State Of Gujarat vs Sanjay Dangal Badgujar on 19 March, 2004

JUDGMENT

D.K.Trivedi, J.

1. The learned Joint District Judge And Addl. Sessions Judge, Fast Track Court, Bharuch, while disposing of Sessions Case 16 of 2000 dated 4.9.2003 convicted the accused Sanjay Dangal Badgujar of Surat for the offence under Section 302 of the I.P.C. and on hearing on the point of sentence had imposed capital punishment to the accused and as per the provisions of Section 366(1) of the Cr.P.C. the order of the learned trial Judge came for confirmation and accordingly the Confirmation Case No. 2 of 2003 was received by the Registry of this court and as per the order passed by the Division Bench earlier on 18.11.2003, the Division Bench has issued notice to the District Magistrate, Bharuch for preparation of requisite paper book and including the Appeal Memo in respect of the Appeal filed by the accused being Criminal Appeal No. 1167 of 2003 and thereafter the Confirmation Case was fixed in view of the order passed on 4.3.2004. The learned trial Judge had also convicted the accused for the offence under Section 307 of the I.P.C. and the accused was ordered to suffer R.I. for life. The convict accused had also filed Appeal being Criminal Appeal No. 1167 of 2003 challenging the order of conviction and sentence in respect of the offence punishable under Section 302 as well as for the offence under Section 307 of the I.P.C.

2. We have heard Mr. K.J. Shethna, learned senior advocate, who appeared for the accused in the Confirmation Case as well as in Appeal filed by the appellant accused challenging the order of conviction and sentence passed by the learned trail Judge who in turn had taken us through the paper book consisting of oral and documentary evidence and the judgment under challenge. Mr. K.P. Raval, learned Addl. P.P., who appeared on behalf of the State, has in turn also during arguments taken us through the relevant evidence led by the prosecution and the judgment under challenge.

3. Mr. Shethna, the learned counsel appearing for the appellant accused, has vehemently urged that looking to the order passed by the learned trial Judge relying upon the evidence led by the prosecution according to him that the learned trial Judge has misread the evidence, which resulted into miscarriage of justice. He has also commented upon while taking us through the evidence of the prosecution witnesses in the form of evidence led, who had witnessed the incident as well as the witnesses who supported the prosecution case and the evidence in the form of medical evidence led by the prosecution as according to him that the reliance placed by the learned trial Judge by accepting the prosecution case by recording finding that the appellant accused is responsible for the murder of Harishbhai Pitambarbhai Chaudhari and Maheshbhai Ramanbhai Desai by holding that the prosecution has established that it is only because of the successive firing from the service rifle allotted to the accused and with motive and with knowledge had caused death of Maheshbhai Ramanbhai Desai as well as of Harishbhai Pitambarbhai Chaudhari and thereby accused has committed murder of Maheshbhai Ramanbhai Desai as well as of Harishbhai Pitambarbhai Chaudhari. Such finding recorded by the learned trial Judge on the basis of the evidence adduced by the prosecution according to Mr. Shethna has resulted into miscarriage of justice. Similarly it is also his contention that the learned trial Judge has also committed error by holding that accused had with knowledge and with intention to cause death fired from the service rifle at the place knowing that it will cause death as well as by causing such injury that will cause death and further that because of such firing from the service rifle the accused had with knowledge and intention caused bullet injury on Madhuben Himatbhai Thakore and thereby accused had caused injury to Madhuben and thereby intended to commit murder of Madhuben. Mr. Shethna has also placed reliance upon various decisions of the Apex Court, which we will refer to later on and according to him that in light of the decisions of the Apex Court, the learned trial Judge was not right in imposing capital punishment and this case not being a rarest of rare case for which the trial Court was required to impose capital punishment. He contended before us that the order of conviction of the accused for the offence under Section 302 as well as for the offence under Section 307 of the I.P.C. deserves to be set aside. However, alternatively it is his submission that if this court on appreciating the evidence finds that there is a case of murder of Maheshbhai Ramanbhai Desai, however so far as the finding recorded by the learned trial Judge in respect of murder of advocate Harishbhai Pitambarbhai Chaudhari is concerned as well as injury caused to Madhuben, the learned trial Judge was not justified in convicting the accused for the offence under Section 302 as well as for the offence under Section 307 of the I.P.C. and the capital punishment imposed by relying upon that the accused had also committed murder by using fire arm i.e. from his service rifle by causing injury to Advocate Shri Chaudhari, this is not a case in which the capital punishment is required and at the most it is a case in which the death penalty is to be commuted by sending the accused for R.I. for life. So far as the conviction and sentence imposed for the offence punishable under Section 307 of the I.P.C. in respect of the injury caused to injured Madbhuben is concerned, according to Mr. Sheehan that as found from the evidence it is very clear that the accused cannot be convicted for the offence under Section 307 of the I.P.C. and in light of the evidence, at the most one can say that Methuen had sustained bullet injury and that can be attributed to the appellant by committing that it is only an offence one can say that it is an offence under Section 304A of the I.P.C. and the conviction of the accused under Section 307 of I.P.C. as well as the sentence imposed by the learned trial Judge on that count deserves to be set aside and deserves to be altered for lesser offence.

4. Mr. K.P. Raval, learned Addl. P.P., has supported the judgment under challenge. It is also his contention that as found from the evidence, it is not in challenge by the defence that the accused was working in a Police force. It is also admitted that the appellant accused was on duty and the appellant was allotted a service rifle. The presence of the appellant on duty in the court premises is established and as found from the evidence led by the prosecution that it is the accused, who had used the service rifle by aiming on the persons, namely, advocate Harishbhai Pitambarbhai Chaudhari as well as on Maheshbhai Ramanbhai Desai and further that the bullet injury is also sustained on Madhuben. The accused is required to protect the accused, who were brought from the court or even from the Police Station and when the service rifle was given to the accused, he has no business to fire in such a fashion in which two innocent persons had lost their lives and one innocent lady had also sustained grievous hurt. The incident in question has occurred in the court premises itself where in the normal course also the litigants and the citizens are there to attend their work. Mr. Raval has also contended before us that in the present case as per the motive attributed for such crime, the accused was not justified to take revenge in this fashion by committing murder of Maheshbhai Ramanbhai Desai, who was brought by the police before the court for seeking further remand of the accused and it is the prosecution case that Mahesh and other accused had committed murder of Indiraben and the accused Sanjay was in love with said Indira. In light of the evidence led by the prosecution, when the learned trial Judge has accepted the prosecution case according to Mr. Raval that the learned trial Judge has rightly imposed capital punishment as accused by using service rifle allotted to the accused had caused two murders for which it is the prosecution case that such murder was caused by the accused to take revenge in respect of murder committed by Mahesh Ramanbhai Desai on Indira with whom the accused had love affair and an innocent advocate had also died due to bullet injury and in view of the fact that by firing gun shots two persons had lost their lives for which the learned trial judge has rightly imposed capital punishment and it is his submission that while considering the confirmation case the order of sentence imposed on the accused of death penalty be confirmed. So far as the conviction of the accused for the offence under Section 307 of the I.P.C. for causing grievous hurt to Madhuben is concerned, it is the submission of Mr. Raval that even the conviction was rightly recorded by the learned trial Judge and it can never be said that the injury sustained by Madhuben can be considered to be an injury sustained by her in an accident or it can be said that it is an accidental injury.

5. In light of the contentions raised before us we will discuss in brief the evidence. It is an admitted fact that the convict accused was armed constable and on the relevant date i.e. on 15.2.1999 accused was on duty alongwith Armed Constables-Vipinbhai Parbhubhai Patel with other police persons Aswin Rupji, Karshan Chhagan and Ashokbhai Arjunbhai and these police persons were in police party with the prisoners. To take the prisoners from the jail before the court, wherein the accused Sanjay was provided with the rifle and the cartridges. The police party with the under trial prisoners were brought at the court of the Addl. Sessions Judge at 11.0 A.M. and the undertrial prisoners were made to sit in the court room and the armed constable Sanjay was standing outside the court room. So the presence of the accused Sanjay with the other police persons who had brought the undertrial prisoner from the District Jail to the court premisses is an admitted fact and the accused was provided with the service rifle with the cartridges. As per the charge on the very day i.e. on 15.2.1999 accused and other members of the police party had brought eight undertrial prisoners from Sub Jail, Surat at the new court building and the accused was having a service rifle. The deceased Mahesh Ramanbhai Desai against whom the accused had an enmity and Mahesh Ramanbhai Desai was also one of the undertrial prisoners who was in police custody. When said Mahesh Ramanbhai Desai in police custody was taken to the office of the Registrar in the court building, at that time at about 12.45 P.M. (Noon) on the 3rd floor of the court building, namely, in the middle passage between the court of the learned Chief Judicial Magistrate and the court of the learned Addl. Sessions Judge opposite to room Nos. 43 and 44 with an intention to commit murder of Mahesh Ramanbhai Desai the accused has from his service rifle fired shots after shots on the said Mahesh Ramanbhai Desai and caused injuries and committed murder of said Shri Mahesh Ramanbhai Desai and thereby accused has committed offence under Section 302 of the I.P.C. The accused was also further charged that at the same time and place while firing from the service rifle with the knowledge that such act is dangerous act and may cause death of a person and also with an intention by such firing has caused serious injuries to advocate Shri Harishbhai Pitambarbhai Chaudhari and committed murder of Shri Chaudhari and thereby accused had committed offence of murder under Section 302 of the I.P.C. The accused was further charged that while firing from the service rifle at the same time and place the accused with intention had committed by firing from the service rifle attempt to murder Madhuben by causing injury and accordingly the accused has committed offence under Section 307 of the I.P.C.

6. Before we deal with the evidence, it is necessary for us to note that though the incident in question has occurred in the court premises at Surat, the Sessions Case was transferred for trial by High Court while considering the application of the appellant accused by this court and the trial of the accused was transferred from the court of the learned Sessions Judge, Surat to the court of the learned Sessions Judge, Bharuch and charge Exh.3 was framed by the learned Sessions Judge, Bharuch on 12.6.2001 in respect of the incident which has taken place on 15.2.1999.

7. The defence of the accused is of total denial and according to him he has not committed any offence and he is only involved in a serious case and he is an innocent person.

8. To prove the case against the accused, the prosecution has examined 17 witnesses and 24 documents relied upon by the prosecution are admitted in evidence with the consent of the defence counsel as per the documentary list Exh.5. These documents are consisting of complaint filed by Shri Jayantilal Mohanlal Patel before Police immediately on 15.2.1999, the scene of offence panchanama drawn on the very day i.e. 15.2.99, the accused was apprehended there and there with the service rifle under the panchanama, the cartridges used from the service rifle by the accused seised under panchanama on the very day, the inquest panchanama on the dead bodies of deceased advocate Harishbhai Pitambarbhai Chaudhari and Maheshbhai Ramanbhai Desai on the very day, the bullet recovered from the person of Madhuben who had sustained bullet injury under the panchanama on the very day, the post mortem notes of deceased Harishbhai Pitambarbhai Chaudhari and Maheshbhai Ramanbhai Desai, the medical certificate in respect of the injuries found on Harishbhai Pitambarbhai Chaudhari and Maheshbhai Ramanbhai, the clothes found from the dead body of Maheshbhai Ramanbhai under the panchanama, the clothes found on the dead body of Harishbhai Pitambarbhai under the panchanama, the clothes of injured Madhuben under the panchanama, dying declaration of Madhuben recorded by the Executive Magistrate dated 15.2.1999, the medical certificate in respect of the treatment given to Madhuben in Civil Hospital, Surat, the forwarding letter before the F.S.L. and the acknowledgment letter from the F.S.L., the report of the Deputy Director of F.S.L., the serologist report, these documents are proved in evidence as the defence had given their consent.

9. The evidence of the witnesses are recorded in three categories, namely, the evidence of the witnesses who posed to be eye witnesses to the incident i.e. of one category, the another category of evidence led by the prosecution is supporting the prosecution case in respect of the presence of the accused at the court premises, and the third category is the expert evidence i.e. medical evidence, namely, in respect of the post mortem examination on the dead bodies of Harishbhai Pitambarbhai Chaudhari and Maheshbhai Ramanbhai Desai and the bullet injuries found on the dead body, the evidence of the police officer in respect of the investigation of the case and the evidence of expert, namely, the Ballistic expert and the Circle Officer, who has prepared the Map on the basis of the panchanama of scene of offence.

10. P.W.2 Jayantilal Mohanlal Patel, who is practicing advocate in District Court, Surat, has filed the complaint before the police immediately about the incident i.e. on 15.2.1999. As found from his evidence that he is practicing advocate in District Court, Surat and as in normal course, as per the routine he had gone to the court premises at 11.30 A.M. His standing at the Bar is about 12 years as an advocate. After doing his work in the court of the learned J.M.F.C. situated on the ground floor, he had gone to the court on the 3rd floor at the office of the C.O.C. for handing over some documents pertaining to muddamal. He was coming down towards the Chief Court which is situated on the 3rd floor where two courts are situated; one of Addl. Sessions Judge and another of Chief Court. In between these two courts in the passage the accused Sanjay was standing near accused Mahesh Desai. At about 12.45 noon abruptly accused Sanjay fired on undertrial prisoner Mahesh from his service rifle from a close distance and the bullet had hit accused Mahesh and as the bullet hit Mahesh, he fell down. Immediately thereafter accused Sanjay had fired on advocate Harishbhai, who was sitting near the window by putting his table and because of such firing, Harishbhai had also received bullet injury and he also fell down. At that time the relatives of accused Mahesh were also present alongwith Shri P.I. Jadeja and other staff in respect of the investigation of the case registered against Mahesh. P.S.I. Patil was also there. At that time the rifle and the cartridges were taken away from the accused. P.I. Kaneria was present who had apprehended the accused. P.I. Jadeja had dragged injured Mahesh Desai upto the stair and from there Mahesh Desai was taken to Hospital. While the other advocate friends, who also arrived there, took advocate Harishbhai Chaudhari to Hospital. The complainant Jayantilal also came to know that Mahesh Desai and advocate Chaudhari were found dead. He also come to know that in this incident Madhuben had also sustained injury. According to him immediately after 20 minutes of the incident, P.I. arrived and he gave complaint to P.I. and he has put his signature. A copy of the said complaint was also given to him at that time. He also proved the complaint filed by him before P.I. and this complaint is at Exh.30. After seeing the muddamal rifle, the witness had in turn identified that it is the same rifle from which the accused had fired. The complainant had also shown the place of incident while drawing the scene of offence panchanama in presence of two panchas.

10.1 Before we discuss the evidence in cross examination, it is equally necessary for us to refer to the document Exh.30 i.e. the F.I.R. given by Shri Jayantilal. As found from Exh.30 that the information about the offence was disclosed on 15.2.1999 at 1.15 P.M. (13.15 hours) to P.I. and to P.S.O. at 14.15 hours in respect of the offence which had taken place on 15.2.1999 at 12.45 P.M. and the place of offence was shown to be in the new court premises on 3rd floor in the passage between the court of the learned Chief Judicial Magistrate and the 3rd Addl. Sessions Judge, opposite room Nos. 43 and 44 and against the heading of accused, it is written that “Armed police constable Sanjay Dangal Badgujar, Buckle No.R-3 Service City Head Quarter, native place village Amalner, Taluka Amalner, District Amelner”. On going through the F.I.R. and as discussed in the evidence in chief of P.W.2 Jayantilal, he has deposed in evidence in chief that as per routine he had gone to the court premises and after attending the work in the court situated in the ground floor, he had gone to the office of the C.O.C. on 3rd floor and while coming down from the 3rd floor, he saw the accused armed constable Sanjay standing near accused Mahesh Desai in a passage between two courts and accused Sanjay from his service rifle had very closely fired bullets on Mahesh Desai and in bleeding condition Mahesh Desai had fallen down and thereafter the accused Sanjay had fired second time on advocate Harishbhai Chaudhari, who was sitting by putting his table near the window. On receiving bullet injury Harishbhai had also fallen down in bleeding condition. Thereafter, all the advocate friends gathered and at that time the relatives and friends of accused Mahesh were also there. Jadeja, Police Inspector, had dragged Mahesh Desai upto to the stair and took him to the Hospital for treatment while advocate friends had taken advocate Shri Harishbhai Pitambarbhai Chaudhari in Hospital for treatment where he came to know that Harish and Mahesh had expired. At the time of incident, the Investigating Officer and other police staff were also present and immediately after the incident the police Sub Inspector Shri Patil had taken away the loaded rifle and the cartridges from accused Sanjay and Police Inspector Kaneria had apprehended the accused. He had also come to know that in this incident one Madhuben had also sustained injuries. The incident in question had occurred according to him at about 12.45 noon.

10.2 As found from the cross examination of complainant Jayantilal P.W.2, that he was not knowing Mahesh Desai personally. However, on seeing him he was knowing that he is Maheshbhai. He has admitted that at the place where the incident has occurred i.e. in the lobby, there the litigants and advocates were also there. He was not knowing whether the relatives of Mahesh Desai were present and he was not knowing the relatives of Mahesh prior to the incident. When he has given his complaint, at that time one person was raising shouts, who was the brother of Mahesh, which he came to know and in his complaint he has not disclosed the name of brother of Mahesh or the particulars about description of that man. Nor he has stated that, that man was brother of deceased. It is further found from his cross examination that after the incident was over, that man had raised shouts and said that his brother is killed. He was not knowing the present accused nor even he was known to the accused prior to the incident personally and he was also not knowing the name of the accused. He has not stated in respect of certain informations in his complaint. However, he has stated those informations in his deposition, as he came to know it after the occurring of the incident. At the time of filing complaint he was knowing that Madhuben had also sustained injury, which he came to know from the advocate friends and at that time when he gave complaint, he came to know that Madhuben had also sustained injury. In the incident within 15 to 20 minutes both the persons, namely, Mahesh Desai and Harishbhai Chaudhari died which he came to know. The accused was apprehended with rifle and the accused was kept at the same place till evening upto 4.30 P.M. to 4.45 P.M. and during this period the accused had not tried to run away from the place. He was giving his complaint while sitting in the room and he came to know the name of the accused from the name plate which was found on the accused person. The complaint was given while sitting in the Bailiff Room, where the accused was also kept there. After finishing his work from the office of C.O.C. and after getting down from the stair case, after about 5 to 7 steps and when he came in lobby, immediately the incident had occurred and Mahesh Desai and accused person were just opposite to the stair case. The distance between Mahesh Desai and the accused was about 2 to 3 ft. He was not knowing that since how long the accused and Mahesh Desai were standing. Prior to the incident, when he had seen Mahesh Desai at that time accused was not present. When he saw the accused immediately there was firing and the nozzle of the rifle was hardly at a distance of half ft. from Mahesh Desai. At the time of firing, the accused and deceased Mahesh were standing opposite to each other and the face of Mahesh was towards the court of the learned Addl. Sessions Judge and the back portion of Mahesh was towards Harish. If one looks towards Maheshbhai, then there is one wall having grill. At the time when the firing took place on Maheshbhai, at that time the back portion of Mahesh was not towards the small parapet wall as Maheshbhai’s back portion was towards Harishbhai. He has seen two firing, one hitting the chest of Mahesh and another bullet hit Harish. He has no knowledge regarding how the bullet had hit the parapet wall. At the time he had only seen the accused firing two shots and he has not seen any other firing by the accused. It is correct to say that on the same direction where Mahesh and Harish were standing in that direction the bullet had hit. The bullet hit Madhuben who was standing near the door of the Chief Court. He had no personal knowledge about the bullet hitting Madhuben and on what place and on what part of the body. Harish Chaudhari’s table was near the grill and his chair was also near the grill. At the time when the incident had occurred, Mahesh was standing and Harish was sitting and they were not in the same direction but were on the cross line. He admitted that if Harish is found sitting on a chair with table, then the face of Harish will be towards the parapet wall. He has admitted that at the place of incident, opposite there is a stair case, near passage, near grill Harish Chaudhari was sitting by placing the table, where the firing had taken place. From the table of Harish, the parapet wall is at a distance of about 10 ft. and in the lobby at a distance of 2 to 3 ft. from the pillar Mahesh was standing, at that time the incident had occurred. At the time of incident he has not seen that Mahesh has gone towards the pillar by hiding himself. He has also not seen that Mahesh fell down and thereafter firing had taken place on him. At the time of firing on Harishbhai, he was in sitting position and in respect of two entry wounds found on the body of Harish Chaudhari, he was not knowing. He can not give any explanation about the two entry wounds on the body of Harish Chaudhari and how that has happened. On the body of Mahesh he was not knowing that there were two entry wounds as well as there were two exist wounds. At the second firing, Mahesh had fallen down on the floor and these two entry wounds and two exist wounds were possible. He has not seen the second bullet hitting Mahesh. After the first bullet hit Mahesh, he fell down and he has not seen hitting of second bullet on Mahesh. At the time of firing on Harishbhai the nozzle of rifle was towards Harish. The first firing which has taken place at that time the person who has fired was in a standing position and while firing second time he was in bent position. He has denied the suggestion that in this incident about seven firings had taken place. According to him only two firings had taken place. The two cartridges were also recovered from the place of offence by the police, which he knows. He had denied the suggestion that since only two used cartridges were found from the place of incident, he is telling that two firings had taken place. The witness has denied that since the advocate had died in this firing, all the advocates had taken interest in the case. From the time of incident till the post mortem was performed and till date of deposition, he has no knowledge that on the dead body of the person there were two entry wounds and two exist wounds. He has admitted that after the firing on Harishbhai thereafter he had not heard any shot of fire. He denied the suggestion that the accused had not fired on Mahesh and also on Harishbhai. He had denied the suggestion that on the day of the incident when the accused came on the second floor prior thereto there was a firing on Mahesh and Harishbhai. It is not correct to say that on hearing the shot of firing at 3rd floor, the accused, who was there on the second floor, came running on third floor. It is not correct to say that as the accused was on duty and as a part of his duty, the accused had from his service rifle fired in air so that accused would not ran away and the two bullets, which were found, are the bullets which the accused had fired in air. From the place of incident, the rifle was snatched away and the accused was apprehended, which he says is true. He had denied the suggestion that after the incident, he gave the complaint after 3 to 4 hours. He has further admitted that after firing on Mahesh and Harish Chaudhari both of them had fallen down.

