Gujarat High Court
State Of Gujarat vs Arun Gurunath Dengi on 16 March, 2018
Author: Anant S. Dave
Bench: Anant S. Dave, B.N. Karia
R/CR.A/433/2006 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 433 of 2006
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE ANANT S. DAVE
and
HONOURABLE MR.JUSTICE B.N. KARIA
1 Whether Reporters of Local Papers may be allowed to
see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or any
order made thereunder ?
STATE OF GUJARAT
Versus
ARUN GURUNATH DENGI
Appearance:
MR RUTVIJ OZA APP for the PETITIONER(s) No. 1
MR RASHMIN C JANI FOR RC JANI AND ASSOCIATE(6436) for the
RESPONDENT(s) No.1
HCLS COMMITTEE(4998) for the RESPONDENT(s) No. 2
MR. YOGENDRA THAKORE(3975) for the RESPONDENT(s) No.2
MR.HARDIK BHARHMBHAT(3741) for the RESPONDENT(s) No.2
CORAM: HONOURABLE MR.JUSTICE ANANT S. DAVE
and
HONOURABLE MR.JUSTICE B.N. KARIA
Date : 16/03/2018
Page 1 of 101
R/CR.A/433/2006 CAV JUDGMENT
CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE ANANT S. DAVE) 1 This appeal is preferred by the State of Gujarat under Section 378(1)(3) of the Code of Criminal Procedure, 1973 [for short, "Code 1973"] seeking to challenge the judgment and order dated 28.12.2015 passed by the learned Presiding Officer, 8th Fast Track Court, Surat, in Sessions Case No.65 of 2001, whereby the respondents herein have been acquitted of the charges framed against them for the offences punishable under Sections 302, 394, 397, 34 read with Section 120(B) of the Indian Penal Code [for short, "IPC'].
2 Brief facts which led to filing of this appeal are as under:
2.1 On 15.12.2000, the complainant - Suresh Mohanlal Kothari lodged a complaint with Page 2 of 101 R/CR.A/433/2006 CAV JUDGMENT Pandesara Police Station stating that he is resident of Plot No.B/653, Jalaramnagar, Gujarat Housing Board, Pandesara, Surat. He stated that in Plot NO.B/650, one Prakashchandra Bherumal Jain is residing with his wife and children and is running a shop named `Bhavanik Jewellers' in front part of his house. On the fateful day in the morning, when the complainant was busy in getting his son ready for going to school, he heard shouts from outside that "my parents are killed", therefore, he came out and seen that Alka daughter of Prakashchandra was shouting.
The owner of Rajwadi Center informed the complainant that Prakashchandra Jain is murdered, and therefore, you inform the police. Upon being informed, police reached the spot and found that Prakashchandra Jain, his wife Sushilaben, son Narendra and daughters Kaushalya and Dimple were lying dead. The ornaments boxes were empty and bloodstains were there on the stairs. The complainant also informed that in the morning about 6 a.m. Daughter of the deceased, Alka, went Page 3 of 101 R/CR.A/433/2006 CAV JUDGMENT on to bring milk and when she returned home, she witnesses that two unknown persons were present in her house and they had killed her parents. On the basis of the complaint an offence being CR No.I202/2002 was registered with Pandesara Police Station and investigation was carried out.
2.2 After investigation was over, charge sheet was submitted before the learned 2nd Joint Civil Judge [JD] and JMFC, Surat, who committed the4 case to the Court of learned Sessions Judge, under Section 209 of the Code 1973 for its trial, where it was numbered as Sessions Case No.65of 2001.
2.3 On 23.09.2002 charge was framed against the accused persons, whereby they were charged with the offence of forming an unlawful assembly with an intention to commit robbery. It was also the case against the accused that they went to the shop of the deceased armed with weapons like axe and knife to commit robbery. Accused NO.1 Page 4 of 101 R/CR.A/433/2006 CAV JUDGMENT went to the shop and asked for making a silver locket. Thereafter, both the accused attacked Prakashchandra and since other members of the family also woke up, the accused persons attacked all of them with weapons and caused injuries with axe and knife, as a result of which they died.
The accused committed robbery of gold and silver ornaments and cash of Rs.2,000/. The accused committed robbery of the valuables worth Rs.4,17,688/. At the trial, the accused pleaded not guilty and claimed to be tried. After appreciation of oral as well as documentary evidence produced on record, learned Presiding Officer, 8th Fast Track Court, Surat, by the impugned judgment and order acquitted the respondents herein of the charges for the offences punishable under Sections 302, 394, 397, 34 read with section 120(B) of the IPC. Being aggrieved by and dissatisfied with the above judgment and order of acquittal, the State of Gujarat has preferred this appeal.
Page 5 of 101 R/CR.A/433/2006 CAV JUDGMENT3 Mr. Rutvij Oza, learned APP submits that the learned Judge erred in not believing the documentary as well as oral evidence led by the prosecution and acquitted the accused persons.
It is further submitted that the accused entered the house of the deceased with the criminal intention and the prosecution witnesses Alka and Jitu are brothers and sisters and their parents are killed, gold and silver ornaments were missing worth 4,17,688/ and their evidence fully corroborated with the case of the prosecution.
It is further submitted that the evidence of the complainant Sureshbhai Kothari corroborated with the prosecution.
3.1 Learned APP submitted that evidence of Alka PW3 Exh.49 is fully supporting the case of the prosecution and the learned Judge erred in not accepting the same. It is further submitted that the learned Judge committed error in holding that Alka PW3 is not eye witness and that when Alka PW3 returned after fetching milk both the Page 6 of 101 R/CR.A/433/2006 CAV JUDGMENT accused were present in the house and she saw the dead bodies of her parents and ornaments in the safe are also missing. It is further submitted that the evidence of Jitubhai PW4 Exh.55 also supports the prosecution case as when the incident took place, Jitubhai was in lavatory, however, the learned Judge held that Jitubhai could not see the incident from the lavatory and it is not possible a man to witness the incident.
It is further submitted that the evidence of Urmilaben PW26 and Darshatbhai Mafatlal Patel PW27 are not believed by the learned Judge. It is further submitted that the learned Judge has not accepted the Panchnama drawn under Section 27 of the Indian Evidence Act, discovery of weapon panchnama at Exh.73, panchnama of recovery of clothes of accused Exh.98, recovery of knife, spade and has not properly appreciated the versions of panch witnesses R.S.Kumar, Hiralal Jain, Sunderlal Jain, etc., which directly connect the accused with the crime.
Page 7 of 101 R/CR.A/433/2006 CAV JUDGMENT3.2 Learned APP submits that the learned Judge has not properly appreciated the Test Identification Parade Exh.59 as in the panchnama in the place of `Arun' a word Sharula was written, which is not a material contraction. It is further submitted that the learned Judge has wrongly held that the muddamal ornaments are the same which were robbed in the present case.
Learned APP further submitted that the prosecution has proved its case beyond reasonable doubt, however, the learned Judge has not properly appreciated the evidence oral as well as documentary and acquitted the accused persons.
4 Per contra, Mr. Rashmin Jani, learned counsel for the respondents - accused persons submitted that socalled eye witness is not the complainant for the following reasons:
4.1 Alkaben Prakashchandra Jain PW3 Exh.49 Alka [PW3] met one Shravansing Page 8 of 101 R/CR.A/433/2006 CAV JUDGMENT Parbatsing Rathod first after the incident, whose statement is not recorded by the Investigating Authority. She had called one Pinki to get released from the bathroom. Pinki had come along with her mother. Statement of Pinki is not recorded by the Investigating agency.
Blood stains on the weapon and clothes do not match and in the cross examination of the investigating officer, he admits that blood group on weapon and deceased do not match and he admits that after the incident, the investigating officer has not examined the jewellery lying on the site.
Fingerprints of the accused persons are also not found from the spot, clothes or weapons.
The investigating officer has undertaken process of lie detection test, but the reports of the test were not brought on record, which was noticed by the trial court, and found that Page 9 of 101 R/CR.A/433/2006 CAV JUDGMENT prosecution has failed to prove its case beyond reasonable doubt.
On the day of the incident, the accused No.1 was working as labourer and was present at the work as per the attendance sheet and statement of the supervisor.
In the T.I.Parade, name of the accused 'Arun' is written as 'Sarula' and process of T.I.Parade undertaken was also not according to the procedure laid down by the law.
PW3 has made various contradictory statements in examination in chief and cross examination.
PW3 deposed in examination in chief that soon after the incident she had raised alarm to Pinki, who is neighbor, but the investigating authority has not recorded statement of Pinki.
PW3 in examination in chief deposed that one Page 10 of 101 R/CR.A/433/2006 CAV JUDGMENT unknown uncle had come with mother of Pinki at the place of incident, whereas in the deposition of Dashrathbhai Mafatlal Patel PW27 Exh.141 stated that Pinki and Dashrathbhai know each other very well in spite of that PW3 has not disclosed the name of Dashrathbhai. PW3 in examination in chief deposed that the muddamal i.e. jewellery was packed in sealed bottles, whereas, the finding of the trial court is that the bottles were not sealed and PW3 has not even recognized the jewellery put in the bottles.
PW3 in her deposition stated that one of the accused was calling the other accused by name Shubham and in the cross examination, she admitted that Shubham is her cousin.
PW3 in her deposition states that the Rickshaw Driver has called her brother Jitendra twice and she shouted that the Jitendra will not go to school today. In the examination in chief, the Rickshaw Driver states that the has never Page 11 of 101 R/CR.A/433/2006 CAV JUDGMENT called Jitendra, instead he had blown the horn.
4.2 Jitendrakumar Prakashchandra Jain PW4 Exh.55 PW4 in his examination in chief deposed that he was in latrine and he has seen the entire incident and he cannot see the incident from the latrine, as per the situation of the room.
4.3 Shrinath Nagesh Kogul, PW20 Exh. 119 PW20 in his cross examination accepts that the bag which was shown to be recovered from the spot was actually brought by him from the Star coaching classes, but actually the bag which was lying on the site was of 'Akai'.
4.4 Jayantibhai Talala, PW 21 Exh. 121 PW21 in his cross examination accepts that out of 5 bottles of jewellary packed in seal Page 12 of 101 R/CR.A/433/2006 CAV JUDGMENT cover, he is able to identify only 3 bottles and therefore, the trial court has doubted the integrity of the muddamal recovered.
4.5 Discovery of Weapon Panchnama Exh.73 The Panch witness in his cross examination admits that he had not read the Panchnama and without reading the same, he has made his signature on it.
4.6 Bhikhabhai Bahgvandas Patel, Dy. S.P., Exh.162, PW36 Dy. S. P. in his Cross examination deposed that he has investigated the case only for one day. He was not handed over the clothes of the deceased. Alka who is shown as eyewitness in the present case, has not disclosed entire facts before him. He has not recorded the statement of Pinki, who was called by Alka [PW3] after the incident.
Page 13 of 101 R/CR.A/433/2006 CAV JUDGMENT4.7 Yuvraj Amratbhai Patil Exh124, PW22 He admits in his deposition that at the time of recovery of the muddamal, they found iron rings and the same were put in sealed cover. Now if muddamal were the jewellary, how do iron rings were found and packed and sealed?
It is submitted that it is a fit case of substitution of accused persons as not direct or indirect evidences are found against the accused persons. By no stretch of imagination involvement of the accused persons can be presumed. The entire version of so called eyewitnesses is changed as if they are hiding the real culprits.
The investigating agency has failed to prove its case beyond reasonable doubts and therefore, the trial court has rightly acquitted the accused persons.
Page 14 of 101 R/CR.A/433/2006 CAV JUDGMENT5 In this case, prosecution examined the following PWS:
PW Name Exh.
1 Deposition of Dr.Swapnil 20Sudhirkumar Agrawal who performed postmortem 2 Deposition of Sureshbhai Mohanlal 46 Kothari 3 Deposition of Alkaben 49 Parkashchandra Jain, daughter of the victim and eye witness to the incident 4 Deposition of Jitendrakumar Jain, 55 son of the victim and eye witness to the incident 5 Deposition of Mumtazali Saiyed, 57 Executive Magistrate 6 Deposition of Gokulchand 62 Anchaliya, pancha of identification of accused 7 Deposition of Paraskumar Jain, 64 pancha of identification of accused 8 Deposition of Sunderlal Jain, 72 pancha of discovery panchnama 9 Deposition of Shambhubhai Mangilal 78 Shah 10 Deposition of Hasmukhlal Shah 84 11 Deposition of Haresh Davle 90 12 Deposition of Dharmesh Kshirsagar 92 13 Deposition of Chandraprakash 98 Premraj Jain Page 15 of 101 R/CR.A/433/2006 CAV JUDGMENT 14 Deposition of Ramchandra Jagannath 102 More 15 Deposition of Mehul Shah 103 16 Deposition of Bharatbhai Saraiya 106 17 Deposition of Husruddin Hamiruddin 109 Shaikh 18 Deposition of Jagdishbhai Gendalal 116 Mansure 19 Deposition of Ajaykumar Jiledas 118 Sindh 20 Deposition of Shrinath Ganesh 119 Kogul 21 Deposition of Jayantibhai Talala 121 22 Deposition of Yuvraj Patil 124 23 Deposition of Pareshbhai 134 Mahendrabhai 24 Deposition of Mangilal Ramlal 138 25 Deposition of Sumanben 139 Vishwanathsinh 26 Deposition of Urmilaben Harinath 140 Pal 27 Deposition of Dashrathbhai 141 Mafatlal Patel 28 Deposition of Dineshkumar Sindhvi 142 29 Deposition of Kundanmal Jain 143 30 Deposition of Ishwarbhai Raghudas 144 Patel 31 Deposition of Prakashbhai Rajghar 148 Patil 32 Deposition of Kishorchand 149 Ishwarlal Jariwala 33 Deposition of Hemant Modilal Jain 156 34 Deposition of Sureshbhai Rupsinh 157 35 Deposition of Jayeshbhai Gandabhai 157 Nadodiya Page 16 of 101 R/CR.A/433/2006 CAV JUDGMENT 36 Deposition of Girish Kanchan 161 Vaidya 37 Deposition of Bhojabhai Bhagwandas 162 Patel 38 Deposition of Mahendrasinh 163 Vajesinh Solanki 39 Deposition of Shivsinh Mansinh 166 Gohil 5.1 The following documentary evidence was examined:
Exh. Particulars
21 Yadi from Pandesara Police Station to
New Civil Hospital Surat.
22 PM notes of Dimple Parkash Jain
23 Inquest Panchnama of Dimple Prakash
Jain
25 Cause of death certificate
27 PM notes of Narendra Jain
28 Cause of Death Certificate of Narendra
Jain
29 Yadi received by New Civil Hospital,
Surat from Pandesara Police Station about Narendra Jain 35 PM Note of Prakash Jain 36 PM Note of Kausalyaben Hemantkumar 37 Cause of Death Certificate of Kausalyaben Hemantkumar 38 PM Note of Sushilaben Prakashbhai 39 Cause of death Certificate of Sushilaben Parkashbhai Page 17 of 101 R/CR.A/433/2006 CAV JUDGMENT 47 Complaint 59 Panchnama of identification of accused.
