Haren Pandya Judgement - Gujarat High Court

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CR.A/975/2007 1/110 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL No. 975 of 2007
With
CRIMINAL APPEA...

CR.A/975/2007 2/110 JUDGMENT
=========================================================
Appearance :
MR SM VATSA with MS NI...

CR.A/975/2007 3/110 JUDGMENT
appellants herein, examined eight witnesses and two witnesses
were examined as court witnesse...

CR.A/975/2007 4/110 JUDGMENT
2. Broad contours of the case are that, on 11.3.2003,
one Shri Jagdish Tiwari, Viswa Hindu Pa...

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CR.A/975/2007 5/110 JUDGMENT
8.9.2003. The Court framed charges (Ex.57) on 11.12.2003
against 15 accused persons for the o...

CR.A/975/2007 6/110 JUDGMENT
(3) Whether the prosecution proves beyond reasonable
doubt that in pursuance of the said crim...

CR.A/975/2007 7/110 JUDGMENT
and recovery of weapons, mobile phone records, internet
communication excerpts, confessions a...

CR.A/975/2007 8/110 JUDGMENT
would necessitate proper training in arms and
ammunitions as well as in other fields, the sam...

CR.A/975/2007 9/110 JUDGMENT
Sohailkhan who all have succeeded in absconding to the
neighbouring country and the red-corne...

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CR.A/975/2007 10/110 JUDGMENT
the reccee (reconnaissance) of the targets, collection of
the arms and ammunitions, introduc...

CR.A/975/2007 11/110 JUDGMENT
cover to unleash manufactured rage, with the aim of pointing
the criminals as victims.”
5. I...

CR.A/975/2007 12/110 JUDGMENT
the offence under section 3(3) of POTA, has been released on
bail by order of the Supreme Co...

CR.A/975/2007 13/110 JUDGMENT
(c) that material witnesses have not been allowed to
depose before the Court and real facts ...

CR.A/975/2007 14/110 JUDGMENT
Nanubhai (CW.1) and slept with it on the night of 25.3.2003.
When he woke up in the morning ...

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CR.A/975/2007 15/110 JUDGMENT
killed and asked him to call police to whom he can talk or he
may be accompanied to a police...

CR.A/975/2007 16/110 JUDGMENT
shot. He confirmed that Shri Pandya had bent over on the front
seat itself. He deposed that ...

CR.A/975/2007 17/110 JUDGMENT
opening of the glass, he confirmed that glass was in the same
state of being nearly closed a...

CR.A/975/2007 18/110 JUDGMENT
Nanubhai was asked to provide a witness, but he conceded
that on the date of the incident, h...

CR.A/975/2007 19/110 JUDGMENT
deposition, both his security guards were on leave on
26.3.2003. Anil (PW.55) was keeping hi...

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CR.A/975/2007 20/110 JUDGMENT
made an application dated 8.2.2007 (Ex.878) praying to call for
the statement of CW.1 allege...

CR.A/975/2007 21/110 JUDGMENT
deposed beforehand on 28.7.2006 that he had recorded
statement of Nanubhai (CW.1) on 26.3.20...

CR.A/975/2007 22/110 JUDGMENT
outer sides of that car were chemically tested at few places for
the presence of residues of...

CR.A/975/2007 23/110 JUDGMENT
stretcher at the hospital, there were sports shoes on his legs.
He confirmed that the car wa...

CR.A/975/2007 24/110 JUDGMENT
one, circular hole with blackening is present on
lengha on right side on back, about
3 cm ri...

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CR.A/975/2007 25/110 JUDGMENT
nipple, right side of neck just above right clavicle, and
on dorsum of right hand. Dry blood...

CR.A/975/2007 26/110 JUDGMENT
wound with inverted margins present on lower part of
left scrotum, 1 cm left midplane (scrot...

CR.A/975/2007 27/110 JUDGMENT
(g) Heart and weight
(h) Large vessels
(I) Additional remarks
- Thorasic Cavity, contains ab...

CR.A/975/2007 28/110 JUDGMENT
lung, behind heart and major vessels on back of
heart and found free in left chest cavity mi...

CR.A/975/2007 29/110 JUDGMENT
11. Dr.Pratik R.Patel, Professor and Head, Forensic
Medicine Department, V.S.Hospital (Ex.17...

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CR.A/975/2007 30/110 JUDGMENT
injury No.1. Upper left pointing downward track is mentioned
which is going downward to the ...

CR.A/975/2007 31/110 JUDGMENT
Forensic Medicine and doing his LL.M at the time of deposing.
According to his opinion, with...

CR.A/975/2007 32/110 JUDGMENT
No.6 is on the front of the right forearm directed above,
downwards and right to left. It wa...

CR.A/975/2007 33/110 JUDGMENT
and legs must come out and thighs must project
out then only it is possible to straight way ...

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Mruti Car parked at Law Garden opposite Thakorbhai Desai
Hall. Different witnesses of the pr...

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CR.A/975/2007 35/110 JUDGMENT
being the case property No.15 and therefore, no question arises
of recordance of memorandum....