10.3 P.W.2 Jayantilal Patel is a practicing advocate and the incident has taken place i.e. on 15.2.99 on a court working day and his presence at the Court premises is natural. As found from the evidence of this witness, he is the person who according to him had seen the accused and Maheshbhai Desai on the 3rd floor and the accused had fired on him with rifle and the another firing was on advocate Shri Chaudhari. Mr. Shethna, the learned counsel, has vehemently urged that even as per the prosecution case when the incident in question has occurred in the court premises and when from the service rifle a firing has taken place in which 2 persons had sustained bullet injuries, out of which Mahesh Desai was brought by the police who was one of the accused in connection with the offence, which was registered for murder of Indiraben and the accused Mahesh and other co-accused when produced before the Magistrate for further remand, the remand of deceased Mahesh was extended for a period of 3 days and when Mahesh was taken at the 3rd floor in the office of the C.O.C., the firing has taken place and the present appellant accused was provided with the service rifle with the cartridges, it is his duty to protect that such accused, who were brought, may not try to run away and as in this firing one advocate had also sustained bullet injury but Jayantilal Mohanlal who had given complaint on considering the fact that the accused was very much there and apprehended by the police with rifle and according to Mr. Shethna that though the other police personnel who were very much there who can throw better light, there is some intention to take the complaint from advocate Jayantilal, who according to him had given complaint only with a view to see that advocate Chaudhari was also aimed by the present accused and a second fire from the service rifle was fired on advocate Shri Chaudhari. It is the contention of Mr. Shethna that in the evidence of Jayantilal he has also made reference in his deposition about the relatives of accused Mahesh, who were also present. According to him that a complaint was given at the place where the accused was very much apprehended by the police and the rifle was snatched and only after gathering the fact, a story was created to involve the present appellant in a serious offence and his evidence is required to be ignored. We have already discussed his evidence in respect of the contention raised by Mr. Shethna, but one thing is very clear that according to complainant Jayantilal only two firing had taken place. At this juncture it is also necessary for us to note that the complaint of Jayantilal P.W.2 was recorded by Mr. Rajput, Police Inspector, attached to Umrao Police Station in the court premises itself i.e. in Nazir Room and even at the time when the complaint was given the accused was very much there in the said Nazir Room. In the court premises other police officers were also present and other undertrial prisoners were also brought from the concerned Police Station and even the police persons, who had brought prisoners from District Sub Jail, were also present. Offence has taken place at noon at about 12.45 P.M. in the court premises and it was disclosed on the very day at 13.15 hours to P.I. and to P.S.O. at 14.15 hours. The offence was registered at Umrao Police Station vide C.R.No. 154/99 against the accused for the offence under Section 302 of the I.P.C.

11. P.W.3 Pandurang Narayan Jade examined by the prosecution was also very much present at the court premises. P.W.3 Pandurang at the relevant time was working at Randher Police Station as A.S.I. and his duty was at Borwada Police Chowki. As per oral instruction of his P.S.I. Shri Kadiwala to get the information while visiting to the court of the Chief Judicial Magistrate, Surat in respect of the information about the stollen vehicle, he had gone to the court at Surat at about 11.0 A.M. Superior Officer P.I. Jadeja had also come to the court premises with the accused persons for obtaining remand and Mahesh Desai and other accused were there. Mahesh Desai and others were involved in an offence of murder registered at Randher Police Station being I-C.R. No. 65/99. As the period of remand was to be over, the accused persons were produced before the court. P.I. Jadeja met him and told him that he has brought accused and accordingly asked him to wait to assist him. The accused were produced before the learned Magistrate and sought further remand of the accused. The learned Magistrate had rejected the prayer for remand of 7 accused and only granted further remand of accused Mahesh, which was extended upto 18.2.1999. The accused Mahesh Desai was to be informed about the remand and for obtaining his signature, police constable Atmaram and one other police person, alongwith witness, with the accused Mahesh Desai were proceeding to the office of the Registrar. The Registrar had taken signature of Mahesh Desai on the remand order and the remand of other accused were not granted. At that time the appellant Sanjay was standing in a lobby of the court alongwith P.I. Shri Jadeja. Mahesh Desai was brought by them before P.I. Jadeja and on the 3rd floor of the court lobby there is one grill and when they reached there, all of a sudden he heard one shot. On hearing the shot from that direction he has looked and he had also looked towards Mahesh Desai and Mahesh Desai on seeing one police person in uniform tried to ran away. The Police Constable Atmaram was with him and he tried to apprehend Mahesh Desai and he fell down on Mahesh. The police person, who was in uniform, was having a rifle and he had fired. That Police person had also gone near to Mahesh Desai and had fired from his rifle. At that time Atmaram had seen by turning and Atmaram had caught hold of the rifle and raised the nozzle of the barrel of the rifle towards sky. All the police persons, including P.I. Jadeja, had snatched away the rifle from that police person. Mahesh Desai fell down at the place bleeding. All the police persons with P.I. Jadeja had brought Mahesh Desai from 3rd floor to the ground floor and Mahesh was taken in a Government vehicle to Government Hospital. He identified the accused in the court premises, who had fired and whose name is Sanjay Badgujar. When Mahesh Desai was taken to a Government Hospital and the Doctor examined him, he was declared dead. Harish Chaudhari advocate was also brought in the Hospital in injured condition and the Doctor also examined him and declared him dead. One lady was also brought to the Hospital, who had sustained some injuries. That lady’s name was Madhuben. In this firing three persons had sustained injury and according to him first there was one firing and another firing was on Mahesh Desai with very close range and according to him there were only two firing in which both have received injuries. To suggest motive to the crime, when the witness was posed question about the reason for killing Mahesh Desai, it was also objected by the defence. However, the learned trail Judge has over ruled the objection and as suggested from the evidence of P.W.3 Pandurang, the motive for the present crime which according to the witness that he came to know from police constable Atmaram that the present accused had some love affair with Indiraben and the said Indira was murdered by Mahesh Desai and to take revenge for such murder, accused has committed murder of Mahesh Desai.

11.1 As found from the cross examination, he has not seen the firing in which the advocate has received bullet injury as well as he has not seen firing on Madhuben. He was not knowing the present accused prior to the incident nor he was knowing the accused by name or by face. No identification parade was arranged before the Mamlatdar in which the accused was identified by the Investigating Officer. How many injuries were there on advocate Shri Chaudhari and Mahesh Desai as well as on Madhuben, which even he does not know till date. The first shot which he heard is of firing shot and he has not seen any injury which was caused from first firing. On a parapet wall he had also seen that the bullet has also hit on the said wall, which he had seen on that day. On second round of firing, the bullet had hit on the wall and on the second firing the bullet had hit on the side portion of Mahesh and the bullet had gone through left side and came out from right side. The barrel of rifle was touching the body of Mahesh and in that position it was fired and when the bullet had hit on Mahesh Desai, Mahesh Desai fell down and his face was towards the floor and back portion was towards the sky. According to him when they returned from the Registrar’s office and while coming down from the stair case and when they reached near the grill, at that time he heard the first firing and when the first firing had taken place, at that time they were proceeding from grill side to parapet wall and at that time their face was towards parapet wall. Mahesh Desai had tried to run away after hearing the first shot and Mahesh Desai had run from the grill side towards the parapet wall. He had admitted that when Mahesh Desai had tried to run away towards the parapet wall, at that time the police person, who had fired, was not near parapet wall as according to him the person was near the grill. He has admitted that when the first firing was done, the police, who had fired, was not opposite to the chest of Maheshbhai. He had heard the shots of firing from the left side from where he was standing. He has admitted that he can not say who had fired the first shot and when the second shot was fired, at that time he came to know who fired that shot. He has not stated in his police statement that the person who has fired, had fired the rifle touching the body of Mahesh. At the second firing the person who had fired had not sat down and he had fired while standing. When Mahesh fell down and after the second shot was fired, at that time Mahesh’s position was not that it may hit the chest of Mahesh Desai. Atmaram has also attempted to apprehend Mahesh Desai as Mahesh Desai tried to run away. When the first shot was fired, he has not thought of that somebody had tried to relieve Mahesh Desai from police custody and when the first shot was fired, thereafter the people had not attempted to run away. He has not seen an advocate in bleeding condition when Mahesh Desai was taken from the scene of offence to Hospital. In Hospital P.I. Jadeja and P.S.I. Kadiwala were also with him. The witness has admitted that on that day P.I. had told him to assist him to keep the accused, who was brought for remand and it was also his duty to see that no one else also kills the accused nor even the accused try to run away. While taking Mahesh Desai to Hospital, his clothes did not get blood stained and his clothes were not seized by the police. He, however, stated that when Mahesh Desai was taken to Hospital, at that time his uniform was stained with blood stains. His statement was recorded by the police on the very day and when he gave statement at that time the uniform, which he was wearing, was having blood stains. He has denied the suggestion that after signature was taken in the office of the Registrar, Mahesh Desai was walking alone and they were following him. The incident in question had occurred at 1.0 P.M. and when the shot was fired on Mahesh Desai, the barrel of that rifle was pointing downwards. Till he gave deposition, he had not come to know that how two wounds were found on Mahesh Desai and advocate Shri Chaudhari. He had denied the suggestion that he has not seen the incident and he is deposing falsely.

11.2 P.W.3 Pandurang who was present in the court premises as per oral direction of P.I. Shri Jadeja and to get the information regarding stollen vehicle from the court of the Chief Judicial Magistrate, he has visited the court premises at 11.0 A.M. His P.I. Shri Jadeja was also found in the court premises with the accused who were brought for further remand in respect of the offence registered under C.R.No.1-65/99 for the murder of Indiraben and one of the accused was Mahesh Desai. As per the instruction of P.I. Jadeja, he was asked to remain with Shri Jadeja. In respect of the remand, it was extended for accused Mahesh and according to this witness that he heard first firing shot and Mahesh Desai had tried to run away and the Police Constable Atmaram had also tried to apprehend him who in turn had fallen on accused Mahesh Desai. It is further found from his deposition that the accused had after touching the barrel fired on Mahesh Desai from service rifle. The motive as suggested for the present murder of Mahesh Desai, according to witness he came to know from Police Constable Atmaram that accused had love affair with Indira and Indira was murdered by Mahesh Desai and to take revenge of murder of Indira, accused had committed murder of Mahesh Desai. As found from the cross examination, he has not seen the firing on Chaudhari and Madhuben. As he has not seen the firing on advocate Shri Chaudhari and Madhuben, he could not say that on which part of the body the bullet had hit them. Prior to the incident, the witness was not knowing the present appellant even by name and by face. It is further found that when he heard the first shot of firing, he had not seen anybody, who had sustained injury.

11.3 As discussed earlier, the witness has not seen any firing shot hitting any of the person and at least the witness has not seen any shot of firing in which advocate Chaudhari or Madhuben had sustained any injury from firing. It is further found from his deposition that he has seen that bullet had hit on parapet wall. According to this witness second shot of firing had hit Mahesh Desai, which bullet had passed over the side of body of Mahesh Desai from left direction towards the right direction. It is further found from his deposition that when Mahesh Desai had fell down and when the second shot of firing took place, the position of Mahesh Desai was not such that if the firing had taken place the bullet would hit Mahesh Desai and Atmaram had also attempted to apprehend the accused Mahesh Desai so that Mahesh Desai should not run away.

12. P.W.4 Atmaram Bhatusinh Thakore is also another important witness examined by the prosecution. He deposed that at the relevant time he was attached with Randher Police Station, Surat and working as Police Head Constable. According to him that on 15.2.99 the accused Mahesh Desai and other 7 accused, against whom the offence was registered for offence under 302 of the I.P.C. at Randher Police Station vide C.R.No.65/99, was to be taken to the court and he alongwith other staff with P.I. Jadeja with proper Bandabost had gone to the new court building at Surat in the court of the Chief Judicial Magistrate situated on 3rd floor. They had taken the accused in the court at 11.30 A.M. P.I. Jadeja had asked for further remand of the accused, which the learned Chief Judicial Magistrate had granted only in respect of Mahesh Desai upto 18.2.99 and the remand period was not extended against 7 co-accused. Mahesh Desai was taken to the office of the Registrar where A.S.I. Pandurang as well as one Mansukhbhai, Mobile incharge was there. The remaining 7 accused were already sent back to jail and to inform Mahesh Desai and to obtain his signature, all of them had gone to the office of the Registrar and they got out from the office of the Registrar from stair case and when they came near the grill at about 12.45 P.M. to 1.0 P.M. at that time there was a loud noise. Immediately thereafter accused Mahesh Desai, who was with him, ran towards the pillar near lobby and accordingly he also ran after him. At that time Mahesh Desai was not in a position to speak. However he pointed out and he saw behind him accused Sanjay Police Constable aiming from his service rifle towards Maheshbhai. Considering the situation, he fell down on Mahesh Desai and Mahesh Desai, who was in sitting position, was covered by him. At that time from below the right hand side at a little distance there was a fire from the barrel and when he looked behind, he found that shot was fired by accused Sanjay. At that time before he could fire the second shot, the witness had caught hold of the barrel from Sanjay and it was raised toward the sky and he caught hold of Sanjay and raised shouts. P.I. Jadeja and the police staff and P.S.I. V.D. Patil also ran towards him and he asked his P.I. to take the rifle and P.I. Jadeja had snatched away the rifle and handed over to P.S.I. Shri Patil. At that time Mahesh Desai and one advocate were found in bleeding condition and P.I. Jadeja had tried to take them to a hospital and had caught accused Sanjay. He identified the accused in the court. P.I. Kaneria and A.S.I. Mahammedbhai for some reason had also come to the court and they also come near the place of incident and witness has handed over the accused Sanjay to P.I. Kaneria. He came to know that advocate and Mahesh Desai were taken to Hospital and the witness and A.S.I. Ayub Jafar had also gone to the Civil Hospital where he came to know that both the injured had expired. The name of the injured Advocate was Harishbhai Chaudhari, which he came to know latter on. He also come to know latter on that in this incident one Madhuben had also sustained injury. He was also in the investigation with P.I. in respect of the case registered against accused Mahesh Desai and in the said case Sanjay was one of the witnesses and his statement was recorded and he came in contact with Sanjay. Even the witness was asked in respect of the motive for the crime and the defence has also objected to putting such question to the witness. However, the objection raised by the defence was over ruled and the witness has deposed that the accused had love affair with Indira Parmar and Indira Parmar was murdered by accused Mahesh Desai and to take revenge, the accused has committed murder of Mahesh Desai.

12.1 In cross examination the witness has deposed that he could not say at what time he had gone to the Hospital. However, he came to know in the Hospital that Madhuben was also injured in this incident, which he came to know from the officers who had gathered including the P.I. Jadeja and other officers whose name he could not remember. The witness was posed the question that upto what time he was at Umrao Police Station and about the recording of his statement, according to him his statement was recorded at about 7 P.M. or 7.30 P.M. and during this period he had already received all the information in respect of the incident. It is further found that when he was present at Umrao Police Station at that time accused was also brought at the police station. It is further found that till his deposition is recorded, he had no knowledge that on the bodies of Mahesh Desai and advocate Shri Chaudhari there were two entry wounds. When he was at the Umrao Police Station at that time he came to know that from the place of incident two used cartridges of .303 were found. He came to know the name of injured advocate in the Hospital through P.I. Jadeja. He can not say whether the first shot which he heard was the shot of firing or not. He know that there is a difference in the noise of firing from .303 rifle and other fire arm and he has admitted that when the first shot of firing was heard, he could not recognize that from which fire arm such shot was fired. He has further admitted that till Mahesh Desai had signaled by pointing his finger he had not seen any police man in uniform with rifle. It is further found that when Mahesh Desai had shown the accused by signaling, at that time Sanjay was standing near the grill and when he faced towards Sanjay for the first time Sanjay was found near the grill at a distance of 2 ft. from him. Near the grill, there is a stair case and towards the office of the C.O.C. there is also one stair case. The witness has admitted that from second floor to go to the scene of offence, one has to climb the stair case and has to cross the grill. The shot which was fired was on 3rd floor and he could not locate the place of firing. The back portion of Mahesh Desai was towards parapet wall and the witness had covered the face. At the time of second firing, the face of Mahesh and his face were opposite to each other and the second firing was under his right arm at a little distance and at that time Sanjay was behind him in cross direction. He has not seen on which part of Mahesh Desai the firing took place and he has not seen that from which part of the body of Mahesh Desai it was bleeding. He has not seen either on chest or on the side portion of Mahesh Desai any injury. It is further found from his deposition that there is no other firing from other rifle on Mahesh Desai. He has not seen that any bullet had entered and exited from the body of Mahesh Desai. He had seen that there was a hole on the wall and the hole was due to the hitting of the bullet which had come out from the body of Mahesh. However, he had not seen any bullet coming out from the body of Mahesh Desai, which hit the wall. He was not aware that if the bullet had hit the wall, because of such impact, the bullet would broke into pieces. It is further found from his deposition in cross that when the firing had taken place on Mahesh, at that time Mahesh Desai was in sitting position and the position of chest of Mahesh was downwards and his chest was at a distance of about one and half ft. from the floor. When he covered Mahesh Desai, he had rested his one hand with the pillar and one hand was on the wall and at that time his chest and Mahesh Desai’s chest were at a distance of about half ft. Advocate Chaudhari’s table was situated near the grill and he did not know that when the injury was caused to Madhuben, whether she was near the stair case right next to the grill. After the first firing, Mahesh Desai tried to run away and the witness had also rushed towards that direction and at that time he could not see the front portion of Mahesh. He can not say whether on both the sides of the chest of Mahesh the bullet had hit or not. He can not give any explanation about two injuries found on Maheshbhai on the chest as well as the two injuries found on advocate Shri Chaudhari. He had denied the suggestion that at the time of firing on Mahesh he was not present and Maheshbhai was kept alone. As the accused Mahesh Desai was in his custody and to protect him, they have concocted the story, is not correct. He has not seen the accused having love affair with Indira. He has no other proof to show that accused had a love affair with Indira and he has not collected any evidence to suggest that accused had a love affair with Indira and from the statement of accused, which was recorded, he only came to know that accused had a love affair with Indira and because of love, the accused intended to marry Indira. It is further found from his cross examination that in the case registered against Mahesh Desai being I-C.R.No.65/99 the statement of accused was recorded by the Investigating Officer and being a Writer Constable he has recorded the same. It is further found that he does not know whether that statement was in his own hand writing or not. However, he was with the investigation of that case and he is telling only on memory that the statement of the accused was recorded in the year 1999 at Randher Police Station. However, he can not remember the day or the month of recording of such statement. It is further found from his cross examination that till the statement of accused was recorded, the accused Mahesh Desai and other accused in that case were not arrested. He does not remember about the exact date of murder of Indiraben and he can not also say the period in which Indira was murdered and even in respect of the arrest of the accused in that case. The witness is also not knowing about the filing of the charge sheet in the said case and further that he is not the witness in that case and he was not knowing whether the case is still pending or not. However, he came to know that the rest of the accused were acquitted in that case. He denied the suggestion that he has not seen the incident and he is deposing falsely.

12.2 Atmaram, as discussed from his evidence, he was very much present alongwith Shri Jadeja P.I. when deceased Mahesh Desai and other seven accused were brought for further remand before the court of the learned Chief Judicial Magistrate and the accused were produced before the Magistrate at 11.30 A.M. and except the remand of Mahesh Desai, the learned Magistrate had sent rest of the accused in judicial custody while rejecting the Application. As transpired from the evidence of Atmaram that at about 12.45 P.M. to 1.0 P.M. there was a shot of firing and accused Mahesh Desai was with him with the other police party, who tried to run away and the witness also ran towards him and it is only Mahesh Desai by pointing out by signaling towards the accused, the witness had seen that the accused was taking aim at deceased Maheshbhai from his service rifle.

13. Mr. Shethna, learned counsel, has vehemently urged that as found from the evidence of Atmaram and the manner in which he has deposed before the court, as after the first shot which was fired on the accused Mahesh and he ran and the witness had also reached towards deceased Mahesh and the witness has given protection by jumping on him and in the manner in which the witness has suggested the close firing of the accused towards deceased Mahesh through the second firing, such evidence deserves to be discarded in view of the fact that in the manner in which the witness had deposed that the accused had fired from the rifle towards Mahesh Desai and where the witness had also covered him, in such situation even as per the medical evidence without causing any injury to the witness the bullet could not hit Mahesh Desai and as suggested first firing had hit the wall and after that bullet had broken into pieces, the pieces of bullet must have hit Mahesh Desai and the prosecution case is hardly probable. He has vehemently urged that it was only the second firing which according to the witness was aimed towards the accused Mahesh and that too from a close range between the witness P.W.4 Atmaram and deceased Mahesh Desai.

