I N T H E H I G H CO U R T O F G U JA R AT AT A H M E DA B A D

CRIMINAL MISC. APPLICATION NO.

OF 2007

IN
CRIMINAL APPEAL NO.

OF 2007

D I S T R I C T: A H M E D A B A D

Va s a n t b h a i
Ratilal
Makwana,
A ge d :4 2 ye ars , Oc c up n. : Lab o ur
work,
Resident
of:
Block
No.13/294, Slum Quar ters, Near
A.E.C., Amraiwadi, Ahmedabad
(Original accused in Sessions Case
N o . 3 1 4 o f 2 0 0 5 o n t h e fi l e o f
lear ned Addl. Sessions Judge and
Court
No.2,
Ahmedabad

At
present in judicial custody)
... Applicant-Applicant
versus
State of Gujarat (to be ser ved
through
the
Public
P r o s e c u t o r,
Gujara t High Co ur t Co mp lex , S o la,
Ahmedabad)
... Respondent

Subject:
Application
fo r
bail
pending appeal under Section 374
o f th e C r i m i n a l P ro c e d u re C o d e
a ga i n st th e j u d g m e n t o f s e n te n c e
and conviction dated 16.11.2006

passed
by
the
learned
Sessions
Judge,
Court
Ahmedabad,
in
Sessions
No.314 of 2005

Addl.
No.2,
Case

To ,
Honble The Chief Justice and
other
H o n b l e
Judges
of
the
Honble High Cour t of Gujarat at
Ahmedabad
Humble submission for and on
behalf
of
the
applicant
abovenamed

M O S T R E S P E C T F U L LY S H E W E T H T H A T:
1.

The applicant was the original accused in

S e s s i o n s C a s e N o . 3 1 4 o f 2 0 0 5 o n t h e fi l e o f
lear ned Addl. Sessions Judge, Cour t No.2,
A h m e d a b a d . B y way o f a b ove a p p e a l , t h e
Applicant

is

challenging

the

l e g a l i t y,

validity and propr iety of t he judgment and

order

dated

16.11.2006

passed

by

lear ned Addl. Sessions Judge, Cour t

Ahmedabad,
been
under

w h e r e b y,

convicted
sections

for
302

the

the

No.2,

applicant

o ff e n c e
of

the

has

punishable
Indian

Penal

Code and has been sentenced to undergo

imp r is o n me n t

for

l i fe

and

fi n e

of

Rs.1,000/-.
2.

The learned Addl. Sessions Judge has erred

in

relying

upon

witnesses

the

recorded

st atements
by

O ffi c e r

under

Section

serious

error

in

l aw

the

161
that

of

these

Investigating

of

C R . P. C .

while

It

is

deciding

point in issue, the learned judge goes to the

extent

of

relying

upon

the

st atement

of

witnesses recorded by t he IO which obviously

is not admissible.

3.

The

applicant

respectfully

states

and

submits that the prosecution witness No.1,

Jagdishbhai
examined
witness
o ff e n c e .

Nathalal

at
in

Ex.7.
the

Said
that

witness
when

He

was

Panchnama

Second

Parshottambhai

Wa g h e l a

panch

Solanki

went

the
of

who

to

been
panch

scene

was

at Ex.7 has
he

has

of

Kanubhai

has

expired.

stated

on oath

the

house

of

Va s a n t b h a i , i t a p p e a r e d t h a t s o m e t h i n g h a d
3

bur nt. Except t his, he had no

had

happened

nor

the

idea of what

police

had

shown

him anything. That upon asking him to sign

in the wr iting (Panchnama), he had given
his

signature

been

therein.

declared

and

was

hostile

by

witness

the

Even
this

in

has

prosecution

cross-examined

prosecution.
examination,

This

by
the

witness

the
cross-

categor ically

stated that neither the police had explained

h i m t o a c t a s P a n c h w i t n e s s n o r Va s a n t b h a i
was

present

at

the

scene

of

o ff e n c e

and

that he had signed the Panchnama without

reading the same. This witness has further
categor icall y stated before t he Cour t t hat
he is giving tr ue version of what transpired
without
Thus,

any
the

kind

of

fear

prosecution

or
had

allurement.
failed

to

e s t a b l i s h t h e a c t u a l s c e n e o f o ff e n c e a n d
this being the basis of the entire case of
the prosecution, the prosecution case falls
fl a t o n t h i s s o l e c o u n t a n d i t i s n o t p r o v e d
4

that

anything

mater ial

was

seized

in

presence of this panch witness. The lear ned

tr i al Cour t has t herefore ser iously er red in
n ot b e l i e v i n g t h e s ay o f t h i s p a n ch w i t n e s s
and

believing

what

was

stated

in

the

P a n c h n a m a w h i c h w a s s p e c i fi c a l l y d e n i e d t o
h ave be en p rep are d i n t h e p res e nc e of s aid
panch witness.

