Gujarat High Court
Vishal Vishnubhai Nayak vs State Of Gujarat on 10 March, 2022
Author: A.J.Desai
Bench: A.J.Desai, Samir J. Dave
R/CR.A/1748/2012 CAV JUDGMENT DATED: 10/03/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1748 of 2012
With
R/CRIMINAL APPEAL NO. 705 of 2012
With
R/CRIMINAL APPEAL NO. 725 of 2012
With
R/CRIMINAL APPEAL NO. 746 of 2012
With
R/CRIMINAL APPEAL NO. 770 of 2012
With
R/CRIMINAL APPEAL NO. 1216 of 2012
With
R/CRIMINAL APPEAL NO. 1217 of 2012
With
R/CRIMINAL APPEAL NO. 1549 of 2012
With
R/CRIMINAL APPEAL NO. 1747 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.J.DESAI sd/-
and
HONOURABLE MR. JUSTICE SAMIR J. DAVE sd/-
==========================================================
1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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VISHAL VISHNUBHAI NAYAK & 3 other(s)
Versus
STATE OF GUJARAT
==========================================================
Appearance:
MR BHARAT B. NAIK, Ld.Senior Advocate with Mr.Parthiv Bhatt, Ld.
Advocate for appellant of Criminal Appeal No.1549 of 2012.
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R/CR.A/1748/2012 CAV JUDGMENT DATED: 10/03/2022
MR J.M.PANCHAL, Ld.Senior Advocate for appellants of Criminal
Appeal Nos.705 of 2012 and 746 of 2012.
MR K.B.ANANDJIWALA, Ld.Senior Advocate with Mr.Vishal
Anandjiwala, Ld. Advocate for appellant of Criminal Appeal No.725 of
2012.
MR Y.S.LAKHANI, Ld.Senior Advocate with Mr. Vaibhav Vyas,
Ld.Advocate for appellant of Criminal Appeal No.770 of 2012.
MR JAL UNWALA, Ld.Senior Advocate with Ms.Tejal Vashi,
Ld.Advocate with Mr.Sandip M. Patel with Mr.S.S.Saiyed, Ld. Advocate
for appellant Nos.1 & 2 of Criminal Appeal No.1748 of 2012.
MR EKANT G AHUJA(5323), Ld.Advocate for Appellant No. 3 of
Criminal Appeal No.1748 of 2012.
MR HARDIK A DAVE(3764), Ld. Advocate for appellant No. 4 of
Criminal Appeal No.1748 of 2012 as well as appears for the respondents
of Criminal Appeal Nos.1216 of 2012 and 1217 of 2012.
MS PJ JOSHI, Ld. Advocate for appellant of Criminal Appeal No.1747
of 2012.
MR DHARMESH DEVNANI, Ld.Additional Public Prosecutor for the
Respondents - State of Gujarat in all the matters.
==========================================================
CORAM:HONOURABLE MR. JUSTICE A.J.DESAI
and
HONOURABLE MR. JUSTICE SAMIR J. DAVE
Date : 10/03/2022
CAV JUDGMENT
(PER : HONOURABLE MR. JUSTICE A.J.DESAI)
1. This group of appeals have been filed either under section 374 or 377 of the Code of Criminal Procedure, arise from common judgment and order dated 21/04/2012 passed by learned Additional Sessions Judge, Court No.7, Ahmedabad City in Sessions Case Nos.78 of 2006 with Sessions Case No.216 of 2006, wherein eleven accused have been convicted whereas two accused have been acquitted from the charges levelled against them. Hence, all the appeals are taken up for hearing today though different advocates have filed appeals for different convicts. The sentence imposed to each of the appellants, is stated hereinbelow:
Page 2 of 49 Downloaded on : Thu Mar 10 23:59:27 IST 2022R/CR.A/1748/2012 CAV JUDGMENT DATED: 10/03/2022 The appellants of Criminal Appeal No.1748 of 2012 namely Vishal Vishnubhai Nayak - original accused No.2, Jashwantsinh @ Jasu Maheshsinh - original accused No.3, Sunil @ Mankodi Triloksing Thakur - original accused No.4, Jayanti @ Don Odhavji Patel, original accused No.5; appellant of Criminal Appeal No.705 of 2012 namely Dhragpalsinh Pruthvisinh Chauhan - original accused No.8; appellant of Criminal Appeal No.725 of 2012 namely Ishwarbhai Khanabhai Sonara - original accused No.9; appellant of Criminal Appeal No.746 of 2012 namely Bhikhabhai Prabhatbhai Rabari- original accused No.7; appellant of Criminal Appeal No.770 of 2012 namely Paresh Kiritbhai Bhavsar - original accused No.12; appellant of Criminal Appeal No.1549 of 2012 namely Govabhai Nagjibhai Rabari - original accused No.1 and appellant of Criminal Appeal No.1747 of 2012 namely Niranjansinh Ramnandsinh Rajput - original accused No.6, have been convicted for the offence punishable under section 302 read with section 120-B of the Indian Penal Code and sentenced for life imprisonment and fine of Rs.1,000/- each and in default thereof payment of fine, simple imprisonment of six months, is awarded.
They are also convicted for the offence punishable under section 326 read with Section 120-B of the Indian Penal Code and sentenced for five years rigorous imprisonment and fine of Rs.1,000/- each and in default thereof payment of fine, simple imprisonment of six months, is awarded.
They are also convicted for the offence punishable under section 324 read with Section 120-B of the Indian Penal Code and sentenced for six months rigorous imprisonment and fine of Rs.500/- each and in default thereof payment of fine, simple imprisonment of three months, is awarded. As the aforesaid appellants are convicted for the offence punishable under section 120-B of the Indian Penal Code, no Page 3 of 49 Downloaded on : Thu Mar 10 23:59:27 IST 2022 R/CR.A/1748/2012 CAV JUDGMENT DATED: 10/03/2022 other punishment is awarded for the offence punishable under sections 143, 147, 148, 149, 201, 34 and 114 of the Indian Penal Code.
The respondent of Criminal Appeal No.1216 of 2012 namely Maheshbhai Shankerbhai Ratheria - original accused No.10 as well as respondent of Criminal Appeal No.1217 of 2012 namely Maleshbhai Ramsingbhai Marchedkar- original accused No.13 have been acquitted for the offence punishable under sections 302, 326, 324, 120(B), 143, 147, 148, 149, 201, 34 and 114 of the Indian Penal Code.
2. Short facts, emerging from the record, are as under:
2.1 That one Sachin Nagindas Modi, resident of city of Ahmedabad, who was an under-trial prisoner and kept in barrack No.6 of Sabarmati Central Jail, lodged an FIR (Exh.66) with Senior Police Inspector of Sabarmati Police Station, Ahmedabad City on 07/08/2005 stating and alleging that prior to his presence in the custody, he was working in a mobile shop in Kalupur area of Ahmedabad city. On 20/06/2005, he along with his brother namely Hemant Nagindas Modi and other four persons came to be arrested in a crime, which took place on 15/06/2005, in which, one Naresh Marathi was done to death. He along with his brother Hemant were kept in barrack No.6 in Sabarmati Central Jail. In the said barrack No.6, he developed some relation with one Chetan @ Betari Shankarlal Patel, who was also a prisoner in a murder case. He also declared that in past also, said Chetan @ Betari had undergone some sentence for some other offence.
2.2 It was further alleged in the said FIR that in the Sabarmati Central Jail itself, one Gova Nagjibhai Rabari, an under-trial prisoner, who was kept in barrack no.5 and was a gang leader of inmates in the Sabarmati Central Jail. Two gang persons (prisoners) of said Gova Rabari Page 4 of 49 Downloaded on : Thu Mar 10 23:59:27 IST 2022 R/CR.A/1748/2012 CAV JUDGMENT DATED: 10/03/2022 namely Vishal Vishnubhai Nayak and Jashwantsinh @ Jasu Maheshsinh had some dispute with another prisoner namely Uttam Adhvaryu in the jail. They demanded some protection money from said Uttam Adhvaryu, which he denied and therefore, those two persons had beaten said Uttam Adhvaryu by kick and fist blows. Said Uttam Adhvaryu, who was in barrack no.5 informed Chetan @ Betari Shankarlal Patel about the said incident and accordingly, said Chetan @ Betari informed Jailer Dhragpalsinh Pruthvisinh Chauhan, who intervened and ultimately, the issue was settled between said Vishal Nayak and Uttam Adhvaryu.
However, Gova Rabari, Vishal Nayak, Jashwantsinh @ Jasu and other inmates had grudge against Chetan @ Betari and were in search of chance to attack said Chetan @ Betari.
2.3 It was further alleged in the F.I.R. that the doors of the barracks open everyday at around 6:00 to 6:15 in the morning and inmates are permitted to start their daily routine. Certain inmates continue to sleep even after the gates are opened. It was further alleged that on 07/08/2005 itself i.e. on the date of lodgement of the FIR, though doors were opened, he along with his brother Hemant were sleeping in their beds in barrack No.6 and at around 6:45 am when he was sleeping, somebody fell on him and therefore, he woke up and since the person, who fell on him and was lying on him, pushed that person and found that Chetan @ Betari, who was sleeping in the next bed was in injured condition and he was profusingly bleeding. He found Jashwantsinh @ Jasu with a big knife; Sunil @ Mankodi Trilokichand Thakur with a knife like stripe; Vishal Nayak having a knife; Jayanti @ Don was also having a knife and one Niranjansinh Ramnandsinh Rajput, who was also having a gupti on his hand, were giving blows to said Chetan @ Betari with their knives and therefore, he tried to save Chetan @ Betari, pursuant to which, Page 5 of 49 Downloaded on : Thu Mar 10 23:59:27 IST 2022 R/CR.A/1748/2012 CAV JUDGMENT DATED: 10/03/2022 Sunil @ Mankodi gave a knife blow on his chest and on the left eye-brow and on his left hand. However, when his brother Hemant tried to save him i.e. complainant, Jashwantsinh @ Jasu, who was having a knife, gave a blow on the chest of Hemant as well as on his hand. He was also seriously injured. Thereafter, they again attacked Chetan @ Betari and done to death on the spot and ran away from the said barrack.
2.4 It was further alleged that the motive behind this attack was that at the instance of Gova Rabari, who is a gang leader and collecting protection money from inmates and when money demanded by Vishal Nayak was refused by Uttam Adhvaryu and when Chetan @ Betari intervened and complained to the jailor, to take revenge he was attacked and done to death. It was further alleged that Gova Rabari, who was an under-trial prisoner, had already got himself admitted in Government Civil Hospital prior to the date of incident.