14. As found from the evidence of Atmaram, his presence at the scene of offence is established. He was also one of the police persons with P.I. Jadeja, who had brought accused Mahesh Desai with other seven accused for further remand from Randher Police Station to the court of the Chief Judicial Magistrate. The firing had taken place on the 3rd floor. The bullet also hit the wall and the witness had also seen that there was a big hole in the wall. In respect of the motive as transpired from the evidence of Atmaram that he is also Writer Constable with P.I. Jadeja and during the investigation of the said case, the statement of accused was recorded in respect of murder of Indira Parmar and to take revenge of murder of Indira, the accused had fired from his service rifle and fired on Mahesh Desai. However, it is further transpired from his evidence that when the statement of Sanjay was recorded in respect of murder of Indira at the Randher Police Station and till the recording of the statement of Sanjay, the accused Mahesh Desai and others were not arrested. Even he can not say that whether statement of Sanjay was recorded in his own hand writing or not. However, the fact remains that he was part of the investigation team of that case with P.I. Jadeja.

15. Before we discuss the evidence of Madhuben, who has also received bullet injury in the incident, we will discuss the evidence of P.W.6 Ramanbhai Khandubhai Patel. Shri Patel was working as Armed Head Constable. He is also one of the police persons in a police party with accused Sanjay, Aswin Rupji, Karshan Chhagan and others and to take the custody of the accused persons, they approached Jail at 9.0 A.M. Out of which one person was Head Constable and one rifle was provided with the custody. Rifle was entrusted to the present appellant accused Sanjay. The said rifle is of .303 caliber and alongwith the rifle, 20 cartridges were also issued to him with the rope, handcuff etc. In a Government vehicle with all the Officers with the accused, they had reached the court premises at 11.0 A.M. and the accused were produced before the Court of Shri Dholera i.e. in Court Room No. 33. As the present appellant accused Sanjay was having rifle with him, he was asked to sit outside the court room. However, the witness and others with the accused were sitting in the court room itself. Thereafter at about 1.0 P.M. he heard one shot and immediately he heard also another shot. When they were in the 2nd floor and inside the court room, they could not see what happened outside. After the hearing of the shot, for about 10 to 15 minutes they were ordered not to leave the court room and, therefore, they had not gone outside the court room and thereafter the court had given another date. He with the police party with the accused persons had gone to the ground floor. When they came with the accused persons, at that time Sanjay with rifle was not found present. All the accused were kept in the custody in the ground floor and he had informed at the Head Quarter that Sanjay is not with them and requested for making arrangement to taking away the accused and the accused persons were taken in a Government vehicle. He came to know about the incident latter on. He also identified the rifle which was with the accused and according to him that at the time of allotment of rifle it is registered and at the time of surrendering the rifle, the same is to be entered into Register. His statement was also recorded by the Police.

15.1 From the evidence of Shri Ramanbhai Patel P.W.6 it only transpires that he has not seen the actual firing at the court premises, but as found from his evidence that the accused Sanjay was with him with the other police party for the purpose of producing the accused before the court and the accused were taken from Sub Jail, Surat in a Government vehicle and the accused Sanjay was being entrusted with the service rifle with 20 cartridges. That accused Sanjay was having rifle and he was asked to sit outside the court premises i.e. outside the court room No. 33. After 10 to 15 minutes after the hearing of the firing shots when the witness and accused persons were brought outside the court premises, accused Sanjay was not found outside the court room and accordingly he had informed the Head Quarter and requested for making necessary arrangement to see that the accused persons are taken back to the Jail. Sanjay was provided with the rifle and the cartridges and the witness had identified the rifle in the Court.

15.2 In cross examination it is found that the witness is in the police department since last 20 years and when he was sitting inside the court room, at that time he heard four shots in the court premises and all the four shots, which he heard, is from the same floor and the sound which he heard is of firing shots. The request was made by the P.P. for treating him as hostile witness and the request was because for the first time in the cross examination he was deposing about 3 – 4 firing, which he heard, while in the police statement he has only stated about hearing of 2 shots and to that extent the witness was not supporting his statement before police. The request of the P.P. was rejected.

15.3 Ramanbhai is, according to the prosecution, a supporting witness only to the extent that he alongwith other police party with the accused Sanjay, had brought the accused from Sub Jail, Surat to the court building and the accused Sanjay was provided with rifle and 20 cartridges.

16. Mathurdas Gokaldas Kanedia P.W.7 has deposed that in the year at the relevant time he was working as a P.I. in Surat City in D.C.B. Branch and he was entrusted with the investigation of offence which was registered under C.R.No.443/98 at Randher Police Station. In respect of the investigation of the said case, he had gone to the court building at Surat. At about 12.15 to 12.30 noon he was in the Court of learned Sessions Judge, Shri Upadhyay situated on the 2nd floor and at that time in the same court building he heard the firing shots from the 3rd floor. The people had tried to run helter skelter and he had also rushed towards the direction in which the firing had taken place and he reached the 3rd floor and he came to know that the firing had taken place just opposite to the court of the learned Chief Judicial Magistrate. There were two shots of firing. When he reached the 3rd floor just opposite to the court of the learned Chief Judicial Magistrate, the advocates and litigants had gathered and accordingly he while crossing the crowd reached at the place where the firing had taken place. He found one Police Constable with uniform, which the witness has also identified in court, as accused. He saw that accused Sanjay Constable, who was in uniform, was apprehended by Head Constable Atmaram from Randher Police Station and while going near him, he saw Mahesh Desai of Varachha village having injury lying in bleeding condition near pillar and he also saw one advocate in injured condition. On inquiry from Head Constable Atmaram, Atmaram informed him that Sanjay had from his rifle fired and accordingly the witness had assisted Atmaram. At that time P.I. Jadeja, P.S.I. Patil and others had also come there. P.I. Jadeja had snatched away the rifle from Sanjay and handed it over to Shri Patil. The advocates and the people gathered were very angry and they were also trying to assault Sanjay and accordingly Sanjay was apprehended by him as well as by Atmaram and after taking him in custody, accused was taken to a Nazir Room and asked him to sit. At that time P.I. Jadeja and other advocates were removing injured Mahesh, advocate and one lady for treatment. Thereafter, A.C.P. Raj from Umrao Police Station with other high ranking officers came in the court premises. The accused Sanjay with police bandabost was taken in the ground floor and taken at the Head Quarter. He came to know that Sanjay had fired a shot and the reason for such firing was because of the murder of Indira and Sajid, where Mahesh Desai was one of the accused and the accused Sanjay was in love with Indira and accordingly the accused, to take revenge committed murder of Mahesh Desai. Indira murder case was investigated by the witness and accordingly he was knowing this fact of the present incident of murder which had taken place to take revenge of murder of Indira.

16.1 In cross examination the witness has in turn admitted that he has not seen the incident of firing and he is not an eye witness and he deposed about the firing on advocate as accidental and not with an intention and the injury found on Madhuben is also not to commit murder with intention but it is due to accident. It is further found from the cross examination that the advocate and Madhuben had sustained injury and according to him it is without any intention. While giving explanation, it is his say that the advocate who has sustained injury is the person of the same village and he was known to him and further accused has no ill feeling towards Madhuben. He has also seen that the bullet had hit the wall and there was a hole in the wall, which he had seen. It is further found that after the bullet had hit the wall and after rebounding if the bullet had hit any person there was possibility of causing injury. He has investigated many cases in which the offences were registered where the fire arms are used and in such case the person had received injury through bullet. The accused was provided with rifle which was .303 rifle and unless the .303 bullet dashes, the said bullet will not be broken. He was not knowing that there were two entry wounds and two exist wounds on deceased Mahesh Desai. He saw advocate in injured condition lying near the grill while Mahesh Desai was lying near the pillar. If these two persons are lying opposite to each direction and if there is a firing from .303, then two entry wounds are not possible on these two persons and on seeing the condition in which these two persons were lying, it is not possible for the bullet to pass through one person and enter the body of other person. If the bullet had hit the wall, then two entry wounds are not possible and the possibility of more than one firing is not ruled out. 303 bullet moves fast and forcefully and if the firing has taken place from .303 rifle and if the bullet has hit a person, then that person can not stand. When he heard the first shot and he went towards that direction and reached towards 3rd floor, at that time he was not aware that other police persons were also running. He has admitted that there was some time gap between the first firing and second firing and according to the witness about 2 to 5 second gap was there between two firing. However, he has admitted that he has not stated in his police statement about the time gap between first firing and second firing, which is about 2 to 5 seconds. He does not remember that when Atmaram had told him about the incident, at that time P.S.I. Patil or other police persons were nearby him or not. He has not seen the actual firing on Mahesh Desai and what he deposed about accused Sanjay had committed murder of Mahesh Desai, he is stating it on conjecture. As he has investigated the case of Indira Parmar murder case and what he has gathered in that case and what he gathered the fact from the place of incident, he has presumed that accused Sanjay had committed murder of Mahesh Desai. In respect of the investigation of the Indira murder case, he came to know that Usha was lover of Mahesh Desai and Usha had a complaint against Sajid and Indira, which she told to Mahesh and on that count Indira was murdered. It is further found that he had not investigated the Indira murder case and the said murder was detected by P.I. Jadeja. So far as motive is concerned, it is found that the accused was in love with Indira however, he can not say that from which witness this fact was borne out. However, according to him that fact is borne out from the statements of the witnesses. It is further found from the cross examination that Mahesh Desai was respectable person from the village and he was Sarpanch of the village. He was not knowing whether Mahesh Desai had any enmity with anybody or not. There were about 150 to 200 persons from the public in the court premises and at that time when he reached, there were many persons from public and he had instructed his staff that these persons be kept away from the scene of offence. The witness was also cross examined on the point that for what purpose he had attended the court and as found that on the day of the incident, before the incident, the Presiding Officer had arrived and the process of hearing had started. However he could not say that whether that was in respect of bail application or for other purpose. He had gone to attend the court for the purpose of hearing bail application in which Tusharbhai was the G.P. He was present in the court premises between 12 to 12.45 P.M. and to show that he had only the document in which he had filed affidavit, except that there was no other document with him. He has admitted that when a person is in policy custody and he has been murdered, then it is a very serious matter for the police and for such case that case should not remain undetected and such case required thorough investigation with seriousness. Till recording of his evidence, he did not know that two persons, who died, were having two entry wounds on their body. When he reached the scene of offence and till he left the scene of offence, in between he had not seen any empty cartridges. He had denied the suggestion that only on presumption they had proceeded with the investigation against the accused and denied that because of that presumption, they have not given any concentration to inquire whether nearby any empty cartridge was there or not. No interrogation of the accused was done at that time. He does not remember whether the accused was interrogated by other police officer or not. He was also not knowing that when the accused was taken by Atmaram in Bailiff room and from there to the ground floor, whether any police officer had made any inquiry with the accused or not. He did not know whether there was any cartridge in the rifle, which was taken from the accused. He had not helped in taking the injured Mahesh and advocate to the Hospital. He has admitted that if any person in the police custody attempts to run away, then the superior officers as well as all the subordinate police officers were duty bound to apprehend such accused. Mahesh Desai being an accused involved in a murder case and if he is in custody, if he tries to run away and if it is found that accused is not likely to be apprehended, in that case, without harming any other person, while preventing him, such accused can be injured. The bullet mark, which was found on the wall, is about 5 to 7″ above the flooring area. He can not say that whether the bullet had hit on the wall after entering the body of a person. He can not say that the bullet which hit the wall is from first firing or of second firing. Madhuben had also sustained bullet injury.

16.2 Mathurdas has also not seen the actual incident of firing and he had attended the court of the learned Sessions Judge situated in the second floor and at that time he heard the shots of firing and he rushed towards the direction where the firing had taken place i.e. on 3rd floor. The accused Sanjay was found in uniform who was apprehended with rifle by Head Constable Atmaram. The evidence of P.W.7 fully suggests that on the day of incident he had attended the court of the learned Sessions Judge at Surat and when he was present in the 2nd floor in the court of Sessions Judge, he heard two firing and he gathered the fact when he reached at the 3rd floor from Head Constable Atmaram.

17. Vipinbhai Prabhubhai Patel P.W.9 was also Armed Police Constable, who was also on duty with the police party to bring the prisoners to the court. Accused Sanjay with the witness and other police persons had brought the undertrial prisoners from the Sub Jail for production of the accused before the court of the learned Addl. Sessions Judge and reached at the Court of Shri Dholera at 11.0 A.M. As the accused Sanjay was Armed Constable, he was provided with the service rifle and he was posted outside the court room. At about 12.45 P.M. or 1.0 P.M. he heard the firing shot. Immediately thereafter he heard the second shot of firing. The court had risen and they were instructed to keep the accused and asked them not to leave the court premises. At that time when he looked from the door of the court room, the accused Police Constable Sanjay was not found at the door. Thereafter, after taking another date, they brought the accused persons to the ground floor. At that time accused Sanjay was not with them. At that time the vehicle came and the accused, who were in custody, were taken to a Jail. The information was conveyed to the Head Quarter on telephone from the Court that Sanjay was not with them. That the accused were brought from the Jail in the court of Shri Dholera, which is situated on the second floor. It is further found that when they came to the Head Quarter, then he came to know that the firing, which had taken place, was done by accused Sanjay.

17.1 In cross examination this witness has deposed that when the prisoners are brought by police party and are sitting in the court and if at that time a constable wants to go out, in place of that constable another constable has to sit and till another constable arrives at the place, he can not leave the accused. If a constable is posted at the door of the court room, they can see that constable from the court room itself. When the second firing had taken place, at that time upon looking in that direction, accused was not found standing there. He has further admitted that when he heard the first firing shot, at that time accused Sanjay was standing near the door of the court room. He heard about 3 to 4 shots. A request for cross examination of the witness was made and the same was granted to the P.P. As found from the deposition, the witness has in turn admitted that in his police statement he has stated about two firing and further admitted that in his police statement he has not stated about 3 to 4 firing, as according to witness he believed that only 2 shots were fired and accordingly he has stated in his police statement. He has further admitted that in any building if the firing takes place, one can hear the shots of firing and he heard about one or two shots of firing in court building. He cannot say exactly that he only heard two shots of firing. He has worked with the accused for about one or two months and he had denied that he has good relation with the accused and he had denied that as the police is involved, he is deposing about 3 to 4 shots falsely.

17.2 The importance of this witness Patel P.W.9 is only to the effect that he alongwith accused were in the police party when the accused were brought from the jail to the court and the accused was standing with his rifle outside the court room and he had heard the shots of firing.

18. Yogeshbhai Ashokbhai P.W.10 is the co-accused with deceased Mahesh Desai, who were brought for further remand by P.S.I. Shri Jadeja and other police persons in the court. The extension of remand was sought for by the police for all the accused. However, remand application of Mahesh was granted and the said accused Mahesh was taken for obtaining his signature. As the remand was not granted to the witness and other co-accused, which he named, they were kept standing outside and brought near the lift. At that time he heard two shots. He saw smoke coming out. The shots sounded like firing. He alongwith the other accused were taken in a vehicle back to the Sub Jail and Mahesh was not brought. Atmaram had told him about the incident and informed him that Mahesh had died. He had given statement to the Police. Accused Sanjay was not in his police party and from the news paper he came to know that bullet had hit Mahesh as well as to one lady.

18.1 In cross examination, he has stated that his statement was recorded by the police alongwith other co-accused. The interrogation was made in the Jail. He had denied that they were on the second floor. He admitted that after going to 3rd floor, the police persons had kept them near the lift. He was not knowing that the noise that he heard was like a bomb blast. He has also denied that immediately thereafter there was another noise of firing. He has admitted that in his police statement he has stated that when he alongwith all the other accused had come near the lift, at that time there was explosion like a bomb and thereafter there was another explosion. He has admitted that in his statement he has not stated that the noise was like a firing and he has not stated in his police statement that the smoke was coming out.

18.2 From evidence of P.W. 10 it is clear that on 15.2.1999 he alongwith deceased Mahesh and other co-accused were taken for further remand by Shri P.I. Jadeja and other police persons and the remand was extended only in respect of Mahesh and when the other co-accused were taken back to the Jail, Mahesh Desai was not with them and he came to know from Shri Atmaram that Mahesh had died.

19. Hasanali Rasulbhai Kadivala, P.W.11, Police Sub Inspector, has deposed that on 15.2.1999 in respect of the offence registered at Sachin Police Station under Cr.No.152/95, he was present in the court of Shri Dholera and as his evidence was to be recorded, he was present near the court premises in the lobby on the 2nd floor. At about 12.45 P.M. on the 3rd floor of the Court building he heard the shot and the people were running. Immediately thereafter he heard the second firing and accordingly he immediately from 2nd floor had gone to the 3rd floor, where in the court of the Chief Judicial Magistrate nearby one Bailiff room in a lobby one person was lying in bleeding condition and another person having worn black coat was also found in bleeding condition near the grill. Head Constable Atmaram, P.I. Jadeja and P.I. Kaneria caught hold of one person, who was in uniform. Shri Jadeja had snatched away the rifle from the said person, who was caught by police and the rifle was handed over to P.S.I. Patil. Accordingly, he, P.I. Jadeja and Head Constable Panduram had lifted the injured Mahesh Desai, who was involved in a murder case registered at Randher Police Station and brought from the stair case at the ground floor and in a Government vehicle taken to Civil Hospital. Immediately thereafter, advocate and Madhuben, who had also sustained injuries, were also brought to the Hospital. The Doctor had examined Mahesh and advocate and Doctor had declared them dead. He identified the accused, who was caught hold by the police officer, as the same person.

19.1 In cross examination he has deposed that when he reached the 3rd floor, he had seen snatching away of the rifle from the accused. At that time the court of Dholera was in progress. As another case was going on, he was standing in a lobby outside the court room. He was present in the court premises since 11.0 A.M. When he was standing outside the court room of Shri Dholera, at that time when shots were fired, he had not seen the accused. He was not knowing whether the other co-accused were kept in court room or not. When the court had started, the security persons were outside the court room and he saw one constable standing near the gate and whether that man was having rifle or not, he can not say. He also does not know whether that person was an accused or not. Earlier he has not seen the person, who was apprehended. He had admitted that he came to know the name of the accused on the day of incident. He was standing on the 2nd floor alone and there are about 15 steps on the stair case between 2nd floor and 3rd floor. He was certain that there were only 2 shots fired. He was not knowing that the two dead persons were having two puncture wounds. The advocate wearing a black coat was lying near the grill and one person was also lying ahead of the advocate. It is further found in cross examination that it is correct to say that there was a hole in the wall. However, he can not say that whether that hole was due to firing or not, but according to him the said hole in the wall was fresh. He had denied the suggestion that he was not one of the persons to take the injured to the Hospital. He had not noticed that at the place of incident there were 2 cartridges lying. He has further admitted that in this firing three persons had sustained injuries and the distance between two injured persons namely, Maheshbhai and advocate, was about 6 to 7 ft. The width of the lobby is about 14 ft., which he can not say positively. According to him the width of lobby is about 12 to 14 ft. After he reached at the Hospital immediately after 5 minutes, the injured advocate was brought to the Hospital. He thereafter went to the 3rd floor of the court building for Bandabost, for which he stayed for about 2 hours. His statement was recorded after 6 days. He was all through-out on duty. He has not noted down this incident in his weekly diary. He had denied the suggestion that as per the theory adopted by the investigation, he had given his statement before the police that there were two cartridges found on the scene of offence. He had denied the suggestion that he reached the scene of offence late.

20. Siddharth Ashokbhai Soni – P.W.12 practicing advocate at Surat, had deposed that as usual as per his practice, he had on 15.2.99 gone to the court building at 11.15. He had gone to 3rd floor where he was sitting in between the court of Shri Gor and Shri Dave opposite to the lift in lobby and he was talking with his client and at that time about 12.45 noon he heard one explosion in between the court of the learned Chief Judicial Magistrate and the learned Addl. Sessions Judge at the passage near lobby and he was surprised and that he got up and he was proceeding towards the Chief Court, on the way he heard the second shot and he saw that there was dead body of one person lying and one police man had caught hold of another police person from behind. The dead body, which was found was that of Mahesh Desai. The people were running helter skelter and he has also left from there. He identified the accused in the Court as the person, who was caught hold of by the police and his statement was recorded by the Police on 23.2.99.

20.1 In his cross examination it is borne out that he was not knowing the accused previously and he had seen the accused for the first time and the witness was standing there for about 15 to 20 seconds and thereafter the accused was brought to the court and, therefore, he knows the accused. He has seen the accused 3 or 4 times. When he saw the accused, at that time, the accused was having rifle in his hand. Accused was at a distance of about 7 to 8 ft. from where Mahesh’s dead body was found. He could not identify the person, who had caught hold the accused from behind and when he was standing, during that period other 2 to 3 police persons had come running and he had not seen that other police persons, who came running, had also caught hold of the accused. Two or three police persons were the officers of the Police or P.S.I. which he is not knowing and he has not seen any of the persons with revolver or rifle. He had heard that the Surat Bar Association had passed a Resolution not to defend the accused. On which part of the body, Mahesh had sustained injury, he could not say. He had not seen the face of Mahesh as Maheshbhai was lying down. He had also not seen any bleeding from his chest. He denied that, he is giving his statement as arranged and he is deposing falsely.

20.2 From evidence of P.W.12, who is a practicing advocate, it is found that his presence in the court premises is very natural. As borne out from his evidence that he occupied his table on 3rd floor opposite to the lift and he heard the firing shots at about 12.45 noon and he saw one police person was caught hold by another police person and the dead body of Mahesh was at a distance of about 7 to 8 ft. The police had recorded his statement on 23.2.99 i.e. at least after 8 days of the incident. He had not seen any bleeding coming out from the chest of Mahesh. The evidence of this witness is only restricted to hearing two shots and seeing one dead body lying at a distance of about 7 to 8 ft. He, being close to the scene of the offnce, had rushed to the spot within seconds of hearing the gun shots and found accused carrying a rifle was caught by another police man.

