Indian Kanoon - Search engine for Indian Law

(k) According to the prosecution case, though respondent /discharged accused no.2 Rajkumar Pandiyan was executing the operation of abducting Sohrabuddin Shaikh in the night intervening 22nd November 2005 and 23rd November 2005, a show of his return journey from Hyderabad to Ahmedabad by the flight of 23rd November 2005 came to be made. Infact, somebody else travelled by that flight.

(l) After murdering Sohrabuddin Shaikh in the fake encounter, accused no.7 Police Inspector Abdul Rehman from Rajasthan REVN-557-2016-J.doc Police filed First Information Report (FIR) with Crime Investigation Department, Crimes, (CID Crimes), Gujarat, alleging that absconding accused Sohrabuddin Shaikh was coming by highway from Surat and upon being asked to surrender he opened fire, and therefore, in retaliation the police also opened fire, due to which Sohrabuddin Shaikh came to be killed. Accordingly Crime No.05 of 2005 came to be registered. Accused no.4 Parmar, Police Officer, investigated the FIR and reported the encounter to be genuine and submitted the Abate Summary. According to the prosecution case, respondent/discharged accused no.2 Rajkumar Pandiyan, on 27th December 2006, intercepted the cell phone of Tulsiram Prajapati by alleging that said Tushiram Prajapati has escaped from custody of police. This fact is reflected from statement of Arun Kumar Sharma, Deputy Inspector General, Gandhi Nagar.

12 Shri Tiwari, the learned counsel appearing for the revision petitioner, further argued that statement of PW254 Arun Kumar Sharma, Deputy Inspector General, Gandhi Nagar, shows that on 27th December 2006, respondent/discharged accused no.2 Rajkumar Pandiyan requested to intercept the mobile phone of Tulsiram Prajapati.

13 Shri Tiwari, the learned counsel appearing for the revision petitioner, summed up his arguments by submitting that even uncorroborated evidence of an accomplice can form sole basis for conviction and there is no rule of law that evidence of the accomplice should always be corroborated in material particulars. In the case at hand, evidence of PW105 Nathuba Jadeja is gaining corroboration from voluminous evidence collected by the investigating agency, and as such the learned Additional Sessions Judge erred in discharging respondent/accused no.2 Rajkumar REVN-557-2016-J.doc Pandiyan by evaluating the evidence collected by the prosecuting agency. To buttress this contention, reliance is placed on judgments in Sitaram Sao @ Mungeri vs. State of Jharkhand 1, Mathuradas vs. State2, Haroon Haji Abdulla vs. State of Maharashtra3 and State vs. S. Selvi and Others4 so also judgment of the learned Single Judge of Delhi High Court in Aruna Chadha vs. State of Delhi5.

(e) Respondent/discharged accused No.2 Rajkumar Pandiyan caused interception of mobile phone of Tulsiram Prajapati on the pretext that he had escaped from the custody. 34 It is apposite to note that the crime in question was initially investigated by Gujarat Police. Later on, under orders of the Honourable Supreme Court, further investigation came to be entrusted to the CBI. There is no order of reinvestigation. Therefore, statement of witnesses initially recorded by Gujarat Police, so also the charge-sheet filed by it are not redundant and cannot be kept out of consideration. They continue to be relevant and cannot be termed as tainted or unreliable. This point is clear from the judgment of the Honourable Apex Court in the very same matter. (Refer Vipul Shital Prasad Agarwal vs. State of Gujarat and Others15) 35 This revision petition has come up for hearing after about 1 year from discharge of respondent/accused. It is reported 15 AIR 2013 SC 73 REVN-557-2016-J.doc by the parties that in between the Charge against rest of the accused persons has been framed and explained to them. They pleaded not guilty and claimed trial. It is also reported that the trial thereafter began and by now more than 150 witnesses are already examined by the prosecuting agency in support of the Charge. Therefore, it is necessary to put on record, at this stage itself, that only because of discharge order in his favour, the respondent/discharged accused cannot claim immunity from the trial at subsequent stage. Person discharged can also be arraigned again as an accused by following due process of law and this option is always available with the court during the course of the trial. Paragraphs 104 to 108 from the judgment of the Honourable Apex Court in the matter of Hardeep Singh vs. State of Punjab16 need reproduction and they read thus :

78 Now the only circumstance relied by the prosecution for framing the Charge against respondent/discharged accused no.2 Rajkumar Pandiyan is to the effect that he had given information to discharged accused no.3 M.N.Dinesh about spotting of escaped undertrial prisoner Tulsiram Prajapati in Banaskantha District of Gujarat and passing over of that information by discharged accused no.3 M.N.Dinesh to Sudhir Joshi, Deputy Superintendent of Police, Udaipur, as well as requesting to intercept the mobile phone allegedly belonging to deceased Tulsiram Prajapati. On these aspects also, there is no evidence constituting the ground for framing the Charge. PW254 Arunkumar Sharma, Inspector General of Police, Gujarat, has spoken about request of respondent/discharged accused no.2 Rajkumar Pandiyan for interception of one mobile number connected with Tulsiram Prajapati. Undisputedly, Tulsiram Prajapati was a wanted criminal, and hence, these acts on the part REVN-557-2016-J.doc of respondent/discharged accused no.2 Rajkumar Pandiyan cannot form the ground for proceeding against him in respect of alleged charge.