IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

CRIMINAL MISC. APPLICATION NO.

OF 2007

IN
CRIMINAL APPEAL NO.

OF 2007

DISTRICT: AHMEDABAD

Vasantbhai Ratilal Makwana, Aged:42

years, Occupn.: Labour work, Resident
of: Block No.13/294, Slum Quarters,
Near A.E.C., Amraiwadi, Ahmedabad
(Original accused in Sessions Case
No.314 of 2005 on the file of learned
Addl. Sessions Judge and Court No.2,
Ahmedabad At present in judicial
custody)
... Applicant-Applicant
versus
State of Gujarat (to be served through
the Public Prosecutor, Gujarat High
Court Complex, Sola, Ahmedabad)
... Respondent

Subject: Application for bail pending

appeal
under
Section
374
of
the
Criminal Procedure Code against the
judgment of sentence and conviction
dated 16.11.2006 passed by the learned
Addl. Sessions Judge, Court No.2,
Ahmedabad, in Sessions Case No.314 of
2005
To,

Honble The Chief Justice and other

Honble Judges of the Honble High
Court of Gujarat at Ahmedabad
Humble submission for and on
behalf of the applicant abovenamed

MOST RESPECTFULLY SHEWETH THAT:

1.

The applicant was the original accused in Sessions

Case No.314 of 2005 on the file of learned Addl.
Sessions Judge, Court No.2, Ahmedabad . By way
of above appeal, the Applicant is challenging the
legality, validity and propriety of the judgment
and order dated 16.11.2006 passed by the learned
Addl. Sessions Judge, Court
whereby,
offence

No.2, Ahmedabad,

the applicant has been convicted for

punishable

under

sections

302

of

the

Indian Penal Code and has been sentenced to

undergo

imprisonment

for

life

and

fine

of

erred

in

Rs.1,000/-.
2.

The

learned

relying

upon

Addl.

Sessions

the

statements

Judge
of

has

these

witnesses

recorded by the Investigating Officer under Section

161 of CR.P.C. It is serious error in law that while
deciding a point in issue, the learned judge goes to
the extent of relying upon the statement of witnesses
recorded

by

the

IO

admissible.
2

which

obviously

is

not

3.

The applicant respectfully states and submits that

the prosecution witness No.1, Jagdishbhai Nathalal
Waghela has been examined at Ex.7. He was the
panch

witness

offence.

in

the

Second

Parshottambhai

Panchnama
panch

Solanki

of

was

who

has

scene

of

Kanubhai

expired.

Said

witness at Ex.7 has stated on oath that when he

went to the house of Vasantbhai, it appeared that
something had burnt. Except this, he had no

idea

of what had happened nor the police had shown

him anything. That upon asking him to sign in the
writing (Panchnama), he had given his signature
therein. This witness has been declared hostile by
the prosecution and was cross-examined by the
prosecution. Even in the cross-examination, this
witness categorically stated that neither the police
had explained him to act as Panch witness nor
Vasantbhai was present at the scene of offence and
that he had signed the Panchnama without reading
the same. This witness has further categorically
stated before the Court that he is giving true
version of what transpired without any kind of fear
or allurement. Thus, the prosecution had failed to
establish
being

the

the

actual

basis

of

scene
the

of

offence

entire

case

and

this

of

the

prosecution, the prosecution case falls flat on this

sole

count and

it is

not

material was

seized in

witness.

learned

The

proved that

presence

trial

Court

of

anything

this

has

panch

therefore

seriously erred in not believing the say of this

panch witness and believing what was stated in the
Panchnama which was specifically denied to have
been

prepared

in

the

presence

of

said

panch

witness.

4.

Similarly,

the

prosecution

witness

No.2

Naranbhai Purshottambhai Solanki was examined

vide

Ex.11.

inquest

He

was

Panchnama

the

panch

regarding

witness
the

of

the

physical

condition of the accused (applicant). This witness

is also declared hostile in view of the narration
given by him before the Court.

5.

Thereafter, PW No.3 Prabhatji Pratapji Thakore

was examined at Ex.13. He is the son of deceased
Pratapji Thakore. If the deposition of this witness
is read as a whole, it would transpire that this
witness

is

an

interested

witness

and

does

not

reveal the true facts. When the compromise was

not arrived at between the

applicant and his wife

Lilaba, there was no question for Pratapji to stay

4

at her house that night. Therefore, the so-called

version

given

by

this

witness

that

his

father

telephoned him and informed him that he will be

staying at the house of Lilaba that night does not
inspire

confidence

and

ought

not

have

been

believed by the court below.

6.

Prosecution Witness No.4 Becharji Bhikhaji

Thakore has been examined at Ex.14. He is the
witness who had last met Pratapji and it is stated
in his deposition that the present applicant had
informed said Pratapji telephonically that since
some dispute is going on with his wife, Pratapji
should

intervene.