20.3 From the evidence of P.W.12 Shri Soni it is found that he gave account in respect of two shots, which he heard but he does not indicate who was the person who had fired such shots but is able to say that other police persons had also come running at that place.

21. Before we discuss the medical evidence it is necessary for us to refer to the evidence in respect of the investigation of the present case. Shambhusingh Madhusinh Rajput, P.W.16, at the relevant time was posted as a P.S.I. at Umaro Police Station at Surat. He was present at Umrao Police Station on 15.2.1999 and he received the information of incident from wireless at noon and immediately he reached at the new Court building at Surat and he examined the situation and then he had recorded the complaint of complainant Shri Jayantilal Mohanlal, in which the complainant has put his signature before him. A copy of the complaint was given to him by putting endorsement in the said complaint, by putting his signature and the signature of the complainant was obtained. Thereafter, he had made Panchanama of the scene of offence in presence of Panchas and it was taken down as dictated by panch, which was written down by his Writer Constable. The Panchanama was read over to Panchas and as the same was found to be correct, the panchas had put their signature before him and the witness had also put his signature. He has taken from the scene of offence two empty cartridge cases of .303 rifle. He has also collected the sample of blood, which was found at the place. He has made Panchanama of physical condition of the accused. A Panchanama regarding taking away the rifle from the accused was also drawn in which the panchas have signed and as thereafter the investigation was ordered to be done by Dy. S.P.Raj, he entrusted the investigation to Shri Raj, Dy. S.P.

As found from his evidence in chief, it is only after receiving the wireless message he immediately proceeded to the new court building and he has taken the complaint of complainant Shri Jayantilal and panchanama of scene of offence was drawn and also collected under panchanama two empty cartridge boxes of .303 rifle.

21.1 In cross examination, it is found that the wireless message, which was received, was from control room, which was not received in writing. He has admitted that the wireless message, which he received, was message regarding the firing which had taken place and accordingly he was asked to reach immediately to the new court building. He can not say that at what time that message was received by him. He reached the court premises at about 1.15 P.M. Nobody had informed him at the ground floor that the firing had taken place on 3rd floor. Nor he received the wireless message informing him that the firing had taken place on the 3rd floor. He has admitted that when he reached the 3rd floor for the first time he came to know that the firing had taken place on 3rd floor. He had examined the articles which were found at the place of incident and he had also examined that the bullet had hit the wall and he had also examined the said wall, wherein on the wall there was a big hole. Even after noting the said fact, he had not thought it fit to draw the panchanama first. The complainant was present there. He does not know that when he was examining the scene of offence at that time whether the complainant was present or not, as there were many other persons present. After examining the place of incident, he had asked the complainant and the complainant had informed him about the incident. He has admitted that it is correct to say that on the 3rd floor there were many people gathered in the lobby. It is further found from the cross examination that the hole, which was found on the wall, was due to hitting of bullet. He has also called the person from F.S.L., who had also examined the hole on the wall and after examination, the experts from the F.S.L. had also given their opinion that the hole, which was found on the wall, was due to firing. He has further admitted that after the F.S.L. people had examined the said wall as well as the hole found on the wall, he had taken the sample from surrounding. He can not say that at the time when the panchanama of scene of offence was drawn whether person from F.S.L. were present or not. The muddamal was sealed after the person from the F.S.L. came. The only complaint and the panchanama of scene of offence were recorded and no statement of other persons, who were present, were recorded. He had completed the scene of offence panchanama at about 15.45 hours and at that time the Dy. S.P. had arrived. It is further found that while taking the complaint of the complainant, the Dy. S.P. had reached. He has admitted that before taking the complaint, he himself and Dy. S.P. had also examined the scene of offence. He can not say that whether opposite to the hole, which was found on the wall, Mahesh and behind him advocate Chaudhari and thereafter Madhuben were lying or not. He has denied that the bullet had first hit Mahesh. According to him, looking to the situation, the bullet must have first hit Mahesh and, thereafter, it would hit advocate Shri Chaudhari and thereafter Madhuben. This is the inference of the witness. All the six or seven courts on the second floor and third floor were in Session as well as the courts at the ground floor and the other courts of Judicial Magistrate, First Class were also in Session and at that time the accused from the jail, with the other police party, had also come. He admitted that accused were brought under escort party. He has admitted that the .303 rifles and its cartridges given to every one are similar. He had not examined any other rifle nor any cartridge. While giving description, he has stated that the lobby was of width of 10 ft. and there is also stair case to go to 3rd floor and 4th floor. The lobby is at a distance of about 10 ft. from the entrance and thereafter one can go to second and fourth floor. The blood was found upto the entrance. The complaint was sent immediately for registering the offence. However, he can not say that whether such complaint was sent under forwarding letter or not. He has further admitted that if the complaint is taken outside the police station, then they are required to write the place as well as of time. Before taking the complaint, he had taken the C.R. Number on wireless. He had denied the suggestion that the complaint was taken at the Police Station. However, he has admitted that in the complaint, he has not stated the place where the complaint was recorded. The complaint was recorded in presence of Dy. S.P. and Dy. S.P. was the visiting officer. He has admitted that in the present complaint as well as in the Panchanama, as a visiting officer, there is no signature or endorsement of verification of Dy. S.P. He had denied that the complaint was recorded by his own.

21.2 P.W.16 Rajput is the first person who had immediately on getting the wireless message reached to the court building from Umrao Police Station and the wireless message, which he has received, was not the written message.

22. It is the contention of Mr. Sheehan that the prosecution has not brought this important evidence either by producing the station diary from Umrao Police Station or the message which was conveyed at Umrao Police Station. It is also his contention that the message which was first received was in respect of happening of firing at the court building and the witness could not remember that at what time such message was received by him. However, it is transpired from his evidence that immediately at 13.15 hours he reached at the new court building and it is further found that when he reached at the new court building, he could not gather anything in respect of the place of firing. It is only when he reached at the 3rd floor, he came to know that the firing had taken place on that floor. It is further borne out from his evidence that on reaching the scene of offence, he had verified the place and he had taken the complaint of complainant Jayantilal, which was taken down by his Writer Constable and, thereafter, the panchanama of scene of offence was drawn in presence of panchas and the arrest panchanama of the accused and the panchanama regarding seizing of rifle was also made. As found from his evidence that two used .303 cartridges were found on the place of offence, which he has seized under panchanama and the sample of blood which was found was also collected. Mr. Shethna has accordingly contended that when the firing had taken place in the court premises and as found from the evidence of Shri Rajput it was only on getting the wireless message at the Umrao Police Station he immediately rushed to the court building and when the prosecution has not brought the important evidence in the form of wireless message it is his contention that the prosecution has not brought the relevant evidence that what was the message which was given on wireless when the wireless message indicated as per the evidence of Rajput that a firing had taken place in the court premises for which he was immediately required to reach the court. Further investigation of the case was entrusted to Shri Raj, who was Dy. S.P. and as found from the evidence of Shri Rajput that even while recording of the F.I.R. Dy. S.P. was present. In the complaint, as admitted by Shri Rajput, that he has not recorded by mentioning time and place.

23. Indrajitsinh Chandrasinh Raj, P.W.17, who had taken over the investigation of the case from Shri Rajput, had deposed that on 15.2.1999 he was in-charge A.C.P., Atwa Lines and Umrao Police Station. The Constable had informed him at about 12.45 P.M. about the receiving of wireless message, that there was a firing in the new court building and accordingly he had visited the place of scene of offence. When he reached there, he saw that the people were running helter skelter and to maintain the law and order situation, he had kept the police Bandabost. Thereafter, he went upstairs at the place of incident where he saw the complainant as well as the accused. Thereafter he continued with the task of maintaining the Bandabost as the investigation of the case was conducted by P.S.I. Rajput. As per the instruction of the Collector, he was to take over the investigation of the case and accordingly on the very day i.e. on 15.2.1999 at about 16.40 hours he had taken over the investigation of the case. In the investigation, an inquest panchanama was drawn and the Videography on the dead body was taken and the same were sent to the Commission of Human Rights. This inquest panchanama is at Exh.11, which was drawn by the Executive Magistrate. Madhuben had also sustained injury and Dr. Patel had recovered the bullet and kept it in a glass bottle and panchanama of that glass bottle was drawn and Madhuben was provided treatment and asked to record her dying declaration. The clothes of the injured as well as of the dead persons were brought and thereafter the statements were recorded of the persons, who were present at the place of incident i.e. the advocates, clerks, police officers, police persons, etc. A remand of the accused was taken and the accused was interrogated. All the seized muddamal articles were sent before the F.S.L. and a Map of scene of offence was also prepared through Circle Officer. He had entrusted the further investigation to Shri Chaudhari P.S.I. from 6.4.99. It is further found from his deposition that in the statement given by Bipinbhai, he has stated that he heard 3 or 4 shots of firing. It is further found that he presumed that only 2 shots were fired, accordingly he has stated about 2 firings. He identified the muddamal as well as the accused in the Court.

23.1 Shri Raj is a Superior Officer, holding the post of Dy. S.P. Being a Superior Officer, the District Magistrate had asked him to take over the investigation on the very day and he had carried out the investigation even by taking the Videography of the dead body and the Videography was sent before the Commission for Human Rights. He has also recorded the statements of the persons, who were present there and of other persons, who are likely to have been there, including the persons from the police party, who attended the Court.

23.2 In cross examination it is found that he reached at the scene of offence at about 1.0 P.M. and at that time P.I. Rajput was present and he has denied that P.I. had already started writing the F.I.R. According to him, he was examining the scene of offence. The witness has not examined the scene of offence alongwith Mr. Rajput as he himself has independently examined the place simultaneously and he had a discussion with P.I. Rajput. The discussion has also taken place between him and Rajput in respect of bullet hitting three to four persons. After taking over the investigation, he had first read the complaint and he presumed that the bullet must have first hit Mahesh and, thereafter, to Chaudhari and thereafter to Madhuben. He has denied the suggestion that opposite to the wall, three persons had sustained injuries. After the wall there is an open space and according to him, that after the wall, first Mahesh was there and thereafter Chaudhari and thereafter Madhuben. He has not made any inquiry or examination about the rifle as well as the cartridges possessed by other people except the accused. He admitted that the Government is providing a similar type of .303 cartridge. He had denied the suggestion that in the present case it could not positively be ascertained that how many firings had taken place and further that it is not correct to say that on that count no inquiry was made from other police persons, who were provided with .303 rifle as well as the cartridges. He has admitted that it is correct that no opinion from the expert from F.S.L. was called for about how many firing had taken place. The videography was taken in respect of the place of incident. In cross examination he has further deposed that while recording the statement of Atmaram, he has not stated in his statement that as Mahesh had pointed out the finger and he had seen in that direction and Sanjay was there with rifle. He has also recorded the statement of Manjuben, wherein she has stated in her police statement that there were two explosions as informed by Jyotiben (Madhuben) and she had pain in her back and when she felt her back with the hand, some blood as well as blood stained substance was found in her hand, which she had thrown away. He had denied the suggestion that he had taken the statements of the witnesses on his own.

23.3 Shri Raj, Dy. S.P. had also learnt from the Constable in respect of the wireless message which was received in respect of the firing, which had taken place in the court building and immediately, thereafter, he had gone to the court building. As found from the evidence of Shri Raj that he alongwith Shri Rajput had examined the place and had some discussion about the incident and according to the witness that the bullet first hit Mahesh and thereafter Chaudhari and thereafter Madhuben.

24. P.W.15 Gulabchand Kesharbhai Chaudhari was at the relevant time attached to Umrao Police Station as Police Sub Inspector and the investigation of the case being First C.R.No.154/99 for the offence under Sections 302 and 307 of the I.P.C. in respect of the complaint filed by Jayantilal, was carried out by P.I. Shri Rajput and Dy. S.P. Shri Raj. The papers of investigation were handed over to the witness by Shri Raj and as there was sufficient evidence, he had filed charge sheet against the accused on 10.5.99 before the Court of the Magistrate at Surat. The report from the F.S.L., Ahmedabad was received by him and the same was kept with the papers of investigation, which he has produced at Exhs.64, 65, 68 and 66 and he has also identified the accused before the Court.

24.1 This witness is a formal witness and he has not done any investigation in the present case, except after the papers were received from Dy. S.P. Shri Raj, he has submitted the charge-sheet against the accused before the Court. He had denied the suggestion that a false complaint is filed against the accused.

25. Madhuben P.W.5, who is a petition writer, has deposed that since last 7 years, after obtaining the divorce from her husband, she was staying with her son by doing household work. She has one daughter and son named Rupesh. Daughter is married to Kirit and her son is also married, who is staying with her. On the day of incident i.e. on 15.2.1999 she had gone to the Court premises at about 12.30 noon on 3rd floor to meet undertrial prisoner Ramesh, who was ordered to be brought from Sub Jail. Ramesh was also working with her as a petition writer. She has got one table in the court premises for writing the Applications. Manjuben was with her at that time waiting for arrival of Ramesh and at that time Ramesh was brought. They were standing on the 3rd floor in the stair case on the opposite direction in the lobby and at that time they were facing gallery and they were talking. At about 12.45 afternoon there was an explosion like bomb blast. On hearing the noise she gave push to Manjuben and asked her to run as there is a bomb explosion. She had some pain on the back and accordingly while putting her hand on the back portion of the body, she found some blood stains on her hand. Harishbhai had fallen down on the floor. From there one person had raised her from below her shoulder and took her to the Hospital. Harishbhai was also brought to the Hospital in the Ward where she was admitted and Mahesh was also brought in the Hospital and she came to know latter on that both of them had died. She was not knowing how she had sustained such injury. However, according to her she had heard only one shot. However, she immediately added that she had heard two shots. She could not recognise that what had hit her on the back. Latter on she has read in the news paper about the incident.

According to the prosecution, Madhuben is an injured witness and as observed earlier, she was also present on the 3rd floor of the court building, where she was waiting with another lady Manjuben for Ramesh, who was to be brought in the court from the Sub Jail. According to her she only heard two shots of firing and she was not knowing anything about the injury, which was found on her.

25.1 In cross examination according to her after reaching the 3rd floor and before reaching at the grill, there is a space, which she calls as lobby and where they were standing. At that time she was facing towards the stair case and her back portion was towards the lobby near the second wall. After climbing the stair case, on the right side one wall is situated and at that place they were standing. She did not realise when she sustained some injury, but it was only while putting her hand on the back portion of the body, she found that she had sustained some injury. She has admitted that at the time when she had received such injury at that time she was not knowing what had hit her and from which direction such injury is caused. When they were talking they were also moving.

26. As observed earlier that as per the instruction when Madhuben had also sustained injury and was taken to the Hospital, her dying declaration was recorded and Exh.69 is the document admitted by the defence as the dying declaration of Madhuben recorded by the Executive Magistrate, City Taluka Kacheri, Surat on 15.2.99 at 16 hours. Her dying declaration was recorded in the operation theatre of New Civil Hospital when she was under treatment. She is aged about 45 years. According to her, she had received gun shot. While giving the description about the incident, which is reflected in Item No. 7, according to her that the incident has occurred on 15.2.99 at about 12.45 P.M. At that time she alongwith Manjuben were talking and they were on 3rd floor at gallery. At that time one person wearing uniform had fired, which hit on the left hand side of the back. She did not know the person who had fired the gun shot. The fire was from a big rifle. Due to injury there was a bleeding and thereafter she realised that many people had gathered there. She was brought for treatment to Civil Hospital. At the time of incident Manjuben was also with her as well as other persons were also gathered in the lobby to whom she did not know. She had no enmity with anyone. There is also an endorsement – the dying declaration was completed at 16.15 hours. Signature of Madhuben was also taken to show that such signature was given by her before the Executive Magistrate Shri Patel.

27. The substantial evidence is already discussed earlier and even according to Madhuben, though she has also received the bullet injury, however, she could not say that who was the person, who had fired and from which direction such firing had taken place.

28. P.W.14 Surendra Parshottam Patrivala is an expert, who is working as a Scientific Officer at F.S.L., Ahmedabad. He is working as a Scientific Officer since 1996 at F.S.L., Ahmedabad. 34 Parcels in respect of the offence registered at Umrao Police Station for the offences punishable under Sections 302 and 307 of the I.P.C. dated 15.2.1999 in respect of C.R.No.154/99 were received in the Ballistic Department of F.S.L., Ahmedabad on 19.2.1999. He has also given the description about the parcel. These parcels were received from Umrao Police Station, having a intact seal, alongwith the forwarding letter and he has given the description number to such parcel, which he received. The description of the examination of the muddamal articles, which is reflected in the F.S.L. Report Exh.68, is reproduced as under:-

“Sessions Case No. 16/2000 Exh.68

Twenty one original sealed parcels marked as parcel-A, B, C,D, G, H, I, J, M, N, N1, Q, Q, A1, A2, B1, B3, B5, M1, R1, R3 and five divisional sealed parcels marked as parcel-P, A3, B2, B4, B6, total twenty six, were sent to the Biology division for their examination.

After completion of Biology Division examination parcel-N was examined in the Ballistics Division.

Parcel-E (Exh-E) : One 303″ O.K. brand
cartridge case having an
identation mark on its
percussion cap.

Parcel-F (Exh-F) : One .303″ O.K. brand
cartridge case having an
indentation mark on is
percussion cap.

Parcel-K (Exh-K1): are two deformed pieces
of copper Jacket of a
pointed bullet having
rifling marks on them one
piece was flat and other
one was hollow conical
shape (Nose Portion).

Exh-K2           : One conical shaped
                   metallic pieces weighing,
                   about 0.412 gm and base
                   diameter about 67 cm.
Exh-K3           : are seven deformed
                   metallic pieces totally
                   weighing about 5.03 gm.
Parcel-L(Exh.L)  : Scrap of the wall, said
                   to be control, weighing
                   about 60 gm.
Parcel-N         : Contained two exhibits
                   marked as Exh-N/A and
                   Exh-N/B.
Parcel-N/A       : One "303" rifle bearing
                   No.GR1 1948 No. 1MK3,
                   318/K.
Exh-N/B          : three 303" rifle
                   catridges contained in a
                   magazine.
Parcel-P(Exh-P)  : One cut open black
                   colour, golden checks,
                   green-red squared
                   designed blouse stained
                   with dark reddish brown
                   stains. There was one
                   hole found on the back
                   upper left side near the
                   neck boarder of size
                   about 1.60 m x 1.34 cm.
Parcel-A3(Exh-A3): One red, blue, black and
                   yellow coloured lining
                   checks designed full
                   sleeved open shirt,
                   stained with reddish
                   brown stains. There were
                   six holes found on the
                   exhibits as follow:
  ----------------------------------------------------------
Hole No. Place                        Size of hole
about
--------------------------------------------------------
1.      Front right upper portion        1.1 cm
2.      back side upper middle portion     9 cm x 5 cm
3.      front left on the pocket         0.75 cm.
4.      Behind hole No. 3                0.75 cm.
5.      Back left near the sleeve        1.05 cm x 8 cm
6       Near the hole No. 5               1.0 cm x 0.7cm
--------------------------------------------------------
 Parcel-B2(Exh-B2): One black colour coat,
                   stained with reddish
                   brown stains. There were
                   two holes, one hole on
                   the front right sleeve at
                   upper portion of size
                   about 2.0 cm. x 0.52 cm
                   and second hole on the
                   front left upper pocket 
                   of size about 1.5 cm x
                   1.0 cm found on the
                   exhibit.
Parcel-B4(Exh-B4): One cut open, white sando
                   baniyan stained with
                   reddish brown stains.
                   There was one hole found
                   on the front left side
                   near armpit of size about
                   1.7 cm x 1.5 cm.
Parcek-B6(Exh-B6): One while coloured open
                   shirt stained with
                   reddish brown stains.
                   There were two holes, one
                   hole on the right sleeve
                   at the upper of size
                   about 3.8 cm and second
                   hole on the front left
                   side near the pocket of
                   size about 1.1 cm x 1.0
                   cm.
Mark-R           : Contained five sealed
                   bottle. They were marked
                   as parcel-R1, R2, R3, R4
                   and R5 respectively in
                   the division.
Parcel-R2(Exh-Rs): One skin piece, collected
                   from the body of
                   Harishbhai of size about
                   7.5 cm x 4.5 cm. There
                   was one hole of size
                   about 1.2 cm x 1.0 cm
                   found on it.
Parcel-R4(Exh-R4): are two skin pieces
                   collected from the body
                   of Maheshbhai. One skin
                   piece of size about 2.3
                   cm x 1.5 cm having on
                   hole of size about 65 cm
                   and second skin piece
                   having one hole of size
                   about 2.6 cm x 0.8 cm.
Parcel-R5(Exh-R5): are two skin pieces,
                   collected from the body
                   of Maheshbhai. One skin
                   piece of size about 2.3
                   cm x 2.2 cm having one
                   hole of size about 0.75
                   cm and second skin piece
                   having one hole of size
                   about 0.75 cm.
Parcel-S(Exh-S) :  One phial contained a
                   deformed copper jacketed
                   bullet having rifling
                   marks on it. The nose
                   portion of the bullet was
                   found missing.
                  (Panchnama slips were present with parcel-E, F,K, P,
 

Results of Examination:
 

Exh-P, Exh-A3, Exh-Be, Exh-B4 and Exh-B6:-
 

Were clothes. The holes on them were examined under stereo microscope and chemically tested for the residues of fired ammunition. From the above examination following conclusion could be drawn.
 

(1) Holes on Exh-P, Exh-A3, Exh-B2 Exh-B4 and Exh-B6 have been produced by firearm discharge. Such holes can be produced by 303" rifle bullets.
 