68 Place of offence of panchnama 69 Another arrest panchnama of accused Munna @Ajay Rajpal Maurya 73 Discovery of weapon panchnama 84 Scene of panchnama ash shown by the accused 86 Inquest panchnama 91 Inquest panchnama 93 Scene of offence panchnama 107 Recovery of Nylon belt 117 Identification of muddamal by complainant 122 Recovery panchnama from the accused 126 Panchnama of place of loot made by the accused 164 Map of scene of panchnama 165 Map of scene of panchnama 167 Articles and samples sent to FSL 168 Articles and samples received from FSL 169 FSL report 170 Serological report 5.2 The trial court has believed the case of prosecution that it was a case of culpable homicide in which 5 persons had lost their lives.
However, it was held that the prosecution failed Page 18 of 101 R/CR.A/433/2006 CAV JUDGMENT to prove its case beyond reasonable doubt and acquitted the accused for the offences under sections 302, 394, 397 read with Section 34 and 120B of the IPC.
5.3 As per the complainant PW2 Sureshbhai Mohanlal Kothari in the morning hours of 7:15 on 15.12.2000 while he was getting his son ready for school heard shouts on the outer road and Alkaben PW3 daughter of victim Prakash Jain, was shouting that her parents were killed. Further, just opposite to the house of complainant a shop is situated in the residence of Rajwadi. That Alkaben PW3 also called Rajwadi and he disclosed to the complainant that parents of Alkaben PW3 were killed and requested him to inform the police accordingly. In crossexamination, a suggestion was put to Sureshbhai Kothari PW2 complainant about business revelry with deceased Prakash Jain. We would like to reproduce testimonies of Alkaben PW3, daughter of the victim so that any consistency, improvement, Page 19 of 101 R/CR.A/433/2006 CAV JUDGMENT exaggeration, omission or any contradiction appears on record or not and whether her version inspires confidence and they are reliable or not can be considered.
5.4 For the sake of convenience and for better appreciation of the evidence, depositions of PW3 Alkaben Exh.49 and Jitendrakumar Prakashchandra Jain PW4 Exh.55 are reproduced herewith:
Exhibit 49 Deposition of P.W. No.3 I do hereby on solemn affirmation state that, My Name is : Alkaben Father's Name : Prakashchandra Bherulal Jain Religion : Age Years : 20 Occupation : Household Residing at : Surat District : ExaminationinChief by Ld. A.P.P. Shri K.A. Buddhadev Oath Administered.
(1) I was residing in Plot No.650 of Page 20 of 101 R/CR.A/433/2006 CAV JUDGMENT Jalaramnagar Society situated near Gujarat Housing Board of Pandesara alongwith my parents at the time of incident. My father's name is Prakashchandra Jain. I have three sister and two brothers. Eldest sister's name is Kaushalya, then I am younger to her, then brother Narendra is younger to me, then sister Dimple is younger to Narendra and youngest one is my brother Jitendra. My sister Kaushalya got married in the February month before the incident and she came to our house for delivery about fifteen days before the incident. Our native is Boriyapur in Rajasthan State. Its taluka is Raypur and District is Bhilwada. Prakashbhai Amrutbhai Jain is my uncle. He resides in Surat.
We had shop with name Bhavani Jewellers in front of our house bearing Plot No.650. The said shop was run by my father, my sister Kaushalya, me and my Mother.
The incident happened on 15/12/2000 in the morning in our house which is located behind our shop. I, my mother Sushilaben, my father Prakashchandra Bherulal, my sister Kaushalya, my second sister Dimple, my brother Narendra and my younger brother Jitendra were at home in the night of incident. My father, my mother and my youngest brother Jitendra had been sleeping in the room below the backside of the shop in the night of incident. I, my sister Kaushalya, Dimple and my brother Narendra had been sleeping in the room on the first floor of our house. My brotherinlaw Hemantbhai came for dinner in the night of incident i.e. on 14/12/2000 and he stayed at our house till ten or eleven o'clock and thereafter, he returned to his house at Chikuwadi.
I was awaken up at half past six o'clock in the morning on 15/12/2000. My brother Jitendra woke me up by shouting from lower floor. He goes to school and I go to buy a milk, therefore, he made me wake up. I got up Page 21 of 101 R/CR.A/433/2006 CAV JUDGMENT and came down to lower floor from the first floor of the house. I asked my brother as to why he made me woke up so early. Our watch was not working and my mother said that today, it is late. Thereafter, I took money from my mother and went to buy a milk. I took fifty rupees from my mother. My mother slept again after giving money. My younger brother came down from upper floor and slept beside my father and my brother Jitu went to the toilet. I came to the shop from the house and went to buy milk after opening shutter (small shutter). It might be half past six to quarter to seven o'clock. I cannot say exactly as our watch was not working. The milk shop is situated at the corner after leaving five to seven shops from our shop. The said people were selling milk from the house only. I bought two pouches of milk. I asked the milk seller uncle as to what time it was. The uncle replied that it is quarter to seven o'clock. Thereafter, I returned with milk to my house through small shutter of our shop. I kept small shutter half open when I went to buy milk and returned to the house from the same half shutter. It is a door to enter into house from our shop. When I saw the said door, it was closed. When I tried to open it slightly, two persons dragged me inside the house and had put a knife on my throat and thereafter, threatened me not to shout otherwise they will kill me. I requested them not to kill me. Upon hearing my voice, my brother Jitendra started staring from the toilet. Both the said persons had seen my brother. Both the said accused saw my brother when he was staring me from the toilet. Both the said person uttered that one is still escaped. Thereafter, the said persons caught my brother Jitendra and tried to kill him. I requested them that you are god, please do not kill my brother, how I will survive?. I told them that take property and leave my brother. Thereafter, accused asked me i.e. one of the accused asked me that where is the locker. I told them that Page 22 of 101 R/CR.A/433/2006 CAV JUDGMENT one locker is upstair. I showed them the locker and both the said persons picked two thousand rupees cash from the locker and also took old silver coin. One of the accused was filling the articles lying in the shop in the school bag of my brother. The said person told me to fill the jewellery in the bag having print of Kamal Jewellers on it. Thereafter, I had filled the jewellery of our shop in the said bag. At that time, driver of school rickshaw of my brother came and knocked the shutter of the shop from outside. The said persons asked me as to who is he. I replied them that my brother goes to school and he is the rickshaw driver who takes my brother to the school. Thereafter, one of those two who kept knife on my brother had told me to say him that he will not go school today. I replied from inside the shop that Jitu will not go to school today. Thereafter, the rickshaw driver had gone. After collecting the stock of the shop, they told me to point them out the back exit way. There is a gate to exit backside from house. I first opened wooden door which did not contain any lock and thereafter, I opened the lock on the door of ironed grill. Someone was filling water on the backside of the house when the said persons were getting out of the house. Looking to the same, one person told to wait for two minutes. Thereafter, one person got out and another person locked me and my brother Jitu in toilet. and he told us not to shout for an hour else will kill us. I shouted in the name of my friend Pinky as soon as they went. My friend Pinky lives back side of my house. Pinky came over there and frightened and returned looking dead bodies lying over there and did not open the door of the toilet from outside. Thereafter, I started shouting that at least, open the door. Thereafter, Pinky's mother and one another uncle came there. They opened the toilet door from outside. Thereafter, I opened shutter of the shop in front of our house and went to the uncle who is the owner Page 23 of 101 R/CR.A/433/2006 CAV JUDGMENT of the Rajwadi shop opposite to our shop and called him. I told him that my parents have been killed. Thereafter, the said uncle of rajwadi shop came to my house with me.
I can identify the persons who came to my house and threatened me and my brother and locked us in the toilet if I see them. Witness points out both the accused of the case by hand gesture.
My parents and my brother Narendra were killed. I had not seen anyone killing them. I went to buy milk at that time. My parents and my brother Narendra were lying on the bed which is in the room lower backside of our shop. It was bleeding from their head and chest. I had not seen them properly. One accused had put knife on Jitu at that time. Witness pointing out towards accused no.2 Munna @ Ajay Rajpal Maurya and states that this accused had put knife on my brother. Deadbodies of my both sisters were lying in kitchen. I had seen their both deadbodies in kitchen when the accused told me to show back door and I went to show them back door and the accused locked me and my brother in the toilet. Both were lying upside down. I had not moved them. Out of the said accused, one had knife and another had an Axe. Both the accused were exchanging their weapons during the incident. The said persons were doing so that the first accused was keeping knife and second was keeping an Axe and after sometime, second accused was keeping knife with him and first was keeping an axe. Both the accused persons took away this axe and knife with them. By making a sign towards accused No.2 Munna alias Ajay Rajpal, the witness states that he had kept the knife in the pocket of pant. At present, he does not remember exactly in which pocket he had kept it. The witness, by pointing towards the accused No. 1 Arun Gurunath Dengi, states that the accused had kept the axe in the pant from the portion of the abdomen. The accused persons Page 24 of 101 R/CR.A/433/2006 CAV JUDGMENT took away with them the ornaments kept in both the bags. When they were putting the ornaments, one accused person was telling the other accused person in his language that Shubham, hurry up. Why are you making such delay. You people of Marwadi community have earned a lot, therefore, we have come. We are helpless. Witness states such by pointing out towards accused No.1 that this accused person had stated such. At the time of incident, one accused person had worn jacket and another accused person had worn sweater. I do not remember at present which accused person had worn what. The police recorded my statement on the 15th. I do not remember exactly when the statement was recorded, but it was not recorded in the day. I do not remember exactly whether it was recorded in the evening or at night. Thereafter, on the next day, that is, on 16th, the police recorded my statement. Thereafter, on 17th, 18th, 19th and 20th, my statement was recorded. In my statement on 17th, I stated that our ornaments worth rupees two to three lakhs have been stolen.
I was called in the Killa Court for identification parade of the accused persons. I do not remember the date at present. About ten to twelve boys were standing in a line there. Magistrate asked me as to who are the accused persons in this line. As he stated such, I identified both the accused persons who were standing in the line and who were present in the Court. My brother was also called to identify the accused persons. I had seen the accused persons at the time of incident and I remembered their faces. On the basis of that, I identified them in the identification parade.
I am being shown Muddamal article No. 53and on seeing the same, I state that this knife was in the hands of accused persons at the time of incident. I am being shown the axe of article No. 54 and on seeing the same, Page 25 of 101 R/CR.A/433/2006 CAV JUDGMENT I state that this axe was in the hands of the accused person at the time of incident. I am being show two mattresses and cushions of article No. 4 and on seeing the same, I state that these mattresses and cushions belong to my house. At the time of incident, my parents and brother were sleeping on both of these mattresses.
I am being shown shirt of article No. 2 x 1 and on seeing the same, I state that it belongs to my father. It was lying beside my father at the time of incident. Now, I state that I do not remember much about it. I am being shown sari of article No. 24 and on seeing the same, I state that it is the same sari as was worn by my mother at the time of incident. I am being shown the petticoat of article No. 25 and on seeing the same, I state that that petticoat was worn by my mother at the time of incident. I am being shown the petticoat of article No. 28 and on seeing the same, I state that that petticoat belongs to my elder sister Kaushalya. It is the same petticoat as was worn by her at the time of incident. I am being shown sari of article No. 26 and on seeing the same, I state that that sari belongs to my sister Kaushalya. That sari is the same as was worn by my sister at the time of incident. I am being shown shirt of article No. 31 and on seeing the same, I state that it belongs to my brother Narendra. He had worn that at the time of incident. I am being shown pant of article No. 32 and it is the same as was worn by my brother Narendra at the time of incident. I am being shown pant of article No. 48 and on seeing the same, I state that this pant belongs to one of the two accused persons. I do not remember as to which accused person had worn it. I am being shown jersey of article No. 47 and on seeing the same, I state that this jersey was worn by one of the two accused persons at the time of incident. I do not remember as to which accused person had worn it. I am being shown Page 26 of 101 R/CR.A/433/2006 CAV JUDGMENT shirt of article No. 49 and on seeing the same, I state that I do not identify this shirt. I do not know as to who had worn this shirt. I did not see clothes of the accused persons at the time of incident. One accused person had worn sweater on the inner clothes. I did not see as to what did he wear under it, but I had seen sweater and jacket. I am not aware about the pant. I am being shown pant of article 50 and on seeing the same, I state that this pant was worn by either of the two accused persons, but I do not remember as to which accused person had worn it. I am being shown sweater of article No. 51 and on seeing the same, I state that this sweater was worn by either of the two accused persons, but I do not remember as to which accused person had worn it. I am being shown jacket of article No. 52 and on seeing the same, I state that I do not have any idea about this jacket, but either of the two accused persons had worn a jacket. I do not remember at present, whether they had worn this jacket or not. I am being shown a frock of article No. 34 and on seeing the same, I state that this frock belongs to my sister Dimple. It is the same as was worn by her at the time of incident. I am being shown banyan of article No. 22 and on seeing the same, I state that this banyan belongs to my father. It is the same as was worn by him at the time of incident. I am being shown underwear of article No. 23. It belongs to my father. It is the same as was worn by him at the time of incident. I am being shown blouse of article No. 26. On seeing the same, I state that it was worn by my mother at the time of incident. I am being shown blouse of article No. 29. On seeing the same, I state that it is the same as was worn by my sister Kaushalya at the time of incident. I am being shown underwear of article No. 33. On seeing the same, I state that it belongs to either my father or Narendra. I do not remember as to whose underwear it was out of the said two persons. I am being shown underwear of Page 27 of 101 R/CR.A/433/2006 CAV JUDGMENT article No. 35. On seeing the same, I state that that underwear was worn by my sister Dimple at the time of incident.
Further examinationinchief is adjourned as the Court time gets over.
The above deposition was read over to the witness and she admits the same to be true.
Date: 4/2/2003 Before me,
Sd/ K.M. Shaikh
Joint District Judge,
Third Fast Track
Court, Surat
Readministered the oath to the witness and examinationinchief started.
I am being shown the ornaments kept in the plastic jar Nos. 1, 2 and 3 and on seeing these ornaments, I state that these ornaments were received from the Court on the condition of producing the same as and when ordered by the Court. Along with this, we also received ornaments kept in jar Nos. 4 and 5 on the condition of producing the same as per order of the Court. We have kept all these ornaments in the locker of the bank and today, we have produced these ornaments after obtaining them from the locker of the bank. On seeing the ornaments of jar Nos. 1, 2 and 3, I state that the ornaments kept in jar No.1 are anklets of silver for wearing in the feet. I do not know as to how many anklets are there in number. We had kept these ornaments in the shop for selling them. Both the thieves had taken away these ornaments from our shop at the time of incident. Both the accused persons had kept these ornaments in the bag in my presence. Ornaments of jar No.2 and 3 are also silver ornaments. The ornaments in jar No.2 contains anklets, silver glass, silver bracelets. Jar No.3 contains anklets. I cannot exactly tell as to how much ornaments are there in both these jars. Both these accused taken these jar Nos.
