IN THE H IGH COURT OF GUJARAT AT AHMEDABAD

CRIMINAL M ISC. APPL ICAT ION NO. OF 2007

IN

CRIM INAL APPEAL NO. OF 2007

DISTR ICT : AHMEDABAD

Vasantbha i Ra t i l a l Makwana , Aged :42 years , Occupn . : Labour work , Res ident o f : B lock No .13 /294 , S lum Quar te rs , Near A .E .C . , Amra iwad i , Ahmedabad

(Or ig ina l accused in Sess i ons Case No .314 o f 2005 on the fi le o f l ea rned Add l . Sess ions Judge and Cour t No .2 , Ahmedabad – A t p resen t in jud ic ia l cus tody)

. . . App l i can t -App l i cant

versus

Sta te o f Gu ja ra t ( to be se rved th rough the Pub l i c P rosecu tor , Gu ja ra t H igh Cour t Comp lex , So la , Ahmedabad)

. . . Respondent

Sub jec t : App l i ca t ion fo r ba i l pend ing appea l under Sect ion 374 o f the C r im ina l P rocedure Code aga ins t the judgment o f sen tence and conv ic t ion da ted 16 .11 .2006 passed by the lea rned Add l . Sess ions J udge , Cour t No .2 , Ahmedabad , in Sess ions Case No .314 o f 2005

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To ,

Hon ’b le The Ch ie f Jus t i ce and o ther Hon ’b le J udges o f the Hon ’b le H igh Cour t o f Gu ja ra t a t Ahmedabad

Humble submiss ion fo r and on beha l f o f the app l i can t abovenamed

MOST RESPECTFULLY SHEWETH THAT :

1 . The app l i can t was the o r i g ina l accused in

Sess ions Case No .314 o f 2005 on the fi le

o f l ea rned Add l . Sess ions Judge , Cour t

No .2 , Ahmedabad . By way o f above

appea l , the App l i cant i s cha l l eng ing the

lega l i t y , va l i d i ty and p ropr ie ty o f the

judgment and order dated 16 .11 .2006

passed by the lea rned Add l . Sess ions

Judge , Cour t No .2 , Ahmedabad , whereby ,

the app l i cant has been conv ic ted fo r

offence pun i shab le under sec t ions 302 o f

the Ind ian Pena l Code and has been

sentenced to undergo impr i sonment fo r

l i f e and a fine o f Rs .1 ,000 / - .

2 . The l ea rne d A dd l . Se ss i ons J u dge has e r r ed

i n r e l y i ng upon the s ta te men t s o f t he s e

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wi tne s se s r eco rde d by the I nve s t i ga t i ng

Office r unde r Se c t i on 161 o f C R .P . C . I t i s

se r i ous e r ro r i n l a w tha t wh i l e de c id i ng a

po i n t i n i s s ue , t he l e a rne d j u dge g oe s t o t he

e x te n t o f r e l y i ng u pon the s ta te me n t o f

w i tne s se s r eco rde d by the IO wh i ch

obv i ous l y i s no t ad m iss i b l e .

3 . The app l i can t respec t fu l l y s ta tes and

submi ts tha t the prosecut ion w i tness No .1 ,

J agd i shbha i Na tha la l Waghe la has been

examined a t Ex .7 . He was the panch

w i tness i n the Panchnama o f scene o f

offence . Second panch was Kanubha i

Pa rsho t tambha i So lank i who has exp i red .

Sa id w i tness a t Ex .7 has s ta ted on oath

tha t when he went to the house o f

Vasantbha i , i t appeared tha t someth ing

had burnt . Except th i s , he had no i dea o f

what had happened nor the po l i ce had

shown h im anyth ing . Tha t upon ask ing h im

to s ign in the wr i t ing (Panchnama) , he had

g iven h i s s igna ture there in . Th i s w i tness

has been dec la red host i l e by the

prosecu t ion and was c ross -examined by

the prosecu t ion . Even in the c ross -

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examinat ion , th i s w i tness categor i ca l l y