The FIR was recorded by one Prabhudas Virjibhai Kotwal, Senior Police Inspector of Sabarmati Police Station, in the Sabarmati Central Jail itself and arrested some of the accused. Further, investigation was handed over to one Additional Police Commissioner Mr.P.K.Jha, who made two different teams to investigate the case. Further investigation was handed over to one Dy.S.P. of CID Crime, who was working as Assistant Commissioner of Police, Ahmedabad City, "L" Division by written order of Mr.P.K.Jha dated 26/10/2005. During the entire investigation, it was found that apart from those persons, who have attacked said deceased Chetan @ Betari, certain officers, who were working in the Sabarmati Central Jail and one outsider, were also involved in the crime by facilitating those accused to commit the crime, were also arrested. Initially, charge-sheet was filed against 10 accused. The said case was committed to sessions Court and sessions case number Page 6 of 49 Downloaded on : Thu Mar 10 23:59:27 IST 2022 R/CR.A/1748/2012 CAV JUDGMENT DATED: 10/03/2022 was given as Sessions Case No.78 of 2006. Subsequently, charge at Exh.35 was framed against those ten persons on 08/01/2007. On the same day, charge was also framed against three persons, whose charge-sheet was subsequently submitted and the case was committed to the Sessions Judge, which was numbered as Sessions Case No.216 of 2006.
All the accused denied charges and therefore, both the cases were tried together and evidence was recorded in Sessions Case No.78 of 2006. The prosecution examined 36 witnesses and produced several documents whereas accused Nos.3 to 5 examined two witnesses in their defence and produced certain documents. Accused Nos.8 & 9 also produced certain documents. Those documents are government communications in connection with the action taken by the jail authority. Learned Sessions Judge by the aforesaid common judgement and order convicted accused Nos.1 to 9, 11 and 12 for the offences punishable under Sections 302, 326, 324, 120(B), 143, 147, 148, 149, 201, 34 and 114 of the Indian Penal Code whereas original accused No.10 namely Maheshbhai Shankerbhai Ratheria and accused No.13 namely Maleshbhai Ramsingbhai Marchedkar came to be acquitted, against which, State of Gujarat has filed appeals.
During the pendency of these appeals, the appellants namely Bhikhabhai Prabhatbhai Rabari (sub-jailer) and Dhragpalsinh Pruthvisinh Chauhan (Jailer) and Ishwarbhai Khanabhai Sonara (Jailer) and Paresh Kiritbhai Bhavsar (co-convict) have been enlarged on bail. One of the appellant namely Sunil @ Mankodi Triloksing Thakur is absconding, however, learned advocate Mr.Ekant Ahuja has argued the case on his behalf. One appellant namely Ghanshyam @ Bavo Chimanlal Chauhan in Criminal Appeal No.806 of 2012 has expired and therefore, appeal qua that appellant is already abated.
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3. Mr.Bharat B. Naik, learned Senior Advocate appearing for the appellant namely Gova Rabari has taken us through the depositions of all prosecution witnesses as well as defense witnesses whereas Mr.Jal Unwala, learned Senior Advocate with Ms.Tejal Vashi, learned advocate appears for the appellants namely Vishal Vishnubhai Nayak and Jashwantsinh @ Jasu Maheshsinh; Mr.Hardik Dave, learned advocate appears for the appellant namely Jayanti @ Don Odhavji Patel and respondents namely Mahesh Shankerbhai Ratheria and Malesh Ramsingbhai Marchedkar; learned advocate Mr.Ekant Ahuja appears for the appellant namely Sunil @ Mankodi Triloksing Thakur; Mr.J.M.Panchal, learned Senior Advocate appears for two jail officers namely Dhragpalsinh Pruthvisinh Chauhan and Bhikhabhai Prabhatbhai Rabari; Mr.K.B.Anandjiwala, learned Senior Advocate with learned advocate Mr.Vishal Anandjiwala appears for jail officer namely Ishwarbhai Khababhai Sonara, have read the relevant part of the depositions of several witnesses and relevant documentary evidence. Mr.Y.S.Lakhani, learned Senior Advocate with Mr.Vaibhav Vyas, learned advocate, who appears for the appellant namely Paresh Kiritbhai Bhavsar, has taken us through the relevant part of the depositions of the several witnesses.
3.1 Mr.Bharat Naik, learned Senior Advocate appearing for the appellant namely Gova Rabari, would submit that though the prosecution has alleged that at the instance of Gova Rabari, other accused had attacked the deceased Chetan @ Betari with deadly weapons like knives, gupti, etc. and further alleged that conspiracy was hatched amongst the attackers, said Gova Rabari and also against the jail officers, has miserably failed to establish such conspiracy directly, indirectly or remotely. He would submit that it is an undisputed fact that on the date of Page 8 of 49 Downloaded on : Thu Mar 10 23:59:27 IST 2022 R/CR.A/1748/2012 CAV JUDGMENT DATED: 10/03/2022 incident i.e. on 07/08/2005 and prior thereto, the appellant- Gova Rabari had several health problems and on number of occasions, he was taken to the government Civil Hospital and as per the advice of the jail doctor, he got admitted in the Civil Hospital on 06/08/2005 since "sonography" was to be performed in Radiology Department in the Civil Hospital. It was further argued that it is alleged in the FIR as well as in the depositions of the injured witnesses that some altercations had taken place between Vishal Nayak and Uttam Adhvaryu about alleged demand of money however, for the reasons best known to the prosecution, said Uttam Adhvaryu has not been examined by the prosecution. He would further submit that as per the say of the complainant, the alleged incident had taken place at around 6:45 am, however the prosecution has not produced any documentary evidence like entry recorded by the Sabarmati Police Station stating how the incident was declared with Sabarmati Police Station and was further forwarded to the Police Inspector, who was at his residence when he was summoned in Sabarmati Police Station and to record the FIR.
3.2 Learned Senior Advocate Mr.Bharat Naik to elaborate his submissions about the ailment and treatment given at the government civil hospital, has taken us through the deposition of Dr.Rajnish Patel, Surgeon, PW-29, Exh-248 as well as deposition of Dr.Satnam Vaishnav, PW-28, Exh.247. By taking us through the deposition of Dr.Satnam Vaishnav, PW-28, he would submit that the said Doctor is working as Medical officer at government Civil Hospital. He along with another Dr.Kotval, who was working as medical officer in Sabarmati Central Jail, has categorically stated that though there was X-ray machine in the hospital at Sabarmati Central Jail, the same was not in working condition and there was no facility for "sonography" and therefore, he was given Page 9 of 49 Downloaded on : Thu Mar 10 23:59:27 IST 2022 R/CR.A/1748/2012 CAV JUDGMENT DATED: 10/03/2022 treatment from government Civil Hospital. He had examined the said Gova Rabari on 17/06/2005 to which, Dr.Vaishnav has made specific reference at government Civil Hospital and in support of his say, he has produced relevant documents. As per his own say, after 17/06/2005, the appellant - Gova Rabari was taken to the Civil Hospital on number of occasions for different investigations including sonography. On 05/08/2005, a medical officer from Civil Hospital referred said Gova Rabari for admission in the Civil Hospital on 06/08/2005. The date of sonography was already fixed on 08/08/2005 and accordingly, sonograpny was performed on 08/08/2005. He has also admitted that Gova Rabari was referred to Civil Hospital by him only on the noting made by the medical officer from the Civil Hospital. These facts are not in dispute since all these questions have been asked by the Public Prosecutor in the chief-examination of the said Doctor.
3.3 Similar is the say of Dr.Rajnish Patel, PW-29, who has stated that Gova Rabari had problems in urination since last three months when he had visited on 28/07/2005 and disclosed the same. Even X-Ray was taken on 28/07/2005. Since his ailment could not be detected only from X-Ray, he was referred for "Sonography". Since 07/08/2005 was a Sunday, no Sonography test could be performed on Sunday, patient got admitted on 06/08/2005 and sonography was carried out on Monday i.e. on 08/08/2005. He has also further stated that Gova Rabari was further asked to undergo intra vinis filography by radiologist of Civil Hospital and according to his opinion, his ailment cannot be treated as normal or critical. This medical officer has admitted that he was examined for his ailment only under the advice of medical officer from the jail dispensary and given appropriate treatment from the appropriate department.
Page 10 of 49 Downloaded on : Thu Mar 10 23:59:27 IST 2022R/CR.A/1748/2012 CAV JUDGMENT DATED: 10/03/2022 3.4 Mr.Bharat Naik, learned Senior Advocate therefore, would submit that the depositions of both the medical officers, make it clear that the allegations made by the prosecution that the appellant had asked the members of his gang to done away Chetan @ Betari on 07/08/2005 and deliberately got admitted in the hospital just prior to a day, cannot be accepted and therefore, learned Trial Court has committed an error in accepting the case of prosecution that conspiracy was hatched amongst the attackers, the appellant and other jail officers.
3.5 Mr.Bharat Naik, learned Senior Advocate would submit that some scuffle had taken place between Vishal Nayak (one of the convicts) and Uttam Adhvaryu on 26/07/2005. Ultimately, the said dispute was settled due to intervention of Jailor Mr.Dhragpalsinh Pruthvisinh Chauhan (one of the convicts). The said settlement has come on record through jail superintendent Mr.Harisingbhai Bhagabhai Bhabhor, PW-32, Exh-258. The said settlement was signed by Uttam Adhvaryu and Vishal Nayak and has been exhibited as Exh.262. By taking us through the said settlement, he would submit that there is no reference of either Gova Rabari or the deceased Chetan @ Betari at all. Both of them have given undertakings and assurance was given that such incident would never occur in future. Though it is alleged that Gova Rabari is kingpin and leader in the Sabarmati Central jail and after conspiring to done away Chetan @ Betari, there is no iota of any type of evidence, which would remotely involve the Gova Rabari in the crime and therefore, learned Trial Court has committed an error in accepting the say of the prosecution about the so-called conspiracy.
3.6 Mr.Bharat Naik, learned Senior Advocate for the appellant has vehemently submitted that the prosecution has deliberately hide the Page 11 of 49 Downloaded on : Thu Mar 10 23:59:27 IST 2022 R/CR.A/1748/2012 CAV JUDGMENT DATED: 10/03/2022 inception of crime and attack on deceased and also by suppressing several documents, the genesis of crime has not come on record. FIR has been lodged at belated stage after consulting the interested persons. In support of his submission, he would submit that as per the prosecution, the incident had taken place at around 6:45 am., however, has deliberately not produced those documents, which are most important and relevant like the person, who had informed the nearest Sabarmati Police Station about the crime and details about attackers though the same had taken place in the jail premises wherein deadly weapons were used by the prisoners.