4.

S i m i l a r l y, t h e p r o s e c u t i o n w i t n e s s N o . 2
Naranbhai
examined

Purshottambhai

Solanki

was

vide Ex.11. He was the panch

witness

of

the

regarding

the

physical

accused

(applicant).

declared

hostile

in

inquest

Panchnama

condition

This
view

witness
of

the

of

the

is

also

narration

g i ve n by h i m b e fo re t h e C o ur t.

5.

T h e r e a f t e r, P W N o . 3 P r a b h a t j i P r a t a p j i
Thakore was ex amined at Ex.13. He is t he
son

of

deceased

deposition

of

Pratapji

this

Thakore.

witness

is

read

If

the

as

whole, it would transpire that this witness

is an interested witness and does not reveal
t h e tr ue fac ts. Wh e n t h e c o mp ro mis e was
not ar r ived at between t he

applicant and

his wife Lilaba, t here was no question for

P rat ap j i to st ay at h e r ho us e t h at n i gh t.
Therefore,

the

so-called

version

given

by

this witness that his father telephoned him

a n d i n fo r m e d h i m t h a t h e w i l l b e st ay i n g a t
the

house

of

Lilaba

that

night

does

not

i n s p i r e c o n fi d e n c e a n d o u g h t n o t h a v e b e e n
b e l i e v e d b y t h e c o u r t b e l o w.

6.

Prosecution
Bhikhaji

Witness

Thakore

has

No.4
been

Becharji

examined

at

Ex.14. He is t he witness who had last met

Pratapji and it is stated in his deposition
that

the

present

applicant

had

infor med

said Pratapji telephonically that since some

dispute is going on wit h his wife, Pratapji
should

inter vene.

examination,

this

H o w e v e r,

in

the

witness admits

cross-

that

he

does

not

know

as

to

for

what

purpose

P rat ap j i h ad st aye d at Ah me d ab ad an d t h at
he

has

no

any

personal knowledge

about

t h e i n c i d e n t . T h e i n v e s t i g a t i n g o ffi c e r h a s
not

produced

the

pr intout

of

the

calls

allegedly made between t he phone calls of

Prat apji and t his witness or vice-versa to
prove

that

Pratapji

had

telephoned

this

witness and infor med him t hat he will be

st ay i n g a t A h m e d a b a d t h a t n i g h t . T h e r e fo r e
t he version given by t his witness, who is an
interested
friend

of

witness
deceased,

being

the

ought

relative

not

h ave

and
been

b e l i e v e d b y t h e c o u r t b e l o w.

7.

T h e r e a f t e r,

Prosecution

D r. P r a v i n b h a i

Va l j i b h a i

examined

Ex.21.

at

categor ically

stated

Witness
Desai

This

that

No.8

has

witness

when

there

been
has
are

100% burns, and considering the injuries

on the dead bodies it is also possible the
same might be the result of suicide. That

there were no exter nal injur ies on the body

on account of beating.

8.

T h e r e a f t e r,

PW

No.13

Kanuji

Chaturji

Rathod has been examined at ex.35. This

w i t n e s s i s p o l i c e o ffi c i a l . H e h a s s t a t e d i n
t he cross ex amination when he received t he
Va r d h i i n t h e a f t e r n o o n , h e w a s d i c t a t i n g
the

c o mp lain t

being

lodged

by

the

c o mp lain an t, t h at t h e c o mp lain an t h imse lf

had

come

to

police

station,

that

if

the

o ff e n c e i s d i s c l o s e d b y t h e c o m p l a i n a n t w h o
is found to be accused, t hen he has to be
ar rested. That it is tr ue that he had not
ar re ste d t h e co mp lain an t imme d iate ly af te r
h e lod ge d t h e c o mp lian t. T h at it is n ot tr ue
that
that

the

co mp lain an t

both

the

(accused)

persons

had

had

said

committed

s u i c i d e b u t h i s s t a t e m e n t t o t h i s e ff e c t w a s
not

recorded.

