JAIRAJSINH TEMUBHA JADEJA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) By this petition under Articles 226 and 227 read with Articles 21 and 14 of the Constitution of India as well as under Section 482 of the Code of Criminal Procedure, 1973, the petitioner has called in question the order dated 26th August, 2009 passed by the learned Additional Sessions Judge, Gondal on the application Exhibit 505, filed by the petitioner seeking production of the case diary for the purpose of effectively cross-examining prosecution witness No. 44, and has prayed for the following substantive reliefs:

(2.) One Jayesh alias Pancha Muljibhai Satodia lodged a first information report against the petitioner and other accused persons alleging commission of the offences punishable under Sections 302, 307, 143, 147, 148, 149, 341, 120-B and 201 of the Indian Penal Code, Sections 25(1)(a), 25(1)(b)(c) and 27 of the Arms Act and Section 135 of the Bombay Police Act which came to be registered vide Gondal City Police Station I - C.R. No. 25/2004. Upon conclusion of the investigation, charge-sheet came to be laid and the offences being triable only by a Court of Sessions the case came to be committed to the Court of Sessions at Gondal and was registered as Sessions Case No. 88/2006 and is pending in the Court of the learned Sessions Judge, Gondal. It appears that during the pendency of the trial, the first informant preferred an appeal before the Supreme Court against the order of the High Court granting the bail to the petitioner and prayed for cancellation of the bail granted to the petitioner. The Supreme Court vide order dated 29.01.2008, while setting aside the impugned order granting bail to the petitioner and others, also vacated the stay of trial granted by the High Court on 15th February, 2007 and further directed the trial of the case to begin forthwith. The Trial Court was directed to take up the trial on day to day basis and, if possible, to conclude the same within the next six months from the date of production of a certified copy of the judgment. The prosecution as well as the defence was directed to cooperate in conducting the trial on a day to day basis.

(3.) During the course of the examination-in-chief of the prosecution witness No. 44-Navalsinh Bhikhubha Jadeja below Exhibit 504, the said witness has deposed that on 8.2.2004, the P.S.O. informed him about the incident and he immediately reached the spot. It was approximately 10:00 oclock at night. It was dark in the market area and the shops were closed, and people had stopped moving to and fro. A utility bearing No. G.J.-3-Y-6667 was lying near the wall of Monghiba School, and upon looking there it was found that the windscreen glass of the utility had fallen out, wherein 'Markana' was written in Gujarati, and firearm shots were found in this glass. On looking inside the jeep, no person was present. Also on the door as well as on the posterior part of the jeep there were signs of firearm shots. It was not possible to know as to how the incident had taken place and who had been injured, hence, inquiry was made as to whether any injured had been taken to the hospital for treatment and the Police Station was told to inform the police control room and he also directed that nakabandhi and checking be carried out. He stayed at the scene of incident and inquired thereabout. However, as no one was present at the spot, it was not possible to ascertain anything in respect of how the incident had taken place. Meanwhile he was informed by the Police Station that there was a dead body on the road opposite the Mamlatdar's office. Hence he proceeded towards the Mamlatdars office, where he saw the dead body of a person lying, which had firearm signs on the right side of his head above the ear as well as behind his head and on his abdomen. He had not learnt as to who the deceased was. However, as 'Markana' was written on the jeep, steps were taken on that basis to call someone who was present at Gondal Rajwadi who could identify the dead body. A chowkidar had come from there; however he had not identified the dead body. Thereafter one Kana Hirjibhai of Vachda had come and he informed that the dead body was of Nilesh Rayani. In the meanwhile, P.S.I. Shri B.J. Solanki as well as other police officers and police personnel had also come and hence, he had instructed Shri B.J. Solanki to go to the police station and in case any informant comes to lodge a complaint in connection with the incident, to register the complaint as an offence. Shri Solanki had accordingly gone to the police station. In the meanwhile, Kana Hirji had come there. He was also informed to lodge a complaint in case he was aware of anything in relation to the incident. Thereafter, he received a call on the mobile phone from Vinubhai Shingala that he would show him where Ramji Markana was and that he should come towards the bus stand. Therefore, he along with the police personnel proceeded towards the bus stand in a Government jeep. In the meanwhile, while going to the bus stand, they came across Vinubhai Shingala's vehicle near Charoli Darwaja, and they stopped them (i.e. the deponent). They alighted from the car and came towards them (the deponent) and said that this person who is Jayesh alias Pancha Mulji would show them where Ramji was. Therefore, he asked Jayeshbhai to sit in their vehicle and as instructed by him, they had proceeded towards the Town Hall. Vinubhai's car also followed them and they went to the Town Hall where Ramji Markana was hiding inside and was sitting in the dark. He (the deponent) asked Ramji Markana to come to the police station to lodge his complaint, however, he (Ramji Markana) had seated himself inside Vinubhai's car and they went to the police station. At this stage, Ramji Markana had said that he wants to go for treatment and that information regarding the incident would be given by Jayesh Panchabhai who was also with him. He (the deponent) had insisted on recording his information, however, Ramji Markana had said that he immediately wants to go to the hospital. He (the deponent), therefore, asked him to go to the Gondal Government Hospital. However, Ramji Markana said that he wanted to go to Rajkot. Jayesh Mulji was dropped at the police station for recording the complaint, at which point of time, P.S.I. Shri Solanki was present and he (the deponent) had instructed him to record the complaint. At that time, Vinubhai had said that they wanted to go to Rajkot for treatment and requested for protection. Hence, he (the deponent) had asked P.S.I. Shri Solanki to do the needful, but Shri Solanki had told him that he should go with them. Hence, he instructed P.S.I. Shri Solanki to record the complaint and he went along with Ramji Markana who was sitting in Vinubhai's car and had proceeded to go to Rajkot for treatment, to give them protection. When they reached Biliyala Patiya, Vinubhai had said that they would no longer need protection, hence, he had returned from Gondal. Meanwhile, an offence had been registered in connection with this case and he had taken charge of the investigation.