3.7 He would submit that it is the case of prosecution that two persons were attacked by inmates from barrack no.6 and it has come on record that immediately they were treated at the jail dispensary, however, there was no disclosures of the names of those attackers before the jail doctors. Name of Gova Rabari has been deliberately included in the FIR, which has been recorded after 9:00 am. By taking us through the deposition of injured complainant namely Sachin Nagindas Modi- PW-1 at Exh-54, he would submit that he had taken treatment at jail dispensary where Jashwantsinh @ Jasu and Sunil @ Mankodi (appellants- convicts) had also gone to the jail dispensary for their own treatment. However, he did not disclose the names before the medical officer since he was under
constant threats by these two convicts. He further states that though it is stated by this complainant that some case was filed at the instance of Chetan @ Betari against Gova Rabari, however, there is no documentary evidence whatsoever produced and proved by the prosecution, which establishes the ulterior motive on the part of the complainant and prosecution to drag the present appellant in the crime. Though it is alleged by him that there was demand of money by Gova Rabari through Page 12 of 49 Downloaded on : Thu Mar 10 23:59:27 IST 2022 R/CR.A/1748/2012 CAV JUDGMENT DATED: 10/03/2022 Vishal Nayak from Uttam Adhvaryu, the prosecution has not examined said Uttam Adhvaryu as witness and therefore, learned Trial Court ought to have believed the case put forward by the appellant- Gova Rabari about any motive on the part of Gova Rabari and in absence of any evidence about his involvement in the crime prior to the date of incident or subsequent thereto, learned trial court ought not to have believed the charge of conspiracy against him.
In support of his above submissions, he has also attacked the credibility of another injured witness namely Hemant Nagindas Modi- PW-2 Exh-85 i.e. brother of the complainant. By taking us through his deposition, he would submit that he was admitted in the Civil hospital on 07/08/2005 itself and remained in hospital for few days, where his two statements were recorded i.e. on 07/08/2005 and 09/08/2005. Even his statement was recorded by the Executive Magistrate, however, in none of his statements, he has declared the name of the present appellant - Gova Rabari and so-called conspiracy hatched by him along with co-accused. He was admitted in emergency ward in the hospital for 10 to 11 days. He was hospitalized as under-trial prisoner for 4 days, however, he was released on interim bail and thereafter, he was admitted in general ward, however, he has not disclosed name of any of the accused including the name of Gova Rabari on the lame excuse that he was continuously under threats by some unknown persons. Even his third statement, which was recorded on 23/10/2005, name of Gova Rabari as conspirator was not disclosed. He has also not disclosed that he had tried to save his brother Sachin. By taking us through his cross-examination, he would submit that there are much improvements in his deposition before the court since the statements recorded by the Investigating Officer on various occasions, he had not disclosed names of any of the assailants. It is admitted by him in his cross-examination that the alleged threats were given by some Page 13 of 49 Downloaded on : Thu Mar 10 23:59:27 IST 2022 R/CR.A/1748/2012 CAV JUDGMENT DATED: 10/03/2022 unknown persons, is also not stated by him in any of his statements.
3.8 It is further stated that the story put forward by this witness Hemant Modi in his examination-in-chief, is washed away in view of the fact that he has admitted in his cross-examination that whatever he has deposed before the Court, was never part of any of his statements recorded either on 07/08/2005; 09/08/2005 and 23/10/2005. This witness cannot be believed in view of the fact that though he was in general ward in Civil Hospital and thereafter was released on temporary bail, did not disclose the name of any of the assailants under alleged threats by some unknown persons. On the contrary, he has admitted that he has not narrated entire incident when his statements were recorded. He has also admitted in his cross-examination that some of the convicts after changing their clothes, came to the jail dispensary and threatened him which is contrary to the record of the case. He has also admitted in his cross-examination that in the statement, which was recorded on 23/10/2005, he has disclosed that some persons had attacked Chetan @ Betari and when he tried to save said Chetan @ Betari, he sustained some injuries but, he does not know the person who had given such injurious blows. He, therefore, would submit that learned Trial Court has committed an error in accepting this witness as a natural witness since he was an injured witness.
3.9 By taking us through the deposition of another eye-witness namely Sandip @ Sonu Ramprakash Mehra, PW-3, Exh-96, learned Senior Advocate Mr.B.B.Naik would submit that though it is disclosed by him in his examination-in-chief that there was some quarrel between Vishal Nayak, Gova Rabari and Uttam Adhvaryu, the said fact was not disclosed in his statement, which was recorded on 08/08/2005 before the Page 14 of 49 Downloaded on : Thu Mar 10 23:59:27 IST 2022 R/CR.A/1748/2012 CAV JUDGMENT DATED: 10/03/2022 investigating officer, who had recorded the FIR. Thus, these witnesses namely Hemant Nagindas Modi- PW-2 and Sandip @ Sonu Ramprakash Mehra- PW-3 have improved their stories by dragging the name of Gova Rabari in the crime and have tried to help the case put forward by the prosecution through the complainant. Learned Senior Advocate Mr.B.B.Naik would submit that though the prosecution has examined one witness namely Jigish Bachubhai Thakkar (who was also an under-trial prisoner- inmate) PW-6, Exh-127 whose statement was recorded under section 164 of the Code of Criminal Procedure, no questions were asked to this witness by Public Prosecutor with regard to the details given by him in his statement recorded under Section 164 of the Code of Criminal Procedure before the Magistrate and therefore, nothing has come on record. Even the learned Magistrate, who has recorded the statement of this witness, is also not examined by the prosecution and therefore, his deposition is required to be discarded. Other so-called eye-witnesses, who were inmates in Sabarmati Central Jail, have not supported the case of prosecution and therefore, learned Trial Court has committed an error in accepting the depositions of these four witnesses and particularly injured Hemant Modi, Sandip @ Sonu Ramprakash Mehra and Jigish Thakkar.
3.10 Mr.B.B.Naik, learned Senior Advocate has relied upon several decisions of the Hon'ble Apex Court in support of his above referred submissions. By relying upon the decision rendered in the case of State (NCT of Delhi) V/s. Navjot Sandhu alias Afsan Guru reported in (2005)11 Supreme Court Cases 600, it has been held by the Hon'ble Apex Court that while examining the provisions of Section 120-A and 120-B of the Indian Penal Code, that though there might be suspicion about the involvement of an accused by hatching conspiracy, the said cannot take the place of legal proof. It has also been held in the said Page 15 of 49 Downloaded on : Thu Mar 10 23:59:27 IST 2022 R/CR.A/1748/2012 CAV JUDGMENT DATED: 10/03/2022 decision that to sustain a charge of conspiracy under section 120-A of the Indian Penal Code, there must be some evidence to the effect that the accused, who entered into agreement in the nature of conspiracy, had intended to play and had played some part in the agreed course of conduct involving the commission of an offence. But, if there is no evidence attributing any role, the person cannot be sentenced for conspiracy. In the present case, there is no iota of evidence about the conspiracy against the present appellant- Gova Rabari. It has also been held in the aforesaid judgement, which has been again discussed in the unreported decision case by the Hon'ble Apex Court in the case of Praveen @ Sonu V/s. The State of Haryana rendered in Criminal Appeal No.1571 of 2021 decided on 07/12/2021 that a few bits here and a few bits there on which prosecution relies, cannot be held to be adequate for connecting the accused with the commission of crime of criminal conspiracy and ultimately, acquit the person, who was convicted for the said offence.
By relying upon the decision rendered by the Hon'ble Apex Court in the case of State through Central Bureau of Investigation V/s. Mahender Singh Dahiya reported in (2011)3 Supreme Court Cases 109, learned Senior Advocate Mr.Bharat Naik would submit that the Courts have to be extra cautious and not be swayed away by strong sentiments of repulsion and disgust, no matter how diabolical the crime is and when the prosecution has failed to prove the guilt of the accused.
3.11 Mr.B.B.Naik, learned Senior Advocate appearing for the appellant would further submit that apart from the above aspects, a statement of a witness recorded under section 164 of the Code, is not a substantive evidence and it can be used only to corroborate or to contradict the witness. In support of his submissions, he has relied upon Page 16 of 49 Downloaded on : Thu Mar 10 23:59:27 IST 2022 R/CR.A/1748/2012 CAV JUDGMENT DATED: 10/03/2022 the decision of the Hon'ble Apex Court rendered in the case of State of Dehli V/s. Shri Ram Lohia reported in AIR 1960 SUPREME COURT 490, wherein it has been held that specific questions are required to be put to the witness, whose statement has been recorded under section 164 of the Code, which has not been done in the present case.
3.12 By relying upon the decision of the Hon'ble Apex Court in the case of Ganesh Bhavan Patel and another V/s. State of Maharashtra reported in AIR 1979 SUPREME COURT 135, he would submit that the ratio laid down by the Hon'ble Apex Court in the aforesaid decision is applicable in view of the fact that FIR as well as statements of the witnesses have been recorded at a belated stage and therefore, entire investigation, subsequently carried out, creates doubts, which would go in favour of the accused. He would further submit that the approach of the appellate court in appreciation of evidence, would be like the trial court itself and has come to an independent conclusion, as to whether the said evidence can be relied upon or not and whether the case is proved beyond reasonable doubt on the said evidence. In support of his submission, he has relied upon the decision of the Hon'ble Apex Court rendered in the case of Padam Singh V/s. State of U.P. reported in (2000)1 Supreme Court Cases 621.
By relying upon the decision of Hon'ble Apex Court in the case of Mousam Singha Roy and others V/s. State of West Bengal reported in (2003)12 Supreme Court Cases 377, Mr.Bharat Naik, learned Senior Advocate would submit that when the case is based on circumstantial evidence and particularly with regard to the appellant - Gova Rabari and other jail officers, who have been charged with conspiracy are concerned, the Court is supposed to examine the stricter degree of proof relied upon by the prosecution.
Page 17 of 49 Downloaded on : Thu Mar 10 23:59:27 IST 2022R/CR.A/1748/2012 CAV JUDGMENT DATED: 10/03/2022 Similar is the ratio laid down by the Hon'ble Apex Court in the case of Narender Kumar V/s. State (NCT of Delhi) reported in (2012) 7 Supreme Court Cases 171 as well as in the case of Ashish Batham V/s. State of M.P. reported in (2002) 7 Supreme Court Cases
317. Mr.Bharat Naik, learned Senior Advocate, therefore would submit that the conviction of the appellant - Gova Rabari may be quashed and set aside.
4. Mr.J.M. Panchal, learned advocate appearing for the jail officers, has vehemently submitted that learned Trial Court has erred in convicting the jail officers, who have been charged for conspiracy with those accused, who had attacked the deceased with deadly weapons. The allegations against the jail officers are that they allowed the attackers to commit the crime by indirectly permitting to have the weapons, which were received from outside the jail. However, prosecution has miserably failed to establish the same in view of the fact that none of the jail officers were posted on the gate of the jail, from where allegedly weapons had reached inside the jail premises. He would further submit that as per the charge framed against the jail officers, who are convicted as well as acquitted against whom, appeals are filed by the State authority is that one of the jail officer namely Dhragpalsinh Pruthvisinh Chauhan, who was senior jailer, had settled the issue between Gova Rabari - accused No.1 and deceased Chetan @ Betari. However, there is no material whatsoever either produced by the prosecution or indirectly proving that any dispute was settled between the deceased Chetan @ Betari and the appellant - Gova Rabari.