Page 28 of 101 R/CR.A/433/2006 CAV JUDGMENT2 and 3 putting into the bag in my presence. Upon seeing the ornaments of jar No.4, I state that there are silver and Bagasara made ornaments in this jar and the silver ornaments are gold plated which contain rings, earrings, mangal sutras, necklaces, chains, etc. Both the accused persons also took away these ornaments from our shop after putting them in a bag in my presence. I am being shown ornaments of jar No. 5 and on seeing the same, I state that all these ornaments are made of gold and these golden ornaments include rings for wearing in the hands, nose rings for wearing in the nose, ear rings for wearing in the ears, chains for wear in the neck, set of ornaments for wearing in the neck. Both the accused persons also took these ornaments from our shop at the time of incident after putting in the bag in my presence, which I identify. The jewellery in all these five jars are of my shop, which I identify. Police seized all these articles from both the accused persons and I identified these jewellery as lying in my shop at the time of Panchanama.
Cross Examination by Ld. Advocate Shri J. R. Gandhi for the Accused Persons It is true that, there is no wax seal affixed at present on the 5 muddamal jars produced today. It is true that, there is no seal fixed on the lid of the jars by thread in such a way that the lid may not opened. No slips bearing the signature of the Panchas or Police, have been affixed on these jars. The Ld. Advocate for the accused persons requests by written application that, as he wants to get further information regarding the said Muddamal and this witness is an important one and it is necessary to obtain the information, he requests to adjourn the deposition of the said witness after 2 to 4 days in the interest of justice. Learned A.P.P. does not have objection about this, and he states that, he is on leave from 15th Page 29 of 101 R/CR.A/433/2006 CAV JUDGMENT to 23rd therefore he requests to adjourn the matter on 25th. The further crossexamination of the said witness is adjourned on 25th by consent of both the parties.
Reading over the deposition to the witness, he admits it to be true.
Date: 13/02/2003 Before me, Surat. Sd/(K.M.Shaikh) Note: Five Muddamal jars are returned to
the witness with a condition to produce the same before this court during the deposition which is to be conducted on the next adjournment date on 25/02/03. The maternal uncle of the witness, Prakashchandra Jain has also come with him. The witness and his maternal uncle state that, they have deposited these jars in their joint names in the bank locker. Looking to such fact, the witness and his maternal uncle shall produce the pursis with an undertaking that they shall produce these jars before the court on the next date of adjournment.
Date: 13/02/2003 Before me, Surat. Sd/(K.M.Shaikh) Joint District Judge, 3rd Fast Track Court Surat Oath Administered: CrossExamination Commenced It is true that, there is a shop on the front side of my house, wherein there is one big shutter and one small shutter and an iron grill is fixed on these shutters. Every night, we firstly close the big shutter of the shop and then close the door of the grill and we close the small shutter of the shop from inside. Every night, we close the shutter and grill by locking it. When we need not to open the shop, we do not open the Page 30 of 101 R/CR.A/433/2006 CAV JUDGMENT big shutter but open the small shutter. We use the small shutter for stepping in and out of the house. If we enter in the shop through small shutter, there comes the counter of the shop in the left in front of big shutter. The small shutter may be 3 to 3.5 ft. wide. If we enter the shop through small shutter, there is a passage of about 5 ft. which extends to the main door of our house. There is a house behind the shop which contains one room, one kitchen and bathroomtoilet. There is toilet and bathroom next to the kitchen. There is an entrance door straightly in front of the small shutter of the shop. The said door is about 3 to 3.5 ft. wide. Ahead this door, there comes the door of the room and entering this room, there comes the separate door to enter in the kitchen. These three doors are in the vertical line. There is a door to exit behind our house. Entering the shop from outside, there comes the entrance door of the house and then the door of the kitchen and right side of the kitchen there is a bathroom and left to it, there is a toilet. There is a stair in the kitchen to go on the upper floor. There is an iron bar fixed on the door of the back side of our house and in the noon we close that door without lock and in the night we close it with the lock. There is a stair in the kitchen to go on the upper floor, which leads to the room of the upper floor. There are two rooms on the upper floor and a gallery out side. I do not know as to the length and width of our shop. I also do not know the length and width of the room and kitchen behind the shop. The size of the room and kitchen, situated behind the shop, is equal including the toiletbathroom. One can go on the upper floor from the stair in the kitchen and there is another room beside the room with the stairs on the upper floor and thereafter some portion above the shop contains the gallery. I, my sister and my brother Narendra were sleeping in the room beside the gallery on Page 31 of 101 R/CR.A/433/2006 CAV JUDGMENT the upper floor. My elder sister was married. When she came, she used to sleep with us on the upper floor. There is a ceiling on the toiletbathroom and it is a pakka construction. The cement window is fixed in toilet and bathroom. There were latches on the door of toilet and bathroom to shut them from inside and outside and both the doors could be locked. The cement window is fixed at the height of 5.5 ft. in the bathroom and toilet. We use the back side lane of our house for washing the utensils and clothes. One can go to the main road from the lane behind the bathroom. There is one house beside the lane of our bathroom and then there is main road. The doors of the bathroom and toilet open facing each other. They do not open towards kitchen. If the door of the toilet is closed, the person inside the toilet can not see anything outside the toilet. Now I state that one can see through the window of the toilet. If the doors of the toilet and bathroom are closed, one can see the square spot of the lane from the window of the toilet and bathroom, nothing else can be seen. We have a clock in the room of the upper floor and in the ground floor room. No other clock is anywhere. The clock is fixed on the wall of the door which is used to go in the kitchen from the shop. I can not tell as to at what height the clock is fixed. I do not know the height of the ceiling of our ground floor.
It is true that, the person standing near the small shutter of the shop, can not see the person using the toilet. My mother and father were always used to sleep in the ground floor room. My younger brother Jitu used to wake me up between 6:00 to 6:30 hours in the morning everyday, for going to school. He used to wake me up only not any other. I used to go to buy milk so he woke me up. We withdraw money from the counter of the shop in the evening for the domestic expense. We withdrew Rs.50/ everyday. We put the money Page 32 of 101 R/CR.A/433/2006 CAV JUDGMENT to the mother. I took the money from her while going to buy the milk. On the day of the incident, I took Rs.50/ from the mother and directly went to buy the milk. My brother Jitendra was studying in Gurukrupa School, which is situated in Harinagar. His school rickshaw arrived at 07:00 hours in the morning. I do not know the morning time of his school. If any customer visits our shop for shopping, he can see whatever is going on in our house. He can see the stair situated in the kitchen. There is a partition glass between the central room and the shop. The person standing in our shop can see the person who is sleeping in the ground floor room. There is a glass on the door. Now I state that there is a constructed wall between our ground floor house and shop and there is no glass in it but there is a glass in the door. Our house can be seen in from the door. We keep the door of the shop open in the noon and close it in the night. The person standing in the shop can not be seen,if standing behind the door of our house, but can be seen,if standing around the door of our house. The door is made of wooden and there is window bars on it. The below half portion is wooden and the above half portion is glass.
It is true that the gold and silver ornaments present in Muddamal jars, are being sold through wholesale by many businessmen in Surat. It is true that the shopkeepers like us purchase such ornaments from wholesale. We make certain ornaments ourselves even. I do not know as to whether the muddamal contains the ornaments made by us or not. Since we are selling such ornaments, I can identify them. But, there are no specific identification marks on them. My father used to go to purchase the ornaments. He used to mention in the register about the material he used to purchase. I do not know as to whether the police seized the said register from the Page 33 of 101 R/CR.A/433/2006 CAV JUDGMENT shop. I have not handed over the said register to the police. I had only informed the police that the gold and silver ornaments have been stolen, I did not inform as to what articles were stolen. It is true that when I kept the ornaments in the bag, I knew as to which ornaments had I kept in the bag. I did not inform the police as to which ornaments were stolen. Because, at that time my condition was worst. It is not true that at the instance of the police, I identify the muddamal ornaments. It is not true that the police have fabricated these ornaments for the evidence. The entire gold and silver articles of our shop was stolen. The articles of my sister's husband were kept in my shop, it was safe, we were keeping the same separately below the counter. The burglars had taken away the ornaments of my shop. It has not happened that the custody of the ornaments of my shop were handed over by the police to any of my relatives. I did not see thereafter the ornaments of my husband's sister which were kept below the counter. The people in my house had told that the ornaments of my sister's husband were not looted. Therefore, I am saying that the ornaments of my sister's husband were not stolen. I do not know as to in the tune of how many lakhs the articles were burgled. I did not make any calculation.
The police persons were indicating the people to me, they were asking whether they were the same people involved ? The police persons were showing the photographs of people and asking me whether anyone was present from them ? It is not true that I saw the photographs shown by the police and told that one of the person of said photograph on page no.11 was present. It is true that the police had recorded my statement on 18/12/2000. It is true that in my said statement before the police, such has been dictated that on being shown the photo album, there are photographs of 3 persons on the Page 34 of 101 R/CR.A/433/2006 CAV JUDGMENT back portion of page no.11. Out of them, there was one person resembling the present in the photograph wearing sky blue colored jacket and checks shirt inside. I do not know as to whether the police had produced the said person before me. It is true that I had told such before the police that the face of one of the accused resembles with the son of my maternal aunt.
I have seen Piyush Complex. It is true that the fast food carts are kept there. I do not know as to whether the police persons had taken me there. Presently I do not know as to whether I had seen the person namely Alpesh Kantilal Patel and informed the police that the murderer resembled him.
As the Court time is over, further cross examination is adjourned.
On reading over deposition to the witness, he admits the same to be true.
Date : 25/02/2003 Before me,
Surat. Sd/ (K.M. Shaikh)
Joint District Judge
3rd Fast Track Court,
Surat
Oath administered, cross examination
resumes :
I do not remember as to whether such was dictated in my statement dated 19/12/2000 that today you the officer called me at Piyush Complex at Pandesara, called around ten to twelve suspicious persons aged 22 to 25 years, made them stand before me, but none of them was involved in committing murder of my family member. But, the name of the person who has been indicated is Alpesh Kantilal Patel. One murderer resembling the same face is involved in committing murder of one of my family member. "The police had shown me the Page 35 of 101 R/CR.A/433/2006 CAV JUDGMENT photographs of certain persons, I do not remember as to on which date they had shown." I do not know as to whether later on I had dictated the statements regarding the persons in the photograph. The photographs were shown to me after arriving at my home. On that day, the police did not record my statement. It is true that I have dictated such in my statement dated 17/12/2000 that today you the officer showed me the photographs of the accused persons involved in earlier offence. But, none of the persons from the photograph are involved in murder of my family member.
The police persons had arrived to take me for the identification parade. Presently, I do not remember as to how many persons had arrived. I do not know as to whether he was a PSI or a Constable. They had arrived after around twenty days of incident, at around ten or eleven o'clock to call me for the identification parade. The police persons had returned after calling me at home, thereafter I had gone to Surat Killa Court with my maternal uncle. No any Police person met us at Surat Killa Court. We were sitting adjacent to the Magistrate's room, one person from the panchas had arrived there to call me. Thereafter, he took me to the place looking like a Court room. Around ten to eleven persons were standing in line there. The said accused persons were already standing in a line prior to we reached. I do not know as to who brought the accused there. No police persons were present there. I do not know as to whether any Police persons were present outside the Court. We were taken in the basement. The room was having half of the size of the Court. I did not see as to how many rooms were there. I may not identify the panch who had arrived to call me during identification parade. I had never seen the said panch prior to identification parade. After reaching at killa, we sat in the room adjacent to the magistrate's room. As one person asked me to sit at a particular place, Page 36 of 101 R/CR.A/433/2006 CAV JUDGMENT I sat there. I do not know as to who was he. The room wherein the identification parade was arranged, it did not have any partition. It was simply the room, one officer was sitting there. Around ten to twelve persons and two panchas were standing in the room of identification parade. The persons standing in a line were resembling the accused persons. I do not know about the age of persons who were standing in a line. I do not know as to who was Gujarati and who was non Gujarati among them. I had left studies one year prior to the incident. Thereafter, I was doing the household work and when my father was going out, I was sitting in the shop. The people of all castes were coming to my shop for the purchase. Wherein, the persons of Muslim, Gujarati, Udiya, Madi, etc were also visiting. It is not true that if there is any person of Udiya Madi community, by his look only he may be identified. It is true that I had lodged this application for getting the ornaments. I had not lodged this application before this Court. I do not know as to whether the accused persons were brought under Police Japta during hearing in connection with muddamal. I do not know Maheshbhai, but I know Sureshbhai Shah. I do not know that there are Police stations in Killa. I did not see the accused persons under police japta prior to I identified them during my deposition before the Court. It is not true that I am falsely stating that I had identified the accused persons during identification parade. It is not true that as I had frequently seen the accused under police japta in the Court, I have identified him during my deposition.
I know the girl namely Sarita, she was studying in my school. I do not know the girl namely Shital. I do not know as to whether Sarita resides at Amrutnagar. It is not true that I often visit Sarita's home. Sarita did not use to visit my home. We used to meet in school. We have studied in D.A.V Hindi Page 37 of 101 R/CR.A/433/2006 CAV JUDGMENT Vidhyalay, B.R.C at Surat. I do not know any person named Arun. I do not know as to whether he resides in Amrutnagar.
I do not wear wristwatch daily. I wear the watch when I go out of my home. My mother was lying injured after sometime when I returned home after buying milk. When she tried to get up, I made her to lie holding her shoulder. I did not informed Rajwadi Uncle immediately. The accused ran away after loading the articles and locked us in the toilet. When we were made to come out of the toilet, I called Rajwadi Uncle. Narendra was unconscious. He was unconscious even when the police came. As his body was a little warm, he was taken to the hospital. He died on the midway. It has not happened that police interrogated Narendra. It has not happened that Narendra replied a few questions. Police did not inquired me immediately. I was taken to another house. Police asked me only as to what had happened. As I was frightened at that time, I did not give all the facts to the police. I did not inform the police at that time that I had gone to buy milk. At the time of the incident, my brother Jitu was along with me only when I went with the accused to the upper floor with the key of the locker. I do not know as to which company the locker is made of. The locker means an iron cupboard. We have only one iron cupboard on the upper floor. When I went along with the accused on the upper floor, we stayed there for about five minutes. All these incidents, that I went to buy milk and returned, the accused threatened me, articles of the shop were loaded in the bags, we went to the upper floor, we were locked in the toilet and made to come out of the same, thereafter, I called Rajwadi uncle, might have happened within half an hour. When I saw the accused, the clothes on their body were blood smeared. It has not happened that their clothes were pouring with the blood. I do not Page 38 of 101 R/CR.A/433/2006 CAV JUDGMENT know as to whether there was blood on their hands. I did not pay attention to it. I do not know as to whether there was blood on their shoes or chappals. I did not pay attention to it.
