SAMSUDDIN DADABHAI JAKHRA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Rule. Learned APP waives service of notice of rule on behalf of respondent -State.

(2.) Heard learned senior Counsel Mr. Yogesh Lakhani for learned Advocate Mr. Jay M. Thakkar for the petitioners and learned APP Mr. K. P. Raval for the respondent -State. Perused the record.

(3.) The petitioners herein are accused before the Sessions Court of Una in Sessions Case No. 5 of 2013, who are facing charges under Sections 302, 143, 147, 148, 149, 120B, 504 and 506(II) of the Indian Penal Code read with Section 25(1) of the Arms Act, so also Section 135 of the Bombay Police Act pursuant to Una Police Station I - C. R. No. 110 of 2012 dated 29.01.2005. In FIR itself, it is disclosed that offence has been committed by as many as 16 persons amongst which, names of 9 persons were disclosed in the FIR contending that there are 7 persons, who can be identified. Amongst those 9 persons whose names are disclosed in the FIR, present petitioner No.1 is shown as accused No.1 whereas petitioner No.2 as accused No.2 and petitioner No.3 as accused No.8 in the FIR; though their numbers as an accused in the charge sheet are different being accused Nos. 7, 6 and 8 respectively. Therefore, it becomes clear that the complainant is not aware about all the accused and naturally some of the accused are to be identified and disclosed by the investigating agency after investigation. Whereas charge sheet is filed against 13 accused and when one accused is shown as minor in column 2 of the charge sheet and two other accused are shown as additional accused against whom investigation was pending till date of filing of charge sheet No. 199 of 2012 on 25.10.2012. 2. The case and defence of the present petitioners is regarding their physical absence at the place and time of incident for which FIR and charge sheet is filed and, therefore, present petitioners as well as accused No. 13 as per charge sheet namely Ismail @ Rahim Dadabhai has preferred an application at Exhibit 151 before the Sessions Court on 20.01.2016 contending that pursuant to their defence, which may be called as alibi, the investigation Officer has inquired about their presence at different places like hospital and hotels in Surat and collected several evidence; details of which is listed in para 6 of the application, wherein there is list of many as 30 (Sr. Nos. 2 to 31 in the list) documentary evidence and information regarding statements recorded by the Police during such investigation, and thereby requested the Sessions Court to direct the investigating agency to produce all such documentary evidence before the Court and to provide its copies both to the public prosecutior and petitioner -accused. Such application is preferred under Section 91 of the Code of Criminal Procedure. Therefore, basically this application is only for production of certain documents and other evidence collected by the investigating agency during investigation. When application is preferred under Section 91 of the Code of Criminal Procedure it would be appropriate to recollect the text of such Section which reads as under : -