4.1 On the contrary, as per the prosecution case and as per the witnesses examined by the prosecution, there was a dispute between one Uttam Adhvaryu and another appellant namely Vishal Nayak. The Page 18 of 49 Downloaded on : Thu Mar 10 23:59:27 IST 2022 R/CR.A/1748/2012 CAV JUDGMENT DATED: 10/03/2022 settlement was recorded by Jailor-Mr.Dhragpalsinh Pruthvisinh Chauhan and both of them have signed the settlement and they assured that in future no dispute or quarrel shall take place in the jail premises. He would submit that said Uttam Adhvaryu has not been examined at all by the prosecution and therefore, the allegation levelled against the present accused - Dhragpalsinh Pruthvisinh Chauhan that he deliberately did not send Vishal Nayak in separate barrack and provide facility to commit the crime itself, would not establish any conspiracy amongst the attackers as well as other accused, who are either convicted or acquitted.
4.2 By taking us through the deposition of PW-32, Exh-258 namely Mr.Harisingbhai Bhagabhai Bhabhor, who was in-charge Superintendent of Sabarmati Central Jail, he would submit that being a in-charge superintendent of the jail, he used to visit several barracks regularly and on many occasions, there were surprise checking. He would submit that there are duties of the Jailor as per Circular referred at Exh.282 and it is also true that Jailor has to keep a watch on the prisoners but if there is dereliction of the duties, those jail officers, who have been convicted only on this ground of dereliction of the duties and in absence of any other material, the orders are required to be quashed and set aside and acquittal granted in favour of the jail officers may be upheld and the appeal filed by the State may be quashed and set aside.
4.3 He has also adopted the arguments advanced by Mr.Bharat Naik, learned senior advocate with regard to the duties of the appellate court while dealing with serious case of murder.
4.4 He has also relied upon the decision rendered by the Hon'ble Apex Court in the case of K.R.Purushothaman V/s. State of Kerala reported in (2005) 12 Supreme Court Cases 631 and particularly observations made in Para-13 of the said decision, which says that each Page 19 of 49 Downloaded on : Thu Mar 10 23:59:27 IST 2022 R/CR.A/1748/2012 CAV JUDGMENT DATED: 10/03/2022 and every incriminating circumstance must be clearly established by reliable evidence and the circumstances proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn, and no other hypothesis against the guilt is possible. He has relied upon the decision of the Hon'ble Apex Court rendered in the case of Baldev Singh V/s. State of Punjab reported in (2009) 6 Supreme Court Cases 564, by which, Hon'ble Apex Court has considered the issue of criminal conspiracy. He has relied upon the decision of the Hon'ble Apex Court rendered in the case of State of Karnataka V/s. L. Muniswamy and others reported in (1977) 2 Supreme Court Cases 699.
4.5 By relying upon the decision of the Hon'ble Apex Court in the case of State (Government of NCT of Delhi) V/s. Nitin Gunwant Shah reported in (2016)1 Supreme Court Cases 472, he would submit that when a person is charged with criminal conspiracy and that too with regard to crime of murder, the prosecution is bound to establish that there are meeting of minds amongst the conspirators and there must be proof. As far as jail officers are concerned, the same is lacking on evidence and therefore, the appeal is required to be allowed.
5. Mr.K.B.Anandjiwala, learned Senior Counsel with Mr.Vishal Anandjiwala, learned advocate appearing for the appellant namely Ishwarbhai Khanabhai Sonara, has adopted the arguments advanced by learned Senior Counsel Mr.J.M.Panchal and submitted that the appeal filed by the Ishwarbhai Sonara may be allowed.
6. Mr.Jal Unwala, learned Senior Advocate with Ms.Tejal Vashi, learned advocate appearing for the appellants namely Vishal Nayak and Jashwantsinh @ Jasu has assailed the credibility of so-called eye-witnesses namely Sachin Modi- PW-1 - Exh.54 - the complainant Page 20 of 49 Downloaded on : Thu Mar 10 23:59:27 IST 2022 R/CR.A/1748/2012 CAV JUDGMENT DATED: 10/03/2022 and his brother Hemant Modi- PW-2 - Exh-85, Sandip @ Sonu Ramprakash Mehra - PW-3 - Exh-96, etc.. He would submit that since the appellant- Vishal Nayak had some dispute with Uttam Adhvaryu, which was settled and the same was recorded by the jail authority, under the guise that he is a man of appellant No.1 - Gova Rabari, for which, there is no evidence at all, he has been dragged in this crime. He has also taken us through the relevant part of the depositions of the complainant namely Sachin Modi and his brother Hemant Modi and would submit that they have completely created a story and have involved the appellant Vishal Nayak, who was in the same barrack with Gova Rabari.
6.1 He would further submit that though it is say of the complainant that there was some dispute between Gova Rabari and deceased Chetan @ Betari and some scuffle had taken place near jail canteen and it was settled, however, there is no evidence at all on this line and therefore, he has deposed before the Court as per his own complaint, which was recorded at belated stage. He would submit that this witness has admitted that he has improved about the actual occurrence of the crime i.e. giving blows by various accused by deadly weapons and therefore, their evidence may be discarded. He would submit that no blood-stains of the deceased on the clothes of the accused - appellant is found. The weapons were recovered from the place of incident, which were allegedly used by the accused.
6.2 Similar are the submissions by learned advocate Mr.Hardik Dave, who appears for Jayanti @ Don Odhavji Patel; Mahesh Shankerbhai Ratheria and Malesh Ramsingbhai Marchedkar as well as learned advocate Mr.Ekant Ahuja, who appears for Sunil @ Mankodi, who was absconding during the pendency of the appeal. In support of his submissions, the persons, who have allegedly attacked the deceased, have relied upon the decision rendered by the Hon'ble Apex Court in the case Page 21 of 49 Downloaded on : Thu Mar 10 23:59:27 IST 2022 R/CR.A/1748/2012 CAV JUDGMENT DATED: 10/03/2022 of State of Haryana V/s. Gurdial Singh and another reported in (1974)4 Supreme Court Cases 494 wherein it has been held by Hon'ble Apex Court that the inconsistent versions of occurrence by prosecution witnesses, the benefit would go in favour of the accused. By relying upon the decision of the Hon'ble Apex Court in the case of State of Andhra Pradesh V/s. V.V. Panduranga Rao reported in (2009)15 Supreme Court Cases 211, he would submit that improvement would led to the acquittal in favour of the accused.
6.3 By relying upon the decision of the Hon'ble Apex Court in the case of Ezajhussain Sabdarhussain Vs. State of Gujarat reported in AIR 2019 SC 1525, he would submit that to prove the charge under section 34 of the Indian Penal Code, the prosecution is bound to prove the common intention and pre-arrangment and pre-meditated concert which is the requirement of law for applicability of section 34 of the IPC, which the prosecution has failed in the present case. He, therefore, would submit that the appeal may be allowed.
6.4 By relying upon the decision rendered by Hon'ble Apex Court in the case of Pandit Ram Prakash Sharma V/s. Kharaiti Lal reported in AIR 1998 SC 2820, he would submit that the Hon'ble Apex Court has upheld the decision of the High Court, who did not believe inconsistent versions of the witnesses.
7. Mr.Y.S.Lakhani, learned Senior Counsel with learned advocate Mr.Vaibhav Vyas, appearing for accused No.12 namely Paresh Kiritbhai Bhavsar, would submit that allegations levelled against the present appellant- accused are that he is a man of Gova Rabari and delivered an amount of Rs.1,50,000/- to another accused No.10 - Maheshbhai Shankerbhai Ratheria and weapons reached in the jail through tiffin, which was provided to Gova Rabari from his home Page 22 of 49 Downloaded on : Thu Mar 10 23:59:27 IST 2022 R/CR.A/1748/2012 CAV JUDGMENT DATED: 10/03/2022 through accused - Ghanshyam @ Bavo Chimanlal Chauhan and the same weapons were kept in the dig of the jail premises at the instance of accused No.10 namely Maheshbhai Shankerbhai Ratheria. However, the prosecution has miserably failed to prove the same. He would submit that it is alleged that the present appellant had given some bags to Ghanshyam @ Bavo Chauhan - accused No.11 and for that, the prosecution has examined Kenil Narsinhbhai Patel - PW-30 Exh.252. However, the said witness has not supported the case of the prosecution. He would submit that even otherwise there is nothing on record that the present appellant - Paresh Bhavsar had hatched conspiracy in providing the weapons to one of the accused. He would submit that prosecution has tried to establish that Ghanshyam @ Bavo Chimanlal Chauhan met Gova Rabari on 01/07/2005 and 09/07/2005 by producing jail register showing details about the meeting of Gova Rabari with different persons. However, there is no material that Paresh Bhavsar had ever visited Gova Rabari in the jail. He would submit that there are number of lapses on the part of the investigating officer like acquiring the weapons by the inmates from the outside of the jail, some of the weapons prepared in the jail premises itself and not examining an important witness namely Uttam Adhvaryu and therefore, he would further submit that the prosecution had tried to connect Paresh Bhavsar with Mahesh Ratheria, however, Mahesh Ratheria is acquitted by the learned Sessions Judge in absence of any evidence. However, learned Trial Court has committed an error in convicting the appellant - Paresh Bhavsar. He, therefore, would submit that the appeal qua Paresh Bhavsar may be allowed.
8. On the other hand, Mr.Dharmesh Devnani, learned Additional Public Prosecutor appearing for the respondents would submit that the incident had taken place in the jail premises and the complainant, who was not seriously injured in the attack by the accused persons, lodged FIR at Exh.66 which was recorded immediately and his brother Page 23 of 49 Downloaded on : Thu Mar 10 23:59:27 IST 2022 R/CR.A/1748/2012 CAV JUDGMENT DATED: 10/03/2022 namely Hemant Modi was shifted to the Government Hospital. By taking us through the FIR as well as deposition of author of the complaint namely Sachin Nagindas Modi- PW-1 at Exh-54, he would submit that this witness has specifically stated about the reason to do away the deceased Chetan @ Betari, at the instance of accused No.1- Gova Rabari, in which there is actual participation of those persons, who had attacked with deadly weapons.
8.1 He would further submit that eye-witness namely Sachin Modi has categorically stated before the Court that Jashwantsinh @ Jasu caught hold the deceased, who was sleeping on the floor in the early morning. Vishal Nayak sat on him and gave knife blows on the neck as well as on the right side of his stomach. When the deceased tried to save himself at that time, Sunil @ Mankodi, Niranjansinh and Jayanti @ Don had given blows to the deceased on the neck as well as on the stomach part. He would submit that there is no reason not to believe the say of this injured eye-witness, who had lodged an FIR immediately i.e. at around 10:00 am when police officer came in the jail and started investigation. He would submit that there was no animosity between the complainant and any of the accused and therefore, trial Court has rightly believed the say of this eye-witness namely Sachin Modi.
8.2 He would submit that brother of the complainant namely Hemant Modi was seriously injured and was shifted to Government Hospital and was under treatment for few days. By taking us through the deposition of said witness - Hemant Modi, who is an injured eye-witness, he would submit that this witness has also described the reason for committing attack by those persons, who had deadly weapons in their hands at the instance of accused No.1 - Gova Rabari and to facilitate this accused- Gova Rabari, how the other accused had played a role in conspiring the crime.