I have dictated in my statement before the police that there is a door between our shop and our house to enter in the shop. When I saw, that door was closed at that time. When I tried to open a little, two persons dragged me inside the house. If the above facts are not written in my statement before the police, it should be considered that, as I was frightened, I could not inform such facts to the police. I dictated in my statement before the police that, thereafter, they caught my brother Jitendra and tried to kill him. It is not true that I did not dictate the above facts in my statement before the police. I do not remember it now as to whether or not I dictated such, in my statement before the police, that I told them to take the articles and release my brother. When the rickshawvala came, a knife was put on Jitu's neck. He did not put the same on my neck. It is true that I did not dictate in my police statement that both the accused were interchanging their weapons during the incident. Sometimes, one accused was holding the knife and the other was holding an axe and after sometime viceversa. It is true that I did not dictate in my police statement that "Marwadi tum log bahut kama gaye ho isliye hum aaye hain"(As you Marwadi people have earned a lot, we have come.) We used to put ornaments owned by us in the showcase for selling. I myself loaded and gave the ornaments. The accused also loaded the ornaments. At that time, no any blood stain was there on the ornaments. There were blood stains on the weapons which I had seen. I did not tell Rajwadi uncle that the accused were beating my parents and they would kill Page 39 of 101 R/CR.A/433/2006 CAV JUDGMENT them. The witness states voluntarily that she told Rajwadi uncle that her parents had been killed. When I was telling Rajwadi uncle, people had not gathered there. It is not true that when I went to Rajwadi uncle to inform, people had already gathered over there and the police had arrived. I do not know that I dictated in my statement before the police that I went to Rajwadivala, who resides opposite to us, and informed him that my parents and others had been killed. During this time, many people gathered and police also arrived. On the day of the incident, I saw that the accused had worn a jacket. I have seen the muddamal jacket. I did not pay attention as to whether this same jacket had been worn. I cannot say the measurements of the school bag and the jewelers bag in which I loaded the articles.
It is not true that the muddamal of the jars cannot be put in the school bag and the jewelers bag. It is true that the complainant Sureshbhai runs a business with the name Sadhana Jewelers beside his home. A big number of customers used to visit our shop. It is not true that Sureshbhai had a business competition with us. It is not true that Sureshbhai used to do black magic (through lemon, green chilly and coal) to end our business. I was apprehensive earlier that Sureshbhai used to put lemon, green chilly and coal on the road before our shop. Hence, I dictated such fact in my police statement. There were blood stains on the axe which I identified. I had seen that axe at the time of incident and hence I identified the same before the court. I do not know as to which company the knife which I identified was made up of. I also do not know as to what label was on the same. It is not true that I identified the accused falsely during identification parade as well as before the court, as I was told to do the same by the police. I was not present when the ornaments, about which I said, were seized from the Page 40 of 101 R/CR.A/433/2006 CAV JUDGMENT accused. The ornaments were not seized in my presence. It is not true that I state it falsely that, on 15/12/00, the incident of loot and murder had taken place. It is not true that I state it falsely that the loot of ornaments took place in my presence. It is not true that I have fabricated the loot incident, as I was told to do so by the police. It is not true that the accused were not present on the place at the time of the incident of loot and murder. It is not true that I state it falsely that I had seen the accused on 15/12/00 in my shop and home at the time of the incident. It is not true that I gave a false deposition against the accused and I implicated them falsely in the offence, as I was told to do the same by the police. The pouch of milk which I had brought dropped down from my hand when the accused dragged me inside.
Further crossexamination is adjourned, as the court hours are over.
On reading over the deposition, the witness admits the same to be true.
Date: 26/02/03 Before Me,
Surat. Sd/ (Illegible)
K.M. Shekh
Joint District Judge
Third Fast Track
Court, Surat.
Oath readministered to the witness:
Further CrossExamination by Ld. Adv. J.R. Gandhi:
The lock of the larger shutter was not opened at the time of the incident. I do not know as to whether the lock of that shutter was opened or not on 15th. It is true that it makes a noise when the shutter opens. The murderers had entered our house from the back door. On being asked by the accused to show Page 41 of 101 R/CR.A/433/2006 CAV JUDGMENT the back door, I did the same standing at the back door. At that time, I did not felt that someone was fetching water in the corridor of the back door. But, the accused had seen and said that someone was fetching water. I do not remember now as to whether or not I suggested the accused to stop for five minutes. After, I and my brother were taken out from the bathroom, I opened the lock of smallshutter and went to Rajwadi uncle to inform him. Witness willingly states that at the time of leaving the shop, accused persons had closed the lock of small shutter. On the backside of shop, shutter is not there but, a grilleddoor is there. At the time of incident, that grilled door was locked. I do not remember as to whether I informed the police that accused persons had locked the shutter. When I woke up in the morning, my mother told me as to why I had woken up late today. At that time, our clock was not working. It is true that if we shout from the back side of our house, people will come to help. On the day of incident, I informed Sureshbhai about the incident. Police had recorded my statement but, I do not remember as to when it was recorded. On the day of incident, our relatives residing in nearby villages were also called. The surname of our community are Kothari, Jain, Shah, Vani, Acharya etc. I do not know as to whether more muddamal was looted from the shop on that day than muddamal produced before the Court. I do not know as to whether I dictated in my statement before the police that murderers have looted half of the jewelery. It is not true that I am stating falsely that accused persons were present at the time of incident.
No ReExamination.
Deposition is read over to the witness and witness admits the same to be true.
Date : 28/02/2003 Before me, Surat. Sd/ (K.M. Shaikh) Joint District Judge Page 42 of 101 R/CR.A/433/2006 CAV JUDGMENT 3rd Fast Track Court, Surat Sessions Case No. 65 / 2001 Exhibit No. 55 Deposition of Prosecution Witness No.4 I do hereby, on solemn affirmation, state that:
My Name : Jitendrakumar
Father's Name : Prakashchandra
Surname : Jain
Religion : Hindu
Age About : 14 Years
Occupation : Study
Residing At : Surat
Taluka :
District : Surat
ExaminationinChief by
Ld. A.P.P. Shri K.A.Budhdev
I am residing at Jalaram Nagar Society, Gujarat Housing Board, Pandesara, Surat and presently I am studying in std.8. I am studying in Tapovan Sanskardham School.
Q: Where have you come today? A: I have come to the Court. Q: What happens if we speak lie? A: Speaking lie is a sin. Q: What happens if we speak lie on oath? A: It is a sin. Q: What is the name of our country? A: India. Q: In which city do you live? A: Surat.
Looking to the aforesaid statement Page 43 of 101 R/CR.A/433/2006 CAV JUDGMENT submitted by the witness, it appears that witness is understanding the seriousness of oath and he is mature to depose on oath therefore, it is hereby ordered to record the deposition of this witness administering oath. Oath Administered.
At present, I live in a hostel situated in Navsari. At the time of incident, I used to live in Jalaram Nagar Society situated in Pandesara and at that time I was studying in Std.6. We opened our jewelery shop infront of our house and it's name was Bhavani Jewelers.
My father and my mother used to sit in that shop. In the absence of my father, my sisterAlka or Kaushalya used to sit in the shop. I have three sisters namely Kaushalya, Alka and Dimple. Kaushalya is eldest sister. Alka is secondeldest sister and Dimple is youngest sister. We are two brothers. Narendra is elder than me and I am the youngest in my family. Dimple is elder than me and Narendra is elder than her. My father's name is Prakashbhai and my mother's name is Sushilaben. My sister Kaushalya was married to Hemantbhai. After the marriage, my sisterKaushalya and her husband used to live at Chikuwadi in Surat. At the time of incident, my sisterKaushalya came to our house. As she was pregnant, she came to our house. I have two uncles. Champak uncle is elder and Bharat uncle is younger than him. My grand mother's name is Badambahen. My grand mother lives in Rajasthan, Bharat uncle lives in Mumbai and Champak uncle lives in our village Lohiyapur. My maternal uncle's name is Prakashbhai Amrutbhai. He lives in Surat. I was studying in Std.6 in Gurukrupa School when the incident took place.
The incident took place at 06:30 a.m. on 15122000. On that night, I, my father and my mother were sleeping in the room situated behind our shop. My sister Kaushalya, Dimple, Page 44 of 101 R/CR.A/433/2006 CAV JUDGMENT Alka and my brotherNarendra were sleeping in the room situated on first floor. I had woken up before anybody else on that day. I had woken up early because I had to go to school. I shouted on Alka and told her to get milk from the shop as I was getting late. My elder brotherNarendra came down from the first floor and slept with my father. Thereafter, my sisterAlka went to get milk. I went to latrine after she went to take milk. Thereafter, two persons came to our shop. I came out from the latrine that means, I was watching from the latrine. I came out from the latrine after my sisterAlka came. Out of those two persons, one person threw a knife towards my sisterKaushalya. On hearing the uproar of my sister, Dimple and Kaushlya came down. First, one axeblow was given to Dimple and knife was thrown towards Kaushalya when she was trying to escape. She came down crawling. At that time I was watching from the latrine. At that time, I kept the door a little open and I was watching incident from that gap. When Kaushlya came down crawling, axeblow was given on her head. Thereafter, my sisterAlka came with milk. Thereafter, one person out of those two persons, pulled Alka inside the shop, when she was opening the door to enter the shop. Thereafter, one person out of those two persons, saw me inside the latrine and told that, "who is this person left ?". One person, out of those two persons, had put a knife on my sister's neck. Thereafter, I came out from the latrine. My sister told those two persons that she will live her remaining life with me. Thereafter, one person out of those two persons, asked as to where is the safe.? and my sister told that safe is situated on first floor. Thereafter, one person took me and my sister upstairs and he opened the safe and took two thousand rupees and my mother's silver chain from the safe. Thereafter, we came down stairs. Thereafter, those two persons had taken the bags of Star Coaching Classes and Kamal Jewelers. One was like a Page 45 of 101 R/CR.A/433/2006 CAV JUDGMENT school bag and one was cloth bag. Thereafter, those two persons, I and my sister went to the shop. Thereafter, out of those two persons, one person started filling the bag with gold and told my sister to do the same. One person put a knife on my neck and stated my sister to fill the gold in bag. Thereafter, out of those two persons, one person said that "Hurry up Shuubham." Meanwhile, auto rickshaw driver who used to drop me at school had come there. He knocked the shutter from outside and told that "Hurry up Jitendra." Out of those two persons, one person hinted my sister to tell him that Jitendra will not go today. Thereafter, my sisterAlka told that autorickshaw driver from inside the shop that "Jitendra will not go to school today." After filling the bags with gold and silver, those two persons took me and my sister into the kitchen. Thereafter, they made my sister to open the lock of kitchen. At that time, one aunt was fetching the water outside the backdoor. Thereafter, those two persons halted for two minutes. Out of those two persons, one person was stating that "Marwadi persons earn a lot, that's why we have to do this."
Thereafter, one of the two persons who was wearing a jacket kept the axe under his jacket at the abdomen and chest part and kept the knife in the pocket of his pant. Thereafter, one person left through the back door from the lane with two bags of Kamal Jewelers and Star Coaching Classes filled with gold and silver. Thereafter, the other person confided me and my sister Alka into toilet, closed the door from outside and left from there. Both my parents and my brother were lying dead in the room located behind the shop and puddles of blood were filled. At present I do not remember as to exactly at which place in the room they were lying. Kaushalya and Dimple were lying in the kitchen. They had also died. As the body of Naredra was warm, he was taken to hospital.Page 46 of 101 R/CR.A/433/2006 CAV JUDGMENT
After we were locked in the toilet, the person had stated that get the door open after sometime after we have left. After both of them left, my sister Alka shouted for Pinki. Pinki arrived but she went away due to fear. Thereafter, mother of Pinki arrived and Dashrathkaka, father of Pinki also arrived and he took us out from the toilet. Thereafter, my sister Alka and I opened the shutter of the shop from front side and went near Rajwadi uncle. We were crying. Thereafter, they went inside the house and saw and they came to know about the facts. Thereafter, we went to the house of Sureshbhai, owner of Sadhna Jewelers. Complaint was lodged by Rajwadibhai and Sureshbhai.
Two goons arrived in our house at the time of incident and they killed my father, mother, brother and sister and looted gold and silver jewelery. I can identify them by looks. The witness pointed out finger towards both the accused persons and identified them stating these two accused persons are those goons. The witness also states that if the knife and axe which were used in the assault, are shown, he can identify the same. Axe of muddamal article no.54 is shown to me and I state that this axe was with one of the two accused persons. Knife of muddamal article no. 53 is shown to me and I state after seeing the same that one of the two accused persons was armed with this knife. It did not happen that accused persons were captured and he was called for identification parade.
Q: Did the Executive Magistrate called you at Killa Chowk during investigation of this case.
A: Yes, I was called. Q: For what purpose you were called there? A: I was called there to identify two
accused persons out of 15 to 20 persons.Page 47 of 101 R/CR.A/433/2006 CAV JUDGMENT
Q: What procedure was conducted over there? A: My sister and I were taken to one room over there and one uncle came to us and took my sister. After some time, this same uncle came to call me. The place where I was taken was an office. One uncle was standing there and one uncle was writing. The person who had come to call me, was also standing there. I identified two persons out of all of them. I had identified the two accused persons present in the court today.
The police recorded my statement in connection with the incident. In this incident my parents, brother Narendra and sisters Kaushalya and Dimple have died. The Prosecution has not brought the muddamal gold and silver jewelery in the court today. The Ld. APP has stated that it is required to refer the muddamal in the deposition of this witness. As the Ld. Advocate for the accused did not raise any objection, further examinationinchief is adjourned in the interest of justice.
Date : 02/04/2003 Before me,
Surat. Sd/ (K.M. Shaikh)
Joint District Judge
3rd Fast Track Court,
Surat
Oath Administered
Further Examinationinchief continued:
I am shown jewelery contained in jars of muddamal article no. 1, 2, 3, 4 and 5 and I state after seeing the same that the accused persons looted these jewelery from our shop.
Crossexamination by Ld. Adv. Mr. J.R. Gandhi for the accused After seeing that two goons have arrived, Page 48 of 101 R/CR.A/433/2006 CAV JUDGMENT I did not shout and told my parents something. I did not go up and inform Kaushalya and Dimple. I did not shout from the toilet and called Pinki or her mother. Accused hurled knife at Kaushalya and the knife got stabbed on her back part. Shouts of my father and mother were heard. Shouts were heard for about two minutes. I did not go up and tell my sisters that shouts of my father and mother are being heard. I also did not call out any one from the toilet. I was standing and watching from the toilet. It is true that I have not dictated in my statement before the police that out of the two goons, one hurled knife to my sister Kaushalya. When both my sisters Kaushalya and Dimple were coming down after hearing the shouts, first axe blow was inflicted upon my sister Dimple and thereafter, as my sister Kaushalya tried to escape, one person hurled knife at her and got dragged to the floor." I have not dictated the above mentioned fact to the police, but one madam came and she had fixed something on ear and at that time I stated this fact before that madam.