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BC/2 White
metal
Grayish Tip
deformed
Deformed Tip
deformed
BC/3 White
metal
Grayish Nil Def...

CR.A/975/2007 37/110 JUDGMENT
“Two of the defence experts have voiced a different possibility
with regard to the injuries ...

CR.A/975/2007 38/110 JUDGMENT
was slightly open. Then, while returning as a pillion rider to
Yunus (A-6), he asked Yunus a...

CR.A/975/2007 39/110 JUDGMENT
blood on the left shoulder and right sleeve indicating profuse
bleeding and bloodstains on t...

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CR.A/975/2007 40/110 JUDGMENT
of Law Garden where many morning walkers come daily and
where at a little distance away the ...

CR.A/975/2007 41/110 JUDGMENT
stage....”
Discussing the evidence further, the Court observed:
“ .....The Court must also r...

CR.A/975/2007 42/110 JUDGMENT
comprehensive.”
13.1 Referring to the deposition of Radheshyam (PW.85),
the Court observed:
...

CR.A/975/2007 43/110 JUDGMENT
Inspector Shri Chauhan and within three hours of Shri Haren
Pandya's removal to the hospital...

CR.A/975/2007 44/110 JUDGMENT
continued the same for nearly an hour and at 12 noon, in
concurrence and advice of experts, ...

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CR.A/975/2007 45/110 JUDGMENT
has hit the left testis first, which is passing left to right and
goes on the back side. Whe...

CR.A/975/2007 46/110 JUDGMENT
quite possible that the bullet can pass between 2nd
and 3rd
metacarpal shafts without damagi...

CR.A/975/2007 47/110 JUDGMENT
where minimum or less blood is possible outside”, the Court
concluded that: “....it was wron...

CR.A/975/2007 48/110 JUDGMENT
perpendicularly, the Court concluded that it was not necessary
that every shot described as ...

CR.A/975/2007 49/110 JUDGMENT
where it should have for being a little above clavicle. According
to the defence witness, in...

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CR.A/975/2007 50/110 JUDGMENT
about the re-entry being the external injury No.1. The material
produced by Ld.Sp.P.P. shows...

CR.A/975/2007 51/110 JUDGMENT
the car where shoulder was in between the two seats and the
head slightly in the front resti...

CR.A/975/2007 52/110 JUDGMENT
for whatever reason he had stated that fact, Court shall have to
look at version of PW.55 of...

CR.A/975/2007 53/110 JUDGMENT
defence. On a detailed discussion, it has also been argued that
PW.75 did not find the firin...

CR.A/975/2007 54/110 JUDGMENT
seeing that the opinion given on charging the professional fees
is upheld and helps the case...

CR.A/975/2007 55/110 JUDGMENT
examination of this witness and various question-marks have
been paused from these answers, ...

CR.A/975/2007 56/110 JUDGMENT
fundamentally cannot agree to the fundamentals of Forensic
Medicine and therefore, it would ...

CR.A/975/2007 57/110 JUDGMENT
cars was the car of Mr.Pandya. He confirmed that position
by again saying that no car had co...

CR.A/975/2007 58/110 JUDGMENT
if Shri Pandya was there. Again, Shukla Chacha taking
him to the place of Nanubhai, which wa...

CR.A/975/2007 59/110 JUDGMENT
regular morning walkers, created a cloud of doubt around
the manner and timing of firing at ...

CR.A/975/2007 60/110 JUDGMENT
car, the version of the sole eye witness was practically
improbablised by medical evidence a...

CR.A/975/2007 61/110 JUDGMENT
investigation. However, the mobile forensic team did not
take notice of his presence or take...

CR.A/975/2007 62/110 JUDGMENT
All these factors put into serious doubt the veracity
of the version of PW.55 and therefore,...

CR.A/975/2007 63/110 JUDGMENT
clearly indicated that injury No.5 and 6 could not have been
communicating in absence of tra...

CR.A/975/2007 64/110 JUDGMENT
strengthened the argument for the appellants that the
conclusions drawn by the trial Court w...

CR.A/975/2007 65/110 JUDGMENT
masterminds or kingpins and co-ordinators who inspired,
financed and supervised alleged terr...

CR.A/975/2007 66/110 JUDGMENT
tabulated as under:
After hours
as under
Hours of of prelimi-
Accused Date of Time taken No....

CR.A/975/2007 67/110 JUDGMENT
their production before Judicial Magistrate, they were kept at
CBI office at Gandhinagar but...

CR.A/975/2007 68/110 JUDGMENT
“Abhiyukt” can be written?
Note: At this juncture, the Court has pointed out to the LA
for t...

CR.A/975/2007 69/110 JUDGMENT
26.3.2003, he reached near H.A.College and saw Yunus (A-6)
on a black motorcycle near Thakor...

CR.A/975/2007 70/110 JUDGMENT
time, were inconsistent with the deposition of the eye-witness
insofar as the accused concer...

CR.A/975/2007 71/110 JUDGMENT
custody pursuant to the case of murder of Shri Haren Pandya.
It was also pointed out by lear...

CR.A/975/2007 72/110 JUDGMENT
the accused, and as the sealed envelopes were sent directly to
the POTA Court, no prejudice ...