Page 24 of 49 Downloaded on : Thu Mar 10 23:59:27 IST 2022R/CR.A/1748/2012 CAV JUDGMENT DATED: 10/03/2022 8.3 He would submit that initially he might not have given any name in the statement because he was continuously threatened by various persons even though he was in the hospital and has stated before the Court for the first time, only on this ground, his deposition cannot be discarded. He would submit that injuries described by these witnesses, are proved through post-mortem note at Exh.178 through Dr.Harish Khubchandani, who has performed post-mortem and who has been examined as PW-18 at Exh.175. By taking us through column No.17 of Post-mortem note at Exh.178, Mr.Devnani, learned APP would submit that 30 external injuries in the nature of stab wound, incised wound, vertical stab wound, transverse stab wound, transverse incised wound, triangular stab wound, etc. have been sustained by the deceased Chetan @ Betari.
8.4 By taking us through the column no.20 of post-mortem note, he would submit that the deceased had 10 internal injuries on the chest part of the body and the cause of death is due to multiple injuries sustained by the deceased, which are possible by those weapons, which were used and recovered from the scene of offence. He would submit that medical officer has categorically stated that injuries are possible by the weapons recovered during the investigation. Apart from this direct evidence, the weapons, which were discovered, were sent for serological report at Forensic Science Laboratory and on that weapons, blood-stains of the deceased were found, which are proved by serological report from the Forensic Science Laboratory at Exh.340. Blood-stains of the deceased have also been found on the clothes of Jashwantsinh @ Jasu, Sunil @ Mankodi, Jayanti @ Don, etc., however, blood-stains found on the clothes of these accused were insufficient and therefore, blood group could not be traced out.
Page 25 of 49 Downloaded on : Thu Mar 10 23:59:27 IST 2022R/CR.A/1748/2012 CAV JUDGMENT DATED: 10/03/2022 8.5 He would further submit that as far as injury sustained by Hemant Modi is concerned, prosecution has established by examining another witness namely Sandip @ Sonu Ramprakash Mehra - PW-3 at Exh-96. By taking us through the deposition of this witness, he would submit that he has seen Vishal Nayak, Jawantsinh @ Jasu, Sunil @ Mankodi giving blows to the deceased. Since Hemant Modi had sustained injuries and he fell down, he immediately took into tea lori and was shifted to the Government Hospital.
8.6 As far as circumstantial evidence against the accused - Gova Rabari is concerned, he would submit that said accused is also involved in another murder case and was under-trial prisoner in that case and was a leader and having his own gang. However, jail officers namely Dhragpalsinh Pruthvisinh Chauhan, Ishwarbhai Khanabhai Sonara and Bhikhabhai Prabhatbhai Rabari and Maleshbhai Ramsingbhai Marchedkar deliberately did not control all the accused and permitted them to behave like Gundas in the jail itself. He would submit that though it was decided that Vishal Nayak, who had dispute with Uttam Adhvaryu as well as Chetan @ Betari, shall be send into solitary confinement, Dhragpalsinh Chauhan compelled Uttam Adhvaryu as well as Chetan @ Betari to settle the dispute and deliberately did not send Vishal Nayak into solitary confinement, having full knowledge about the intention of Gova Rabari through the members of his gang, who were also in his barrack No.6. Therefore, learned trial court has committed no error in coming to the conclusion that all the officers have conspired and facilitated the other accused to commit the crime.
8.7 By relying upon the decision of Hon'ble Apex Court in the case of State of M.P. V/s. Mansingh and others reported in (2003)10 Supreme Court Cases 414, Mr.Dharmesh Devnani, learned Additional Public Prosecutor would submit that there would be greater evidentiary Page 26 of 49 Downloaded on : Thu Mar 10 23:59:27 IST 2022 R/CR.A/1748/2012 CAV JUDGMENT DATED: 10/03/2022 value of injured eye-witness and cannot be discarded lightly unless compelling reasons exist. He would submit that in the said decision Hon'ble Apex Court has held that minor discrepancy is to be discarded unless credibility of eye-witness is unacceptable.
8.8 By relying upon the decision of the Hon'ble Apex Court rendered in the case of Jaswant Singh V/s. State of Haryana and other allied matters reported in (2000)4 Supreme Court Cases 484, he would submit that when several persons assaulted some different persons at the same time with different weapons, there may occur some contradictions in the statements of eye-witnesses, but that would not render testimony of eye-witnesses unreliable.
8.9 By relying upon another decision of the Hon'ble Apex Court in the case of Firozuddin Basheeruddin and others V/s. State of Kerala reported in (2001)7 Supreme Court Cases 596, he would submit that Hon'ble Apex Court by relying upon several decisions, has summarized the principle of governing the law of conspiracy under sections 120-A, 120-B and 302 of the Indian Penal Code. It has been held that the unlawful agreement which amounts to a conspiracy need not be formal or expressed, but may be inherent and inferred from the circumstances, especially declarations, acts and conduct of the conspirators. The agreement need not be entered into by all the parties at the same time, but may be reached by successive actions evidencing their joining of the conspiracy.
He, therefore, would submit that Maheshbhai Shankerbhai Ratheria and Maleshbhai Ramsingbhai Marchedkar have helped in facilitating the accused persons to commit the crime and therefore, learned Trial Court has committed an error in acquitting those persons and therefore, the appeals filed by the State may be allowed.
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9. We have heard different advocates appearing for the different appellants and learned Additional Public Prosecutor Mr.Dharmesh Devnani appearing for the respondent- State of Gujarat and perused the judgement and reasons assigned by the learned Trial Court for convicting certain accused and acquitting rest of the accused. Appellant namely Sunil @ Mankodi Triloksing Thakur, who is convicted, is absconding. However, learned advocate Mr.Ekant Ahuja has assisted this Court on his behalf.
One of the accused namely Ghanshyam @ Bavo Chimanlal Chauhan has expired during the pendency of the appeal and therefore, appeal was abated qua him.
10. As stated hereinabove, all the accused came to be charged for the offence punishable under sections 302, 326, 324, etc. read with section 120-B, 34, 114, etc. of the Indian Penal Code. Certain accused namely Vishal Nayak, Jashwantsinh @ Jasu Maheshsinh, Sunil @ Mankodi Triloksing Thakur, Jayanti @ Don Odhavji Patel and Niranjansinh Ramnandsinh Rajput have allegedly played active role in the crime i.e. attacking the deceased with various deadly weapons like knife and certain sharp weapons, which are allegedly prepared in the jail itself from the iron strips whereas rest of the accused came to be charged for hatching conspiracy to do away the deceased.
11. As far as appellant namely Gova Rabari is concerned, it is alleged by the prosecution that he being a head strong criminal and was an under-trial prisoner in an another offence punishable under section 302, etc. of the Indian Penal Code, wanted to control inmates and for the same, he used to collect money from those inmates, who were under-trial prisoners and capable to pay money to protect themselves when they are in Sabarmati Central Jail. Whereas other accused namely Bhikhabhai Prabhatbhai Rabari, Dhragpalsinh Pruthvisinh Chauhan, Ishwarbhai Page 28 of 49 Downloaded on : Thu Mar 10 23:59:27 IST 2022 R/CR.A/1748/2012 CAV JUDGMENT DATED: 10/03/2022 Khanabhai Sonara and Maleshbhai Ramsingbhai Marchedkar, who were working in different posts in the jail, had facilitated those accused to commit the crime whereas other accused namely Maheshbhai Shankerbhai Ratheria, Ghanshyam @ Bavo Chimanlal Chauhan and Paresh Kiritbhai Bhavsar by remaining outside the jail, have played active role in transferring money outside the jail as well as inside the jail. It is further alleged that all the accused had conspired to do away the deceased Chetan @ Betari, as he was raising his voice against the high handedness on the part of Gova Rabari and his inmate friends, who had attacked with deadly weapons.
12. In this background of facts, what emerges from reading of the depositions and documentary evidence, is that, it is established that Gova Rabari and those five accused, who had attacked Chetan @ Betari with deadly weapons were kept in barrack no.5 in Sabarmati Central Jail whereas other witnesses namely Sachin Nagindas Modi- PW-1, Hemant Nagindas Modi- PW-2, Sandip @ Sonu Ramprakash Mehra - PW-3, Janakbhai Amrutlal Panchal - PW-5, Jigish Bachubhai Thakkar - PW-6 were kept in Barrack No.6 along with the deceased Chetan @ Betari. As per the FIR at Exh.66, Sachin Nagindas Modi- PW-1, who was an under- trial prisoner for the offence punishable under section 302 of the IPC along with his brother were kept in Barrack No.6 from 20/06/2005. When he entered in the jail as under-trial prisoner, Chetan @ Betari was already kept in said Barrack No.6 and therefore, he came into contact with him. The incident had taken place on 07/08/2005 i.e. after a period of around 1 ½ months from his entry in the jail premises. As per FIR and his deposition in the examination-in-chief, some dispute arose between Uttam Adhvaryu of Barrack No.6 and men of Gova Rabari namely Vishal Nayak and Jashwantsinh @ Jasu, and pursuant to intervention of the jailor namely Dhragpalsinh Pruthvisinh Chauhan, the same was settled and their statements were recorded. However, he has further stated Page 29 of 49 Downloaded on : Thu Mar 10 23:59:27 IST 2022 R/CR.A/1748/2012 CAV JUDGMENT DATED: 10/03/2022 that Gova Rabari, Vishal Nayak and Jashwantsinh @ Jasu were not happy with the settlement and they were in search of a chance so that they can attack Chetan @ Betari. However, settlement in the nature of statement recorded of Uttam Adhvaryu and Vishal Nayak, which has come on record at Exh.262, does not disclose the name of Gova Rabari at all.
If we see the depositions of the complainant namely Sachin Modi along with FIR, in which, allegations were made immediately, there is much improvement about incident. He has further stated in his deposition before the Court that after receiving injuries, which was allegedly given by one of those five accused, Bhikhabhai Prabhatbhai Rabari- jailor met him in civil dress and he had informed him about the incident and thereafter he went to jail dispensary for preliminary treatment.
13. As far as reason for attacking upon the deceased Chetan @ Betari is concerned, in Para-6 of his deposition, he has stated that with regard to the scuffle, which had taken place on 26/07/2005 between Uttam Adhvaryu and appellants namely Vishal Nayak and Jashwantsinh @ Jasu are concerned, Chetan @ Betari had filed case against Gova Rabari for ransom, however there is no iota of evidence about the same. It is further alleged by him in the said paragraph of the chief-examination that jailors namely Bhikhabhai Prabhatbhai Rabari and Dhragpalsinh Pruthvisinh Chauhan had settled the issue and a decision to keep Vishal Nayak in high security jail, was cancelled. It is further alleged by him that the appellant namely Gova Rabari and the deceased Chetan @ Betari had scuffle near canteen of the jail with regard to ransom, however there is no documentary evidence to establish the same. It is alleged by him that jail officers namely Ishwarbhai Khanabhai Sonara and Mahesh Shankerbhai Ratheria had settled the dispute between Gova Rabari and Chetan @ Betari. However, there is no material about any settlement or any scuffle, which had taken place in the jail premises. He has admitted in his cross-
Page 30 of 49 Downloaded on : Thu Mar 10 23:59:27 IST 2022R/CR.A/1748/2012 CAV JUDGMENT DATED: 10/03/2022 examination that certain aspects, which have been stated in his cross- examination, were never disclosed before Investigating Officer though his second statement was recorded.