statements
o ffi c e r,

it

In

made
is

the
on

oath

submitted

context
by

that

of

the
the

this
police

accused

(applicant) has been ar rested on 7.1.05 at

3:45 hrs. It is submitted that in view of the
f a c t t h a t t h e s a i d i n v e s t i g a t i n g o ffi c e r h a d
g o n e a t t h e s c e n e o f o ff e n c e a t 4 : 1 5 h r s . i n
the mor ning and was in the knowledge that
t h e i n c i d e n t o f fi r e h a d t a k e n p l a c e w h e r e
two

persons

had

sustained

severe

burn

i n j u r i e s , a n d w h e n h e h a d r e c e i v e d Va r d h i
from the L G Hospital that said two persons
had

died,

then

if

the

c o mp lain an t

( ap p l ic an t) wo ul d h ave gi ven t h e c o mp l i an t
at

6:15

am

in

investigating
immediately

the

morning,

o ffi c e r

the

would

ar rested

the

said
h ave

applicant,

h o w e v e r, t h e a r r e s t o f t h e a c c u s e d h a s b e e n
made

at

3:45

in

the

after noon

and

t herefore, it is not proved t hat t he present

applicant

had

gone

to

the

police

station

an d lo d ge d a co mp lain t at 6 :1 5 am in t h e
morning

and

the

subsequently
prosecution,

c o mp lain t

by
in
9

is

police.

view

of

this

made

Thus,
fact,

out
the
had

miserably failed to prove its case against

t he accused, and t he lear ned tr i al cour t, by
disregarding
serious

these

error

facts,

of

l aw

has

and

committed
fact

which

d e s e r ve s to b e d e p re c a te d by t h i s H o n b le
Court

by

setting

aside

the

judgment

of

c o nv ic tio n an d se n te n ce imp o s ed up on t h e
applicant based on the incor rect statement
in

the

for m

of

co mp lain t

given

by

the

applicant. The applicant submits that the

ver y basis of the prosecution case and the
initiation

of

the

investigation

is

faulty

in as much as t h at t h e so -c alled co mp lain t

lo d ge d by t h e c o mp lain t c an n ot b e s aid to
b e an FIR o r a c o mp lian t f ro m any an g le . At
the most, the same can be ter med as the
so-called confession of t he accused and t he
Va r d h i r e c e i v e d f r o m t h e L G h o s p i t a l a b o u t
receiving
condition

the

two

would

amount

applicant submits
said

c o mp lain t
10

persons

if

to

in

the

burnt

FIR.

The

it is held that the

allegedly

lodged

by

the

applicant

is

nothing

but

the

so-called

c o n fe s s io n o f t h e ap p l i c an t, t h e n t h e re is
no any cor roboration to the said statement
o f t h e p re se n t ap p lic an t as t h e co mp lain an t
has not been called by t he prosecution as
witness

to

cor roborate

its

case

of

c o n fe s s io n an d t h e re fo re , i n abs e nc e of any
circumstantial evidence or ocular evidence,
t h e imp ugn e d jud gme n t d es e r ves to b e set
aside.

9.

T h e r e a f t e r t h e i n v e s t i g a t i n g o ffi c e r, i . e . P W
14

- Mukeshbhai Dhir ubhai Mehta,

has been examined at Ex.39. He states in

his deposition t hat he had t aken over t he
investigation

from

PSI

Rathod

on

7.1.05,

and had prepared the Panchnama as well as

recorded the statements of witnesses and
thereafter
investigation

had

handed

to

Second

over
PI

further

Rao.

This

witness states fur ther that it is tr ue that

he

was

in

charge

11

of

the

investigation

of

case from 7.1.05 to 15.1.05 and that the

match box which was not bur nt was found
f r o m s c e n e o f o ff e n c e a n d t h e a c c u s e d w a s
ar rested at 16:30 hrs. That it is not tr ue
t hat remand was not given by magistrate
s inc e co mp lain t was mad e b e fo re h im t h at
his

signature

c o mp lian t.

was

That

forcibly

the

taken

statements

on
of

the

p ump

o pe rato rs of t h e p etro l p ump we re re c o rde d

b ut t h e st a te me n t o f p ump own e r was n ot
recorded. That it is not tr ue that in the
said st atements, it was revealed t hat petrol
was

purchased

p ump

and

operators

t herefore,

were

not

the

said

examined

as

witnesses or that as there was no evidence

for t hcoming from t he pr intout of t he mobile
calls

regarding

witnesses

Pratapjis

were

Chargesheet.