CR.A/975/2007 73/110 JUDGMENT
unless the Government's law enforcing machinery fails."
“27. ......While Sections 17 to 23 d...

CR.A/975/2007 74/110 JUDGMENT
be satisfied that it was freely and voluntarily made. A
confession by hope or promise of adv...

CR.A/975/2007 75/110 JUDGMENT
the proved facts and not run counter to them. When
the voluntary character of the confession...

CR.A/975/2007 76/110 JUDGMENT
"A retracted confession may form the legal basis of a
conviction if the court is satisfied t...

CR.A/975/2007 77/110 JUDGMENT
presumptive evidence of its truth. Still, there may
be circumstances to indicate that the co...

CR.A/975/2007 78/110 JUDGMENT
SCR 623) further clarified the legal position thus :
"..........In dealing with a case again...

CR.A/975/2007 79/110 JUDGMENT
“47. While we agree with the proposition that the nature of
corroboration required both in r...

CR.A/975/2007 80/110 JUDGMENT
From that, does it follow that the confession made by one
accused is equally admissible agai...

CR.A/975/2007 81/110 JUDGMENT
accused”.
“157. The lofty purpose behind the mandate that the maker of
confession shall be s...

CR.A/975/2007 82/110 JUDGMENT
Article 22(1) was viewed to be complementary to Article
20(3). It was observed-
"we think th...

CR.A/975/2007 83/110 JUDGMENT
lead to automatic invalidation of confession would not be
in consonance with the inherent na...

CR.A/975/2007 84/110 JUDGMENT
need not be gainsaid. The requirement is in keeping with
the Miranda ruling and the philosop...

CR.A/975/2007 85/110 JUDGMENT
objective seems to be at the back of sub-section (3) of
Section 164 of Cr.P.C., though the s...

CR.A/975/2007 86/110 JUDGMENT
of Afzal in procuring explosives and chemicals and
"participating in the preparation of expl...

CR.A/975/2007 87/110 JUDGMENT
phone shop. He did not accompany Afzal at the time of
purchases of chemicals etc. used for p...

CR.A/975/2007 88/110 JUDGMENT
process of recording confessional statement. Therefore, we are
satisfied that the safeguards...

CR.A/975/2007 89/110 JUDGMENT
Therefore, we are of the opinion that it will not be safe to
convict the accused on the basi...

CR.A/975/2007 90/110 JUDGMENT
soon after appearance before the CJM, would be an inhibiting
factor against speaking anythin...

CR.A/975/2007 91/110 JUDGMENT
evidence. It was submitted that his presence at the spot on
26.3.2003 was quite natural and ...

CR.A/975/2007 92/110 JUDGMENT
(PW.75) had opined that the bullets were fired from single
standard weapon having 7/7 land a...

CR.A/975/2007 93/110 JUDGMENT
were operating in furtherance of a common object as also
presence of some of them in Udaipur...

CR.A/975/2007 94/110 JUDGMENT
evidence. It was vehemently argued that high ranking officers
of an independent investigatin...

CR.A/975/2007 95/110 JUDGMENT
confessional statement of the accused can be relied upon for
the purpose of conviction and n...

CR.A/975/2007 96/110 JUDGMENT
cases as to how the mind of the accused worked in a particular
situation. If the facts and c...

CR.A/975/2007 97/110 JUDGMENT
confessions are after-thought and products of ingenuity of their
advocates. The statements m...

CR.A/975/2007 98/110 JUDGMENT
“59. In light of the above the failure on the part of the
investigating officer in sending t...

CR.A/975/2007 99/110 JUDGMENT
some experience and training in the nature of the functions
discharged by him.”
20.8 Relying...

CR.A/975/2007 100/110 JUDGMENT
point of time raised his arm while walking or on being
challenged by the accused. The Supre...

CR.A/975/2007 101/110 JUDGMENT
21. The other judgments discussed at the bar may be
briefly referred to as under:
(a) In Ab...

CR.A/975/2007 102/110 JUDGMENT
he was at a higher level at the well whereas the assailants fired
the shots from Bari, whic...

CR.A/975/2007 103/110 JUDGMENT
prosecution which was different from that with which it
had come to the Court. The Apex Cou...

CR.A/975/2007 104/110 JUDGMENT
relied upon for the proposition that the person who is
ingenuously and undefiledly communic...

CR.A/975/2007 105/110 JUDGMENT
the accused on the basis of such evidence. While appreciating
the evidence of the witnesses...

CR.A/975/2007 106/110 JUDGMENT
could not have escaped the meticulous checking of the car.
The circumstances enumerated in ...

CR.A/975/2007 107/110 JUDGMENT
as recorded in para 6 herein, and in view of the voluminous
record and number of controvers...

CR.A/975/2007 108/110 JUDGMENT
years, all the appellants except A.1 having no criminal
background and having regard to the...

CR.A/975/2007 109/110 JUDGMENT
order of Hon'ble the Apex Court, he shall not be required
to surrender to jail, provided he...

CR.A/975/2007 110/110 JUDGMENT
Sareshwala [original accused nos. 5 and 6], their
conviction recorded by the trial Court fo...

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