14. The allegation of conspiracy qua those accused, who have allegedly played indirect role in committing the crime is mainly based on certain so-called settlement between the parties. However, settlement in the nature of statements of under-trial prisoners, have come on record i.e. statement of Uttam Adhvaryu and accused Vishal Nayak. However, if the statements are perused, there is no iota of evidence, which would lead that there was intention on the part of the jailors, who had tried to settle the dispute between the inmates, which was not of serious nature.
15. It is also pertinent to note that the most important witness namely Uttam Adhvaryu, who can throw more light about alleged involvement of Gova Rabari and other accused, but the prosecution did not care to examine him as witness before learned Trial Court.
16. As far as appellant namely Gova Rabari is concerned, who might be an under-trial prisoner for another serious offence punishable under section 302 of the Indian Penal Code is concerned, it is an undisputed fact that on the date of incident i.e. on 07/08/2005, he was not in the jail premises at all and was admitted in the civil hospital for Sonography test, etc.. It has come on record through the deposition of Dr.Satnam Vaishnav, PW-28, Exh.247 that Gova Rabari had been taken to Civil Hospital from 17/06/2005 onwards. On the date of incident, the said Doctor was working as Medical Officer in the Sabarmati Central Jail, who had referred said Gova Rabari to Civil Hospital, Ahmedabad. He has categorically stated that Gova Rabari was initially examined in the Civil Hospital on 17/06/2005 by him and as there was no Sonography machine at Sabarmati Central Jail, he was referred to Civil Hospital on various Page 31 of 49 Downloaded on : Thu Mar 10 23:59:27 IST 2022 R/CR.A/1748/2012 CAV JUDGMENT DATED: 10/03/2022 occasions and lastly he was asked to get admitted in the Civil Hospital on 06/08/2005. Sonography was performed on 08/08/2005 as 07/08/2005 was Sunday (Holiday).
Similar is the say of another witness namely Dr.Rajnish Patel, Surgeon, PW-29, Exh-248. This witness was working as Medical Officer in Surgery Department and had to deal with the illness of the prisoners, who have been referred to Civil Hospital from jail dispensary. He has categorically stated that Gova Rabari was suffering from Urinary infection since last three months and therefore on 28/07/2005, he was asked to undergo X-Ray and accordingly, X-Ray was taken on 28/07/2005 itself and thereafter, he was referred to Radiology Department for Sonography. He on his own stated that because of the number of patients in Radiology Department, Sonography could not be performed immediately and therefore, he was asked to get admitted in the Hospital and accordingly, Gova Rabari was admitted in the Civil Hospital on 06/08/2005 and his Sonography was carried out on 08/08/2005. He has also stated that health of Gova Rabari was neither normal nor critical but appropriate treatment was required. He has admitted that Gova Rabari was admitted in the Hospital as per advice of medical officer only. In such circumstances, there is no doubt Gova Rabari was undertaking some treatment from last three months prior to the date of incident and on the date of crime, he was not in the jail premises at all.
17. It is true that to hatch a conspiracy, one's presence is not required at the time of crime but it is one of the circumstance, which is required to be dealt with, keeping the other circumstances, which is alleged by the prosecution against such accused.
18. It is the case of the prosecution that certain amount was paid to the wife of Gova Rabari, which was paid to Jayanti @ Don and Page 32 of 49 Downloaded on : Thu Mar 10 23:59:27 IST 2022 R/CR.A/1748/2012 CAV JUDGMENT DATED: 10/03/2022 Jashwantsinh @ Jasu. One of the Investigating Officer namely Jasvantsinh Bhupatsinh Rana, PW-35, Exh.326 has stated that an amount of Rs.1,75,000/- which was paid to Jayanti @ Don and Jashwantsinh @ Jasu, was paid by wife of Gova Rabari to four persons, which has been discovered but the prosecution has failed to establish that the amount recovered from those persons were handed over by wife of Gova Rabari. The prosecution has tried to prove by producing jail register that wife of Gova Rabari had visited her husband in the jail premises but it would not establish about so called monetary transaction at the instance of wife of Gova Rabari. However, cross-examination establishes that this witness, who has investigated the case for short time, has no personal knowledge or had not received any report qua the role played by other accused.
19. PW-36 namely Parikshitaben Vijaykumar Rathod, who was working as Assistant Police Inspector, Ahmedabad City, "L" Division and had completed rest of the investigation and submitted the additional charge-sheet, has tried to bring those accused in the crime with the charge of conspiracy namely Ghanshyam @ Bavo Chimanlal Chauhan (deceased) and Paresh Bhavsar, who had allegedly supplied knife in the jail premises. However, the prosecution has miserably failed to establish that how the weapons have reached in the jail premises since those accused, who are jail officers, were not on duty on the gate. In fact, as per defence witness No.2 namely Dineshkumar Vankar, Exh.359, who was working as jailor in Group-II, has stated that how the entries of those persons who entered in the jail are maintained. The entries, which have been produced by the prosecution, suggest that none of the jail officers, who have been convicted and/or acquitted were on duty prior or around the time of incident.
20. Considering the facts discussed hereinabove in the nature of evidence laid down by the prosecution, we are of the opinion that the Page 33 of 49 Downloaded on : Thu Mar 10 23:59:27 IST 2022 R/CR.A/1748/2012 CAV JUDGMENT DATED: 10/03/2022 prosecution has failed to establish that the appellant namely Gova Rabari was one of the conspirator in the crime.
21. Dealing with Section 120-B, 34 and 114 of the Indian Penal Code, Hon'ble Apex Court in the case of State (NCT of Delhi) V/s. Navjot Sandhu alias Afsan Guru (Supra), specially in Para- 103 to 108, 111 & 112, has held as under:
"103. We do not think that the theory of agency can be extended thus far, that is to say, to find all the conspirators guilty of the actual offences committed in execution of the common design even if such offences were ultimately committed by some of them, without the participation of others. We are of the view that those who committed the offences pursuant to the conspiracy by indulging in various overt acts will be individually liable for those offences in addition to being liable for criminal conspiracy; but, the non-participant conspirators cannot be found guilty of the offence or offences committed by the other conspirators. There is hardly any scope for the application of the principle of agency in order to find the conspirators guilty of a substantive offence not committed by them. Criminal offences and punishments therefor are governed by statute. The offender will be liable only if he comes within the plain terms of the penal statute. Criminal liability for an offence cannot be fastened by way of analogy or by extension of a common law principle.
104. We have to explain the decision in Ferojuddin's case at length in view of heavy reliance placed on it. The Court observed thus at para 25:
"Thus, one who enters into a conspiratorial relationship is liable for every reasonably foreseeable crime committed by every other member of the conspiracy in furtherance of its objectives, whether or not he knew of the crimes or aided in their commission"Page 34 of 49 Downloaded on : Thu Mar 10 23:59:27 IST 2022
R/CR.A/1748/2012 CAV JUDGMENT DATED: 10/03/2022
105. In para 26, the discussion was on the point of admissibility of evidence i.e. whether declaration by one conspirator made in furtherance of a conspiracy and during its subsistence is admissible against each co-conspirator. In other words, the question of applicability of the rule analogous to Section 10 of the Evidence Act was the subject matter of discussion. The following passage from Van Riper Vs. United States [F 2d 961 at page 967] was quoted.
"Such declarations are admitted upon no doctrine of the law of evidence, but of the substantive law of crime. When men enter into an agreement for an unlawful end, they become ad hoc agents for one another, and have made 'a partnership in crime'. What one does pursuant to their common purpose, all do, and as declarations may be such acts, they are competent against all."
106. Then, in the immediately following paragraph, this Court observed as follows:
"27. Thus conspirators are liable on an agency theory for statements of co-conspirators, just as they are for the overt acts and crimes committed by their confreres."
The conclusion at paragraph 27 that the conspirators are liable for the overt acts and crimes committed by their associates on the theory of agency is not in conformity with the discussion "Regarding admissibility of evidence"which is the opening phraseology of para 26. It was made clear in the second sentence of para 26 that contrary to the usual rule, any declaration by one conspirator made in furtherance of a conspiracy and during its pendency is admissible against each co-conspirator. Thus, the gist of Section 10 of the Evidence Act is implicit in that observation. Nothing is stated in para 26 to indicate that their Lordships were discussing the larger question of culpability of all the conspirators for the criminal acts done by some of them pursuant to the conspiracy. However, the view expressed in para 27 that on the theory of agency, the conspirators are liable for the statements and overt acts of the co-conspirators is at variance with the tenor of discussion in the earlier para. The apparent reason which Page 35 of 49 Downloaded on : Thu Mar 10 23:59:27 IST 2022 R/CR.A/1748/2012 CAV JUDGMENT DATED: 10/03/2022 influenced their Lordships seem to be the observations of Judge Hand in the case of Van Riper Vs. United States (supra). Those observations were in the context of the discussion on the liability of the "defendants" for conspiracy to defraud. The ratio of the decision is evident from the concluding observation: "For this reason, all that was done before he entered may be used against him, but obviously not what was done after he left." The joint liability for the overt acts involved in the actual crime did not come up for consideration. That apart, the statement of law that "such declarations are admitted upon no doctrine of the law of evidence, but of the substantive law of crime" does not hold good under Indian law. The reason is that the declarations contemplated by Judge Hand are made admissible under section 10 of the Indian Evidence Act but not under the substantive law of crimes. Thus, the conclusion reached at para 27 overlooked the difference in legal position between what was obtaining in USA in the year 1926 and the statutory rule of evidence contained in the Indian Evidence Act. The proposition in the earlier para i.e. para 25 (quoted supra) was too widely stated, probably influenced by the observations in Van Riper's case. In fact, in Firozuddin's case, some members of the group who conspired were convicted only under Section 120-B whereas the other members who accomplished the objective of conspiracy by committing the planned offence were convicted for the substantive offence as well as for the conspiracy. Thus, the observations made therein are no more than obiter dicta. The very decision of Maj. E.G. Barsay referred to by Their Lordships make it clear that "for individual offences, all the conspirators may not be liable though they are all guilty for the offence of conspiracy.
107. In Ajay Aggarwal V/s. Union of India [1993 (3) SCC 609], while discussing the question whether the conspiracy is a continuing offence, the following pertinent observations were made by K. Ramaswamy, J, speaking for the Bench at para 11:
"Conspiracy to commit a crime itself is punishable as a substantive offence and every individual offence committed pursuant to the conspiracy is separate and distinct offence Page 36 of 49 Downloaded on : Thu Mar 10 23:59:27 IST 2022 R/CR.A/1748/2012 CAV JUDGMENT DATED: 10/03/2022 for which individual offenders are liable to punishment, independent of the conspiracy."