That

not
it

mobile,

named
is

true

said

in
that

the
it

is

s t a t e d i n t h e P a n c h n a m a t h a t t h e fi n g e r t i p s
of the accused were bur nt slightly but it is
not

true

that

in
12

these

injuries

were

not

s h o w n i n t h e m e d i c a l c e r t i fi c a t e a n d t h a t
since

such

injuries

same

were

not

shown

Thus,

from

c e r t i fi c a t e .
this

witness,

it

was

were

not

in

sustained

the

the

medical

deposition

established

that

of
the

accused was ar rested on 7.1.2005 in the

af te r n o o n (c o mp lain t was alle ged ly by t h e
c o mp lain an t

(applicant)

in

the

early

morning) and fur ther the police had failed

in

obtaining

his

remand

and

further

the

fact that the so-called burn injuries on the

fi n g e r t i p s

of

the

accused

were

not

suppor ted by any witnesses of t he panch

nor

any

given

medical

report

the

accused

to

Therefore,
was

got

this
up.

stor y

Not

of

was

was

only

the

treatment
produced.

concocted

this,

any

of

and
the

wi tn e s se s wh o h ave be en ex ami n ed be fo re
t h i s H o nb l e Co ur t h ave n ot s upp o r te d t h e
case of the prosecution that the applicant
w a s p r e s e n t a t t h e s c e n e o f o ff e n c e w h e n
the

incident

occurred.
13

F u r t h e r,

the

statements

of

the

whom

the

applicant

petrol

h ave

not

Chargesheet

p ump

operators

allegedly

been

though

from

purchased

for med

part

the

same

of

the
were

pur por tedly recorded by t he IO. This was so

only because the said statements were not
suppor ting the prosecution case regarding
purchase of petrol by t he applicant on t he
earlier

d a y.

Thus,

on

all

these

mater ial

counts, the prosecution had failed to prove

i t s c a s e a g a i n s t t h e a p p l i c a n t , h o w e v e r, t h e
learned

trial

Court

has

by

ignoring

all

t h e s e fl a w s h a s c o n v i c t e d t h e a p p l i c a n t b y
believing the stor y of the prosecution which
is full of lacunas.

10. The

applicant

respectfully

submits that the PW

No.15

states

and

Gopinath

Nar n arayan b h ai R ao, wh o is al s o an IO h as

been examined vide Ex.44.

He has stated

that the investigation of case was with him

from

13.1.2006

14

to

3.2.2006.

In

this

m a n n e r,

there

statements

by

is

contradiction

two

investigating

in

the

o ffi c e r s

inasmuch as that the previous IO namely PI

Shri

Mehta

has

stated

in

his

deposition

that he was in charge of the investigation

from

7.1.05

to

15.1.05

and

thereafter

it

was handed over to PI R ao.

11. The

applicant

submits

that

respectfully
the

states

and

had

not

applicant

voluntar ily gone to the police station and

lo d ge d his co mp lain t at 6 :1 5 in t h e e arly
mor ning on 7.1.2005. There was reason for
the

trial

court

to

believe

the

s ay

of

the

applicant that he does not know as to how

the

house

caught

fi r e

since

he

was

not

present there because any of the witnesses

h ave

not

cor roborated

presence

of

the

applicant at the time of incident.

12. The

applicant

submits

that

the

15

respectfully
learned

states

trial

court

and
has

e r re d in l aw by n ot co ns i d e r i n g t h e rati o o f
the

judgment

laid

down

in

2002(2)

GLH

p a ge 1 9 7 i n t h e c a s e o f A m r a t b e n B h aya
A b h a v. S t a t e o f G u j a r a t a n d i n

AIR 1966

page 119 and 1994 SCC (Cr) page 555. The

contention of the applicant that when the
accused

himself

inadmissible

in

has

fi l e d

FIR,

evidence.

The

same

is

applicant

c rave s le ave o f t h i s H o nb l e Co ur t to re fe r
to ot her decisions of t his Honble Cour t and
H o n b l e H i g h C o u r t i n c a s e o f n e c e s s i t y.