(2) Hole No. 3 and No. 4 on Exh-A3 are corresponding holes.
 Exh-E and Exh-F :  were fired cartridge cases of
                   303" O.K. rifle catridges. The
                   firing pin mark on Exh-E, Exh-F
                   and that on the test fired
                   catridges, test fired from
                   Exh-N/A were examined and
                   compared under comparison
                   microscope.
 

The characteristic features of the firing pin mark on Exh-E, Exh-F and that on the test fired catridges, test fired from Exh-N/A, were found similar, there by showing that Exh-E and Exh-F have been fired from Exh-N/A.
 

Exh-K1, Exh-K2 and Exh-K3: are pieces of a fired .303" rifle bullet. The rifling marks on the flat piece of the Jacket of Exh-K1 and those on the test fired bullets, test fired from Exh-N/A, were examined and compared under comparison microscope.
 

The characteristic features of standard rifling marks on the flat piece of Exh-K1 and those on the test fired bullet, test fired from Exh-N/A, were found similar, thereby showing that Exh-K1 has been fired from Exh-N/A.
 

Exh-L : is a wall scrap. It is suitable for control.
 

Exh-N/A : One 303" rifle bearing No. GRI 1948 No. 1 MK-3, 318.K.
 

Residues of fired ammunition nitrite and lead could be detected from the barrel washing (washing taken prior to the laboratory test firing) of Exh-N/A, thereby showing that Exh-N/A, has been used for firing prior to its receipt in the laboratory.
 

Three 303" rifle catridges (Exh-N/B) were successfully test fired from Exh-N/A in the laboratory and Exh-N/A found to be in working condition.
 

Exh-N/B : are three 303" rifle catridges with magazine. Three catridges were successfully test fired from Exh-N/A in the laboratory and three catridges were found live and magazine was found to be in working condition.
 Exh-R2,R4 and R5:  are skin pieces. They were
                   examined and chemically tested
                   for the residues of fired
                   ammunition. From the above
                   examination it's concluded that
                   hole on Exh-R2, Exh-R4 and Exh-R5
                   were produced by firearm
                   discharge.
 

Exh-S One fired deformed bullet of 303" rifle cartridge bullet having five lands and five grooves with left hand twist.
 

The rifling marks on Exh-S and that on the best fired bullet, test fired from EXH-N/A were examined and compared under comparison microscope.
 

The characteristic features of standard rifling marks on Exh-S and those on the test fired bullet test fired from Exh-N/A, were found similar, thereby showing that Exh-S has been fired from Exh-N/A.
 

Report of Biology division will be sent after completion of their examination.
 

(S.P.Tatriwala) 

Scientific Officer 

Forensic Science Laboratory 

Cum-Assistant Chemical Examine to the 

Govt. of Gujarat, Ahmedabad-16."
 

28.1 In cross examination, it is found that alongwith the forwarding letter, the description of the weapon used in the commission of the offence, were mentioned. He had denied the suggestion that he has given ex parte opinion. On Articles P, A/3, B/2, B/1, and B/6, where the holes were found, which can be caused by any other fire arms of .303 and he has admitted that such holes can be possible by any of the fire arm used. He has admitted that it is correct to say that at what distance the firing had taken place and to find out the distance, it is necessary to find out the marks on the cloth as well as on the skin. He has not noticed any mark of powder of fire and he has admitted that when such signs were not found, the firing must have taken place at a distance of more than 3 ft. He has denied the suggestion that if bullet of .303 had dashed on the blunt portion then on the same speed the said bullet shall rebound. According to him, the speed will depend upon the angle from which it returned. No information was given to him that there was a big hole on the wall, which is found in the Panchanama. It is further found from the cross examination that if any bullet hits the wall and the Article sample K/1, K/2 and K/3 were separated and the bullet if rebounds, then there is no possibility of any injury being caused to any other person. Except Bullet Mark S, K/1, K/2 and K/3 and empty cartridges, no other parts were sent. He has admitted that if 6 persons were standing on a line and if there is no obstruction of any bone, then the bullet, if fired, will pass through the six persons to the seventh person and come out and cause injury. The witness was posed question in respect of the entry wound found on Mahesh and Chaudhari and the witness has explained about such entry wounds. In his report, he has not shown any characteristic of weapon and he has also not mentioned in his report about the standard rifle. He has admitted that in his evidence in chief he has not given any evidence in respect of the standard rifle. He has admitted that in respect of sample Articles K/2, K and K/3 he has not given full description and further that except the marks of standard rifle, he had not given any reason. He denied the suggestion that he has given his report to help the prosecution.

29. At this juncture it is necessary for us to refer to the report Exh.68, which is based on examination of the Articles, which were sent by the Investigating Agency and the parcel of these articles were received in the F.S.L. in sealed condition. As found from the Report, the Rifling marks on Exh.S and that on the test fired bullet, test fired from Exh.N/A were examined and compared under microscope. The standard rifling marks on Exh.S and those on the test fired bullet test fired from Exh.N/A, were found similar, thereby showing that Exh.S has been fired from Exh.N/A.

30. Dr. Mohamad Iliyas Isaq Mohamad Shaikh P.W.13, examined by the prosecution, has deposed that on 15.2.1999 the Police Constable attached to Umrao Police Station had brought the dead body of Harish Pitambar Chaudhari at 4.42 P.M. and he performed the post mortem examination on the dead body of Shri Harishbhai with the panel of Doctors, i.e. Dr. Kiran Pensuriya and Dr. C.K.Datt. He has proved the post mortem note of Shri Harishbhai and the injuries were noted down in Column No. 17 of the P.M. Examination Report, which reads as under:-

“(1) Entry wound :-Present on left side of chest in
anterior axillary line oblique, 2 X 1.5 cm.

cavity deep, 4 cm. lateral to left nipple and
126.5 cm. above left heel, margins irregular
with lower border abraded and contused directly
forward, medially and to the Rt.

(2) Exit wound: Present on Rt.side of chest in
axillary region, 11 cm. lateral to left nipple,
135.5 cm. above Rt. Heel, margins irregular and
everted.

(3) Entry wound:- Preset on medial aspect of Rt. arm
in 4/3 area oblique 6.7 x 3 cm. x muscle and
bone deep, margins inverted and irregular
underlying bone shows fracture in 4/3 area, 14
cm. above below Joint.

(4) Exit wound:- Present on lateral aspect of Rt.arm
oblique 5 x 3.0 cm. margins irregular abraded
and evested pieces of bones visible in wound.”

The Doctor has also noted down the external injuries, which are also reflected in the post mortem examination. The Doctor has also noticed the fracture of right humerus bone, which is reflected in Column No. 18 of the P.M. Note Examination. The injury found on Harishbhai were ante mortem injuries. The cause of death of deceased Harishbhai according to Dr. Shaikh is due to shock as a result of haemorrhage due to firearm injuries to aorta and both lungs. In P.M. Examination Note in Column No. 23, Panel of Doctors had also suggested the cause of death of Harishbhai as above.

Dr. Shaikh has further deposed that on the very day at 5.35 P.M. another dead body of Mahesh Desai was brought for post mortem examination and he conducted the post mortem examination on the dead body of Mahesh with Panel Doctors, namely, Dr. Kiran Pensuriya and Dr. C.K.Datt. As found from his deposition, Mahesh was aged about 40 years and he has deposed in respect of the injury which was found during post mortem examination of Mahesh, which he and the Panel Doctors had incorporated in column No. 17, which reads as under:-

“External Injuries:-

(1) Entry wound:- Present on anterior aspect of chest
on Rt. side situated 5 cm. above and 4 cm.

lateral to Rt. nipple, 1.4 x 0.7 cm. & cavity
deep directing downward back ward & medially
margins contused directed inward & irregular in
shape, 137.0 cm. above Rt. heel.

(2) Entry wound:- Present on anterior aspect of chest
on left side, 0.5 x 0.4 cm x cavity deep oblique,
margins irregular & contused directing inward 7.2
cm. above left nipple & 137.5 cm. above left
heel directing, downward and backward.

(3) Exit wound:- Present on posterior aspect of chest
oblique irregular in shape 4 x 2.3 cm. situated
1 cm. Rt. to midline and 129 cm. above Rt.

heel tissue protruding outwards.

(4) Exit wound:- Present over left scafular region
oblique 1.3 x 1 cm. margins irregular & tissue
protruding outwards situated 18 cm. left to
midline and 135 cm. above left heel.”

According to Dr. Shaikh the cause of death of Maheshbhai was due to shock as a result of hemorrhage due to fire arm injuries to both the lungs. Panel Doctors had recorded in respect of cause of death in column No. 23 of the post mortem note. These injuries were ante mortem injuries. The hand writing on the P.M. Note is of Dr. Shaikh, signed by him as well as Dr. Kiran and Dr. Datt. According to Doctor, that injury Nos. 1 and 2, which were found, were in the normal course of nature sufficient to cause death. These injuries were also possible from the bullet of rifle.

30.1 In cross examination it is found that the injuries, which were found, could be caused by firearm. As he is not an expert, he can not say that from what distance and with what force the bullet had hit and caused injury. While doing the post mortem examination on dead body of Mahesh, he found some semi digested food and according to him that Mahesh must have taken the food before 3 to 4 hours before his death. According to him at least he must have taken some food for about 1 or 2 hours prior. The food substance, which was found, was about 300 ml. weight. The distance between two entry wounds on Mahesh must be about 25 to 30 cm. According to Doctor that if a person has covered another person, then without causing injury to the person covering, no injury can be caused to the person who was under cover. The injury which was found on Mahesh, namely, entry wound could be caused by different type of bullet. The injury No. 1, which is the injury of the bullet, had been scratch wound and the injury No. 2 is of round shape. According to Dr. that in respect of injury No. 2, the bullet has gone straight and in respect of injury No. 1 the bullet had gone in after scratching the body. This is in respect of the injury to Mahesh Desai. The injury, which has been shown, is noted down exactly by taking measurement. The entry level of injury No. 1 on Harishbhai and entry level of injury No. 3 on Maheshbhai are on the similar level. However, the injury on Mahesh Desai is at a lower level than the injury found on Harishbhai by about 2.5 cm. According to Doctor he had admitted that when such injury is caused, at that time Harish must have been in sitting position as well as Mahesh must have been in sitting position. The injury No. 3 is the exist wound. Injuries found on Harish i.e. injury Nos. 1 to 4 are caused only with one bullet. Injuries, which were found on Mahesh, are not caused by two different weapons and the injury found on Harish, the bullet had gone inside by scratching.

31. As observed earlier, almost all documents were admitted by the defence by putting endorsement on the list of documents produced by the P.P. at Exh.5 and as per Exh.5, the defence has accepted that these documents be exhibited in evidence, including the post mortem examination report of Mahesh and Harish and the Medical Certificate in respect of injury on Madhuben and the F.S.L. Report and the Serologist report with the ballistic expert report. Exh.52 is the Certificate issued by Panel of Doctors dated 15.2.1999 under their signatures in respect of the P.M. examination done on the dead body of Harish and the cause of death is reflected as shock as a result of haemorrhage due to fire arm injuries to aorta and both lungs. Exh.53 is the P.M. Examination report on Mahesh Desai, which we have already referred to, in which the panel of Doctors had noted down the internal and external injuries found on Mahesh with the cause of death of Mahesh. Exh.54 is the Medical Certificate similarly issued by the Panel of Doctors to show that Mahesh Desai’s dead body was received for post mortem examination and the post mortem examination was done on 15.2.1999 and as per the medical certificate, the cause of death is as a result of haemorrhage due to firearm injuries to aorta and both lungs. Exh.55 is not included in the paper book. Exhibit 55 is in respect of the 5 X-ray photos of Harishbhai. Similarly Exh.56 is in respect of 4 X-ray photos of Mahesh. Exh.59 is the acknowledgement in respect of the muddamal Articles, which were received by the Laboratory in sealed packet on 19.2.1999. Exh. 60 is the medical papers of Madhuben of Civil Hospital, Surat of Department of Serology Unit No. 1 and the Medical Certificate. Madhuben was admitted in the Civil Hospital on 15.2.1999 and she was discharged from the Hospital on 25.2.1999. The injuries, which were found on the medical case papers, read as under:-

“Firearm injury over chest (Back) L/E.

(1) Firearm wound present over left scapuar region of chest at the level at Ts measuring 2.5 cm. horizontally & 1.5 cm. vertically about 8 cm. left lateral to midline.

No active bleeding.

No foreign body seen.

On Palpation: No palpable fracture. No Surgical emphysemel. No other obvious swelling over Back. Movement painful but possible.

X-rays: X Dorsal spine. 8656 X ray chest PA Radio opaque bullet seen In Rt. infraelavicular region, Bullet seen, in soft tissues upper dorsal region approximately D5 level.

9=0 X-Ray chest PA No cardio pulmonary Abnormality seen, Drain is seen in sity. No Radio opaque foreign body seen.”

Exh.61 is the forwarding letter issued by Dy. Commissioner of Police, Surat in favour of Director, F.S.L. dated 17.2.1999 in respect of Articles, which were sent for analysis, which was forwarded through Shri Bharatsinh, Buckle No. 650 and Gajendasinh, Buckle N.1874 and the muddamal articles with the description. These Articles contain also the clothes of the deceased as well as of the accused and injured Madhuben. Exh.63 is the forwarding letter from F.S.L., Ahmedabad to Assistant Police Commissioner, Surat in respect of the examination of the muddamals and Exh.65 is the Biological test report from F.S.L.

32. The learned trial Judge has on considering the evidence led before him found that the prosecution has established the case beyond reasonable doubt by answering all the issues for determination in affirmative in favour of the prosecution by holding that the prosecution has proved that death of Mahesh Desai was caused by the accused with intention and with knowledge by using the service rifle allotted to him by firing shots after shots and caused murder of Mahesh and further held that the prosecution has further established that the accused had a knowledge and an intention that by using such fire arm by firing such rifle indiscriminately would cause death of Harish Chaudhari and Harish Chaudhari had died due to bullet injuries sustained by him and it is the finding recorded by the learned trial Judge that the prosecution has established that by using the service rifle allotted to the accused and accused has fired from the said service rifle with the knowledge that it would cause injury to Madhuben and thereby committed offence of attempt to commit murder of Madhuben. The learned trial Judge has accordingly passed order convicting the accused for the offence under Sections 302 and 307 of the I.P.C. on 4.9.2003.

33. On going through the original record and from the Rojnama of the case it appears that the matter was listed before the learned trial Judge on 17.7.2003 and the prosecution has led evidence by examining P.I. Rajput P.W.16 and recorded evidence of P.W.17 Indrajitsinh Chandrajitsinh Raj, who was entrusted with the investigation of the case on the very day and closing purshish of evidence was filed by the learned A.P.P. at Exh.73 and the request was made on behalf of the advocate for the defence for longer time for argument and the court has adjourned the matter on 31.7.2003. The Rojnama shows the another date of 13.8.2003. Rojnama further shows that on 31.7.2003 the accused was produced from the Jail. However, the advocate for the accused was absent and as the Presiding Officer was on leave, the case was kept for argument on 13.8.2003. On 13.8.2003 the accused was produced from the jail before the court and on that day the advocate representing the accused was absent and the further statement of the accused was recorded by the learned trial Judge on that day and heard the arguments of the learned A.P.P. and the learned A.P.P. has also filed written arguments. An Application for adjournment was given on behalf of the accused, which is at Exh.75 and the case was adjourned for argument by keeping the case on 25.8.2003. As found from the further statement of the accused under Section 313 of the Cr.P.C. at Exh.4 in absence of the advocate representing the accused, the accused has answered all the questions which have been put by the court in respect of all the circumstances which is found in the evidence and the accused replied by saying that it is not correct and the accused has also declined to give his evidence on oath even by declining to lead any evidence in support of his case and when the accused was asked “what you have to say in respect of the incident”, the accused has given answer in one line that a false case is filed against him and he has not committed any offence as he is completely innocent. In light of this, as reflected from the Rojnama, that the further statement of the accused was recorded by the Presiding Officer on 13.8.2003 and the arguments were advanced by the learned A.P.P. on behalf of the prosecution, in absence of the advocate, who was representing the accused. On the adjourned dated i.e. on 25.8.2003 another Application for time was submitted at Exh.76 as the advocate was absent and the case was kept on 30.8.2003 for hearing the arguments on behalf of the accused. On 30.8.2003 the accused was also brought from the jail and the court has heard the arguments of both the sides and the case was kept for judgment on 4.9.2003.

34. When the matter was listed before the learned trial Judge on 4.9.2003, the learned trial Judge has pronounced the judgment by convicting the accused for the offence under Sections 302 and 307 of the I.P.C. and on the very day, the trial court has heard the advocate for the accused and the learned Addl. P.P. on the point of sentence and the learned Addl. P.P. has submitted written arguments before the trial court on the point of sentence, which is at Exh.77. The learned trial Judge accordingly on the very day on considering the contentions raised before him by the counsel for the defence and the learned Addl.P.P. had by relying upon the decision of the Supreme Court – Indira Gandhi Assassination case, reported in AIR 1988 SC 1883 observed in paragraph 34 of the judgment that the accused in the present case is a young man and he is not involved in past in any criminal activity. According to him that this consideration is not for imposing minimum sentence as according to him this being a case of rarest of rare case, imposed capital punishment with the confirmation of the High Court. So far as the offence under Section 307 of the I.P.C. is concerned, the learned trial Judge has imposed life imprisonment. The accused was sent under warrant in the custody and also passed order regarding disposal of muddamal.

35. Mr. Shethna, the learned counsel appearing for the accused, has also taken us through the observations made by the learned trial Judge on the point of sentence as contended before him and Mr. Shethna has also taken us through the various decisions of the Apex Court in which the principle is laid down by the Apex Court in respect of considering the cases of rarest of rare cases. As observed earlier, it is the contention of Mr. Shethna that looking to the evidence led by the prosecution, it does not indicate about the manner in which the the firing had taken place and according to him that even the motive, which is suggested by the prosecution, is hardly considered to be a motive for such a crime and no motive is established by the prosecution by leading evidence to the effect that the accused had given statement in a case where Mahesh Desai and other co-accused were involved in an offence of murder of deceased Indira Parmar, to suggest that the accused had a love affair with her and to take revenge of murder of Indira, accused had committed murder of Mahesh Desai. According to Mr. Shethna that on considering the entire evidence led by the prosecution, there is nothing to establish that the accused with some intention and with knowledge had committed murder of Mahesh and also in similar way, he had fired shot and committed murder of advocate Shri Chaudhari and caused grievous hurt to Madhuben. According to Mr. Shethna, as found, the accused and the other police party had brought the accused Mahesh Desai and the co-accused in the said crime for which the accused had no knowledge that Mahesh will be brought before the Court for seeking more remand and he will be allotted court duty when the accused and other police party came from the Sub Jail. According to him the accused with knowledge and intention will not fire shot and commit murder of Mahesh Desai and the learned trial court has accordingly committed error in appreciating the evidence led by the prosecution and recorded finding that with an intention the accused had used service rifle and fired shots from his service rifle on Mahesh Desai and thereby committed murder and further the learned trial Judge has also committed error while deciding the issue by holding that even for causing death of Harish Chaudhari, the accused had intention to fire from the service rifle and caused grievous hurt to injured Madhuben.

36. As discussed the evidence in detail, it is not in dispute that the incident in question had occurred in the new court building at Surat. It was a working day. The courts were working. The advocates were also present. The litigant public was also there for their court work. The court staff will also be there and the police party generally come for providing escort to undertrial prisoners brought from District Jail, Surat. As found from the evidence of Vipinbhai Patel P.W.9 that he was also one of the members of the police party on 15.2.1999 and as found from his evidence that Vipinbhai Patel P.W.9 and other police constables, including accused Sanjay, were also very much there at the Sub Jail to bring the undertrial prisoners from the Sub Jail, Surat at the court of the learned Addl. Sessions Judge Shri Dholera. The accused was also provided with the service rifle with the cartridges and the the police party, who had brought the undertrial prisoners, had come with the undertrial prisoners from the District Jail at Surat at 11.0 A.M. and as the accused was with the service rifle, he was posted outside the Court premises on the entrance. So the evidence of P.W.9 Vipinbhai suggest that the accused was on duty as a Police Constable and alongwith other police party, he was on duty at District Sub Jail, Surat and the police party, including the accused, had brought the undertrial prisoners to be produced before the Court of Shri Dholera at new court building, Surat. The possession of service rifle and the cartridges is also established that it was with the accused. This evidence brought by the prosecution suggests that the accused in a normal course was on duty with the other police constable at District Jail, Surat and the entire police party, including the accused, was very much present in the Jail at 9.0 A.M. to take the undertrial prisoners before the court and accordingly the undertrial prisoners with the police party and the accused were very much there in the court premises at 11.0 A.M. and it is not even disputed by the defence that he was not on duty as an armed constable and a service rifle with the cartridges were provided to him. Therefore, it is clear that one can not attribute that the accused had a knowledge that Mahesh Desai, who is under police custody, will be brought by the Investigating Officer from the Police Station at the court of the learned Magistrate for seeking further remand of the said accused and will commit murder of Mahesh by firing from service rifle provided to him. Accordingly the evidence of Vipinbhai P.W.9 only suggest the presence of the accused with the rifle and the cartridges when he had joined duty at 9.0 A.M. from Sub Jail, Surat and the police party, including the accused, had brought the undertrial prisoners from the District Jail and produced them before the court of Shri Dholera.

