of alcohol; and that, therefore, the appellant ought to have been convicted only for the commission of an offence falling within the scope and ambit of the provisions of Section 304 Part II IPC (culpable homicide not amounting to murder) and not under Section 302 IPC, as has been erroneously done by the trial court.CRL.A.1315/2019 Page 4 of 7CRL.A.1315/2019 Page 4 of 7In this behalf, it was also urged that the sentence imposed upon the appellant by the trial court is excessively harsh and disproportionate to the offence found to have been committed by him; and furthermore the ends of justice would be met if the same is reduced to the sentence already undergone by the appellant.Our attention has also been invited to the circumstance that the appellant is the solitary bread winner of a large family comprising besides him, his wife and three children; and that the latter have had to endure untold misery owing to financial deprivation, loss of care and support, as a consequence of the appellant's incarceration.In the present appeal we observe from the nominal roll qua the appellant that, he has remained incarcerated for a period of more than seven years; and also that his overall jail conduct has been certified as satisfactory throughout the period of his incarceration.It is further relevant to observe that, the appellant has rendered productive service as a Langer Sahayak to the jail authorities for a sufficiently long period of time.Having regard to the facts and circumstances of the case viewed in totality; and having heard learned counsel appearing on behalf of the parties and appreciated the evidence on record, we are of the considered view that in the present case both the appellant, as well as, the deceased were in a state egregious intoxication at the time of the commission of the offence having just consumed liquor together.We also observe that the commission of the offence was the consequence of a sudden fight where in the heat of passion, the appellant lost control of his senses and attacked the deceased in a brutal manner with a brick.We further find that although the attack on the deceased by the appellant with the brick was vicious, the weapon of offence cannot be characterised as being a lethal one by any stretch of argument.However, we find that the appellant would have known that the force with which he attacked the deceased on a delicate part of the latter's body -- the head -- it would very well being resulted in death and can, therefore, safely be concluded to have been done intentionally with the requisite knowledge.We are, therefore, of the view that the judgment and order of conviction dated 20.07.2019 is one that commends itself to be converted from one of conviction and sentence under Section 302 IPC to one of conviction and sentence for the commission of the offence CRL.A.1315/2019 Page 6 of 7 under Section 304 Part I IPC.CRL.A.1315/2019 Page 6 of 715. Directed accordingly.Insofar as, the quantum of sentence is concerned, we are of the view that the ends of justice would be served, if the sentence imposed upon the appellant is reduced from rigorous imprisonment for life imposed upon him by the trial court to one of ten years rigorous imprisonment along with fine of Rs.5,000/- and in default of payment of fine for a further period of six months.The appeal is disposed of in the above terms.A copy of this judgment be provided to the appellant forthwith.A copy of this order be also sent to the Superintendent, Central Jail, Tihar for necessary information and compliance. | ['Section 302 in The Indian Penal Code', 'Section 304 in The Indian Penal Code'] | Analyze the legal case and identify the corresponding section it comes under. |
193,685,208 | 20.12.13 Item No. 115 Court No.17 A.B.Item No. 115And In the matter of: Lakhan Naskar.Udaynarayanpur Police Station Case No. 191 of 2013 dated 19.09.2013 under Sections 448/323/325/354B/379/427/506/ 34 of the Indian Penal Code, 1860, has applied for anticipatory bail.We have heard the learned Advocates for the parties.We have seen the case diary and the other relevant material on record.The application for anticipatory bail is, thus, disposed of.(Nishita Mhatre, J) (Indrajit Chatterjee, J) | ['Section 379 in The Indian Penal Code', 'Section 427 in The Indian Penal Code', 'Section 448 in The Indian Penal Code', 'Section 438 in The Indian Penal Code', 'Section 506 in The Indian Penal Code', 'Section 323 in The Indian Penal Code', 'Section 325 in The Indian Penal Code', 'Section 34 in The Indian Penal Code'] | Analyze the legal case and identify the corresponding section it comes under. |
Subsets and Splits