13. The

applicant

submits

that

respectfully
the

states

alter native

and

submission

made on behalf of the applicant that the

applicants case if at all is taken to be at
the instance of applicant, would amount to
a n o ff e n c e o f g r a v e a n d s u d d e n p r o v o c a t i o n
since

it

is

prosecution

not
that

established
the

preplanned

to

commit

purchased

the

petrol

16

applicant

such
a

by

d ay

act
in

and

the
had
had

advance.

F u r t h e r, i n v i e w o f t h e c l e a r a d m i s s i o n i n
t h e FIR i tse l f and wh e n t h e ap p l ic an t s aw
his

wife

along

with

deceased

Pratapji

together at night in the room, on account of

g rave an d s ud d en p rovoc ati o n , t h e i nc i d en t
o c c u r r e d . T h e r e fo r e , e ve n i f t h e s ay o f t h e
applicant as stated in t he FIR is taken at
i t s f a c e v a l u e , t h e o ff e n c e w o u l d
g rave

and

b eyo n d

sudden

that.

be that of

provocation

Therefore,

the

and

not

imp ugn e d

judgment of sentence and conviction under

Section 302 of IPC is required to

be set

aside by t his Honble cour t in t he interest

of

14.

justice.

The
the

applicant
applicant

Rs.1,000/-

as

submits
has
per

respectfully

paid
the

the

fi n e

judgment.

that
of
The

applicant was ar rested in connection with

t h i s o ff e n c e o n t h e d a t e o f r e g i s t e r i n g t h e
FIR

and

c u s t o d y.

since

then,

Pending trial,

17

he
the

is

in

judicial

applicant

was

not released on bail and he continues to be

in

judicial

provisions

c u s t o d y.

of

the

set

Considering
o ff

to

be

the

given

to

u n d e r t r i a l p r i s o n e r, f r o m t h e t o t a l p e r i o d o f
s en te n c e imp o s ed up o n t h e ap p lic an t, t h e
applicant has already undergone sentence
of

about

two

ye ars.

There

is

ever y

likelihood t hat t he appeal would be allowed

and

the

conviction

F u r t h e r,
appeals

would

considering
before

this

be

the

set

aside.

pendency

Honourable

court,

of
in

o rd i n ar y c o ur se , t h e app e al i s l i ke l y to t ake
considerable long time for hear ing and on
t h i s c o u n t a l s o , t h e a p p l i c a n t m ay k i n d l y
be

released

Therefore,

on

in

view

bail
of

pending
these

appeal.

facts,

the

applicant deser ves to be released on bail

pending appeal.

15. The

Applicant

petition
before

or
this

has

not

application
Honble

18

fi l e d
or

Court

any

other

revision

either

or

the

Honble

Supreme Cour t of India or any other Cour t

o f l aw on t h e s ub je c t matte r o f t h e ap pe al .

16. The

Applicant

e ffi c a c i o u s

has

no

remedy

other

alter native

avai l ab l e

but

to

a p p r o a ch t h i s H o n b l e C o u r t by way o f t h e
present appeal.

1 7. T he App l i c an t re s pe c tf ul l y c raves le ave to

a d d , a l t e r, d e l e t e , r e s c i n d , a m e n d , a n y o r
all t he grounds refer red to hereinabove.

1 8 . O n t h e a b ove g r o u n d s , a n d t h o s e t h a t m ay
be

urged

at

the

time

of

hearing

of

this

a p p e a l , t h i s H o n b l e C o u r t:

(A)

Be
this

pleased

to

admit

application

and

and

allow

further

be

pleased to release the applicant

on

bail

pending

the

admission,

h e a r i n g a n d fi n a l d i s p o s a l o f t h e
C r i m i n a l A p p e a l fi l e d a g a i n s t t h e
judgment

19

of

conviction

and

sentence dated 16.9.2006 passed

by

the

Judge,

learned
Court

Addl.

No.6,

Sessions

Ahmedabad,

in Sessions Case No.314 of 2005

(B)

Be
and

pleased
further

deemed

fi t

to

pass

order(s)
and

such
as

proper

other

m ay

be

in

the

interest of justice;

A N D F O R T H I S AC T O F K I N D N E S S A N D J U S T I C E ,
T H E A P P L I C A N T, A S I N D U T Y B O U N D , S H A L L F O R
E V E R P R A Y.

Ahmedabad
Dt.: /2/2007

(Mehul K.Sr ivastava )

Advocate for t he Applicant

20