By Court: Q: Why have you not stated the above mentioned fact before the police? A: As I was frightened at that time, I did not state this fact before the police at the time of recording my statement.
Crossexamination continued: First, the police recorded my statement in connection with the incident and thereafter, the madam recorded the statement. Madam recorded my statement on the same day when the police recorded my statement. At present I do not remember as to after how much time she recorded my statement, after my police statement. The madam used to write the answers I was giving before her. It is true that I have not dictated in my police Page 49 of 101 R/CR.A/433/2006 CAV JUDGMENT statement that when Kaushalya came down dragging, axe blow was inflicted on her head. I did not state this fact before the police because I was frightened at the respective time.
I have dictated such fact in my police statement that my sister Alka came back with milk. It is not true that I have not dictated in my police statement that my sister Alka returned with milk and thereafter, one of the two persons pulled in my sister Alka. When she was coming from the shop and about to open the door, she was pulled in. If the above mentioned fact is not dictated in the statement before me, then I do not want to render any clarification. The police may have inquired to me four to time times and recorded my statement. I do not remember as to whether the police had obtained my signature under the statement. It is true that I have dictated in my police statement that moreover, then one murderer took my sister Alka to upper floor to take out jewelery from the safe, the murderer and my sister Alka stayed at the upper floor for about half an hour. I did not go to upper floor with my sister Alka. I firmly believe that the murderers and looters had come to murder my family and not to commit loot."
It is true that when the murderers were going out of our house after confining me and my sister into toilet, my sister Alka told them 'wait for five minutes'. Someone was filling water outside, therefore, my sister stated this. It did not happen that when Alka returned with milk on the day of the incident, she knocked at the door of the toilet.
It is not true that I have dictated in my police statement that it is dictated in my police statement dated 16/12/00 that when my sister Alka went to bring milk, I went to toilet and my sister returned immediately Page 50 of 101 R/CR.A/433/2006 CAV JUDGMENT with the milk and knocked at the door of my toilet.
One of the murderers was stating to the other in his own language that "Hurry up, Shubham.".
Cross examination adjourned due to recess time.
On reading over the deposition to the witness, he admits the same to be true.
Date : 01/05/2003 Before me, Surat. Sd/ (K.M. Shaikh)
Cross examination is continued after administering oath as recess time is over:
My mother woke me up on the day of the incident. I called my sister Alka by shouting from downstairs. I saw my sister till she opened shutter while she was going out for bringing milk. I do not remember as to which side our toilet door opens. It is not true that the person sitting inside toilet cannot see the area of kitchen after opening toilet door a little. It is true that bathroom and toilet are separate. It is true that it was stated in police statement on 15/12/2000 that one of the two persons spoke in Hindi that, "Who is this left alive?" and I was taken out of bathroom to my sister." I was in bathroom initially, thereafter, I jumped into the bathroom. I must have been brought out of bathroom. I was not brought out of toilet.
Once, I went to Chok Bazaar Killa. I do not know which offices are situated over there. I do not know what the court of Magistrate is. I do not know what Executive Magistrate is. I do not remember as to whether someone came to inform me that I had to go to Killa. There was an officer in Killa; we were sitting in the adjoining room. The aforesaid officer instructed to sit in Page 51 of 101 R/CR.A/433/2006 CAV JUDGMENT the room beside his. No police officer stated anything. I do not remember as to whether I met the officer, who had instructed me to sit in the room, during entire ID parade got over. I was sitting in the room; from there I was taken to a big hall for identification. I was told in the big hall that, "These are the persons; identify the two accused from these persons.". I cannot state as to whether persons present over there were Hindu or Muslim. I know that customers came to my shop. I do not know that most of them were Odia Mali persons. I do not know as to whether there were Odia Mali persons in the line. I began going to school after one month of the incident. When I went to the office, the officer instructed to sit in the room nearby. I do not remember as to whether there was a wooden partition in the room of officer. I do not remember as to whether the officer's room was visible from the room in which I was sitting. I do not remember as to whether I had described body, complexion, height, physique and appearance in my police statement. I have not seen anyone who was tied with ropes and brought into Killa. It is true that when I went to Killa, I did not know where the office of the officer was located. I do not know how many persons were sitting in the officer's office when the officer instructed me to sit in the nearby room. When I identified an accused person, a person was writing down. I cannot state who the said person was. I do not remember what the officer was doing at that time. I do not know that persons of panch belonged to my community. I cannot state what the appearance of the officer was. I cannot state as to whether he was fat or thin. It is not true that panchas and policemen pointed out the accused to me beforehand and instructed me to identify them. It is not true that I had been shown both the accused in the court, when I came twice, before my deposition began; and therefore, I have identified the accused. I don't remember as to whether Page 52 of 101 R/CR.A/433/2006 CAV JUDGMENT anyone asked names and addresses of the accused I identified during ID parade.
I do not remember as to whether policemen took me to society in order to identify the killers. I had seen the jewelery on TV which I identified today. It is true that the jewelery I identified today are sold in most goldsilver shops. It is not true that I falsely state about the occurrence of loot on 15/12/2000.
It is not true that I falsely state that I was present in the house when my parents, sister and brother were killed. It is not true that I falsely implicated both the accused at the behest of police. It is not true that I falsely state that madam had recorded my statement at the time of incident. It is not true that I state falsely about going to the ID parade and identifying both the accused in the case. I used to go to school in rickshaw since I was in 5th standard. The rickshaw used to come to my house to pick me up at about seven o'clock. It is not true that I falsely state about having seen Axe and knife closely. It is not true that I state falsely that muddamal Axe and Knife were in hands of the accused during the incident. It is true that weapons such as old Axe and Knife are available in Saturday Bazaar. I do not know when my father purchased the jewelery which are produced in the court.
Q: You do not know what stock was in the shop. What do you have to say about this? A: Yes, I do not know what stock was there in the shop.
Q: Can you give the reason for identifying muddamal Axe and Knife?
A: I identify them as they were with both the accused during the incident. Q: Have you identified muddamal Axe and Knife due to any mark on them?
A: Both the accused had these weapons with Page 53 of 101 R/CR.A/433/2006 CAV JUDGMENT them. The Axe was old so I identified it.
No ReExamination.
On reading over the deposition to the witness, he admits the same to be true.
Date: 4/2/2003 Before me,
Sd/ K.M. Shaikh
Joint District Judge,
Third Fast Track
Court, Surat.
Exhibit167
Sessions Case No.65/01 Sessions Case No.65/01 Mark 26/3 Exhibit No.167 Date of filing: 30/11/02 Date of filing : Additional Sessions Judge, Addl. Sessions Judge, 9th Fast Track Court, 9th Fast Track Court, Surat Surat Outward No.3584/2000 Crime Detection Branch Surat City Date : 26/12/2000 To, The Director, The Forensic Science Laboratory, New Mental Corner, Asarva, Ahmedabad.
Sub: To conduct psychological and lie detection test on the eye witnesses and family members (1) Alkaben Prakashchandra Jain, aged 18 years (2) Jitubhai Prakash Jain, aged 12 years, who were present at the time of incident of merciless killing of five persons by two offenders in the loot case of Bhavani Jewellers registered with Surat City Pandesara Police Station vide I C.R. No. 202/2000 u/s 302, 394, 397, 34 of Page 54 of 101 R/CR.A/433/2006 CAV JUDGMENT the I.P.C.
It is respectfully submitted by L.M. Gohil, Police Inspector, D.C.B., Surat City that, Sureshbhai Mohanbhai Kothari is a complainant in the case registered with Pandesara Police Station vide I C.R. No. 202/2000 u/s 302, 394, 397, 34 of the I.P.C., who resides near the place of occurrence. The owner of Bhavani Jewellers resided at B/650, Jalaramnagar on 15/12/2000. There are shop in the front part and two storeyed residential house in the back part. There are two shutters one large and one small in the shop for entering the house. The small shutter is used as a door. The daughter of the deceased and eye witness Alkaben, aged 18 years, went to the entrance of the society to buy milk keeping small shutter partly open at about 6.30 a.m. on 15/12/2000. When she returned, partly open shuttle was closed and she went into shop by opening the same. There was a door of the house inside the shop. When she tried to open the door, two persons caught hold of her and showed knife and threatened her to kill and silenced her. At that time, family members her parents (1) Prakashchandra Bherumal Jain, aged 45 years (2) Sushilaben, wife of Prakashchandra Jain, aged 42 years, (3) elder pregnant sister Kaushalyaben, aged 21 years, (4) brother Narendra, aged 16 years and (5) sister Dimpalben, aged 13 years were killed with hammer and knife. Both accused persons were armed with weapons. Out of two accused persons, one person had worn brown coloured jacket and other person had worn white black coloured jersey. Both accused were Hindi speaking persons, aged about 2225 years and having medium physique, black complexion and without mustache. After keeping both Alkaben and Jitendra silent, they looted money from the cupboard situated at the upstairs with Page 55 of 101 R/CR.A/433/2006 CAV JUDGMENT the help of Alkaben and came downstairs and took ornaments worth Rs. 2,80,000/ from the Jewellary shop and put the same in two bags bearing names (1) Star Coaching Class and (2) Kamal Jewellers and thereafter, they locked both witnesses in the toilet after making Alka open the back door and fled through back door.
As Alkaben went to buy milk in the morning, taking advantage of lonely situation, both killers went into the shop. Though it was possible to loot the shop, they killed sleeping persons and Kaushlyaben and Dimpalben with hammer and knife. Meanwhile Alkaben came there, and they let Alkaben and Jitendra alive. Thereafter, though there was goods worth eight to nine lakh rupees in the shop, they have partly looted goods worth two and half lakh with the help of Alkaben.
Looking to the statements of both the eye witnesses (1) Alkaben, daughter of Prakashchandra Jain, aged 18 years (2) Jitendra Prakashchandra Jain, aged 11 years, recorded till date during the entire investigation and the facts stated by neighbours and relatives, it appears that there was no intention of loot in the present incident, but it is rather a prima facie case of intentional preplanned murder because the time of incident, conduct of the accused persons during the commission of offence etc. is highly doubtful. Moreover, there are many contradictions between the statements recorded during the investigation and inquiry of both eye witnesses.
In fact, whether statements given by both witnesses are true or they are concealing true facts by giving false statements (torn). Although they knew accused persons (torn), they do not reveal true facts due to some reasons.
The issues of contradictions raised Page 56 of 101 R/CR.A/433/2006 CAV JUDGMENT during the inquiry are as under: Question (1) Jitendra states that the accused persons wearing jersey took Alkaben upstairs and they came down after long time, whereas Alkaben states that they returned after some time. She also states that, "When we went upstairs, both I and Jitu went upstairs together." Jitu denies the same.
Question (2) Alkaben states that she made her mother lie down as she got up from the bed during the incident, whereas Jitu denies the same.
Question (3) Alkaben states that accused persons took Kaushlyaben's jewellery and jewellery of Bhagwati Jewellers, but in fact, the same have not been looted. As she herself filled the bag with jewellery, she states that she knows that the same were looted.
Question (4) When auto rickshaw driver came to pick up Jitu as per the routine, Alka shouted from inside, "Jitu will not come to school today." But, auto rickshaw driver denies to have heard such shouting.
Question (5) Alkaben has stated that at the time of leaving, the murderers have stated that " You Marwadi people earn lot of money by way of cheating and therefore, we have to come". But, Jitu has not supported this fact.
Question (6) Jitu has stated that when the murderers made Alkanben to open the door for their escape, they were told by Alkaben at the time of hiding them in toilet that " wait for five minutes as some lady is fetching the water ". Whereas, Alkaben states that this fact has been stated by the murderers.
Question (7) No blood stains were found Page 57 of 101 R/CR.A/433/2006 CAV JUDGMENT either on the body parts or on the clothes of Alkaben and Jitendra. The place was so incommodious that blood can certainly get stuck on the legs, clothes or on the body parts while moving the articles of loot, filling them in the bag, opening up the back door and confining both of them in toilet. Despite that, under what circumstances, no blood stains were found from the clothes or bodyparts of both of them.
Question (8) During the course of the incident, Alkaben got opportunity to shout for two times.
[1] When rickshaw driver blew the horn of his rickshaw to call Jitu and [2] When the murderers made Alkaben to open the back door for their escape.
Question (9) On 18/12/2000, when Alkaben was shown a group photograph of three persons, she identified one Alpesh Patel, out of those three persons, with certainty. But, she could not identify him in person.
Question (10) During the interrogation held at the office of the Police Commissioner till late night on 19/20, Alkaben stated that "she took the money for milk from cashbox". Whereas, she stated in her earlier statements that "Rs. 50/ for the milk were given by her mother".
Question (11) In the beginning, immediately after the occurrence of said incident, Alkaben had been stating before the Police Inspector, D.C.B. and Range that " I know one out of those two persons, but I wouldn't give any names. Otherwise they will kill me". Now, she does not state this fact in her statement or thereafter.
Question (12) In spite of seeing five brutal Page 58 of 101 R/CR.A/433/2006 CAV JUDGMENT murders i.e. parents, brother and sisters, no any facial expressions like grief, shock, mental agony and crying which are very natural for human beings were found on the faces of Alkaben and Jitu.
As aforesaid contradictions appear in the statements, it is requested to conduct psychological and liedetection test of both these witnesses in order to unearth the truth as to whether they are stating true facts or protecting the murderers by stating false facts and to send the report in that regard at the earliest.
Place : Surat, Sd/
(S.M.Gohil)
Dt: 25/12/2000 Police Inspector
D.C.B., Surat City
Seal :
Police Inspector,
D.C.B. Surat City,
Note: Copies of the complaint and
statements of Alkaben and Jitendra are enclosed."
[emphasis supplied] 5.5 For the sake of convenience and for better appreciation of the evidence, deposition of PW39 Shivsing Mansing Gohil, Retired Police Inspector is reproduced herewith:
Exhibit No. 166 Deposition of Prosecution Witness No. 39 Page 59 of 101 R/CR.A/433/2006 CAV JUDGMENTI do hereby on solemn affirmation state that: My name is : Shivsing Father's name : Mansing Gohil Religion :
Age about : 60 years Occupation : Retired P.I. Residence : Ahmedabad. District : Ahmedabad.
ExaminationinChief by Ld.A.P.P. Shri B.A. Dalal:
1) I was serving as P.I. in DCB Police Station in Surat in 2002. During the said period, there occurred an incident of loot in Bhawani Jewelers in Pandesara area and five murders on 15122002; I assisted in the said investigation. CP, Surat ordered on 1612 2000 to hand over the investigation of offence punishable u/s 302 of IPC registered vide FIR No. 202/2000. I assumed investigation of the said offence on 1612 2000. I gathered information in connection with jewelery stolen in the loot, murders of five members of Bhawani Jewelers along with PI Mr. Pandesara; moreover, various teams of DCB staff were formed and they were instructed to find out modus operandi of the accused, their faces, language used by them during the offences and stolen muddamal.