s ta ted tha t ne i ther the po l i ce had

exp la ined h im to ac t as Panch w i tness no r

Vasantbha i was p resent a t the scene o f

offence and tha t he had s igned the

Panchnama w i thou t read ing the same. Th i s

w i tness has fu r ther ca tegor i ca l l y s ta ted

be fo re the Cour t tha t he i s g iv ing t rue

vers ion o f what t ransp i red w i thout any

k ind o f fear o r a l l u rement . Thus , the

prosecu t ion had fa i l ed to es tab l i sh the

ac tua l scene o f offence and th i s be ing the

bas i s o f the ent i re case o f the

prosecu t ion , the p rosecut ion case fa l l s flat

on th i s so le coun t and i t i s not p roved tha t

any th ing mater ia l was se i zed i n p resence

o f th i s panch w i tness . The lea rned t r i a l

Cour t has there fo re se r ious ly e r red in no t

be l i ev ing the say o f th i s panch w i tness

and be l iev ing what was s ta ted in the

Panchnama wh ich was spec ifica l l y den ied

to have been p repared in the p resence o f

sa id panch w i tness .

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4 . S im i la r l y , the prosecu t ion w i tness No .2 –

Naranbha i Pu rsho t tambha i So lank i was

examined v ide Ex .11 . He was the panch

w i tness o f the inquest Panchnama

regard ing the phys i ca l cond i t i on o f the

accused (app l i can t ) . Th i s w i tness i s a l so

dec la red host i l e in v iew o f the na r ra t ion

g iven by h im be fore the Cour t .

5 . Therea f te r , PW No .3 – P rabhat j i P ra tap j i

Thakore was examined a t Ex .13 . He i s the

son o f deceased P ra tap j i Thakore . I f the

depos i t i on o f th i s w i tness i s read as a

who le , i t wou ld t ransp i re tha t th i s w i tness

i s an in te res ted w i tness and does not

revea l the t rue fac ts . When the

compromise was no t a r r i ved a t be tween

the app l i cant and h i s w i fe L i l aba , there

was no ques t ion fo r P ra tap j i to s tay a t her

house tha t n ight . There fo re , the so -ca l l ed

vers ion g iven by th i s w i tness tha t h i s

fa ther te lephoned h im and in fo rmed h im

tha t he w i l l be s tay ing a t the house o f

L i l aba tha t n ight does no t in sp i re

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confidence and ought no t have been

be l ieved by the cour t be low.

6 . P rosecu t ion W i tness No .4 – Bechar j i

Bh ikha j i Thakore has been examined a t

Ex .14 . He i s the w i tness who had las t met

P ra tap j i and i t i s s ta ted in h i s depos i t i on

tha t the present app l i can t had in fo rmed

sa id P ra tap j i te lephon ica l l y that s ince

some d i spute i s go ing on w i th h i s w i fe ,

P ra tap j i shou ld in te rvene . However , i n the

c ross -examina t ion , th i s w i tness admi ts

tha t he does no t know as to fo r what

pu rpose P ra tap j i had s tayed a t Ahmedabad

and tha t he has no any persona l

knowledge about the inc iden t . The

inves t igat ing officer has no t p roduced the

pr in tout o f the ca l l s a l l eged ly made

between the phone ca l l s o f P ra tap j i and

th i s w i tness o r v i ce -versa to p rove that

P ra tap j i had te lephoned th i s w i tness and

in fo rmed h im tha t he w i l l be s tay ing a t

Ahmedabad tha t n igh t . There fo re the

vers ion g iven by th i s w i tness , who i s an

in te res ted w i tness be ing the re la t i ve and

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f r i end o f deceased , ought no t have been

be l ieved by the cour t be low.

7 . Therea f te r , P rosecut ion Wi tness No .8 –

Dr .P rav inbha i Va l j i bha i Desa i has been

examined a t Ex .21 . Th i s w i tness has

ca tegor i ca l l y s ta ted that when there a re

100% burns , and cons ider ing the in ju r ies

on the dead bod ies i t i s a l so poss ib l e the

same migh t be the resu l t o f su i c ide . Tha t

there were no ex te rna l i n ju r ies on the

body on account o f bea t ing .

8 . Therea f te r , PW No .13 Kanu j i Cha tur j i

Ra thod has been examined a t ex .35 . Th i s

w i tness i s po l i ce offic ia l . He has s ta ted in

the c ross examinat ion when he rece ived

the Vardh i i n the a f te rnoon , he was

d i c ta t ing the comp la in t be ing lodged by

the comp la inant , tha t the compla inant

h imse l f had come to po l i ce s ta t ion , tha t i f

the offence i s d i sc losed by the

comp la inant who i s f ound to be accused ,

then he has to be a r res ted . That i t i s t rue

tha t he had not a r res ted the compla inant

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immed ia te l y a f te r he lodged the

comp l iant . Tha t i t i s not t rue tha t the

comp la inant (accused) had sa id tha t bo th

the persons had commi t ted su ic ide but h i s

s ta tement to th i s effect was not recorded .