108. Thus, a distinction was maintained between the conspiracy and the offences committed pursuant to the conspiracy. It is only in order to prove the existence of conspiracy and the parties to the conspiracy, that a rule of evidence is enacted in Section 10 based on the principle of agency. We may recall that Section 10 of the Evidence Act provides that anything said, done or written by one of the conspirators in reference to the common intention of all of them can be proved as a relevant fact as against each of the conspirators, subject to the condition prescribed in the opening part of the section. Thus, the evidence which is in the nature of hearsay is made admissible on the principle that there is mutual agency amongst the conspirators. It is in the context of Section 10 that the relevant observations were made in the first Caveeshar case (AIR 1957 SC 747) and Nalini case at page 517. In the former case, Jagannadhadas, J, after referring to the passage in Roscoe's Criminal Evidence (16th Edn.) that "an overt act committed by any one of the conspirators is sufficient, on the general principles of agency, to make it the act of all", observed that "the principle underlying the reception of evidence under Section 10 of the Evidence Act of the statements, acts and writings of one co-conspirator as against the other is on the theory of agency".
It was not held in those cases that the same principle of agency should be stretched further to make all the conspirators liable for the offensive acts done pursuant to the conspiracy, irrespective of their role and participation in the ultimate offensive acts. Whether or not the conspirators will be liable for substantive offences other than the conspiracy and, if so, to what extent and what punishment has to be given for the conspiracy and the other offences committed pursuant thereto, depend on the specific scheme and provisions of the penal law. The offence cannot be spelt out by applying the principle of agency if the statute does not say so. For instance, in the case of Section 34 IPC, the constructive liability for the Page 37 of 49 Downloaded on : Thu Mar 10 23:59:27 IST 2022 R/CR.A/1748/2012 CAV JUDGMENT DATED: 10/03/2022 crime is specifically fastened on each of those who participate in the crime in furtherance of the common intention. But Section 120 B does not convey that idea.
111. One point raised by Shri Ram Jethmalani based on the decision of House of Lords in R Vs. Anderson [(1985) 2 All ER Page 961] remains to be considered. The principle laid down in that case is discernible from the following summary in the head note.
"Beyond the mere fact of agreement, the necessary mens rea for proving that a person is guilty of conspiring to commit an offence under Section 1(1) of the Criminal Law Act,1977 is established if, and only if, it is shown that he intended when he entered into the agreement to play some part in the agreed course of conduct involving the commission of an offence. Furthermore, a person may be guilty of conspiring even though he secretly intended to participate in only part of the course of conduct involving the commission of an offence."
112. The learned counsel submits that in order to sustain a charge of conspiracy under Section 120-A, the same test could be usefully applied. That means, there must be evidence to the effect that the accused who entered into the agreement in the nature of conspiracy had intended to play and played some part in the agreed course of conduct involving the commission of an offence. But, if there is no evidence attributing any role to the accused in the course of conduct involving the commission of offence, he or she cannot be held guilty under Section 120-A. However, as rightly pointed out by the learned counsel for the State Mr. Gopal Subramanium, the provision dealt with by the House of Lords, namely, Section 1(1) of the English Criminal Law Act, 1977 is different from the wording of Section 120-A. It reads as follows:
"1.(1) Subject to the following provisions of this part of this Act, if a person agrees with any other person or persons that a course of conduct shall be pursued which will Page 38 of 49 Downloaded on : Thu Mar 10 23:59:27 IST 2022 R/CR.A/1748/2012 CAV JUDGMENT DATED: 10/03/2022 necessarily amount to or involve the commission of any offence or offences by one or more of the parties to the agreement if the agreement is carried out in accordance with their intentions, he is guilty of conspiracy to commit the offence or offences in question."
22. As discussed hereinabove, the depositions of the complainant and his brother, which have been heavily relied upon by the prosecution, though they have stated about the involvement of the appellant namely Gova Rabari, this Court do not find them trustworthy and particularly in absence of any supporting material about so-called enmities between Gova Rabari and Chetan @ Betari. The say of these witnesses and the circumstances, which the prosecution has tried to establish to involve the appellant- Gova Rabari, we do not find any reason to upheld the decision of the learned Sessions Judge that he had conspired with the attackers, who had played active role in committing the crime by using deadly weapons.
23. One of the witness namely Jigish Bachubhai Thakkar (who was also an under-trial prisoner- inmate) PW-6, Exh-127, whose statement under section 164 of the Code was recorded but as held by Hon'ble Apex Court in case of State of Dehli V/s. Shri Ram Lohia (supra) that statement recorded under Section 164 of the Code, is not a substantive evidence and can be used only to corroborate and contradict the witness. Depositions at Exh.127 suggests that he has only stated before the Magistrate, who has recorded his statement under section 164 of the Code. However, said statement was not specifically put to this witness, even to contradict him. Hon'ble Apex Court in the aforesaid judgement has held in Para- 13, as under :
"13. The Additional Sessions Judge observed in his judgment with reference to Aggarwal as follows:Page 39 of 49 Downloaded on : Thu Mar 10 23:59:27 IST 2022
R/CR.A/1748/2012 CAV JUDGMENT DATED: 10/03/2022 "He no doubt in his further cross-examination made certain damaging statements which would throw doubt on his previous statement but as the statement was made long after the first statement and at a time when Tara Chand accused had been discharged it seems to me that this witness was won over and he has intentionally prevaricated under the influence of the accused whose ex- employee he was. This inference finds support from the fact that in his statement under Section 164, Criminal Procedure Code made on 20th October, 1951, he stated that he was still in the employment of Messrs. Iron and Hardware (India) Company, while has now asserted in Court that he had been already dismissed by Sri Ram accused because of Sri Ram's differences with Tara Chand accused". It is clear therefore that the learned Judge relied on some statement of Aggarwal recorded under Section 164 of Criminal Procedure Code. The statement under Section 164 referred to was not specifically put to Aggarwal even to contradict him. Statements recorded under Section 164 of the Code are not substantive evidence in a case and cannot be made use of except to corroborate or contradict the witness. An admission by a witness that a statement of his was recorded under Section 164 of the Code and that what he had stated there was true would not make the entire statement admissible much less that any part of it could be used as substantive evidence in the case. The Additional Sessions Judge therefore erred in law in using the statement of Aggarwal under Section 164 to come to the conclusion that he had been won over. If that statement is excluded from consideration it is a matter of pure guess that Aggarwal had been won over after his examination- in-chief was over."
24. As held by Hon'ble Apex Court in the case of Padam Singh V/s. State of U.P. (supra), it is the duty of an appellate court to look into the evidence adduced in the case and arrive at an independent conclusion as to whether the said evidence can be relied upon or not and even if it can be relied upon, then whether the prosecution can be said to have been proved beyond reasonable doubt on the said evidence. It has been further Page 40 of 49 Downloaded on : Thu Mar 10 23:59:27 IST 2022 R/CR.A/1748/2012 CAV JUDGMENT DATED: 10/03/2022 held that the credibility of the witness has to be adjudged by the appellate court in drawing inference from proved an admitted facts. It must be remembered that the appellate court has also to be satisfied affirmatively that the prosecution case is substantially true and the guilt of the accused has been proved beyond all reasonable doubt as the presumption of innocence with which the accused starts, continues right through until he is held guilty by the final court of appeal and that presumption is neither strengthened by an acquittal nor weakened by a conviction in the trial court. The judicial approach in dealing with with the case where an accused is charged of murder under Section 302 has to be cautious, circumspect and careful and the High Court, therefore, has to consider the matter carefully and examine all relevant and material circumstances, before upholding the conviction. Hence, we are of the opinion that the learned Trial Court has committed an error in convicting the appellant namely Gova Rabari for the offences, for which, he has been convicted.
25. As far as jail officers are concerned, we are of the opinion that the prosecution has miserably failed in establishing the case that all the officers, who have been either convicted or have been acquitted, against which, the State has preferred appeal, had hatched conspiracy with Gova Rabari and done away the deceased Chetan @ Betari with the help of those persons, who have attacked with deadly weapons. Investigating Agency has failed to produce documentary evidence like any dispute or scuffle having taken place in the jail premises between the appellant - Gova Ravari and the deceased Chetan @ Betari. If such incident had happened, prosecution could have collected and produced documents like statements recorded of two inmates namely Uttam Adhvaryu and Vishal Nayak. As stated hereinabove, Uttam Adhvaryu is also not examined by the prosecution. Only the fact that accused Dragpalsinh Chauhan had settled the issue between Uttam Adhvaryu and Vishal Nayak but that alone would not establish that there was a Page 41 of 49 Downloaded on : Thu Mar 10 23:59:27 IST 2022 R/CR.A/1748/2012 CAV JUDGMENT DATED: 10/03/2022 conspiracy hatched by all the accused including Gova Rabari to not to send Vishal Nayak in a separate barrack and to permit him to continue to stay in Barrack No.6.
It is true that somehow the weapons have entered in the jail premises but for that those officers, who have duties inside the jail premises, cannot be held liable or at the maximum, inquiry can be held on departmental side about their negligence in remaining vigilant, in keeping appropriate watch upon the inmates. The circular with regard to duties of the jail officers, which has been produced at Exh.276, shows that the Jailors are required to visit different barracks and perform surprise check upon the inmates, which might not have taken place in the present case but that itself would not be sufficient to hold that they had hatched conspiracy with the appellant - Gova Rabari, who allegedly had some dispute with deceased Chetan @ Betari and had with the help of those attackers, committed the crime.
26. When the case is based on circumstantial evidence qua these jail officers as well as Gova Rabari, the Court is supposed to examine and come to the conclusion that each and every incriminating circumstance must be clearly established by reliable evidence and the circumstances proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn, and no other hypothesis against the guilt is possible. In the case of K.R.Purushothaman V/s. State of Kerala (Supra), Hon'ble Apex Court in Para-13, has held as under:
"13. To constitute a conspiracy, meeting of minds of two or more persons for doing an illegal act or an act by illegal means is the first and primary condition and it is not necessary that all the conspirators must know each and every detail of conspiracy. Neither it is necessary that every one of the conspirators takes active part in the commission of each and every conspiratorial acts. The agreement Page 42 of 49 Downloaded on : Thu Mar 10 23:59:27 IST 2022 R/CR.A/1748/2012 CAV JUDGMENT DATED: 10/03/2022 amongst the conspirators can be inferred by necessary implications. In most of the cases, the conspiracies are proved by the circumstantial evidence, as the conspiracy is seldom an open affair. The existence of conspiracy and its objects are usually deducted from the circumstances of the case and the conduct of the accused involved in the conspiracy. While appreciating the evidence of the conspiracy, it is incumbent on the court to keep in mind the well-known rule governing circumstantial evidence viz., each and every incriminating circumstance must be clearly established by reliable evidence and the circumstances proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn, and no other hypothesis against the guilt is possible. Criminal conspiracy is an independent offence in the Indian Penal Code. The unlawful agreement is sine qua non for constituting offence under Indian Penal Code and not an accomplishment. Conspiracy consists of the scheme or adjustment between two or more persons which may be express or implied or partly express and partly implied. Mere knowledge, even discussion, of the Plan would not per se constitute conspiracy. The offence of conspiracy shall continue till the termination of agreement.