However,

in

the

cross-

examination, this witness admits that he does not

know as to for what purpose Pratapji had stayed at
Ahmedabad

and

that

he

has

no

any

personal

knowledge about the incident. The investigating

officer has not produced the printout of the calls
allegedly made between the phone calls of Pratapji
and

this

witness

or

vice-versa

to

prove

that

Pratapji had telephoned this witness and informed

him that he will be staying at Ahmedabad that
night. Therefore the version given by this witness,
who is an interested witness being the relative and

friend of deceased, ought not have been believed

by the court below.

7.

Thereafter,

Prosecution

Witness

No.8

Dr.Pravinbhai Valjibhai Desai has been examined

at Ex.21. This witness has categorically stated that
when there 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 external injuries on the body on account
of beating.

8.

Thereafter, PW No.13 Kanuji Chaturji Rathod has

been examined at ex.35. This witness is police
official. He has stated in the cross examination
when he received the Vardhi in the afternoon, he
was dictating the complaint being lodged by the
complainant,
come

to

that

police

the

complainant

station,

that

if

the

himself
offence

had
is

disclosed by the complainant who is found to be

accused, then he has to be arrested. That it is true
that

he

had

not

arrested

the

complainant

immediately after he lodged the compliant. That it

is not true that the complainant (accused) had said
that both the persons had committed suicide but
his statement to this effect was not recorded. In
6

the context of this statements made on oath by the

police officer, it is submitted that the accused
(applicant) has been arrested on 7.1.05 at 3:45 hrs.
It is submitted that in view of the fact that the
said investigating officer had gone at the scene of
offence at 4:15 hrs. in the morning and was in the
knowledge that the incident of fire had taken place
where

two

persons

had

sustained

severe

burn

injuries, and when he had received Vardhi from

the LG Hospital that said two persons had died,
then

if the complainant (applicant) would have

given the compliant at 6:15 am in the morning,

the

said

investigating

officer

would

have

immediately arrested the applicant, however, the

arrest of the accused has been made at 3:45 in the
afternoon and therefore, it is not proved that the
present applicant had gone to the police station
and lodged a complaint at 6:15 am in the morning
and the complaint is made out subsequently by
police. Thus, the prosecution, in view of this fact,
had miserably failed to prove its case against the
accused,

and

the

learned

trial

court,

by

disregarding these facts, has committed serious

error

of

law

and

fact

which

deserves

to

be

deprecated by this Honble Court by setting aside

the judgment of conviction and sentence imposed

upon

the

applicant

based

on

the

incorrect

statement in the form of complaint given by the

applicant.

The

applicant

submits

that

the

very

basis of the prosecution case and the initiation of

the investigation is faulty inasmuch as that the socalled complaint lodged by the complaint cannot
be said to be an FIR or a compliant from any
angle. At the most, the same can be termed as the
so-called confession of the accused and the Vardhi
received from the LG hospital about receiving the
two persons in burnt condition would amount to
the FIR. The applicant submits
the

said

complaint

allegedly

if

it is held that

lodged

by

the

applicant is nothing but the so-called confession

of

the

applicant,

then

there

is

no

any

corroboration to the said statement of the present

applicant as the complainant has not been called
by the prosecution as witness to corroborate its
case of confession and therefore, in absence of any
circumstantial evidence or ocular evidence, the
impugned judgment deserves to be set aside.

9.

Thereafter the investigating officer, i.e. PW

14

- Mukeshbhai Dhirubhai Mehta, has been examined

at Ex.39. He states in his deposition that he had

taken over the investigation from PSI Rathod on
7.1.05, and had prepared the Panchnama as well as
recorded the statements of witnesses and thereafter
had handed over further investigation to Second PI
Rao. This witness states further that it is true that
he was in charge of the investigation of case from
7.1.05 to 15.1.05 and that the match box which
was not burnt was found from scene of offence and
the accused was arrested at 16:30 hrs. That it is
not true that remand was not given by magistrate
since complaint was made before him that his
signature was forcibly taken on the compliant.
That

the

statements

of

pump

operators

of

the

petrol pump were recorded but the statement of

pump owner was not recorded. That it is not true
that in the said statements, it was revealed that
petrol was purchased and therefore, the said pump
operators were not examined as witnesses or that
as there was no evidence forthcoming from the
printout of the mobile calls regarding Pratapjis
mobile,

said

witnesses

were

not

named

in

the

Chargesheet. That it is true that it is stated in the

Panchnama that the fingertips of the accused were
burnt slightly but it is not true that in these

injuries were not shown in the medical certificate

and that since such injuries were not sustained
same were not shown in the medical certificate.
Thus, from the deposition of this witness, it was
established

that

the

accused

was

arrested

on

7.1.2005 in the afternoon (complaint was allegedly

by

the

morning)

complainant
and

further

(applicant)

in

the

had

police

the

early

failed

in

obtaining his remand and further the fact that the

so-called burn injuries on the fingertips of the
accused were not supported by any witnesses of
the panch nor any medical report of the treatment
given to the accused was produced. Therefore, this
story was concocted and was got up. Not only this,
any of the witnesses who have been examined
before this Honble Court have not supported the
case of the prosecution that the applicant was
present at the scene of offence when the incident
occurred.