In the contex t o f th i s s ta tements made on

oa th by the po l i ce officer , i t i s submi t ted

tha t the accused (app l i cant ) has been

ar res ted on 7 .1 .05 a t 3 :45 h r s . I t i s

submi t ted tha t i n v iew o f the fac t tha t the

sa id inves t iga t ing officer had gone a t the

scene o f offence a t 4 :15 h rs . i n the

morn ing and was in the knowledge tha t

the inc ident o f fi re had taken p lace where

two persons had sus ta ined severe bu rn

in ju r ies , and when he had rece ived Vardh i

f rom the LG Hosp i ta l that sa id two persons

had d ied , then i f the compla inant

(app l i cant ) wou ld have g iven the

comp l iant a t 6 :15 am in the morn ing , the

sa id inves t iga t ing officer wou ld have

immed ia te l y a r res ted the app l i cant ,

however , the a r res t o f the accused has

been made a t 3 :45 in the a f te rnoon and

there fo re , i t i s not p roved tha t the p resent

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app l i cant had gone to the po l i ce s ta t ion

and lodged a compla in t a t 6 :15 am in the

morn ing and the comp la in t i s made ou t

subsequent ly by po l i ce . Thus , the

prosecu t ion , i n v iew o f th i s fac t , had

mi se rab ly fa i l ed to p rove i t s case aga ins t

the accused , and the lea rned t r i a l cou r t ,

by d i s regard ing these fac ts , has

commi t ted se r ious e r ro r o f l aw and fac t

wh ich deserves to be depreca ted by th i s

Hon ’b le Cour t by se t t ing as ide the

judgment o f conv ic t ion and sen tence

imposed upon the app l i cant based on the

incor rec t s ta tement in the fo rm o f

comp la in t g iven by the app l i can t . The

app l i cant submi ts tha t the very bas i s o f

the p rosecut ion case and the in i t i a t i on o f

the inves t iga t ion i s f au l ty inasmuch as

tha t the so -ca l l ed compla in t l odged by the

comp la in t cannot be sa id to be an F IR o r a

comp l iant f rom any ang le . A t the mos t , the

same can be te rmed as the so -ca l l ed

con fess i on o f the accused and the Vardh i

rece ived f rom the LG hosp i ta l abou t

rece iv ing the two persons in bu rn t

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cond i t i on wou ld amount to the F IR . The

app l i cant submi ts i f i t i s he ld tha t the

sa id comp la in t a l l eged ly l odged by the

app l i cant i s no th ing but the so -ca l l ed

con fess i on o f the app l i cant , then there i s

no any cor robora t ion to the sa id s ta tement

o f the p resent app l i cant as the

comp la inant has no t been ca l l ed by the

prosecu t ion as w i tness to cor robora te i t s

case o f con fess ion and there fo re , i n

absence o f any c i rcumstan t ia l ev idence o r

ocu la r ev idence , the impugned judgment

deserves to be se t as ide .

9 . Therea f te r the inves t igat ing officer , i . e .

PW 14 - Mukeshbha i Dh i rubha i Mehta ,

has been examined a t Ex .39 . He s ta tes in

h i s depos i t i on tha t he had taken over the

inves t igat ion f rom PS I Rathod on 7 .1 .05 ,

and had prepared the Panchnama as we l l

as reco rded the s ta tements o f w i tnesses

and therea f te r had handed over fu r ther

inves t igat ion to Second P I Rao . Th i s

w i tness s ta tes fu r ther tha t i t i s t rue tha t

he was in charge o f the inves t iga t ion o f

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case f rom 7 .1 .05 to 15 .1 .05 and that the