37. Now we will consider the evidence of Ramanbhai Patel, who is also serving in the Police Department as Armed Head Constable, Buckle No. 277. On 15.2.1999 according to him his duty was to take the undertrial prisoners for production before the court of the learned Addl. Sessions Judge Shri Dholera in new court building. There were 8 undertrial prisoners to be produced before the court from the Sub Jail. The witness Ramanbhai P.W.6, the accused and other police persons, namely Aswin Rupji, Karshan Chhagan, Ashok Arjun and Bipin Parbhu had presented themselves at the District Jail at 9.0 A.M. The Head Constable with the party had entrusted one .303 rifle with 20 cartridges, with the rope, to the accused Sanjay, and the entire police party with the undertrial prisoners had proceeded from District Jail, Surat in a Government vehicle and brought the accused persons at 11.0 A.M. in room No. 33 before the learned Addl. Sessions Judge Shri Dholera. As the accused was provided with the rifle, the accused was posted outside the court room while the witness and other police persons had sat in the court room.

38. From this evidence of P.W.6 Ramanbhai Patel it is found that the accused and the other police party had brought the undertrial prisoners from the Sub Jail, Surat for production of 8 accused in the court of the learned Addl. Sessions Judge, Surat. From the evidence of Ramanbhai P.W.6 and Vipinbhai Patel P.W.9, it is found that the accused was one of the members of the police escort and the entire escort, with the accused, was present for duty at the Sub Jail, Surat at 9.0 A.M. and 8 undertrial prisoners were taken from the Sub Jail for production before the court of the learned Addl. Sessions Judge and the under trial prisoners were produced before the court and as the accused was having a rifle, he was posted at duty outside the court room at the entrance.

39. Now we will discuss in respect of how Mahesh Desai was brought and for what purpose Mahesh Desai was brought and by whom Mahesh Desai was brought before the court. Atmaram Thakore P.W.4, as discussed earlier, was working as a Police Head Constable at the relevant time at Randher Police Station, Surat. Mahesh Desai and other 7 co-accused, against whom an offence was registered under C.R.No.I-65/99 for the offence under Section 302 of the I.P.C., under police Bandabost with P.I. Jadeja were brought before the Court of the learned Chief Judicial Magistrate, Surat in new court building, situated on 3rd floor. The accused were produced before the learned Magistrate at 11.30 A.M. and an Application for further remand was given and the learned Chief Judicial Magistrate had rejected the application for police remand of all the accused except the accused Mahesh Desai and the learned Magistrate had granted further remand of Mahesh Desai upto 18.2.1999 upto 2.0 P.M. We have already discussed the evidence of Atmaram earlier, but this part of the evidence brought by the prosecution establishes that Mahesh Desai and 7 co-accused were brought by P.I. Jadeja with the other police staff for the purpose of extension of further remand of the accused persons and all the accused were produced before the court of the learned Chief Judicial Magistrate at 11.30 A.M. The accused Mahesh and 7 co-accused to the said crime were brought by P.I. Shri Jadeja and other police staff and there is no evidence led by the prosecution that the accused Sanjay had a knowledge that Mahesh will be brought by the Investigating Agency before the court for seeking extension of further remand. But at the same time, the presence of the accused at the new court building with the service rifle with the cartridges is fully established. One can say that in a normal course of duty when the accused is working in the Police Department as Armed Police Constable, he had reported for duty with the other staff of the police at 9.0 A.M. at District Jail, Surat.

40. As observed earlier, deceased Mahesh Desai was one of the accused in respect of the offence, which was registered at Randher Police Station under C.R.No.I-65/99 for the murder of Indira. Mahesh Desai had sustained bullet injury and he died and as per the medical evidence brought by the prosecution, that the death was due to shock as a result of haemorrhage due to firearm injury to both the lungs. Advocate Shri Chaudhari was a practicing advocate at Surat Court, and member of the Surat Bar. He had also sustained bullet injury and he also died and as per medical evidence brought by the prosecution, his death is also due to shock as a result of haemorrhage due to firearm injury to aorta and both the lungs. It is unfortunate that two persons had lost their lives, one is a practicing advocate and another, who was facing charge of murder of Indiraben, who was brought by the police party headed by P.I.Shri Jadeja for the purpose of seeking extension of further police remand. Madhuben, who has also received bullet injury and as found from the evidence brought by the prosecution, the bullet, which was recovered from the body of Madhuben by Dr. Patel is also seized by the police under panchanama and as per the evidence of expert led by the prosecution, it is also established that the rifle and the cartridges allotted to the accused was used and as per the evidence of expert led by the prosecution and as per the other evidence like Serologist report and the F.S.L. report, conform that two persons had died due to bullet injury and Madhuben had also sustained injury, as a result of bullet hitting her. As discussed the evidence of all the prosecution witnesses and as found from the suggestion to the witnesses by defence that accused Mahesh Desai had tried to run away and as accused Sanjay was provided with the service rifle while on duty, he was bound to see that the accused does not abscond or run away. The first shot, which was fired from the rifle, was on Mahesh and thereafter the accused had fired second shot. Mr. Shethna has also urged that looking to the medical evidence and as per the position at the time when the shots were fired, in the manner in which the prosecution has brought the case against the accused, it is not possible that the bullet had hit Mahesh without hitting other Constable who had covered him and according to him that it is the bullet which had hit the wall and it is possible that the bullet which had first hit the wall had gone through the body of deceased Mahesh Desai and due to rebound of the said bullet, it must have hit and gone through the body of Shri Chaudhari and equally the bullet must have hit Madhuben. Mr. Shethna has also accordingly contended before us that looking to the prosecution case, as it is, the accused can not be held responsible for murder of Mahesh as there is no intention to casue death or knowledge that death would be caused and further that the learned trial Judge has by relying upon such evidence convicted the accused, which resulted into miscarriage of justice. Mr. Shethna has alternatively submitted that in the background, in which the prosecution has placed the case before the court, it may be that the evidence led by the prosecution is sufficient to connect the accused that it was a direct case of murder of Mahesh. However, according to him the evidence does not suggest that the accused can be held responsible that he had fired gun shot on Shri Chaudhari and the learned trial Judge was not right in considering that the accused, who had also with intention and knowledge, had committed murder of advocate Shri Chaudhari. So far as the bullet injury caused on Madhuben is concerned, according to Mr. Shethna that the conviction recorded by the learned trial Judge under Section 307 is absolutely not proper. At the most Madhuben has sustained bullet injury in an accident and according to Mr. Shethna that even as admitted by almost all witnesses that the bullet has dashed on the wall and even on the wall a big hole was found and in light of this, one can not say that the accused is responsible for the injury caused to Madhuben and the conviction of the accused for the offence under Section 302 of the I.P.C. for murder of Chaudhari and the conviction of the accused for the offence under Section 307 of I.P.C. in respect of Madhuben is not proper. Mr. Shethna has contended that at the most, if the court accepts the evidence led by the prosecution, then one can say that the accused so far as the injury caused to Chaudhari is concerned can be considered that the accused has committed offence under Section 304A of the I.P.C.

41. It is the contention of Mr. Shethna that as the learned trial Judge has accepted the case of the prosecution that accused is responsible for committing murder of Mahesh as well as advocate Shri Chaudhari and according to the learned trial Judge at the hands of the accused two murders had taken place and when the learned trial Judge has convicted the accused for the offence under Section 302 of the I.P.C. for the murder of Mahesh Desai and Shri Chaudhari, the learned trial Judge has heavily weighed and considered that the accused has used the service rifle, which was given for protecting the accused as well as other people in the society. According to Mr. Shethna, the learned trial Judge has mainly considered that accused is responsible for two murders and has imposed capital punishment. According to him the learned trial Judge was not right in imposing capital punishment to the accused, for which Mr. Shethna has cited certain decisions, in which the Apex Court has laid down the guidelines, by explaining the rarest of rare cases, while imposing of capital punishment.

41.A Mr. Shethna has placed reliance upon the decision in the matter of Babu v. Babu, reported in 2003 SCC (Cri) 1569. In the said case before the Supreme Court, two Criminal Appeals were filed from the judgment of the High Court in Criminal Appeal No. 626/94 and RT No. 2 of 1994 dated 29.11.1994. Another Appeal being Criminal Appeal No. 270 is filed by the complainant, brother of deceased and Criminal Appeal No. 271 is filed by State of Kerala. The High Court had set aside the order of conviction and sentence recorded by the learned trial Judge for the offence of murder i.e. Section 302 of the I.P.C. etc. and the Supreme Court in the said case has considered the earlier decision of the Supreme Court in Bachan Singh v. State of Punjab, reported in 1980 SCC (Cri) 580. In paragraphs 21 and 22 the Apex Court has observed, which according to us is necessary, which we refer to hereunder:-

“21. This Court in Bachan Singh v. State of Punjab and Machhi Singh v. State of Punjab formulated the following two questions that may be asked and answered as a test to determine the “rarest of rare” cases in which death sentence can be inflicted: (SCC p.489, para 39)

“(a) Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence?

(b) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender?”

22. This Court also formulated the following guidelines, which would have to be applied to the facts of each individual case where the question of imposition of death sentence arises: (SCC p.489, para 38)

(i) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability.

(ii) Before opting for the death penalty the circumstances of the “offender” also require to be taken into consideration along with the circumstances of the “crime”.

(iii) Life imprisonment is the rule and death sentence is an exception. Death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances.

(iv) A balance-sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised.”

The Supreme Court has on considering the principle of rarest of rare case, while deciding these Appeals, observed in paragraph 23, which reads as under:-

“23. In the present case, in our view, though the murder is gruesome, but taking the facts and circumstances into consideration, the crime committed by the accused does not satisfy the above tests and it is difficult to say that it falls within the ambit of the “rarest of rare” cases. In our view, therefore, the sentence of life imprisonment for an offence under Section 302 would be adequate. The accused is, accordingly, sentenced to rigorous imprisonment for life under Section 302 of the IPC. With this modification in sentence the appeals are allowed.”

41.B The another decision placed reliance upon by Mr. Shethna is in the matter of Amit v. State of Maharashtra, reported in (2003) 8 SCC 93. It was a case of rape and murder and the case was also based on circumstantial evidence. The victim was a girl aged 11 to 12 years and the evidence is in the form of last seen together. In the said case, the Supreme Court has while considering the question of sentence, observed in paragraph 10, which reads as under:-

“10. The next question is of the sentence. Considering that the appellant is a young man, at the time of incident his age was about 20 years; he was a student; there is no record of any previous heinous crime and also there is no evidence that he will be a danger to the society, if the death penalty is not awarded. Though the offence committed by the appellant deserves severe condemnation and is a most heinous crime, but on cumulative facts and circumstances of the case, we do not think that the case falls in the category of rarest of the rare cases. We hope that the appellant will learn a lesson and have an opportunity to ponder over what he did during the period he undergoes the life sentence. Having regard to the totality of the circumstances, we modify the impugned judgment and instead of death penalty, award life imprisonment to the appellant for offence under Section 302 IPC. In all other respects, the impugned judgment is maintained. The appeal is allowed to this limited extent.”

The Apex Court in the said case has considered the capital punishment imposed to the accused by the trial court and the said capital punishment was confirmed by the High Court and dealing with the Appeal of the accused, the Supreme Court has considered the circumstances on which the order of capital punishment was modified by imposing life sentence. The Supreme court has accordingly in that case considered that the age of the accused at the time of incident was 20 years. He was also a student and no record of any previous heinous crime and further that there is no evidence that the accused will be danger to the society if death penalty is not awarded, though the Supreme Court has in term considered that the offence was very heinous crime.

41.C Another decision of the Apex Court is in the matter of State of Himachal Pradesh v. Prem Chand, reported in AIR 2003 SC 708. In the said case in paragraph 2, the Apex Court has considered the prosecution case in which the incident has occurred. At the end of the trial, the learned Sessions Judge has convicted the accused and imposed capital punishment as per judgment and order dated 29.9.1992. The High Court had on 28.4.1993 acquitted the accused and the said order of High Court was challenged by the State of Himachal Pradesh before the Apex Court. The Supreme Court had set aside the order of the High Court acquitting the accused and restored the order of conviction of the accused recorded by the learned Sessions Judge. In paragraph 12 the Apex Court has accordingly observed, which reads as under:-

“12. Though the Sessions Court has imposed death sentence upon the respondent by an order made on 29.9.1992, the High Court by its judgment dated 28.4.1993 acquitted him. In view of the following observations of this Court in Suresh v. State of U.P. (supra) (AIR 1981 SC 1122 : 1981 Cri LJ 746) (Para 11).

Children, in the first place, mix up what they see with what they like to imagine to have seen and besides, a little tutoring is inevitable in their case in order to lend coherence and consistency to their disjointed thoughts which tend to stray. The extreme sentence cannot seek its main support from evidence of this kind which even if true, is not safe enough to act upon for putting out a life” (p.574). and keeping in mind the fact that there is a long time gap between the date of the murder and conviction now by us and particularly when in the intervening period there is an order of acquittal in favour of the respondent, we do not think it is expedient to award the capital sentence upon the respondent. Therefore, we reduce the sentence to life imprisonment while upholding the conviction given by the Sessions Court. The appeal is allowed accordingly. If the respondent is on bail, the same shall stand cancelled and he shall surrender forthwith to serve out his sentence in accordance with law.”

41.D Mr. Shethna has placed reliance upon this decision only in respect of the time gap between the date of the incident and date of imposing sentence. According to Mr. Shethna that the incident in question has occurred on 15.2.1999 and the case of the accused was transferred for trial from Sessions Court, Surat to Sessions Court, Bharuch. The prosecution has filed purshish for closing their evidence on 17.7.2003 and the learned trial Judge has passed order of conviction and sentence on 4.9.2003 and the Appeal and the Confirmation Case were notified for hearing in the month of March, 2004. According to Mr. Shethna almost about more than 5 years has lapsed from the date of incident i.e. 15.2.1999 and relying upon the said decision, according to him, it is not a case in which the capital punishment imposed by the trial court required to be confirmed.

41.E Mr. Shethna has placed reliance upon the decision in the matter of Subhash Ramkumar Bind v. State of Maharashtra, reported in AIR 2003 SC 269. In the said case while disposing of Sessions Case, the Sessions Court at Mumbai had convicted the accused for the offence under Section 302 of the I.P.C. and passed order of capital punishment for which the reference was made for confirmation before Mumbai High Court and the High Court has also confirmed the order of conviction and sentence passed by the learned trial Judge. It is necessary for us to refer some of the paragraphs of the judgment, namely, 23, 24 and 26, which reads as under:–

“23. Turning attention on to the offence under the general law of the land, the High Court thought it fit to confirm the death sentence as granted by the learned Sessions Judge. Be it noted that Section 354(3) of the Criminal Procedure Code, 1973 specifically records that in the event of a sentence of death the Court must state special reasons for such a sentence. Let us, however, at this juncture see for ourselves as to whether in fact the High Court confirming the death sentence have recorded any special reasons therefor. In paragraph 83 of the judgment, the High Court recorded as below :

“Deceased Harish Bhatia was only trying to recover legitimate dues of the brother-in-law, P.W. 6 Rajesh by persuasion and requests. He was a respectable person not involved in any crimes. When the incident occurred he was totally defenceless. He was shot at in a most brutal manner. Depravity of the accused is evident from the way in which they fired at the deceased by going to his door steps when he was unarmed. We have no manner of doubt that this is one of rarest of rare cases which warrant imposition of death penalty.

24. This, however, in our view, does not satisfy the statutory requirement as noticed hereinbefore since the same cannot be termed to be a special reason for imposition of such a penalty. Gunshot injuries were caused and at that point of time the deceased was unarmed and was taken aback as to the whole situation – in every incidence of murder brutality is involved. It is not as that what we find on the factual score in Jai Kumar (supra). Brutality, obviously would be an existing factor but how the same did take place is the relevant and necessary material to be considered. In Jai Kumar (supra) the accused was trying to commit rape on his brother’s wife and having failed to achieve the object committed a brutal murder by severing her head from the body and hanging her head on the tree. The accused further committed a murder of the 8 years old daughter of deceased sister-in-law who had witnessed the incident and the facts establish the depravity and criminality of the accused in no uncertain terms – that has been the factual finding in Jai Kumar (supra) and the Court confirmed the sentence of death: Is it with the same brutality or can the acts be termed to be similar in nature so far as brutality is concerned, the answer cannot but be in the negative. The High Court placed reliance on the decision of this Court in Dhananjay (Dhananjoy Chatterjee alias Dhana v. State of W.B., 1994 (2) SCC 220) and in particular relied upon the following observation:

“In our opinion, measure of punishment in a given case must depend upon the atrocity of the crime; the conduct of the criminal and the defenceless and unprotected state of the victim. Imposition of appropriate punishment is the manner in which the courts respond to the society’s cry for justice against the criminals. Justice demands that Courts should impose punishment befitting the crime so that the Courts reflect public abhorrence of the crime. The Courts must not only keep in view the rights of the criminal but also the rights of the victim of crime and the society at large while considering imposition of appropriate punishment.”

26. Ours being a civilised society – a tooth for tooth and an eye for an eye ought not to be the criterion and as such the question of there being acting under any haste in regard to the capital punishment would not arise: Rather our jurisprudence speaks of the factum of the law Courts being slow in that direction and it is in that perspective a reasonable proportion has to be maintained between the heinousness of the crime and the punishment. While it is true punishment disproportionately severe ought not to be passed but that does not even clothe the law Courts, however, with an option to award the sentence which would be manifestly inadequate having due regard to the nature of offence since an inadequate sentence would not subserve the cause of justice to the society. In the contextual facts, we do not find the brutality of such a nature so as to exercise the discretion of passing an order of capital punishment – undoubtedly brutality is involved but that brutality by itself will not bring it within the ambit of the rarest of the rare cases. On the wake of the aforesaid and having regard to the nature of the offence and the methodology adopted, we are convinced that the punishment awarded to the appellants herein is in excess of the requirement of the situation and as such while recording our concurrence with the finding as recorded by the High Court in the judgment impugned, as regards the guilt of the accused under Section 302 read with Section 34 of the Indian Penal Code, we are inclined to modify the sentence of death to that of life imprisonment under Section 302 read with Section 34 of the Indian Penal Code as against the appellants herein and it is ordered accordingly. Except, however, as above, this appeal fails and is dismissed.”

41.F Mr. Shethna has also placed reliance upon the decision of the Apex Court in the matter of Dharmendrasinh v. State of Gujarat, reported in AIR 2002 SC 1937. In the said decision the Supreme Court has observed in paragraphs 19 and 20, which we reproduce as under:-

“19. We may now turn to the question of sentence. In Bachan Singh v. State of Punjab, AIR 1980 SC 898 this Court said that death sentence is to be awarded only in the rarest of rare cases. In Manoharlal @ Munna and Ors. v. State of NCT of New Delhi, AIR 2000 SC 420 death penalty was not awarded even though four innocent children of the family of the witness were burnt to death. It was however a case of rioting. In the case of Kishore v. The State (NCT), Delhi, AIR 2000 SC 562 : (2000) AIR SCW 100 also death sentence was not awarded as it was a case of mob attack and frenzy. A number of persons were killed. It was not considered to be the rarest of rare cases. Apart from these cases a reference has also been made to a decision reported in AIR 1999 SC 1332 Om Prakash v. State of Haryana, where accused a member of para military force had killed seven members of a family in a pre-planned manner as he was labouring under the strain that the accused and the members of his family were suffering agony at the hands of the family of the victims. He had a feeling of injustice being meted out to them. The Court considered it to be a mitigating circumstance and not treated it to be rarest of rare cases. Similarly, in the case of Krishan v. State of Haryana (2000) 10 SCC 451 punishment of life imprisonment was awarded where the murder was committed while the accused was already undergoing life imprisonment and was on parole. It was observed that this fact alone would not be sufficient to inflict the death penalty. Other facts and circumstances would also have to be taken into account. In Machhi Singh and Ors. v. State of Haryana, AIR 1983 SC 957 it has been observed that extreme penalty of death need not be inflicted except in gravest cases of extreme culpability. Circumstances of the offender are also required to be taken into account while considering the question of awarding the death penalty. Imprisonment for life is the rule as punishment for murder and death sentence is an exception. It has then been observed that a balance-sheet of aggravating and mitigating circumstances has to be drawn up and a balance has to be struck. The other facts which need to be considered are magnitude of the crime, the anti-social nature of the crime, personality of the victim, motive and the manner of commission of the murder, etc. In State of Madhya Pradesh v. Shyam Sunder Trivedi, 1994(4) SCC 262 also it has been observed that the Court must balance the mitigating and aggravating circumstances of the case which would depend upon the particular and peculiar circumstances of each case. On the other hand the cases in which death sentence was awarded and taken note of by the High Court are Kuljeet Singh alias Ranga v. Union of India and another, AIR 1981 SC 1572. In this case also two innocent children were murdered. However, we find that they were kidnapped first with oblique motive and were murdered. In Ashrafi Lal and Sons v. State of U.P., AIR 1987 SC 1721 the accused persons had killed their two innocent nieces to wreak personal vengeance regarding property dispute with the mother of the victims. In this case also death sentence was awarded by this Court. A reference is also made to a case reported in (2000) 7 SCC 455 Ramdeo Chauhan alias Rajnath Chauhan v. State of Assam. It was observed that when a man becomes beast and menace to the society, he could be deprived of his life according to the procedure established by law. In Dhananjoy Chatterjee alias Dhana v. State of West Bengal (1994) 2 SCC 220 the accused had killed his pregnant wife and three minor children for no reason and without provocation. He had assaulted his mother also who came to their rescue. The incident was described to be shocking to the conscience of the society. Hence death sentence was awarded.