Further,

operators

from

the

whom

statements
the

of

the

applicant

pump

allegedly

purchased petrol have not been formed part of the

Chargesheet

though

the

same

were

purportedly

recorded by the IO. This was so only because the

said

statements

were

not

supporting

the

prosecution case regarding purchase of petrol by

10

the applicant on the earlier day. Thus, on all these

material

counts,

the

prosecution

had

failed

to

prove its case against the applicant, however, the

learned trial Court has by ignoring all these flaws
has convicted the applicant by believing the story
of the prosecution which is full of lacunas.

10.

The applicant respectfully states and submits that

the PW

No.15 Gopinath Narnarayanbhai Rao,

who is also an IO has been examined vide Ex.44.

He has stated that the investigation of case was
with

him

from

13.1.2006

to

3.2.2006.

In

this

manner, there is contradiction in the statements by

two investigating officers 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 Rao.

11.

The applicant respectfully states and submits that

the

applicant

had

not

voluntarily

gone

to

the

police station and lodged his complaint at 6:15 in

the early morning on 7.1.2005. There was reason
for

the

trial

court

to

believe

the

say

of

the

applicant that he does not know as to how the

house caught fire since he was not present there
11

because any of the witnesses have not corroborated

presence of the applicant at the time of incident.

12.

The applicant respectfully states and submits that

the learned trial court has erred in law by not
considering the ratio of the judgment laid down in
2002(2) GLH page 197 in the case of Amratben
Bhaya Abha v. State of Gujarat and in

AIR 1966

page

555.

119

and

1994

SCC

(Cr)

page

The

contention of the applicant that when the accused

himself has filed FIR, same is inadmissible in
evidence.

The applicant

craves leave of this

Honble Court to refer to other decisions of this

Honble Court and Honble High Court in case of
necessity.

13.

The applicant respectfully states and submits that

the alternative 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
an offence of grave and sudden provocation

since

it is not established by the prosecution that the

applicant had preplanned to commit such act and
had

purchased

the

petrol

day

in

advance.

Further, in view of the clear admission in the FIR

itself and when the applicant saw his wife along
12

with deceased Pratapji together at night in the

room, on account of grave and sudden provocation,
the incident occurred. Therefore, even if the say
of the applicant as stated in the FIR is taken at its
face value, the offence would be that of grave and
sudden

provocation

and

not

beyond

that.

Therefore, the impugned judgment of sentence and

conviction under Section 302 of IPC is required to
be set aside by this Honble court in the interest
of justice.

14.

The

applicant

submits

respectfully

that

the

applicant has paid the fine of Rs.1,000/- as per the

judgment.

The

applicant

connection

with

registering

the

this
FIR

was

offence
and

on

since

arrested

in

the

of

then,

date
he

is

in

judicial custody. Pending trial, the applicant was

not released on bail and he continues to be in
judicial custody. Considering the provisions of the
set off to be given to undertrial prisoner, from the
total

period

applicant,
sentence

of

the
of

sentence

applicant

about

two

has

imposed
already

years.

There

upon

the

undergone
is

every

likelihood that the appeal would be allowed and

the

conviction

would

13

be

set

aside.

Further,

considering the pendency of appeals before this

Honourable court, in ordinary course, the appeal is
likely to take considerable long time for hearing
and on this count also, the applicant may kindly be
released

on

bail

pending

appeal.

Therefore,

in

view of these facts, the applicant deserves to be

released on bail pending appeal.

15.

The Applicant has not filed any other petition or

application or revision either before this Honble
Court or the Honble Supreme Court of India or
any other Court of law on the subject matter of the
appeal.

16.

The Applicant has no other alternative efficacious

remedy available but to approach this Honble
Court by way of the present appeal.

17.

The Applicant respectfully craves leave to add,

alter,

delete,

rescind,

amend,

any

or

all

the

grounds referred to hereinabove.

18.

On the above grounds, and those that may be urged

at the time of hearing of this appeal, this Honble
Court:

14

(A)

Be pleased to admit and allow this

application and further be pleased to
release the applicant on bail pending
the

admission,

hearing

and

final

disposal of the Criminal Appeal filed

against the

judgment of conviction

and sentence dated 16.9.2006 passed

by the learned Addl. Sessions Judge,
Court No.6, Ahmedabad, in Sessions
Case No.314 of 2005

(B)

Be

pleased

to

pass

such

other

and

further order(s) as may be deemed fit

and proper in the interest of justice;

AND FOR THIS ACT OF KINDNESS AND JUSTICE, THE

APPLICANT, AS IN DUTY BOUND, SHALL FOR EVER
PRAY.

Ahmedabad
Dt.: /2/2007

(Mehul K.Srivastava)
Advocate for the Applicant

15