Thereafter, with the help of FSL, blood stains were found at the location from where the accused had escaped after committing offence; the same were seized before panchas.
2) Thereafter, as Alka and Jitu were the eyewitnesses of the occurrence, arrangement was made to prepare sketches of the accused involved in the same using computer. Thereafter, statements of the person who had arrived first and nearby residents namely Sumanben, Urmilaben, Dashrathbhai and 15 other shop owners and residents were recorded. List of remaining Page 60 of 101 R/CR.A/433/2006 CAV JUDGMENT silver and gold ornaments at the scene of offence in the shop was prepared and the same was given to the victim and Niteshkumar Soni. Receipt of the same was received from them. As the offence of loot and murders was still unsolved, statements of victims and relatives of victims of Bhawani Jewelers, maternal uncle, Sadhubhai and soninlaw were recorded. As Alka and Jitu were in shock due to loss of family members and seriousness of incident, their further interrogation was done on 17122000. As the accused had uttered the word "Shubham"; the same was heard by Alka; the same could be the name of one of the accused. On the basis of the same, search of an accused named Shubham was begun out of all the persons arrested in all the police stations in last ten years. I started investigation of the suspects released from jail and having similar age, facial description with the accused at the instruction of CP as PI of all police stations of the city and their teams were busy in search of the accused involved in the offence. Statements of relatives of Bhawani Jewelers, who had come from Rajasthan were recorded. Relatives were interrogated to find out the objective of offence as to whether it was personal enmity, business rivalry or any other reason. Search was done for the servants, workers who had worked at Bhawani Jewelers in the past or dealt with gold ornaments therein; statements of such witnesses namely Yogeshbhai, Dineshbhai were recorded. MCR Guard photos matching with the description of face of the accused involved in the offence were obtained from city police stations, police stations of state, state MOB and Bombay City Crime Branch from 162000 (sic) to 29122000; the same were shown to witnesses Alkaben and Jitu. Makers of gold and silver ornaments and people dealing with stolen stuff were also investigated to solve the crime. Meanwhile, I got the facts on 30 122000 that one of the accused involved in Page 61 of 101 R/CR.A/433/2006 CAV JUDGMENT Bhawani Jewelers namely Arun Pandesara of GIDC area should be investigated. PSI Mr. G.V. Desai from the team instructed me to investigate in connection with Arun. Mr. G.V. Desai gave the information that it appears that two persons namely Arun and Munna were involved in the offence. As the government had declared award of Rs. 1 lakh to solve the offence in connection with the said two persons, wide publicity was done in Pandesara, Udhna, Limbayat; therefore, we received information that both the said suspects might come in Piyush Complex area and we arranged the watch. Meanwhile, Arun Gurunath Degi , resident of Amrutnagar Pandesara was found and he was interrogated in connection with the occurrence. The accused Arun stated all facts in sequence from beginning to end and the the act committed by him and Munna; therefore, statements were recorded; panchnama of his physical condition was drawn before panchas; the accused Arun Gurunath Degi was arrested in the said offence. I am shown panchnama at Exh117; the said panchnama is about physical condition of the accused Arun Gurunath Dengi and arrest panchanama. Both the panchas put their signatures in them before me; I put my signature as 'before me'; it is the same. The accused Arun showed his willingness to give information in connection with muddamal and coaccused Munna during interrogation; panchas were called and the facts stated by in police custody were recorded before panchas. Thereafter, police personnel along with the accused drove in the vehicle as directed by the accused Arun and reached Sukinagar accompanied by panchas. We went into a house and asked for a key of bag for Munna; the same was opened using the key and looted golden silver and polished ornaments were seized for investigation and panchnama was drawn. Moreover, a motorcycle and clothes were seized before panchas and FSL for investigation; panchnama was drawn for the Page 62 of 101 R/CR.A/433/2006 CAV JUDGMENT same. The golden and silver ornaments seized at the said panchnama are produced in the court today; they are the same. The person namely Munna @ Ajay Rampal resident of Sukinagar, who was found from the said place, was involved along with the accused Arun; the accused Munna @ Ajay was interrogated. He also confessed everything from the beginning to end in connection with the offence; statement was recorded; two panchas were called and the accused Munna @ Ajay was arrested for the said offence; the said panchnama is produced at Exh69.
The interrogation of the accused Munna and Arun continued in connection with the said offence. Meanwhile, the accused Munna showed willingness to give information in connection with the offence; his statement was recorded before panchas and panchnama was drawn; Munna and police personnel drove in police vehicle to the place directed by the accused Munna in Sukinagar and led the police and panchas in police vehicle in the sim of Vadod village. Soil near bushes of babool in sim of Vadod village was dug up and produced a large knife saying "take this large knife". Moreover, an Axe as described in panchnama was produced from the babool tree. A place was shown a little distance from the said place and a pit was dug; he stated before panchas that bags had been buried over there. The said articles were seized before panchas and panchnama was drawn. The said panchnama is produced at Exh
73. Yadi was sent to Mamlatdar for ID parade of both the arrested accused by witnesses Jitu and Alka. Thereafter, remand of 10 days for both the arrested accused were obtained. The arrested accused Arun showed willingness on 02012001 to show locations where he had gone before and after committing the offence and to the place where he had escaped;
Page 63 of 101 R/CR.A/433/2006 CAV JUDGMENTpanchnama was drawn before panchas. Thereafter, as the accused Munna was willingly ready to give information in connection with the offence, his statement was recorded before panchas; the accused Munna was brought opposite his house in Amrutnagar with police; he showed the location before panchas; remains of burnt articles were seen at the said location. Upon investigating the location, two clips of bags were recovered. The accused Munna stated that bags containing muddamal were burnt at that location and the clips belonged to the bags. The same were seized before panchas. The said panchnama is produced at Exh126 and it is the same. Two panchas put their signatures on them before me; and I put my signature as 'before me'. (Now, I state that willingness of Munna was mentioned but Arun had showed willingness and Munna was mentioned by mistake.) Further statements of witnesses Jitu and Alka were recorded on 02012001 after the end of ID parade. As the accused Munna @ Ajay was willing to give useful information in connection with the offence during police custody, the same was recorded before panchas; the accused Munno was brought to the house of witness Ramchandra and he demanded jacket before panchas; the said jacket was given to Munna by witness Ramsing; the said jacket was seized before panchas and FSL. Thereafter, the bags in which muddamal ornaments had been put were found to bear description of Star Coaching Class and Kamal Jewelers on 04012001; therefore, one sample bag was obtained from administrator of Star Coaching Class namely Shrinath Nagesh and the same was seized before panchas; Mangilal from Kamal Jewelers produced a sample and the same was seized before panchas and panchnama was drawn. The said panchnama are produced at Exh 105 and 107; they are the same.
Statements of witnesses Shrinath Nagesh Page 64 of 101 R/CR.A/433/2006 CAV JUDGMENT and Mangilal were recorded. Muddamal ornaments seized during remands of the accused were shown to witnesses Alkaben, Sureshbhai and Dineshbhai; they stated them to be the looted ornaments before panchas; panchnama was drawn. Further statements of the witnesses were recorded. Yadi was prepared for all muddamal seized in the offence and the same was sent to FSL for analysis. The accused were sent to court custody at the end of remands.
Muddamal was sent to FSL; outward note and office copy of the same are produced at Mark 26/3. The said outward note bears my signature; ant the facts written therein are true. The same is given Exhibit167. Receipt for muddamal was given from FSL; the same is produced at Mark 26/4 in the case. The same is assigned Exhibit168. After analysis of muddamal had been done, FSL report was sent. The same is produced at Mark17/28 in the case. Moreover, serology report was sent; the same is produced at Mark17/29. Mark 17/29 is assigned Exhibit 169 and 170 respectively.
Report of blood group of the accused was received from New Civil Hospital, Surat. The same is produced at Mark17/26, 17/27; they are assigned Exhibit171 and 172 respectively.
As the offence was committed with aim of conspiracy and loot with murder, report was submitted before Hon'ble Court to add sections 120B, 34, 394, 397 in FIR.
The accused present in the court are the same. The muddamal seized in the case is shown to me and it is the same.
Upon finding the evidence against the accused, charges were framed. Recovered muddamal ornaments were shown to witnesses Alka, Hematbhai, Dineshbhai and Mangilal; and panchanama was drawn; the said panchnama is Page 65 of 101 R/CR.A/433/2006 CAV JUDGMENT produced at Exh122. Two panchas put their signatures therein before me; I put my signature as 'before me'. This ornament had been kept in a transparent sealed plastic jar.
The liedetection tests of Alkaben and complainant Sureshbhai had been conducted by F.S.L when the incident was undetected.
CrossExamination by Ld. Adv. Mr. J.R. Gandhi:
I had been entrusted the investigation of this offence at around ten to half past ten O'clock in the morning on 16/12/2000. I had taken over the charge from the PI Pandesara. It is not true that, the PI of Pandesara etc. were not supposed to take part in my investigation. I do not know anything now as to what task I had assigned to PI of Pandesara. The statements recorded before me were written by my writer as per my dictation. I am shown the statement of Jitu @ Jitendra Prakash Chandra Jain obtained on 16/12/2000. Seeing it, I state that the handwritings in it are of my writer Gunvantbhai. I am shown the statement of Jitu @ Jitendra obtained on 15/12/2002. It has also been written in the handwriting of my writer Gunvantbhai. I am shown the statement of Jitu @ Jitendra obtained on 15/12/2000. The designation mentioned below it is of P.I, D.C.B, Surat City. According to me, the words D.C.B have been written there by mistake. In the same manner, D.C.B has been written in the margin of page No. 2 of the said statement of Jitu. I am shown the statement of Alka obtained on 15/12/2000. Seeing the same, I state that the handwritings in it is of my writer Gunvantbhai. It is true that, on the page no.2 of the same statement, D for DCB has been written and after overwriting on it, 'Pa' for Pandesara has been written. It is true that, I had inquired Alka and Jitu and obtained their statements. On the basis of it, I felt that, both of them were giving Page 66 of 101 R/CR.A/433/2006 CAV JUDGMENT contradictory replies to some of the questions. It is true that, as the replies were contradictory, I had discussed with the FSL to know as to what the truth was. I do not remember now whether the FSL witnesses had given me the answers to the questions in writing to find out such truth. I am shown Exhibit 167. The designations mentioned in the first line of the last page of it is P.I, D.C.B and the officer subordinate to the Commissioner has been mentioned as Range Two in Roman letters. During my investigations and that of the Range Two officer, Alka could identify only one of the two accused persons. Alka had stated in investigation that, she knew, but she would not give the name, and thus, Alka was not willing to give the name of that accused. Because, she was afraid that, they would beat her also. I had conducted the lietest of Alka. I do not remember whether I had obtained its report or not. It is true that, as an investigating officer, it was my duty to get that lietest and produce the same with the chargesheet. It is not true that, as it was revealed from the lietest report that, the killers were someone else, I had not produced that report of lietest along with the chargesheet.
As an investigating officer, I state that, the person whom Alka could meet immediately after the incident can be considered as the best witness. I would obtain his statement if I could find him. Alka met Sumanben and Dashrathbhai firstly. I had obtained the statement of Shravansing Parbatsing Rathod. Alka met firstly to Shravansing Parbatsing Rathod after coming out of the house. Alka stated during my inquiry that she had informed Shravansing Parbatsing Rathod that, her father was being beaten up and he might be killed. But she had stated thus, as she was frightened.
In such incident, any person may Page 67 of 101 R/CR.A/433/2006 CAV JUDGMENT cry, feel grief and break down mentally. According to me, if the witness is immature, he may or may not feel mental disturbance. It is not true that, I had drawn a conclusion that no such symptoms could be seen. On the day when I had written the paper of Exhibit 167, I came to such conclusion that no such characteristics were observed in Alka and Jitu.
CrossExamination adjourned due to recess time.
Before me, Sd/ (J.S. Nariyelwala) Presiding Officer, 9th Fast Track Court Surat.
Date : 06/08/2005.
Surat.
Further CrossExamination begins,as recess time is over.
Oath Administered.
CrossExamination by Ld. Adv. Mr. J.R. Gandhi:
I do not know whether the place of the incident i.e. the ground floor, the middle room and the whole floor of the kitchen were blood smeared. I am shown Exhibit167. The facts therein have been dictated by me. I have dictated what I had observed at that time. After I took the charge, no bloodstained footprints had been seen from front to back side on the ground floor of the said property. It has not appeared in my investigation that Alka had seen the incident on her own. It is not true that Jitu was not an eyewitness of the incident. The toilet and the bathroom are opposite to each other. But I do not know as to which side their doors can be opened. It is true that, if the doors of the bathroom Page 68 of 101 R/CR.A/433/2006 CAV JUDGMENT and toilet are opened, we can first see an iron grill and then a wooden door. I know that the doors of the toilet and bathroom are of wooden. I do not know now whether a person sitting in the toilet can see a person standing at the small shutter even though its door may be open or close. When Alka returned after purchasing milk and the killers escaped, Alka and Jitu could not scream because an axe had been aimed at their throats. Therefore, they could not scream due to fear. I knew the fact that, an axe had been aimed at Alka's and Jitu's throats and they were frightened, when I wrote the letter of Exhibit167 to the FSL.
On 18/12/2000, Alka had been shown an album. It contained a groupphoto of three persons. Among these three, Alka had identified one. It is not true that, Alka had identified a person named Alkesh Patel with surety at Piyush Complex. The PI of Pandesara had called the fingerprint experts, photographer, FSL experts and the Dog squad. Among these, I had got the reports of the fingerprint expert, photographer and FSL. I do not know whether these reports have been produced along with the chargesheet or not. I had called only the FSL expert after taking over the charge. As an investigating officer I state that, on the basis of the fingerprints, it can be examined certainly as to who is the accused. It is not true that, as those fingerprints were not matching with that of the accused, I have not produced that documentary evidence. I had gone to the Piyush Complex with Alka twice. Alka had not identified anyone at this Piyush Complex. It had been revealed in my investigation that, Alka and the accused persons had filled the gold, silver and goldplatted ornaments in two begs in collusion. I had not instructed the fingerprint expert to obtain the fingerprints on the ornaments. Because I believed that fingerprints could not be Page 69 of 101 R/CR.A/433/2006 CAV JUDGMENT obtained from them. I had conducted lie detection tests of Alka and Jitu. Jitu and Alka had been brought to FSL, Surat for their liedetection tests. I do not know whether any madam had obtained the statement of Jitu by putting an instrument in his ear. I have not received the statement from this madam and therefore I have not produce the same along with the chargesheet. It is true that, the liedetection tests of both Alka and Jitu had been conducted after taking them to the FSL and I had not produced their reports along with the chargesheet, as I did not feel it necessary. It is not true that, as I felt that these two accused persons could not be involved through this report, I had not produced the same. The reports of the blood groups from the FSL were received before filing the chargesheet. As it was observed that the blood stains on the axe and the knife were to be of the deceased himself, they were sent to the FSL. I do not know that, the blood groups of the blood on the weapons and the same of the deceased were not matching. It is true that, if the blood groups of the deceased and the same of the weapons are not matching, it can be examined that these weapons had not been used in the incident. I have obtained the statements of about four witnesses many time. The statement of the complainant is not to be obtained after lodging the complaint, but if it requires during the investigation, it should be obtained. I have obtained the statement of the complainant Sureshbhai. It is not true that, as the complainant had given the time of the incident as 6 O'clock, I obtained his statement to change that time. It is not true that, the jacket was mentioned as maroon in Alka's first statement, but as this jacket was not found, it was written as a Blue Jeans Jacket after modifying the statement. It is not true that, to produce this jacket, a boy of police had been fabricated as a friend of the accused and modification in the statement Page 70 of 101 R/CR.A/433/2006 CAV JUDGMENT was made.