match box wh ich was no t burnt was found

f rom scene o f offence and the accused was

a r res ted a t 16 :30 hrs . Tha t i t i s not t rue

tha t remand was not g iven by mag is t ra te

s ince comp la in t was made be fo re h im tha t

h i s s igna ture was fo rc ib ly taken on the

comp l iant . That the s ta tements o f pump

opera tor s o f the pe t ro l pump were

recorded but the s ta tement o f pump owner

was not reco rded . Tha t i t i s no t t rue tha t

in the sa id s ta tements , i t was revea led

tha t pe t ro l was pu rchased and there fo re ,

the sa id pump operato rs were not

examined as w i tnesses o r tha t as there

was no ev idence fo r thcoming f rom the

pr in tout o f the mob i le ca l l s regard ing

P ra tap j i ’ s mob i le , sa id w i tnesses were no t

named in the Chargesheet . Tha t i t i s t rue

tha t i t i s s ta ted in the Panchnama tha t the

finger t ips o f the accused were burnt

s l i gh t l y bu t i t i s no t t rue that in these

in ju r ies were not shown i n the med ica l

ce r t ifica te and that s ince such in ju r i es

were no t sus ta ined same were not shown

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i n the med ica l ce r t ifica te . Thus , f rom the

depos i t i on o f th i s w i tness , i t was

es tab l i shed that the accused was a r res ted

on 7 .1 .2005 in the a f te rnoon (comp la in t

was a l l eged ly by the comp la inant

(app l i cant ) i n the ear ly morn ing) and

fu r ther the po l i ce had fa i l ed in obta in ing

h i s remand and fu r ther the fac t tha t the

so -ca l l ed bu rn in ju r ies on the finger t ips o f

the accused were no t suppor ted by any

w i tnesses o f the panch nor any med ica l

repor t o f the t rea tment g iven to the

accused was produced . There fo re , th i s

s to ry was concoc ted and was go t up . Not

on ly th i s , any o f the w i tnesses who have

been examined be fore th i s Hon ’b le Cour t

have no t suppor ted the case o f the

prosecu t ion tha t the app l i cant was presen t

a t the scene o f offence when the inc iden t

occu r red . Fur ther , the s ta tements o f the

pump operato rs f rom whom the app l i cant

a l l eged ly pu rchased pet ro l have no t been

fo rmed par t o f the Chargesheet though the

same were purpo r ted ly recorded by the IO .

Th i s was so on ly because the sa id

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s ta tements were not suppor t ing the

prosecu t ion case regard ing purchase o f

pe t ro l by the app l i cant on the ea r l i e r day .

Thus , on a l l these mater ia l coun ts , the

prosecu t ion had fa i l ed to p rove i t s case

aga ins t the app l i cant , however , the

lea rned t r i a l Cour t has by ignor ing a l l

these flaws has conv ic ted the app l i cant by

be l i ev ing the s to ry o f the prosecu t ion

wh ich i s fu l l o f l acunas .

10 . The app l i can t respec t fu l l y s ta tes and

submi ts that the PW No .15 – Gop ina th

Narnarayanbha i Rao , who i s a l so an IO has

been examined v ide Ex .44 . He has s ta ted

tha t the inves t igat ion o f case was w i th

h im f rom 13 .1 .2006 to 3 .2 .2006 . I n th i s

manner , the re i s cont rad ic t i on in the

s ta tements by two invest i ga t ing officers

inasmuch as tha t the prev ious IO name ly

P I Shr i Mehta has s ta ted in h i s depos i t i on

tha t he was in charge o f the inves t iga t ion

f rom 7 .1 .05 to 15 .1 .05 and therea f te r i t

was handed over to P I Rao .

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11. The app l i can t respec t fu l l y s ta tes and

submi ts that the app l i can t had not

vo lunta r i l y gone to the po l i ce s ta t ion and

lodged h i s comp la in t a t 6 :15 i n the ea r ly

morn ing on 7 .1 .2005 . There was reason fo r

the t r i a l cou r t to be l i eve the say o f the

app l i cant tha t he does no t know as to how

the house caught fi re s ince he was no t

p resen t there because any o f the

w i tnesses have not cor robora ted p resence

o f the app l i can t a t the t ime o f i nc ident .

12 . The app l i can t respec t fu l l y s ta tes and

submi ts that the l earned t r i a l cou r t has

e r red in l aw by not cons ider ing the ra t io

o f the judgment l a id down in 2002(2 ) GLH

page 197 in the case o f Amratben Bhaya

Abha v . S ta te o f Gu ja ra t and in A IR 1966

page 119 and 1994 SCC (C r ) page 555 . The

conten t ion o f the app l i can t tha t when the

accused h imse l f has fi led F IR , same i s

i nadmiss ib le in ev idence . The app l i can t

c raves leave o f th i s Hon ’b le Cour t to re fe r

to o ther dec i s ions o f th i s Hon ’b le Cour t

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and Hon ’b le H igh Cour t i n case o f

necess i ty .