20. Every murder is a heinous crime. Apart from personal implications it is also a crime against the society but in every case of murder death penalty is not to be awarded. Under the present legal position imprisonment for life is the normal rule for punishing crime of murder and sentence of death, as held in different cases referred to above, would be awarded only in the rarest of rare cases. The number of factors are to be taken into account namely, the motive of the crime, the manner of the assault, the impact of the crime on the society as a whole, the personality of the accused, circumstances and facts of the case as to whether the crime committed, has been committed for satisfying any kind of lust, greed or in pursuance of anti-social activity or by way of organized crime, drug-trafficking or the like. Chances of inflicting the society with the similar criminal act that is to say vulnerability of the members of the society at the hands of the accused in future and ultimately as held in several cases mitigating and aggravating circumstances of each case has to be considered and a balance has to be struck. The learned State Counsel as indicated earlier has already indicated the aggravating circumstances by reason of which it has been vehemently urged that sentence of death deserves to be confirmed.”

After considering the various decisions of the Apex Court on the capital punishment and considering the case, the Supreme Court had in paragraph 21 observed as under:-

“21. Now considering the facts of the present case in the background of our observations made in the preceding paragraph, we take note of the fact that the appellant had been labouring under the strain suspecting character of his wife. This fact is mentioned by none else but by the complainant Ashaben herself in her report. She also admitted in her statement in Court that quite often there has been quarrel between the two on that count. Though denied, a suggestion has been made to PW-3 Ashaben in her cross-examination that the appellant had been telling her that their sons were not born of him. It is true that does not seem to be any immediate cause before the commission of offence, yet the fact remains that rightly or wrongly such a painful belief was being entertained by the appellant since long which constantly engaged his mind as admittedly there had been quarrels on that count between the two. Obviously he would have been brooding under that idea, which perhaps he could not contain any more. It is true that two innocent children lost their lives for no fault of theirs. We also notice that Dharia is a weapon, which is ordinarily to be found in the house of any farmer or agriculturist in that area as stated by PW-3. He seems to have used the weapon as lying in the house. The offence was obviously not committed for lust of power or otherwise or with a view to garb any property nor in pursuance of any organized criminal or anti-social activity. Chances of repetition of such criminal acts at his hands making the society further vulnerable are also not apparent. He had no previous criminal record.”

And accordingly the Supreme Court while dismissing the Appeal and while confirming the order of conviction, has set aside the death sentence as awarded by the trial court and confirmed by the High Court and the capital punishment was commuted to life imprisonment.

41.G Another decision cited by Mr. Shethna is in the matter of Vashram Narshibhai Rajapara v. State of Gujarat, reported in AIR 2002 SC 2211. In the said case, the accused was convicted for the offence under Section 302 of the I.P.C. for committing murder of his wife and four daughters. He was convicted by the learned trial Judge for the offence under Section 302 of the I.P.C. and imposed capital punishment, against which the Reference has come for confirmation before the High Court as well as the Appeal filed by accused challenging the order of conviction wherein the Division Bench of this Court has dismissed the Appeal and confirmed the order of conviction and sentence passed by the learned trial Judge, meaning thereby that the death sentence imposed on the accused was confirmed. In the said case, the Supreme Court had in paragraphs 8 and 9 on the point of sentence observed, which reads as under:-

“8. We have carefully considered the submissions of the learned counsel appearing on either side. The entire case against the appellant rests only on circumstantial evidence, and having regard to the manner, place and time of occurrence it was difficult for the prosecution to gather or produce any direct or ocular evidence for the commission of the murder. As indicated even at the outset, the area of controversy is very limited and even the indisputable facts placed on record, some of which by the very admission of the appellant, would provide sufficient basis for legitimately inferring the actual role played by the appellant and it is in this context only both the courts below have chosen to appreciate and highlight the varying as well as the falsity of the plea of the very appellant. Every one of the circumstances found established in this case definitely form a chain of evidence so complete and definite as not to leave any doubt that the appellant has been carefully planning and meticulously preparing at every stage to get rid of the wife and the daughters as a whole lot. On the evidence on record it could not be properly contended that the courts below found the appellant guilty solely on the basis of the falsity of the stand or explanation given by him of the occurrence. The circumstances held proved in this case by cogent and convincing materials brought on record are sufficient to substantiate the homicidal crime committed by the appellant beyond reasonable doubt and bring home the guilt of the accused with reasonable and positive definiteness. The false nature of the varying explanations and the narration in the written statement of events as to how the incident took place has been highlighted by the courts below more in the process of finding out the reasonableness of the explanation and plausibility of its acceptance more as an additional circumstance to reinforce the conclusions arrived at and not to use such reasoning as a substitute for the ordinary proof normally expected of the prosecution to substantiate the guilt of the accused. The reliance placed by the courts below on the deposition of PW-14 (the nephew), PW-13 (the brother), PW-6 (living in the house opposite to the appellant), PW-7, PW-8 (the panch witnesses) and the facts noticed in the panchanama relating to the place of the incident Ex.P-82 to arrive at the conclusions cannot be said to be either inappropriate, unreasonable or unjustified. Both the courts below have analysed the materials carefully and in their proper perspective and the manner of appreciation of evidence by them cannot be said to be either perverse or suffer from any glaring infirmities. It cannot also be legitimately contended that improper and wrong inferences have been drawn from the materials placed on record or facts proved. Therefore, we see no reason to interfere with the concurrent findings of facts recorded by the courts below on the guilt of the appellant.

9. As for the quantum of sentence, we have given our careful consideration in the light of the submissions of the counsel on either side. As to what category a particular case would fall depends, invariably on varying facts of each case and no absolute rule for invariable application or yardsticks as a ready reckoner can be formulated. In Panchhi and Ors. v. State of U.P. (1998 (7) SCC 177) it has been observed that the brutality of the manner in which the murder was perpetrated may not be the sole ground for judging whether the case is one of the “rarest of rare cases” as indicated in Bachen Singh v. State of Punjab (1980 (2) SCC 684) and that every murder being per se brutal, the distinguishing factors should really be the mitigating or aggravating features surrounding the murder. The intensity of bitterness, which prevailed, and the escalation of simmering thoughts into a thirst for revenge or retaliation were held to be also relevant factor. In Om Prakash v. State of Haryana (1999 (3) SCC 19) dealing with a case of murder of seven persons, some totally innocent too, over a dispute relating to a small house in a village, this court observed that the particular and peculiar facts and circumstances of each case should be properly balanced and noticing the mentally depressed condition of the accused, held the case to be not one of those rarest of rare cases where the lesser sentence of life imprisonment could not be said to be adequate, despite the fact that the accused was guilty of committing a gruesome act of a premeditated and well thought out murder. While striking a contrast with such of those cases where the extreme punishment of death is warranted, it was also observed that the one dealt with therein was neither a crime committed because of lust for wealth or women (neither for money such as extortion, dacoity or robbery nor even for lust and rape) or an anti-social act involving kidnapping and trafficking in minor girls or of an anti-social element dealing in dangerous drugs which affects the entire moral fibre of the society and kills a number of persons nor was committed for power or political ambitions or as part of organized criminal activities. No doubt those cannot be said to be exhaustive of such category but merely enumerative of the criminal intent of the worst type, destructive of the basic orderliness fundamental to the very existence of a welfare oriented society.”

The Supreme Court in that Appeal has while dismissing the Appeal modified the order of sentence of death into R.I. for life by allowing the Appeal partly.

41.H In the matter of Ronny v. State of Maharashtra, reported in AIR 1998 SC 1251, wherein the accused were convicted for the offence under Section 302 read with Section 34 of the I.P.C. as well as for other offences and the capital punishment was imposed for the offence under Section 302 read with Section 34 of the I.P.C. and the reference was made for confirmation being Confirmation Case No. 1 of 1995 before the Mumbai High Court and the other convicts accused have also preferred Appeal challenging the order of conviction and sentence recorded by the learned trial Judge. The Supreme Court has referred to about the prosecution case in paragraph 2 of the said judgment. However, in the said judgment the Supreme Court has observed in paragraph Nos. 45 and 46, which reads as under:-

“45. It will also be relevant to note here that the number of victims would not per se bring the case as falling in the rarest of rare cases. (See Shamshul Kanwar v. State of U.P., AIR 1995 SC 1748 : (1995 (4) SCC 430) and Sheikh Ishaque v. State of Bihar, (1995) Cur CR 48 : 1995(3) SCC 392: (1995 AIR SCW 2001).

46. These principles have been applied in various judgments of this Court thereafter and it is unnecessary to multiply the cases here. Whether the case is one of the rarest of the rare case is a question which has to be determined on the facts of each case. Suffice it to mention that the choice of the death sentence has to be made only in the rarest of the rare case and that where culpability of the accused has assumed depravity or where the accused is found to be an ardent criminal and menace to the society and; where the crime is committed in an organized manner and is gruesome, cold-blooded, heinous and atrocious; where innocent and unarmed persons are attacked and murdered without any provocation, the case would present special reason for purposes of sub-section (3) of Section 354 of the Criminal Procedure Code.”

In the said case, the Supreme Court in paragraph 48 has observed, which we reproduce as under:-

“48. Considering the cumulative effect of all the factors, it cannot be said that the offences were committed under the influence of extreme mental or emotional disturbance for, the whole thing was done in a pre-planned way; having regard to the nature of offences and circumstances in which they were committed, it is not possible for the Court to predict that the appellant would not commit criminal act of violence or would not be a threat to the society. A-1 is 35 years’ old, A-2 is 35 years’ old and A-3 is 25 years’ old. The appellants cannot be said to be too young or too old. The possibility of reform and rehabilitation, however, cannot be ruled out. From the facts and circumstances, it is not possible to predict as to who among the three played which part. It may be that role of one has been more culpable in degree than that of others and vice verse. Where in a case like this it is not possible to say as to whose case falls within the “rarest of the rare” case, it would serve the ends of justice if the capital punishment is commuted into life imprisonment. Accordingly, we modify sentence awarded by Courts below under Section 302 read with Section 34 from death to life imprisonment. The sentences for the offences for which the appellants are convicted, except under Section 376(2)(g), IPC, shall run concurrently; they shall serve sentence under Section 376(2)(g), IPC consecutively, after serving sentence for other offences.”

41.I Mr. Shethna has also placed reliance upon the decision of this court in the matter of State of Gujarat v. S.H.Rupareliya, reported in 2002 (2) G.L.H. 739. In the said decision the Division Bench has considered that whether the death penalty imposed on accused Nos. 1 and 2 can be confirmed and in the said decision the Division Bench has considered various decisions of the Apex Court and in the said decision the Division Bench has observed in paragraphs 26, 26/1 to 26/3, which we reproduce hereunder:-

“26. It has now to be considered whether death penalty imposed on accused Nos. 1 and 2 can be confirmed.

26.1 In this regard, decision of the Apex Court in the case of Sheikh Abdul Hamid v. State of M.P., AIR 1998 SC 948, may be profitably looked into. In that case, the husband murdered his wife and children and buried them in a room to which none else had an access. The Apex Court, considering the fact that there was no evidence to show as to how the incident occurred or to show that it was a cold blood murder, deemed it not a fit case for death sentence.

26.2 Likewise, in Mukund alias Kundu Mishra and Anr v. State of M.P., 1997 SCC (Cri.) 799, wherein the accused persons committed ghastly murders of a house wife and her two children, and thereafter, looted them of their ornaments and other valuable articles as well as cash. Their Lordships observed that it would not be a rarest of rare case as exemplified in Bachan Singh v. State of Punjab, (1980) 2 SCA 684 and Machhi Singh v. State of Punjab, (1983) 3 SCC 470. In case, it was observed that, as there was absence of any eye-witness to prove the complicity of the appellants in commission of the offence alleged against them, the case of the prosecution rested only on circumstantial evidence and in those set of circumstances, while confirming the conviction, their Lordships held as above.

26.3 In Ronny v. State of Maharashtra, AIR 1998 SC 1251, considering the fact that, in that case, which of the three accused played which part, it was held that it would not be possible to say that whose case would fall within the category of rarest of rare case and, therefore, to serve the ends of justice, Their Lordships commuted the capital punishment into life imprisonment.”

41. The last decision which Mr. Shethna has cited is the decision of the Apex Curt in the matter of Jashubha B. Gohil v. State of Gujarat, 1994 (2) GLR 1392. In the said case Bharatsinh and 11 accused were tried before the trial court for the offence under Section 120-B read with Sections 302, 307, 148 of the I.P.C. and in the alternative under Sections 302, 307 read with Section 34 of the I.P.C. and Section 25A of the Arms Act and the trial court has held that all the accused were members of unlawful assembly and were responsible or death of deceased Diwaliben and that all the accused being member of unlawful assembly were responsible for death of Jaram Bhagvan and Odhavji Bhagvan while accused No. 11 was also held responsible for death of deceased Purshottam Jaga and Popat Lakha. While some of the accused had taken active part and those accused were held responsible for death of Gordhan Lakha and some accused were held responsible for death of deceased Babu Bacher. The learned trial Judge has also convicted the accused for the offence under Section 324 of the I.P.C. in respect of the injury caused to Pragji Mavji and the accused were ordered to undergo life imprisonment for offence under Section 302 of the I.P.C. and Section 302 read with Section 149 of the I.P.C. The learned trial Judge has also imposed sentence in respect of the conviction of the accused in respect of other offences and all the sentences were ordered to run concurrently. It was a case in which ten murders had taken place. The accused has preferred Appeal challenging the order of conviction before the High Court and the State has also filed Appeal for enhancement of sentence of life imprisonment to death sentence as the accused had been found guilty for committing as many as ten murders. The High Court has acquitted accused No. 4 while the State Appeal for enhancement of sentence was partly allowed and the sentence awarded to accused No. 11 was capital punishment and the High Court has confirmed the conviction and sentence, which is life imprisonment, against rest of the accused. Against the said order of the High Court, accused had preferred Special Leave before the Supreme Court challenging the order of conviction and sentence, except accused No. 10, as he was absconding. In that case the incident has taken place on 20.9.1984 in which ten persons had lost their lives as ten persons were murdered by the accused persons as according to the prosecution, the accused persons were member of unlawful assembly. In paragraph 10 the Supreme Court has observed, which we reproduce hereunder:-

“10. Indeed 10 murders had taken place in broad daylight. The conscience of the State appears to have been shaken when it found that the trial Court had sentenced all the accused only to life imprisonment. The State considering the gravity of the crime in which 10 innocent persons had lost their lives approached the High Court for enhancing the sentence of A-8, A-11 and A-12 and the High Court enhanced it in the case of A-11 only. As already noticed, it was A-11, Jashubha, who is emerged on the scene and fired from his gun and deflated the tyre of the tractor. After the tractor came to a halt, it was he again who fired the second shot on the passengers which caused injuries to some others including Diwaliben who died. Jashubha, A-11, according to the prosecution, fired yet another shot from his gun which hit Dhanji Bhagwan. The other shots fired by him could not be linked specifically to the injuries to any of the deceased or injured. The manner in which the murders were committed indeed exposes its gravity. Undoubtedly, the assault was made by the accused party led by A-11 on unarmed and innocent persons, who were returning after offering condolences on the death of Gomtiben. That there was previous enmity between the parties certainly did not justify the manner in which A-11 and his companions acted and went on a killing spree. The trial Court which had the benefit of examining the demeanour of the witnesses chose not to inflict the extreme penalty of death on any of the accused persons and instead sentenced all the accused to life imprisonment by the judgment dated 14.12.1987. The High Court enhanced the sentence of A-11, vide judgment dated 6.3.1992.”

The Supreme Court has further observed in the said judgment paragraph 14, which reads as under:-

“14. Section 354(3) of the Code of Criminal Procedure, 1973, as amended, makes it obligatory in cases of conviction for offences punishable with death or with imprisonment for life to assign reasons in support of the sentence awarded to the convict and further ordains that in case the Judge awards death penalty, “special reasons” for such sentence shall be stated in the judgment. Thus, the Judge is under a legal obligation to explain his choice of the sentence. The legislature in its supreme wisdom thought that in some “rare cases” for “special reasons” to be recorded it will be necessary to impose the extreme penalty of death to deter others and to protect the society and in a given case even the sovereignty and security of the State or country. It, however, left the choice of sentence to the judiciary with the rider that the Court may impose the extreme punishment of death for “special reasons”. The sentencing Court has, therefore, to approach the question seriously and make an endeavour to see that all the relevant facts and circumstances bearing on the question of sentence are brought on record. It is only after giving due weight to the mitigating as well as the aggravating circumstances, that it must proceed to impose the appropriate sentence.”

The Supreme Court has also considered further in paragraph 17, which reads as under:-

“17. Prior to the incorporation of Section 354(3) Cr.P.C. in 1973 when the imposition of death sentence was almost the rule and imposition of life imprisonment required the trying Judge to give reasons, this Court was faced with almost a similar situation as in the present case. In Dilip Singh v. State of Punjab, (1954 SCR 145 : AIR 1953 SC 364), this Court dealt with the subject, thus:

“On the question of sentence, it would have been necessary for us to interfere in any event because a question of principle is involved. In a case of murder the death sentence should ordinarily be imposed unless the trying Judge for reasons which should normally be recorded considers it proper to award the lesser penalty. But the discretion is his and if he gives reasons on which a judicial mind could properly found, an appellate Court should not interfere. The power to enhance a sentence from transportation to death should very rarely be exercised and only for the strongest possible reasons. It is not enough for an appellate Court to say, or think, that if left to itself it would have awarded the greater penalty because the discretion does not belong to the appellate Court but to the trial Judge and the only ground on which an appellate Court can interfere is that the discretion has been improperly exercised, as for example, where no reasons are given and none can be inferred from the circumstances of the case, or where the facts are so gross that no normal judicial mind would have awarded the lesser penalty.”

The Supreme Court has accordingly in paragraph 18 observed, which reads as under:-

“18. In view of the legislative amendment noticed above, the present case stands on a better footing than Dalip Singh case (supra). Keeping in view the guideline in Dalip Singh case (supra), we are of the opinion that in the peculiar facts and circumstances of this case, when the occurrence took place almost 10 years ago and for the last more than 6 years the spectre of death has been hanging over the head of A-11, Jashubha, the High Court should not have enhanced the sentence from life imprisonment to death because for exercising its discretion in choosing the sentence the trial Court had given elaborate reasons which it cannot be said no judicial mind could advance. Only because the High Court looked at those reasons differently, in our opinion, it did not justify the enhancement of sentence to death sentence. We, therefore, commute the sentence of death imposed upon A-11 by the High Court to that of imprisonment for life and restore the sentence as was imposed by the Sessions Judge.”

42. At this juncture, we may also refer to the decisions cited by Mr. K.P.Raval, learned Addl.P.P., in support of his submission on the point of sentence.

42.A Mr. K.P.Raval has first placed reliance upon the decision of the Apex Court in the matter of State of Rajasthan v. Kheraj Ram, reported in (2003) 8 SCC 224. In the said case, as per the prosecution case, the accused Kheraj Ram killed his wife, his two children and brother-in-law as he was suspecting infidelity on the part of his wife on 10.10.1992. In all there were four murders committed by the accused. The question which was before the Supreme Court was that whether the death sentence as awarded by the trial court is proper or not and in Paragraph 26 the Supreme Court has observed, which reads as under:-

“26. Section 302 IPC prescribes death or life imprisonment as the penalty for murder. While doing so, the Code instructs the court as to its application. The changes which the Code has undergone in the last three decades clearly indicate that Parliament is taking note of contemporary criminological thought and movement. It is not difficult to discern that in the Code, there is a definite swing towards life imprisonment. Death sentence is ordinarily ruled out and can only be imposed for “special reasons” as provided in Section 354(3). There is another provision in the Code which also uses the significant expression “special reason”. It is Section 361. Section 360 of the 1973 Code re-enacts, in substance, Section 562 of the Criminal Procedure Code, 1898 (in short “the old Code”). Section 361 which is a new provision in the Code makes it mandatory for the court to record “special reasons” for not applying the provisions of Section 360. Section 361 thus casts a duty upon the court to apply the provisions of Section 360 wherever it is possible to do so and to state “special reasons” if it does not do so. In the context of Section 360, the “special reasons” contemplated by Section 361 must be such as to compel the court to hold that it is impossible to reform and rehabilitate the offender after examining the matter with due regard to the age, character and antecedence of the offender and the circumstances in which the offence was committed. This is some indication by the legislature that reformation and rehabilitation of offenders and not mere deterrence, are now among the foremost objects of the administration of criminal justice in our country. Section 361 and Section 354(3) have both entered the statute-book at the same time and they are part of the emerging picture of acceptance by the legislature of the new trends in criminology. It would not, therefore, be wrong to assume that the personality of the offender as revealed by his age, character, antecedents and other circumstances and the tractability of the offender to reform must necessarily play the most prominent role in determining the sentence to be awarded. Special reasons must have some relation to these factors. Criminal justice deals with complex human problems and diverse human beings. A Judge has to balance the personality of the offender with the circumstances, situations and the reactions and choose the appropriate sentence to be imposed.”