27. Similarly in the case of Baldev Singh V/s. State of Punjab (supra), Hon'ble Apex Court has also held in Para-17 as under:
17. Conspiracy is defined in Section 120-A of the IPC to mean:
"120A. Definition of criminal conspiracy.- When two or more persons agree to do, or cause to be done,--
(1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy:
Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.Page 43 of 49 Downloaded on : Thu Mar 10 23:59:27 IST 2022
R/CR.A/1748/2012 CAV JUDGMENT DATED: 10/03/2022 Explanation.--It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object."
An offence of conspiracy which is a separate and distinct offence, thus, would require the involvement of more than one person. Criminal conspiracy is an independent offence. It is punishable separately; its ingredients being:-
(i) an agreement between two or more persons.
(ii) the agreement must relate to doing or causing to be done either
(a) an illegal act;
(b) an act which is not illegal in itself but is done by illegal means.
It is now, however, well settled that a conspiracy ordinarily is hatched in secrecy. The court for the purpose of arriving at a finding as to whether the said offence has been committed or not may take into consideration the circumstantial evidence. While however doing so, it must be borne in mind that meeting of the mind is essential; mere knowledge or discussion would not be sufficient."
In the case of Baldev Singh V/s. State of Punjab (supra), Hon'ble Apex Court has also discussed the case of K.R.Purushothaman V/s. State of Kerala (Supra), the discussion is referred in Para-20, which reads as under:
20. In K.R.Purushothaman v. State of Kerala, this Court held:
"11. Section 120-A IPC defines 'criminal conspiracy.' According to this Section when two or more persons agree to do, or cause to be done (i) an illegal act, or (ii) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy. In Major E.G. Barsay v. State of Bombay, AIR 1961 SC 1762, Subba Rao J., speaking for the Court has said:Page 44 of 49 Downloaded on : Thu Mar 10 23:59:27 IST 2022
R/CR.A/1748/2012 CAV JUDGMENT DATED: 10/03/2022 "The gist of the offence is an agreement to break the law. The parties to such an agreement will be guilty of criminal conspiracy, though the illegal act agreed to be done has not been done. So too, it is not an ingredient of the offence that all the parties should agree to do a single illegal act, It may comprise the commission of a number of acts."
xxx xxx xxx
13. To constitute a conspiracy, meeting of minds of two or more persons for doing an illegal act or an act by illegal means is the first and primary condition and it is not necessary that all the conspirators must know each and every detail of conspiracy. Neither it is necessary that every one of the conspirators takes active part in the commission of each and every conspiratorial acts. The agreement amongst the conspirators can be inferred by necessary implications. In most of the cases, the conspiracies are proved by the circumstantial evidence, as the conspiracy is seldom an open affair, The existence of conspiracy and its objects are usually deducted from the circumstances of the case and the conduct of the accused involved in the conspiracy. While appreciating the evidence of the conspiracy, it is incumbent on the Court to keep in mind the well-known rule governing circumstantial evidence viz., each and every incriminating circumstance must be clearly established by reliable evidence and the circumstances proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn, and no other hypothesis against the guilt is possible. The criminal conspiracy is an independent offence in the Indian Penal Code. The unlawful agreement is sine qua non for constituting offence under the Indian Penal Code and not an accomplishment. Conspiracy consists of the scheme or adjustment between two or more persons which may be express or implied or partly express and partly implied. Mere knowledge, even discussion, of the Plan would not per se constitute conspiracy. The offence of conspiracy shall continue till the termination of agreement."
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28. Thus, we are of the opinion that learned trial court has not committed any error in convicting the accused namely Vishal Nayak, Jashwantsinh @ Jasu Maheshsinh, Sunil @ Mankodi Triloksing Thakur, Jayanti @ Don Odhavji Patel and Niranjansinh Ramnandsinh Rajput, who have attacked with deadly weapons, as the prosecution has established the case beyond any doubt. In view of the fact that FIR lodged at the instance of PW-1 namely Sachin Modi, which was recorded in the jail premises itself discloses their names. As per his say, those persons have attacked him as well as his brother Hemant pursuant to which, he had sustained injuries. Sachin Modi was immediately treated at Jail dispensary by Dr.Shivaji Bavaji Kotval and thereafter was treated at Civil Hospital by Dr.Alpesh Gangani PW-19 at Exh.183. Sachin had disclosed the names of Vishal Nayak, Jashwantsinh @ Jasu, Sunil @ Mankodi, Jayanti @ Don and Niranjan Ranjput and has categorically stated that these persons had attacked him as well as his brother with deadly weapons. Even Medical Officer namely Dr.Shivaji, who was on duty on 07/08/2005 i.e. on the day of incident, has also produced medical certificate with regard to injury sustained by Sachin Modi - the complainant and his brother. It also appears from the deposition of said Dr.Shivaji that some of the accused namely Jayanti @ Don, Jashwantsinh @ Jasu, Sunil @ Mankodi and Vishal Nayak had also sustained minor injuries. Stitches were applied on Jashwantsinh @ Jasu and Sunil @ Mankodi on their hands. It is true that this medical officer had not stated any history in the case papers but treatment given by this doctor to these injured eye-witnesses and four accused establishes their involvement in the crime. The weapons, which were recovered were shown to Dr.Harish Khubchandani PW-18 at Exh.175, who performed post-mortem and has categorically stated that 30 injuries sustained by the deceased, are possible by those weapons.
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29. It is true that panch witness, who was also one of the Panchas, has not supported the case of the prosecution with regard to clothes of the accused but Investigating Officer has proved the correctness of Panchnama. Report from Forensic Science Laboratory at Exh.339 along with Serological report establishes that on the clothes of Jashwantsinh @ Jasu and Sunil @ Mankodi, blood-stains of the deceased have been found. Though blood stains were found on the clothes of Jayanti @ Don, the blood group is not arrived at by the Forensic Science Laboratory.
30. We have also scrutinized the depositions of injured eye- witnesses namely Sachin Modi, Hemant Modi as well as other witnesses and exhaustively crossed by their advocates. We do not find any major contradiction about the role played by each of the appellants. There is no inconsistency in the versions of the witnesses about the manner and method in which the deceased was attacked by these appellants and therefore, facts of the present case are different than the facts of the case in State of Haryana V/s. Gurdial Singh and another (Supra) relied upon by learned Senior Advocate Mr.Jal Unwala.
31. The decision relied upon by learned Senior Advocate Mr.Jal Unwala in case of Ezajhussain Sabdarhussain Vs. State of Gujarat (Supra) is concerned, facts were totally different in the said case. The witnesses were not believed on different reasons including that the witness was an interested witness, which is not the case herein. On the contrary, ratio laid down by the Hon'ble Apex Court in the case of State of M.P. V/s. Mansingh and others (supra) relied upon by learned Additional Public Prosecutor would be applicable. In para-9 of the said judgement, Hon'ble Apex Court has held as under:
"9. The evidence of injured witnesses has greater evidentiary value and unless compelling reasons exist, their statements are not to be discarded lightly. Merely because Page 47 of 49 Downloaded on : Thu Mar 10 23:59:27 IST 2022 R/CR.A/1748/2012 CAV JUDGMENT DATED: 10/03/2022 there was no mention of a knife in the first information report, that does not wash away the effect of evidence tendered by the injured witnesses PWs 4 and 7. Minor discrepancies do not corrode credibility of an otherwise acceptable evidence. The circumstances highlighted by the High Court to attach vulnerability to the evidence of the injured witnesses are clearly inconsequential. It is fairly conceded by learned counsel for the accused that though mere non-mention of the assailants' names in the requisition memo of injury is not sufficient to discard the prosecution version in entirety, according to him it is a doubtful circumstance and forms a vital link to determine whether prosecution version is credible. It is a settled position in law that omission to mention the name of the assailants in the requisition memo perforce does not render prosecution version brittle."
32. Ratio laid down by the Hon'ble Apex Court in the case of Jaswant Singh V/s. State of Haryana and other allied matters (supra) relied upon by learned Additional Public Prosecutor would be applicable in the present case since number of persons had attacked the deceased and even other witnesses and therefore, minor contradictions are required to be discarded when other strong evidence is collected and proved by the prosecution.
33. Having heard learned advocates appearing for the respective parties and considering the overall facts and circumstances of the case,
(i) Criminal Appeal No.1549 of 2012 filed by Govabhai Nagjibhai Rabari - original accused No.1;
(ii) Criminal Appeal No.705 of 2012 filed by Dhragpalsinh Pruthvisinh Chauhan - original accused No.8;
(iii) Criminal Appeal No.725 of 2012 filed by Ishwarbhai Khanabhai Sonara - original accused No.9;
(iv) Criminal Appeal No.746 of 2012 filed by Bhikhabhai Prabhatbhai Rabari- original accused No.7 and Page 48 of 49 Downloaded on : Thu Mar 10 23:59:27 IST 2022 R/CR.A/1748/2012 CAV JUDGMENT DATED: 10/03/2022
(v) Criminal Appeal No.770 of 2012 filed by Paresh Kiritbhai Bhavsar - original accused No.12 are hereby allowed. Judgment and order dated 21/04/2012 passed by learned Additional Sessions Judge, Court No.7, Ahmedabad City in Sessions Case Nos.78 of 2006 with Sessions Case No.216 of 2006 is hereby quashed and set aside qua the aforesaid five appellants only. The appellants be released forthwith, if not required in any other case.
34. Criminal Appeal No.1748 of 2012 filed by Vishal Vishnubhai Nayak - original accused No.2, Jashwantsinh @ Jasu Maheshsinh - original accused No.3, Sunil @ Mankodi Triloksing Thakur - original accused No.4, Jayanti @ Don Odhavji Patel, original accused No.5 as well as Criminal Appeal No.1747 of 2012 filed by Niranjansinh Ramnandsinh Rajput - original accused No.6 are hereby dismissed. Judgment and order dated 21/04/2012 passed by learned Additional Sessions Judge, Court No.7, Ahmedabad City in Sessions Case Nos.78 of 2006 with Sessions Case No.216 of 2006 is hereby upheld qua the aforesaid five appellants.
35. Criminal Appeals filed by the State of Gujarat being Criminal Appeal No.1216 of 2012 qua Maheshbhai Shankerbhai Ratheria - original accused No.10 as well as Criminal Appeal No.1217 of 2012 qua Maleshbhai Ramsingbhai Marchedkar- original accused No.13 are hereby dismissed. R & P be sent back to the concerned Court forthwith.
sd/-
(A.J.DESAI, J) sd/-
(SAMIR J. DAVE,J) DIPTI PATEL Page 49 of 49 Downloaded on : Thu Mar 10 23:59:27 IST 2022