13 . The app l i can t respec t fu l l y s ta tes and

submi ts tha t the a l te rnat ive submiss ion

made on beha l f o f the app l i cant tha t the

app l i cant ’ s case i f a t a l l i s taken to be a t

the ins tance o f app l i cant , wou ld amount to

an offence o f g rave and sudden

provoca t ion s ince i t i s no t es tab l i shed by

the p rosecut ion tha t the app l i can t had

prep lanned to commi t such ac t and had

pu rchased the pe t ro l a day in advance .

Fur ther , i n v iew o f the c lear admiss ion in

the F IR i t se l f and when the app l i can t saw

h i s w i fe a long w i th deceased P ra tap j i

together a t n ight in the room, on account

o f g rave and sudden p rovoca t ion , the

inc iden t occur red . There fo re , even i f the

say o f the app l i cant as s ta ted in the F IR i s

taken a t i t s face va lue , the offence wou ld

be tha t o f g rave and sudden p rovocat ion

and not beyond tha t . There fo re , the

impugned judgment o f sentence and

conv ic t ion under Sect ion 302 o f I PC i s

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requ i red to be se t as ide by th i s Hon ’b le

cour t i n the in te res t o f j us t i ce .

14 . The app l i can t submi ts respec t fu l l y tha t

the app l i cant has pa id the fine o f

Rs .1 ,000 / - as per the judgment . The

app l i cant was a r res ted in connec t ion w i th

th i s offence on the da te o f reg i s te r ing the

F IR and s ince then , he i s i n jud ic ia l

cus tody . Pend ing t r i a l , the app l i can t was

no t re l eased on ba i l and he con t inues to

be in j ud i c ia l cus tody . Cons ider ing the

prov i s ions o f the se t off to be g iven to

under t r i a l p r i soner , f rom the to ta l pe r iod

o f sentence imposed upon the app l i cant ,

the app l i cant has a l ready undergone

sentence o f abou t two years . There i s

every l i ke l ihood that the appea l wou ld be

a l l owed and the conv ic t ion wou ld be se t

as ide . Fur ther , cons ider ing the pendency

o f appea l s be fo re th i s Honourab le cour t , i n

o rd inary course , the appea l i s l i ke ly to

take cons iderab le l ong t ime fo r hear ing

and on th i s coun t a l so , the app l i can t may

k ind ly be re leased on ba i l pend ing appea l .

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There fo re , i n v iew o f these fac ts , the

app l i cant deserves to be re leased on ba i l

pend ing appea l .

15 . The App l i cant has no t fi led any o ther

pe t i t i on o r app l i ca t ion o r rev i s ion e i ther

be fo re th i s Hon ’b le Cour t o r the Hon ’b le

Supreme Cour t o f Ind ia o r any o ther Cour t

o f l aw on the sub jec t mat te r o f the appea l .

16 . The App l i cant has no o ther a l te rna t ive

efficac ious remedy ava i lab le but to

approach th i s Hon ’b le Cour t by way o f the

presen t appea l .

17 . The App l i can t respect fu l l y c raves leave to

add , a l te r , de le te , resc ind , amend , any o r

a l l the g rounds re fe r red to here inabove .

18 . On the above grounds , and those tha t may

be u rged a t the t ime o f hear ing o f th i s

appea l , th i s Hon ’b le Cour t :

(A) Be p leased to admi t and a l l ow

th i s app l i ca t ion and fu r ther be

p leased to re lease the app l i can t

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on ba i l pend ing the admiss ion ,

hear ing and fina l d i sposa l o f the

C r im ina l Appea l fi led aga ins t the

judgment o f conv ic t ion and

sentence da ted 16 .9 .2006

passed by the lea rned Add l .

Sess ions J udge , Cour t No .6 ,

Ahmedabad , in Sess ions Case

No .314 o f 2005

(B ) Be p leased to pass such o ther

and fu r ther o rder ( s ) as may be

deemed fi t and p roper in the

in te res t o f j u s t i ce ;

AND FOR THIS ACT OF K INDNESS AND JUST ICE , THE APPL ICANT , AS IN DUTY BOUND, SHALL FOR EVER PRAY .

Ahmedabad (M e h u l K . S r i v a s t a v a ) D t . : / 2 /2007 Advocate fo r the App l i cant

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