The Supreme Court has also considered about sub-section (3) of Section 354 of the Cr.P.C. and also considered the decision in the matter of Ediga Anamma v. State of A.P., reported in 1974 SCC (Cri) 479 and reproduced paragraph of the said judgment in paragraph 29, which reads as under:-

“29. This Court in Ediga Anamma v. State of A.P. has observed: (SCC pp 453-54, para 26)

“26. Let us crystallize the positive indicators against death sentence under Indian law currently. Where the murderer is too young or too old, the clemency of penal justice helps him. Where the offender suffers from socio-economic, psychic or penal compulsions insufficient to attract a legal exception or to downgrade the crime into a lesser one, judicial commutation is permissible. Other general social pressures, warranting judicial notice, with an extenuating impact may, in special cases, induce the lesser penalty. Extraordinary features in the judicial process, such as that the death sentence has hung over the head of the culprit excruciatingly long, may persuade the court to be compassionate. Likewise, if others involved in the crime and similarly situated have received the benefit of life imprisonment or if the offence is only constructive, being under Section 302, read with Section 149, or again the accused has acted suddenly under another’s instigation, without premeditation, perhaps the court may humanely opt for life, even like where a just cause or real suspicion of wifely infidelity pushed the criminal into the crime. On the other hand, the weapons used and the manner of their use, the horrendous features of the crime and hapless, helpless state of the victim, and the like, steel the heart of the law for a sterner sentence. We cannot obviously feed into a judicial computer all such situations since they are astrological imponderables in an imperfect and undulating society. A legal policy on life or death cannot be left for ad hoc mood or individual predilection and so we have sought to objectify to the extent possible, abandoning retributive ruthlessness, amending the deterrent creed and accenting the trend against the extreme and irrevocable penalty of putting out life.”

In the said decision the Apex court has also considered the earlier decisions of the Apex Court in the matter of Bachan Singh v. State of Punjab, reported in 1980 SCC (Cri.) 580 and also in the matter of Machhi Singh v. State of Punjab, reported in 1983 SCC (Cri) 681. In paragraph 31 the Apex Curt has observed, which reads as under:-

“31. A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised. In order to apply these guidelines, inter alia, the following questions may be asked and answered : (a) Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence? (b) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender?”

We have already referred to above observations of the Apex Court made in Machhi Singh v. State of Punjab (Supra) and the guidelines, which emerge from Bachan Singh v. State of Punjab (Supra). The Supreme Court has also observed that when collective conscience of the community is so shocked that it will expect the holder of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty, death sentence can be awarded. The Supreme Court has described 5 circumstances, which reads as under:-

“In rarest of rare cases when collective conscience of the community is so shocked that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty, death sentence can be awarded. The community may entertain such sentiment in the following circumstances:

(1) When the murder is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community. (SCC pp.487-88, paras 32-33).

(2) When the murder is committed for a motive which evinces total depravity and meanness; e.g. murder by hired assassin for money or reward or a cold-blooded murder for gains of a person vis-a-vis whom the murderer is in a dominating position or in a position of trust, or murder is committed in the course of betrayal of the motherland. (SCC p.488, para 34).

(3) When murder of a member of a Scheduled Caste or minority community etc. is committed not for personal reasons but in circumstances which arouse social wrath, or in cases of “bride burning” or “dowry deaths” or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation. (SCC p.488, para 35).

(4) When the crime is enormous in proportion. For instance when multiple murders, say of all or almost all the members of a family or a large number of persons of a particular caste, community or locality, are committed. (SCC p.488,para 36)

(5) When the victim of murder is an innocent child, or a helpless woman or an old or infirm person or a person vis-a-vis whom the murderer is in a dominating position or a public figure generally loved and respected by the community. (SCC pp.488-89, para 37).

If upon taking an overall global view of all the circumstances in the light of the aforesaid propositions and taking into account the answers to the questions posed by way of the test for the rarest of rare cases, the circumstances of the case are such that death sentence is warranted, the court would proceed to do so. (SCC p.489, para 40).”

By relying upon this decision, it is the contention of Mr. Raval that considering the facts of the present case, the accused was on duty as a Police Constable, provided with service rifle with the cartridges and his duty is to protect the accused, who are brought there from the Jail or from the custody from the police before the court and also to protect all citizens. Mahesh Desai was brought by the police party with a request for extension of police remand and by using of a service rifle he committed murder of Mahesh, one can say that Mahesh Desai was in helpless condition and according to Mr. Raval the accused has fired in a place which he knows that there will be large number of gathering for attending the court matters and because of such firing of shots, two innocent persons had lost their life i.e. Mahesh and advocate Chaudhari and one another lady Madhuben has also received bullet injury for which she has sustained also grievous hurt.

42.B Mr. Raval, learned Addl.P.P., has also placed reliance upon the decision of the Apex Court in the matter of Kehar Singh v. State (Delhi Admn.), (Indira Gandhi Assassination Case), reported in AIR 1988 SC 1883, which the trial court has also relied. Mr. Raval has taken us through the said decision and his emphasis was in respect of the observations made by the Apex Court in paragraphs 91 and 323 on the question of sentence argued before the Court. It is necessary for us to reproduce paragraph 91, which reads as under:-

“91. Then is the question of sentence which was argued to some extent. But it must be clearly understood that it is not a case where X is killed by Y on some personal ground or personal vendetta. The person killed is a lady and no less than the Prime Minister of this Country who was the elected leader of the people. In our country we have adopted and accepted a system wherein change of the leader is permissible by ballet and not by bullet. The act of the accused not only takes away the life of popular leader but also undermines our system which has been working so well for the last forty years. There is yet another serious consideration. Beant Singh and Satwant Singh are persons who were posted on the security duty of the Prime Minister. They are posted there to protect her from any intruder or from any attack from outside and therefore if they themselves resort to this kind of offence, there appears to be no reason or no mitigating circumstances for consideration on the question of sentence. Additionally, an unarmed lady was attacked by these two persons with a series of bullets and it has been found that a number of bullets entered her body. The manner in which mercilessly she was attacked by these two persons on whom the confidence was reposed to give her protection repels any consideration of reduction of sentence. In this view of the matter, even the conspirator who inspired the persons who actually, acted does not deserve any leniency in the matter of sentence. In our opinion, the sentence awarded by the trial court and maintained by the High Court appears to be just and proper.”

It is also necessary for us to reproduce paragraph 323, which reads as under:-

“323. In my opinion, the punishment measured is deserved. There cannot be two opinions on this issue. The “Blue Star Operation” was not directed to cause damage to Akal Takht. Nor it was intended to hurt the religious feelings of Sikhs. The decision was taken by the responsible and responsive Government in the national interest. The Prime Minister (late) Mrs. Indira Gandhi was, however, made the target for the consequences of the decision. The security guards who were duty bound to protect the Prime Minister at the cost of their lives, themselves became the assassins. Incredible but true. All values and all ideals in life; all norms and obligations are thrown to the winds. It is a betrayal of the worst order. It is the most foul and senseless assassination. The preparations for and the execution of this egregious crime do deserve the dread sentence of the law.”

42.C Mr. Raval, learned Addl. P.P., has also placed reliance upon the decision of the Apex Court in the matter of Brijlala PD. Sinha v. State of Bihar, reported in (1998) 5 SCC 699. It is also a case of firing by the police persons committing murder of three innocent persons. Firing has also taken place from a very close range. In the said case, the Supreme Court has in paragraph 14 observed as under:-

“14. Coming to the question as to whether for conviction under Sections 302/34 IPC, the courts below are justified in awarding death sentence to accused Dudh Nath Ram and Victor, we find that the learned Sessions Judge as well as the High Court have not kept in view the principles enunciated by this Court in awarding of death sentence but on the other hand, have been swayed away by their own emotions on the ground that police officials took recourse to firing at helpless citizens. As has been discussed, the death of three persons occurred not from the firing from revolvers held by Dudh Nath Ram and Victor but on account of firing from the .303 rifles held by the three Constables. It is true that the prosecution evidence establishes the fact that firing had taken place from a very close range but that by itself would not make out the case to be the rarest of rare cases justifying the extreme penalty of death. No aggravating circumstances have been indicated so far as accused Dudh Nath Ram and accused Victor are concerned to award the extreme penalty of death sentence. The judgment of the High Court starts with the expression that the case may be treated
“as one of the most sensational trials of the recent years, so far as the State of Bihar is concerned and according to the High Court, the murder is a diabolical one because three innocent persons have been killed by the police officers who were supposed to be the protectors of law-abiding citizens.”

We are constrained to observe that the High Court has not kept in view the several decisions of this Court and has not examined the circumstances proved while considering the question of sentence but on the other hand, have been swayed away with the fact that the trial is a sensational one, and therefore, the officials must be awarded the extreme penalty of death. We do not find that it is a correct appreciation of the law on the subject dealing with the award of death penalty, even if a conviction under Sections 302/34 IPC is sustained. The learned Sessions Judge also came to the conclusion that the case can be treated to be the rarest of rare cases as police officials on whose shoulders the safety of citizens lies and being the protectors of the society are accused for killing of three civilians without any provocation and resistance.”

In paragraph 15, the Supreme Court has observed as under;-

“15. From the facts narrated and discussed in this judgment and the circumstances established through the prosecution evidence, we do not find any aggravating circumstances as against Dudh Nath Ram and Victor to award death sentence against them merely because they happened to be police officers and the Constables at their commands might have resorted to fire from the .303 rifles in their possession. In this view of the matter, while we uphold the conviction of accused Dudh Nath Ram and Victor under Sections 302/34 IPC, we set aside the sentence of death awarded against them and commute the same to imprisonment for life.”

42.D Mr. Raval has also cited the decision on the point of imposing capital punishment in the matter of Om Prakash v. State of Haryana, reported in AIR 1999 SC 1332. In the said decision the Supreme Court has referred to the facts of the case in paragraph 3. The incident occurred on 28.1.1990 (28th June, 1990) where as per the prosecution case Chater Singh alongwith his wife deceased Smt. Daya Kaur was sleeping at his house. His brother Satbir, his wife Smt. Kamlesh and mother Smt. Khazani were sleeping at the house of Satbir while inside the house of Satbir, Satbir and two male progeny of Chater Singh, Aman Kumar and Mohinder and one male progeny Surender of Hawa Singh were sleeping. Around 4.0 A.M., Chater Singh saw torch light emanating from the window of his house, upon which he and his wife got up from their cots and saw Parma Nand accused holding a torch in his hand and Ajit Singh accused standing by his side holding a gun. Ajit Singh fired a shot from his gun, which hit the breast of Smt. Daya Kaur who fell down and met her doom. He raised an alarm, whereafter Ajit Singh accused entered his house from the rear door and fired at Chater Singh from his gun which hit the fingers of his right hand. Chater Singh caught hold the barrel of the gun but Ajit Singh got it freed and handed over his weapon to Om Prakash accused present in the courtyard of the house. In respect of the said incident, on the complaint being filed and on completion of the investigation, accused were charge-sheeted for the offence under Section 302 of the I.P.C. The learned trial Judge has as per his order dated 29.3.1997 convicted the accused Om Prakash and Parma Nand under Sections 302,307, 452, 506 read with Section 34 of the I.P.C. and under Section 25 of the Arms Act after appreciating the evidence in detail. The learned trial Judge has imposed sentence on Om Prakash for offence under Section 302 of I.P.C. imposing capital punishment and for the offence under Section 302 read with Section 34 of the I.P.C. committed by Parma Nand has imposed sentence of imprisonment for life and fine of Rs. 2000/–. The High Court has confirmed the conviction as well as the capital punishment imposed on accused Om Prakash. In the said decision the Apex Court has in paragraph 17 observed as under:-

“17. Considering the aforesaid background of the matter, the question would be whether the case of the appellant could be one of the “rarest of the rare” cases so that death sentence is required to be imposed. In our view, even though this is a gruesome act on the part of the appellant, yet it is a result of human mind going astray because of constant harassment of the family members of the appellant as narrated above. It could be termed as a case of retribution or act for taking revenge. No doubt, it would not be a justifiable act at all, but the accused was feeling morally justifiable on his part. Hence, it would be difficult to term it as the “rarest of the rare” cases. Further, this is not a crime committed because of lust for wealth or women, that is to say, murders are neither for money such as extortion, dacoity or robbery; nor even for lust and rape; it is not an act of anti-social element, kidnapping and trafficking in minor girls or of an anti-social element dealing in dangerous drugs which affects the entire moral fibre of the society and kills number of persons; nor is it crime committed for power or political ambitions or part of organised criminal activities. It is a crime committed by the accused who had a cause to feel aggrieved for injustice meted out to his family members at the hands of the family of the other party who according to him were strong enough physically as well as economically and having influence with the authority which was required to protect him and his family. The bitterness increased to a boiling point and because of the agony suffered by him and his family members at the hands of the other party and for not getting protection from the police officers concerned or total inaction despite repeated written prayers goaded or compelled the accused to take law in his own hands which culminated in gruesome murders; may be that his mind got derailed of the track and went astray or beyond control because of extreme mental disturbances for the constant harassment and disputes. Further considering the facts and circumstances, it can not be said that he would be a menace to the society; there is no reason to believe that he cannot be reformed or rehabilitated and that he is likely to continue criminal acts of violence as would constitute a continuing threat to the society. He was working in B.S.F. as a disciplined member of the Armed Forces aged about 23 at the relevant time, having no criminal antecedent.”

The Supreme Court has altered the sentence of capital punishment by commuting to life imprisonment by allowing the Appeal to that extent.

43. As observed earlier and as found from the evidence, which we have discussed, the incident in question has occurred on 15.2.1999. Mahesh Desai was one of the accused amongst other co-accused, who were arrested by the police for the murder of Indira. Mahesh Desai and other 7 accused were under police remand. The Investigating Officer Shri Jadeja has produced the accused Mahesh Desai with co-accused before the court of the Chief Judicial Magistrate, Surat and gave application for further remand of the accused. The accused were produced before the Magistrate at 11.30 A.M. on that day. The evidence also, as discussed, clearly suggest that the present accused was on duty on that day as an Armed Police Constable. The accused had brought the undertrial prisoners from Sub Jail of Surat, alongwith the other police party and the accused was handed over the charge of service rifle with the cartridges. Except the present accused, no other police persons were having service rifle and as the accused was having in-charge of the service rifle, this accused was asked to sit outside the court room near the gate. Mahesh Desai and other co-accused were also brought from the police station by the Investigating Officer for the purpose of seeking extension of further police remand and those accused were produced before the Chief Judicial Magistrate in which except the remand of Mahesh Desai, the request of remand of the police was rejected. There is nothing to show that the accused had a knowledge that Mahesh Desai will be brought in the Court for extension of further police remand. Therefore, there is some substance in the submission made by Mr. Shethna that from the evidence it is not transpired that accused Sanjay had knowledge that the accused Mahesh will be brought in the court and the accused Sanjay had planned the murder and that it was a pre-meditated action. The evidence clearly indicates that the presence of the accused is very much there established and it is also admitted by the defence and as transpired from the evidence of two police officers and the evidence of the complainant Shri Jayantilal, that it is the accused, who had fired on Mahesh Desai. As per the defence, it is suggested that the accused Mahesh Desai has tried to run away and first firing from the service rifle was in air. No such explanation is rendered by the accused in his statement recorded under Section 313 of the Cr.P.C. On the contrary, his case is of total denial and according to him he is falsely involved and he is innocent. Mr. Shethna has contended that as found from the evidence, there were more than two firing had taken place and when the other police persons and the responsible superior officers were present, who were also having their weapon with them, no steps were taken at the relevant time to verify the other weapon possessed by other police officers and it is only when the accused was apprehended there and then with the service rifle a complaint of Jayantilal was recorded, who is also practicing advocate at Surat Court. As found, when Atmaram saw accused Mahesh Desai running, he also ran towards him and he also jumped on him and covered him and when the second fire was done, the bullet had struck on Mahesh Desai. Mr. Shethna has accordingly contended that in light of the medical evidence, such injury is not possible on Mahesh and as found from the evidence that the person, who has given protection by covering himself, has not sustained any injury. In our view, on close scrutiny of the evidence, it transpires that it is the accused who had fired a shot from his rifle for which the accused can be held responsible for murder of Mahesh Desai. At the same time it is difficult for us to accept the prosecution case that the accused can be held responsible for murder of advocate Shri Chaudhari in view of the evidence brought by the prosecution and it is further found from the evidence that the bullet had also hit on the wall, where the wall was also damaged and there was a hole and there is every possibility that the bullet might have after hitting the wall had broken and unfortunately that part of the bullet had hit and entered on the body of Shri Chaudhari. It is unfortunate that Shri Chaudhari, a practicing advocate, because of using such fire arm, had sustained bullet injury which has resulted into death, which is proved through the medical evidence. Equally in light of the evidence led by the prosecution, Madhuben has not thrown any light in respect of the incident in which she has sustained the bullet injury. It is good that fortunately she survived though she had sustained bullet injury and the bullet was also recovered from the body and the said bullet was seized by the police under Panchanama. In view of the evidence of the Ballistic expert, coupled with the medical evidence, we are of the view that accused is responsible for murder of deceased Mahesh Desai. The accused was also knowing that by using such fire arm in a place where the Court premises is situated, there is every possibility of hitting the bullet on any person. In the present case, motive cannot be considered as a motive established by the prosecution in light of the evidence adduced by the prosecution.

44. The learned trial Judge has mainly imposed capital punishment on considering the fact that the accused had by using fire arm from the service rifle committed two murders, one is of Mahesh Desai, who was arrested by the police in respect of Indira murder case and another is of murder of advocate Shri Chaudhari and it is only considering this background, the learned trial Judge has imposed capital punishment. In light of the decisions and as contended before us, in our view, this is not a rarest of rare case and the capital punishment imposed by the learned trial Judge, in our view, is not the proper punishment. However, two persons had lost their life. Both are innocent. Madhuben had also sustained injury with the rifle. She is also very innocent. No one was expecting that on that day there would be a firing and it was unfortunate day that two persons had lost their lives while one had sustained grievous hurt. In the present case, accused is a young aged person of 27 years. No criminal history is there. Accused is working in the Police force since 1997 as an Armed Constable, having old parents. The father of the accused had also served the Police Department as a Head Constable and he is now retired from service. Accused is unmarried. He is also having one younger brother. In light of this background, this is not a case in which the accused deserves any capital punishment. In our view, so far as the order of capital punishment imposed by the learned trial Judge is concerned, the same deserves to be commuted to the punishment of imprisonment for life for the offence of committing murder of Mahesh Desai, namely, for the offence under Section 302 of the I.P.C.

45. So far as the offence under Section 302 of the I.P.C. for causing murder of Chaudhari is concerned, the same is set aside as well as the conviction of the accused for committing offence under Section 307 of the I.P.C. for causing hurt to Madhuben also deserves to be set aside. However, considering the fact that the accused had used fire arm in court premises and by using such fire arm, the accused can be held responsible for the injury and death caused to advocate Shri Chaudhari, for which the accused can be held responsible for the offence under Section 304A of the I.P.C. The accused can not be held responsible for the offence under Section 307 of the I.P.C. for causing grievous hurt to Madhuben and the same is set aside and the accused is required to be convicted for the offence under Section 337 of the I.P.C.

46. Accordingly while answering the Reference for Confirmation of death penalty imposed on accused Sanjay Dangal Badgujar, the same is hereby commuted to life imprisonment and the Criminal Appeal No. 1167 of 2003 filed by the convict accused is partly allowed. The Judgment and order passed by the learned Joint District Judge and Addl. Sessions Judge, Fast Track Court No. 1, Bharuch in Sessions Case No. 16 of 2000 on 4.9.2003 convicting the accused for the offence under Section 302 of the I.P.C. in respect of murder of Mahesh Ramanbhai Desai is hereby confirmed. However, the sentence of capital punishment is hereby commuted to imprisonment for life.

The judgment and order passed by the trial court convicting the accused for the offence under Section 302 of the I.P.C. in respect of murder of advocate Harishbhai Pitambarbhai Chaudhari is set aside and the accused is convicted for the offence under Section 304A of the I.P.C. and the accused is sentenced to undergo R.I. for two years and to pay a fine of Rs. 5000/-in default of payment of fine, the accused has to undergo R.I. for six months.

The judgment and order passed by the trial court convicting the accused for the offence under Section 307 of the I.P.C. in respect of causing grievous hurt to Madhuben Himatsinh Thakor is set aside and the accused is convicted for the offence under Section 337 of the I.P.C. and the accused is sentenced to undergo R.I. for six months and to pay a fine of Rs. 500/– in default of payment of fine, the accused has to undergo R.I. for one and half months.

All the sentences are ordered to run concurrently.

If the amount of fine of Rs. 5000/–, as imposed, is recovered and paid by the accused, the learned trial Judge is directed to pay the said amount of Rs. 5000/-to the heirs of deceased Harishbhai Pitambarbhai Chaudhari after making proper inquiry. It is equally ordered that if fine amount of Rs. 500/-, as imposed, is recovered and paid by the accused, the same is ordered to be paid to injured Madhuben Himatsinh Thakor.

The order regarding disposal of muddamal is hereby confirmed.

During hearing of the Confirmation Case the muddamal was called for from the trial court and as now the Confirmation Case as well as the Appeal is disposed off, as aforesaid, the Registry is directed to see that all the muddamal be sent back to the trial court.

The accused was kept present during the hearing of the Confirmation Case and the accused was brought earlier from Vadodara Central Prison. Accordingly the accused is ordered to be sent back to Vadodara Central Prison.

We may observe that while hearing the present Confirmation Case and the Appeal filed by the accused, we have been assisted by Mr. K.J.Shethna, who appeared for the accused as well as by Mr. K.P.Raval, who appeared as an Addl.P.P. on behalf of the State. It is because of the valuable assistance rendered by both the counsel, it was possible for us to dispose of the Confirmation Case as well as the Appeal filed by the accused. The matter was fixed and heard on day to day basis in presence of the accused from 12.3.2004 and it has continued during all the working days for about 9 days. Mr. K.P.Raval had remained with us all through out and concentrated in the Confirmation Case as well as in the Appeal filed by the accused and looking to the days for which we have heard the Confirmation Case and the Appeal and the labour put in by Mr. Raval, he is entitled for some special fees and we accordingly recommend the Government to sanction appropriate fees for conducting the Confirmation Case as well as the Appeal to Mr. Raval, over and above the fees prescribed under the Government Rules.