I did not have any sufficient evidence to allege the accused persons as murderer when I received the information. I received information as Investigating Officer. I did not receive information about the accused persons from any police officer, I was rather tipped off. It is not true that it appeared during my investigation till 29/12/2000, that complainant Sureshbhai was involved in this offence. I do not know that Alka was practicing black magic on us by throwing chillies, coal etc. at our shop due to business rivalry. They were not on duty when I received information regarding accused persons. Accused persons were found from the premise of Piyush Complex at 10:00 pm on 31/12/2000. I interrogated regarding place of work of accused persons. It is not true that statements of Alka and Jitu are exactly same. It is not true that even Panchanamas are verbatim and only effacement is different. It is not true that all the statements and Panchnamas were fabricated at police station. It is not true that police was not able to arrest the accused persons within 15 days and entire Jain community was protesting against the police, therefore those accused persons were falsely implicated. Members of Jain community made representation to detect the accused, it was not meant for making accusations. It is not true that I was not willing to discover the original weapons used in this offence. It is not true that false charge sheet was filed against the accused to pacify Jain community. Responsibility for conducting test identification parade was given to PSI Shri Hadiya. I do not know as to what he did in the test identification parade, but I know that he conducted test identification parade. It is not true that accused persons were shown to Alka and Jitu before their test identification parade commenced.Page 71 of 101 R/CR.A/433/2006 CAV JUDGMENT
I was present during the entire procedure of recovering gold and silver jewelery. It is true that we interrogate regarding the ownership and possession of jewelery which is found as Muddamal from any private house. If the details are found to be admissible in evidence, we place the same in charge sheet.
There is a slum near Sukinagar.
Shiladevi, mother of accused Munna, was undergoing treatment at Surat Civil Hospital. I obtained the report from the Medical Officer of new civil hospital. It is true that I obtained the evidences regarding ownership and possession of the room from which jewelery was found. I did not include the same in charge sheet because I did not find any necessity to do so. It is true that whenever any bag is found, during investigation, which seems to have been used for carrying jewelery, we obtain information in connection with brand of bag, as to from where and from which seller it was purchased, who purchased it, when was it purchased etc. I did not obtain any information regarding the bag. I obtained information regarding the colour and company of the bag. I did collect any information regarding it's owner. For Muddamal recovery, accused persons have not disclosed any fact as to from where the Muddamal is recovered and in what condition it is lying. According to me, there is no need of collecting evidence regarding connection of accused persons with the place where Muddamal is kept. But it becomes necessary if the ownership is determined. It is not true that false evidences have been collected by fabricating Panchanamas regarding Muddamal axe, knife, small iron rings etc. It appeared during my investigation that manager of Ishwarbhai Lakhubhai paid 3,000/ to Arun for settlement of his account, but, I Page 72 of 101 R/CR.A/433/2006 CAV JUDGMENT do not know as to whether any receipt was given or not. I recorded statement of Vinodhbhai Soni, contractor of End Printing Department of Oriental Dying and Printing Mills, during my investigation. He produced the attendance sheet. It is not true that I came to know from Contractor of Orient Dying Mill Vinodbhai Soni and Ishwarbhai Lakhabhai (Vipul Tax) that both the accused persons were on duty from 15/12/2000 to 31/12/2000. Presently, I do not recollect as to whether deceased Prakash Jain used to keep a stock register or not. It is true that the inventory of 14/12/2000 can be determined if such stock register was kept by him. It is true that Panchnama shall be drawn regarding the remaining stock. If stock register was maintained and panchnama was drawn regarding the stock, then it can be determined as to how much jewelery was stolen and valuation thereof. It is not true that Muddamal jewelery was seized without sealing it. Alka stated that accused persons took as much jewelery as they could in the bag, but she did not state it's weight or price. It is not true that Alka or Jitu have not stated before me that accused persons came with intention of committing murder and they did not come to loot. It is true that no Panchnama was drawn regarding the remaining stock after the loot. It is true that Alka has frequently changed her statement in respect of jewelery. It is not true that Alka has changed the facts stated by her, regarding her mother, in various statements.
It is true that Alka has not stated before me that, "There is one door to enter the shop from our shop. I saw that it was closed. When I went to open it, two persons pulled me inside the house." It is true that Alka has not stated before me that, "Take away the jewelery but spare my brother." It is true that Alka has not stated before me that, "Accused persons applied locks on the shutter." It is true that Jitu @ Jitendra Page 73 of 101 R/CR.A/433/2006 CAV JUDGMENT has not dictated before me that, "When my sister Alka brought milk, one person out of those two pulled her. She came inside the shop and when she was opening the door, they threw her." It is true that Jitu @ Jitendra has stated before me in his statement of 16/12/2000 that, "I was inside the toilet when my sister left to bring milk. When she brought milk, she knocked the door of toilet." Further Cross - Examination is adjourned due to completion of court hours.
Before me, Sd/ (J.S. Nariyelwala) Presiding Officer, 9th Fast Track Court Surat.
Date: 06/08/2005 Surat Oath administered to the witness. Cross Examination continue on oath. Cross Examination by Ld. Adv. Mr. J.R. Gandhi for the accused:
P.I. of Pandesara recorded statement of Sumanben Vishwanathsing on 15/12/2000. It is true that she had not dictated in the statement that "Alka was shouting the name of her neighbour Urmila Titu. I heard shouting."
Statement of Dashrathlal Mofatlal Patel was recorded on 16/12/2000. The said Dashrathbhai stated his residential address as 216, Jalaramnagar, Pandesara Housing Board. I don't know that Jalaramnagar and Jay Jalaramnagar are two different areas. It is true that Dashrathbhai Patel had not dictated in his statement that "I heard shouting that he killed." It is true that Dashrathbhai Patel had not dictated in the statement that "a lady namely Sumanben came to open the door." It is true that the said witness had not dictated in his statement that "the said Page 74 of 101 R/CR.A/433/2006 CAV JUDGMENT Sumanben came to open the door of the house where those two boys were detained and she was frightened upon seeing inside the house. The said witness has dictated in her statement that I saw an average structured in black jersey passing by my house with a bag in his hands when I got up in the morning on 15/12/2000 and got out of my house at about half past six o'clock to quarter to seven o'clock.
It is true that Kundanmal Balchand Jain has not dictated in his statement that "Alka had stated me that door from the shop to room was closed." It is true that Prakash Rajpar Patil the rickshaw owner has not dictated in his statement that "I had shouted the name of Jitu."
It is true that no bill regarding sale of jewellary by Dineshkumar Shantilal Sanghvi or amount towards sale of the said jewellary in the cash counter was found from the house of Prakash Jain. It is not true that it was revealed in my investigation that Alka returned within five minutes after buying milk. The complainant had stated that Alka went to buy milk at six o'clock in the morning. It is not true that I had recorded statement of the complainant to change the time of six o'clock she dictated in the complaint. I don't have any idea as to whether I had prepared computer sketch of the accused and produced it with chargesheet or not. Rough sketch showing site condition was prepared at that time. I had placed the said rough sketch alongwith chargesheet. It is not true that the dacoits completely destroy the evidence of eyewitness if they have come with intention of murder alongwith robbery. I have come to the conclusion that it is complicated question that they have left Alka and Jitu alive and there must be some secret behind it. It is not true that no robbery of jewellary took place at the house of Prakash Page 75 of 101 R/CR.A/433/2006 CAV JUDGMENT Jain. It is not true that I had gathered so many evidences during my investigation which I had not produced with evidences. It is not true that the said incident happened at the night time and I have not produced evidences as to how it happened and through whom it was happened. I had fabricated all the facts beginning after quarter to seven o'clock when Alka went to buy milk as nothing emerged in my investigation as to how the incident took place and by whom. It is not true that the version of discovery of an axe, knife, jewellery etc. is fabricated as no evidence was found against the accused. It is not true that Alka was not obstructed by anything when she returned after buying milk and knocked the door of toilet where Jitu was.
It is true that it was revealed in my investigation that Jitu was brought out from the bathroom. It is not true that I had not produced all the reports which were received from the experts. He is Alpesh Kantilal Patel who was shown near Piyush Complex in the statement of Alka on 19/12/2000 during my investigation. It was revealed that there was one killer having similar face like him. I had photo of Alpesh Kantilal Patel. I had not produced the said photo in this case. I did not feel it necessary to produce the photo of Alpesh Kantilal Patel alongwith chargesheet and to show that his face is similar to the accused to some extent.
It is not true that I had made changes in the records where the accused were working. It is not true that I had tempered with the attendance sheet which was bound. It is not true that false discovery panchnama are made up by placing muddamal articles at different places. I had not investigated as to where the said accused were working on the day when I got information about them. It is not true that I had kept waiting the accused and their mothers in the police station.Page 76 of 101 R/CR.A/433/2006 CAV JUDGMENT
I do not know that I had handed over the remaining ornaments to Hitesh Soni after noting it on the sheet and obtaining his signature. I don't know as to whether I had produced the said sheets with chargesheets or not. P.I. of Pandesara, Surat had not given me any receipt for the remaining ornaments. I cannot say at present as to whether the hooks of the toilet and bathroom were connected with iron grill and wooden part on the backside or not. It is not true that I had recorded twice the statement of Dashrathbhai Mafatlal Patel to change his statement. It is true that it was not revealed before me in the statement that Urmilaben called Dashrathbhai near front shutter. I did not find it to record their admission before the magistrate as the accused admitted the offence. It is not true that I have implicated the accused in the offence though they have not committed crime. No ReExamination.
Upon reading over the deposition to the said witness, he accepts it as true.
Date: 08/08/2005 Before me, Sd/ (J.S. Nariyelwala) Presiding Officer, 9th Fast Track Court Surat."
[emphasis supplied] 5.6 That testimonies of above witnesses are to be considered keeping in mind the sketch of offence Exh.165 prepared by Mahendra Solanki, Circle Officer, PW38 and also map of scene of Page 77 of 101 R/CR.A/433/2006 CAV JUDGMENT offence Exh.164, in the above map place of scene of offence is shown in red colour and in the crossexamination there is no wooden door between the kitchen and a room behind shop, but it is divided by a wall. The map also shows bathroom and toilet both are situated behind kitchen.
That PW4 Jitendrakumar Jain, son of victim Prakashchand Jain, is also an eye witness and if his testimonies are appreciated, it is not possible to see what happened in the kitchen.
According to PW4 he had seen two persons from the toilet and while his sister had arrived, he came out of the toilet and that has happened after Alkaben PW3 returned with milk. Out of two assailants, one has thrown knife towards Kausalyaben and thereafter another sister Dimple was also inflicted blow of axe and Kausalya, who was trying to escape was inflicted injury by throwing a knife and when she rolled out she was also inflicted a blow of axe. According to this witness, after the above incident her sister Alka had returned home with milk and she was attacked Page 78 of 101 R/CR.A/433/2006 CAV JUDGMENT inside the house by one out of two assailants.
The above fact was not stated before the police.
This witness has no idea that on which side door of the toilet opens and whether it is possible to see through toilet if the door opens outside of the toilet.
5.7 The incident had happened during PW3 Alkaben had gone to fetch the milk and returned while shutter of the shop was not fully closed.
So far as deposition of Sumanben Vishwanathsinh PW25 is concerned she stated that she is a neighbour on the eastern side of the house of deceased Prakash and family. That other neighbours viz. daughter Urmilaben, who was also shouting and PW25 asked Alkaben PW3 to which she replied that it is difficult to open the door and therefore daughter of Urmilaben was sent to open the door and had seen dead body in the kitchen and shouted. Therefore, all the above three witnesses were doubted to have seen the incident in question as the testimonies are found Page 79 of 101 R/CR.A/433/2006 CAV JUDGMENT unreliable particularly testimonies of Sumanben Vishwanathsinh PW25 and Urmilaben Exh.26 neighbours admitted that one of them had to gain shelter of the front door of the house and it was difficult to open and when such was the situation and door was also closed, how both the above witnesses entered into the house, remained unexplained.
5.8 The learned Judge has also considered that material in the context of evidence under Section 27 and manner in which investigation has taken place that in spite of serious doubt created about the manner in which crime was committed a letter dated 26.12.2000 was addressed by Investigating Officer to the Director, Forensic Science Laboratory, Ahmedabad on 12 different points which are requested to conduct lie detection test of the witnesses, but no material is brought on record in this regard.
5.9 For believing the evidence of Jitu PW4, Page 80 of 101 R/CR.A/433/2006 CAV JUDGMENT sketch prepared vide Exh.165 and testimonies of Mahendrasinh Solanki PW38 are important. That the above witness was working as a Circle Inspector in the office of the District Collector, who visited the place of offence upon receipt of Yadi Exh.164. That in the above map place of offence is shown in red colour and from crossexamination of PW38 it appears that between rear room of shop and the kitchen, no door exists, but it is separated by a wall.
Though bathroom and toilet are shown, but on which side door opens, etc. is not coming on record. That kitchen contains the platform and behind that W.C., toilet bathroom, etc. are situated. That in the front side of staircase and middle room, open space is shown. Admittedly, PW4 Jitu was in the latrine and bathroom and latrine are opposite to each other as per the map. If someone has to watch any activity in the kitchen from the toilet as per the map and situation, in ordinary course, it is not possible. Even the situation of kitchen, main Page 81 of 101 R/CR.A/433/2006 CAV JUDGMENT hall and the staircase leading to first floor if considered together, again it is not possible to witness any event. As per PW4 when his sister had gone to buy milk, he had gone to toilet and two goons entered into the shop as seen by him.
He came out of the toilet only after his sister arrived. By keeping the door of the toilet ajar he had witnessed that two assailants throwing knife to her sister Kausalya, who rolled down from the first floor. Before that, an axe blow was given to another sister Dimple and while Kausalya was trying to escape a knife was thrown by one of the assailants, which hit Kausalya and she rolled down and then a blow of an axe was inflicted. Thereafter, his sister Alka PW3 arrived and one of the assailants had pulled her inside. None of the above facts found in the statement of this witness before the police. It is categorically denied by him that before police no such narration of the incident was given by him as he was frightened.
Page 82 of 101 R/CR.A/433/2006 CAV JUDGMENT5.10 That testimonies of above PW4 is to be considered in juxtaposition to testimonies of PW 3, who on the date of incident viz. 15.12.2000 woke up around 6:30 am and PW4 shouted her to bring the milk and PW3 was on the first floor and questions her brother PW4 that why she was asked to get up so early in the morning. Then PW 3 goes to her mother for taking money for purchasing milk and after handing over money her mother goes to sleep again. That another brother of PW3, Narendra, who was on the first floor gets down and sleeps with her father and she goes to the shop of a milkman which was only at the distance of 5 to 7 shops, and when she returns to her home and movement she opens the door of the shop, she was threatened by two assailants. That she only narrates about loot of jewellery, but had not seen inflicting any injury. Therefore, doubt is created in the mind as to whether PW3 and PW4 had seen incident and they are eye witnesses. That PW3 was raising an alarm and opposite to the shop of father of the PW3, shop Page 83 of 101 R/CR.A/433/2006 CAV JUDGMENT of one Rajwadi is situated, but no such evidence appears on record. That Dashrath and Alka PW3 both of them knew each other and arrival of uncle at the scene of offence again is doubtful.
5.11 That knife was discovered at the instance of accused Munna @Ajay, who had also shown the place where knife was hidden in a rexin cover containing blood stains and at the distance of 15 steps nearby `babul' tree an axe was found out containing blood stains. The panchas have not supported the case of the prosecution as such.
5.12 That 52 samples were taken which included clothes of the accused Munna, who had put on a jacket, the items of jewellery and weapons used. That FSL and serological analysis reveal articles 1, 2 and 4 contain blood group A;
articles 5 AB group; articles 26 & 27 A group;
article 25 AB group; articles 26 & 27 A group;
articles 28 to 31 AB group; articles 32 to 39 A Page 84 of 101 R/CR.A/433/2006 CAV JUDGMENT group; article 40 AB group, articles 41 to 47 A group; articles 48 to 50 AB group; article 51 A group; and article 52 B group. If the blood group of the deceased and clothes of the deceased reveal blood groups A and AB, while on the axe blood group B is found. Considering the number of injuries and weapon used, at least blood group A or AB on axe should have been there. Though samples of blood were taken from the scene of offence including that of finger prints, no evidence emerges connecting the accused with the crime.
5.13 That PW3 categorically deposes that when the accused were in her house, one accused shouted, `Shubham hurry up' and this fact remains undisputed and none of the accused is known as Shubham and even any doubt about their name. No one was known even as alias Shubham. On the contrary, the record reveals that neighbouring shop having name of Shubham Jewellary which was later on sold or transferred to another person Page 85 of 101 R/CR.A/433/2006 CAV JUDGMENT and that owner of Shubham jewellery was relative of the victims and name of cousin of PW3 was Shubham. No report is available of Lie Detection Test, more particularly when different stories were put up by PW3 initially and was doubted by investigating officer. Though finger prints were obtained from the place of offence of the accused no evidence is produced on record.
5.14 Test Identification Parade reveals 12 to 15 dummy persons and the Executive Magistrate has written name of accused as Sarula at six different places in the panchnama.
5.15 Learned trial Judge has given cogent reasons for not believing the case of the prosecution and acquitting the accused persons by discussing all relevant evidence in the context of testimonies of PW3 and PW4.
5.16 That PW39 has categorically admitted in his crossexamination that Alka PW3 had stated Page 86 of 101 R/CR.A/433/2006 CAV JUDGMENT during investigation that she knew about accused persons, but she would not give the names of the accused because she was afraid. That lie detection test of Alka was conducted and Investigation Officer has not remembered as to whether he has obtained the report or not though he admits that it is his duty to get the lie detection test is produced along with charge sheet. Likewise, Police Inspector, Pandesara Police Station has called the Finger Prints Expert, photographer, FSL experts and dog squad and reports of all the above were available, but again Investigating Officer feigned ignorance as to whether those reports were produced along with charge sheet or not. Even with regard to blood groups of the blood on the weapons and such blood groups were not matching with that of deceased, PW39 admits that in such a case weapons could not have been used in the incident in question.
Even evidence obtained regarding ownership and possession of the room from which jewellary was found did not form part of the charge sheet even Page 87 of 101 R/CR.A/433/2006 CAV JUDGMENT safe custody of Muddamal is also not explained.
Further, it is admitted by him that in his investigation Jitu PW4 was brought out of the bathroom. About one Alpesh Kantilal Patel, who was shown near Piyush Complex in the statement of Alka PW3 dated 19.12.2000, from the investigation it was revealed that there was one killer having similar face like him and he had photo of Alpesh Patel, however, it was not produced on record.
5.17 Therefore, the manner in which such investigation is carried out by the Investigating Officer do not rule out false implication of the accused persons and that very doubt was raised by him based on contradictions in the statements even during the course of investigation seeking lie detection of the accused further strengthen the case of the defence that real culprits are not brought to the book for one or the other reasons and in such a case benefit of doubt given to the accused by the learned Judge warrants no Page 88 of 101 R/CR.A/433/2006 CAV JUDGMENT interference by this court in this appeal. In all testimonies of eye witnesses PW3 PW4 suffer from vice of material contradictions, major improvements and significant discrepancies, which do not inspire any confidence, and therefore, not believable.
5.18 In the case of Basappa v. State of Karnataka [(2014)5 SCC 154, the Apex Court in paras 9 to 16 held as under:
"9 The High Court in an appeal under Section 378 of Cr.PC is entitled to reappraise the evidence and conclusions drawn by the trial court, but the same is permissible only if the judgment of the trial court is perverse, as held by this Court in Gamini Bala Koteswara Rao and Others v. State of Andhra Pradesh through Secretary [(2009)10 SCC 636]. to quote :
[SCC p.639, para 14] "14. We have considered the arguments advanced and heard the matter at great length. It is true, as contended by Mr Rao, that interference in an appeal against an acquittal recorded by the trial court should be rare and in exceptional circumstances. It is, however, well settled by now that it is open to the High Court to Page 89 of 101 R/CR.A/433/2006 CAV JUDGMENT reappraise the evidence and conclusions drawn by the trial court but only in a case when the judgment of the trial court is stated to be perverse. The word "perverse" in terms as understood in law has been defined to mean "against the weight of evidence". We have to see accordingly as to whether the judgment of the trial court which has been found perverse by the High Court was in fact so."
(Emphasis supplied) 10 It is also not the case of the prosecution that the judgment of the trial court is based on no material or that it suffered from any legal infirmity in the sense that there was nonconsideration or misappreciation of the evidence on record. Only in such circumstances, reversal of the acquittal by the High Court would be justified. In K. Prakashan v. P.K. Surenderan [(2008)1 SCC 258], it has also been affirmed by this Court that the appellate court should not reverse the acquittal merely because another view is possible on the evidence. In T. Subramanian v. State of Tamil Nadu [(2006)1 SCC 401], it has further been held by this Court that if two views are reasonably possible on the very same evidence, it cannot be said that the prosecution has proved the case beyond reasonable doubt.
11 In Bhim Singh v. State of Haryana [(2002)10 SCC 461], it has been clarified that interference by the appellate court against an order of acquittal would be justified only if the view taken by the Page 90 of 101 R/CR.A/433/2006 CAV JUDGMENT trial court is one which no reasonable person would in the given circumstances, take.
12 In Kallu v. State of Madhya Pradesh [(2006)10 SCC 313], it has been held by this Court that if the view taken by the trial court is a plausible view, the High Court will not be justified in reversing it merely because a different view is possible. To quote : [SCC pp.317 18, para 8] "8. While deciding an appeal against acquittal, the power of the appellate court is no less than the power exercised while hearing appeals against conviction. In both types of appeals, the power exists to review the entire evidence. However, one significant difference is that an order of acquittal will not be interfered with, by an appellate court, where the judgment of the trial court is based on evidence and the view taken is reasonable and plausible. It will not reverse the decision of the trial court merely because a different view is possible. The appellate court will also bear in mind that there is a presumption of innocence in favour of the accused and the accused is entitled to get the benefit of any doubt. Further, if it decides to interfere, it should assign reasons for differing with the decision of the trial court."
(Emphasis supplied) Page 91 of 101 R/CR.A/433/2006 CAV JUDGMENT 13 In Ramesh Babulal Doshi v. State of Gujarat [(1996)9 SCC 225], this Court has taken the view that while considering the appeal against acquittal, the appellate court is first required to seek an answer to the question whether the findings of the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable and if the court answers the above question in negative, the acquittal cannot be disturbed. To quote : [SCC p.229, para 7] "7. ... the entire approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable. While sitting in judgment over an acquittal the appellate court is first required to seek an answer to the question whether the findings of the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellate court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then -- and then only -- reappraise the evidence to arrive at its own conclusions. ..."
(Emphasis supplied) 14 In Ganpat v. State of Haryana and others [(2010)12 SCC 59], at paragraph15, some of the above principles have been Page 92 of 101 R/CR.A/433/2006 CAV JUDGMENT restated. To quote : [SCC p.62] "15. The following principles have to be kept in mind by the appellate court while dealing with appeals, particularly, against an order of acquittal:
[i] There is no limitation on the part of the appellate court to review the evidence upon which the order of acquittal is founded and to come to its own conclusion.
[ii] The appellate court can also review the trial court's conclusion with respect to both facts and law.
[iii] While dealing with the appeal preferred by the State, it is the duty of the appellate court to marshal the entire evidence on record and by giving cogent and adequate reasons may set aside the judgment of acquittal.
[iv] An order of acquittal is to be interfered with only when there are "compelling and substantial reasons"
for doing so. If the order is "clearly unreasonable", it is a compelling reason for interference.
[v] When the trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of ballistic experts, etc. the appellate court is Page 93 of 101 R/CR.A/433/2006 CAV JUDGMENT competent to reverse the decision of the trial court depending on the materials placed. ..."
15 The exercise of power under Section 378 of Cr.PC by the court is to prevent failure of justice or miscarriage of justice. There is miscarriage of justice if an innocent person is convicted; but there is failure of justice if the guilty is let scotfree. As cautioned by this Court in State of Punjab v. Karnail Singh [2003)11 SCC 271] [SCC p.277, para 6] :
"6. There is no embargo on the appellate court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate court to reappreciate the evidence even where the accused has been Page 94 of 101 R/CR.A/433/2006 CAV JUDGMENT acquitted, for the purpose of ascertaining as to whether any of the accused committed any offence or not..."
(Emphasis supplied) 16 In this context, yet another caution struck by this Court in Chandrappa and others v. State of Karnataka [(2007)4 SCC 415] would also be relevant : [SCC p.432, para 42] "42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:
[1] An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
[2] The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
[3] Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. Page 95 of 101 R/CR.A/433/2006 CAV JUDGMENT are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasize the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
[4] An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
[5] If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."
(Emphasis supplied) 5.19 In the case of Dilawr Singh & Ors. v.
State of Haryana [(2015)1 SCC 737], the Apex Page 96 of 101 R/CR.A/433/2006 CAV JUDGMENT Court adverted to scope of Sections 378 and 386 of the Code, 1973 and relying on the decision in the case of Chandrappa & Ors. v. State of Karnataka [(2007)4 SCC 415] [para 42], in paras 36 and 37, the Apex Court held as under:
"36 The court of appeal would not ordinarily interfere with the order of acquittal unless the approach is vitiated by manifest illegality. In an appeal against acquittal, this Court will not interfere with an order of acquittal merely because on the evaluation of the evidence, a different plausible view may arise and views taken by the courts below is not correct. In other words, this Court must come to the conclusion that the views taken by the learned courts below, while acquitting, cannot be the views of a reasonable person on the material on record.
37 In Chandrappa and Ors. v. State of Karnataka (2007) 4 SCC 415, the scope of power of appellate court dealing with an appeal against acquittal has been considered and this Court held as under:
"42 .....[4] An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal Page 97 of 101 R/CR.A/433/2006 CAV JUDGMENT jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
[5] If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."
Unless there are substantial and compelling reasons, the order of acquittal is not required to be reversed in appeal. It has been so stated in State of Rajasthan vs. Shera Ram (2012) 1 SCC 602."
5.20 That in an appeal against acquittal filed under Section 378 of the Code, 1973, as such there is no limitation on the Appellate Court to review the evidence. But at the same time, if on fact as well as on law, conclusion drawn by the trial Court based on appreciation of evidence unless compelling, cogent and substantial reasons appear for interference and Page 98 of 101 R/CR.A/433/2006 CAV JUDGMENT when findings of the trial Court are palpably wrong, manifestly erroneous or demonstrably unsustainable, acquittal is not to be reversed or disturbed. When acquittal is based on the surmises and conjectures and not substantiated by law and evidence on record, an Appellate Court may reappreciate and review the entire evidence to see that undue benefit is not given to the accused. Now, it is well settled that even if two views are possible, the Appellate Court shall not ordinarily interfere with the judgment of acquittal in a routine manner unless the judgment of the trial Court is per se wrong on facts and on law or perverse, substituting its own views by the High Court is not permissible. That in case of acquittal, it is to be borne into mind by the Appellate Court that there is double presumption in favour of the accused that firstly, presumption of innocence in favour of a guilty on the premise that every person should be presumed to be innocent unless he is proved to be guilty by the Court of Law, and secondly, when accused Page 99 of 101 R/CR.A/433/2006 CAV JUDGMENT secures an acquittal, such presumption of innocence is reinforced and reaffirmed by the trial Court. That it is further well settled that even if two views are possible in an appeal against acquittal, the views taken by the trial Court if one of the possible views, then the view which favours the acquittal is to be not disturbed or interfered with.
6 In view of the above discussion and taking into consideration the law laid down by the Apex Court in the cases of Basappa [supra], Dilawr Singh & Ors. [supra] and Chandrappa [supra], we are in complete agreement with the findings, reasonings and conclusions drawn by the learned Trial Judge about failure on the part of the prosecution to prove its case beyond reasonable doubt warranting any interference by this Court in this appeal.
7 Accordingly, this appeal filed by the Page 100 of 101 R/CR.A/433/2006 CAV JUDGMENT State of Gujarat under Section 378(1)(3) of the Code of Criminal Procedure, 1973 challenging the judgment and order dated 28.12.2015 passed by the learned Presiding Officer, 8th Fast Track Court, Surat, in Sessions Case No.65 of 2001 acquitting the accused persons of the charges framed against them for the offences punishable under Sections 302, 394, 397, 34 read with Section 120(B) of the Indian Penal Code, is hereby dismissed.
R & P be sent back to the trial court forthwith.
(ANANT S. DAVE, J) (B.N. KARIA, J) P. SUBRAHMANYAM Page 101 of 101