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Khimraj Bhayabhai Rajani vs State Of Gujarat on 28 August, 2019

R/CR.A/1475/2019 IA ORDER

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

CRIMINAL MISC.APPLICATION (FOR SUSPENSION OF
SENTENCE) NO. 2 of 2019
In R/CRIMINAL APPEAL NO. 1475 of 2019

KHIMRAJ BHAYABHAI RAJANI
Versus
STATE OF GUJARAT

Appearance:

MR ASHISH M DAGLI for the PETITIONER(s) No.
MR HK PATEL, APP for the RESPONDENT(s) No.

CORAM: HONOURABLE MS.JUSTICE HARSHA DEVANI
and
HONOURABLE MR.JUSTICE VIRESHKUMAR B.

MAYANI

Date : 28/08/2019

IA ORDER
(PER : HONOURABLE MS.JUSTICE HARSHA DEVANI)

1. By this application under section 389 of the Code of Criminal
Procedure, 1973 (hereinafter referred to as, “the Code”), the
applicants – convicts seek suspension of the execution of the
sentence awarded by the learned Special (POCSO) Judge,
Jamnagar, vide judgment and order dated 06.07.2019 passed in
Special (POCSO) Case No.42 of 2016, whereby the applicants have
been convicted for the offence under sections 324, 363, 366, 376(2)
(i, m, d), 506(2) read with section 34 of Indian Penal Code and
sections 4, 6, 10 and 12 of the Protection of Children from Sexual
Offences Act, 2012 (hereinafter referred to as, “the POCSO Act”).

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R/CR.A/1475/2019 IA ORDER

2. Mr. A. D. Shah, learned counsel appearing with Mr. Ashish M.
Dagli, learned advocate for the applicants, submitted that a
conviction can be based on direct or circumstantial evidence and that
it can never be based on corroborative statements, in the nature of
previous statements of witnesses. It was submitted that previous
statement made by a witness can be relied upon to corroborate the
testimony of such witness. However, when there is no substantive
evidence of any prosecution witness and conviction is recorded on
the basis of corroborative evidence, which is not genuine, then the
same would be contrary to criminal jurisprudence, as laid down by
the Supreme Court in a catena of decisions. This is exactly what the
trial court has done in the present case.

2.1 It was submitted that, in this case, the prosecutrix, namely,
PW- 9, has not supported the prosecution case and has been
declared hostile. It was submitted that PW-8 – Shobhnaba
Hematsinh Vadher, who is the mother of the prosecutrix, has also not
supported the prosecution case and has been declared hostile. It was
submitted that none of the witnesses have deposed in favour of the
prosecution so as to connect the applicants with the offence in
question.

2.2 The attention of the court was invited to the findings recorded
by the trial court to submit that the trial court has recorded that the
prosecutrix and her mother have not supported the prosecution case
and that they have done this on account of extreme fear and threat
by the accused. Referring to the testimonies of the said witnesses, it
was submitted that there is nothing on record to show that the

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R/CR.A/1475/2019 IA ORDER

witnesses have deposed under fear or threat nor has the trial court
put any questions during the course of recording their evidence to the
effect as to whether they were under any kind of fear or threat for not
supporting the prosecution case.

2.3 It was pointed out that the trial court has placed reliance upon
the testimonies of PW-12 – Mulrajsinh Mahendrasinh Jadeja, who
had registered the first information report, PW-13 – Faridaben
Bhurabhai Gaganiya, who is the P.S.O., who had recorded the
complaint and PW-14 – Laxmansinh Punjabhai Vaghela, who is the
Investigating Officer. It was submitted that the trial court has based
the conviction on the testimonies of the aforesaid three police
officers. It was submitted that the previous statements of the
witnesses, in the nature of medical history or statements under
section 164 of the Code can be used for the purpose of either
contradicting or corroborating a witness and that the statements
under section 161 of the Code can be used only for the purpose of
contradicting the witness; however, here, in this case, the trial court
has held that the Investigating Officer has proved the statements of
witnesses under section 161 of the Code and based on the same has
recorded the conviction.

2.4 Reliance was placed upon the decision of the Supreme Court
in the case of Vijender v. State of Delhi, 1997 Supreme Court Cases
(Criminal) 857, wherein the court has held thus;

“25. We are constrained to say that the above observations
have been made by the trial Judge casting away the basic

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principles regarding reception and appreciation of evidence,
misreading the evidence. So far as the report of P.W. 5 before
the Vigilance Cell is concerned the trial Judge failed to notice
that it did not contain the names of the above two appellants,
namely, Mukesh and Devinder @ Bhinder; and on the contrary
therein the names of two other persons, namely, Jeetu and
Pappu find place as the miscreants. Indeed, in none of the
three reports that P.W. 5 lodged with the police he mentioned
the names of the above two appellants. We hasten to add that
even if he had so named it could not have been treated as
legal evidence for reasons earlier mentioned. Then again, the
trial Judge could not have relied upon the knowledge of P.W, 5
that the appellants were the miscreants as he was not a
witness to the kidnapping and P.W. 4 did not state that he saw
the miscreants and, for that matter, that the appellants were
the miscreants. The reliance of the trial Judge on the result of
investigation to base his findings is again patently wrong. If the
observation of the trial Judge in this regard is taken to its
logical conclusion it would mean that a finding of guilt can be
recorded against an accused without a trial, relying solely upon
the police report submitted under Section 173 Cr.P.C., which is
the outcome of an investigation. The result of investigation
under Chapter XII of the Criminal Procedure Code is a
conclusion that an investigating Officer draws on the basis of
materials collected during investigation and such conclusion
can only form the basis of a competent Court to take
cognizance thereupon under section 190(1)(b) Cr.P.C. and to
proceed with the case for trial, where the materials collected

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during investigation are to be translated into legal evidence.
The trial Court is then required to base its conclusion solely on
the evidence adduced during the trial; and it cannot rely on the
investigation or the result thereof. Since this is an elementary
principle of criminal law, we need not dilate on this point any
further. Equally unsustainable is the trial Judge’s reliance upon
the statement made by Jeetu (P.W. 2) before the police in view
of the express bar of section 162 Cr.P.C., which we have
discussed earlier. Indeed, we find, the trial Judge placed strong
reliance on the purported statement made by Jitender before
the police that they (the appellants) were hiding and that (hey
were involved in kidnapping and murder of Khurshid to convict
them (emphasis supplied).”

It was submitted that thus, the judgment of the trial court is
based upon totally inadmissible evidence and that no conviction
could have been based upon such evidence; that the applicants have
a prima facie case in their favour and hence, the court may exercise
discretion in favour of the applicants and suspend the execution of
the sentence awarded by the trial court pending the appeal and
release them on bail.

3. On the other hand, Mr. H. K. Patel, learned Additional Public
Prosecutor, has supported the prosecution case and has submitted
that the prosecutrix had lodged a complaint before the police alleging
the commission of offence under section 376 IPC as well as other
provisions. It was submitted that, however, the prosecutrix has not
supported the prosecution case and has been declared hostile. It was

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submitted that considering the gravity of the offence in question, the
trial court has rightly convicted the applicants and other accused for
the offence in question and that, having regard to the facts and
circumstances of the case, this court may not exercise discretion in
their favour.

4. This court has considered the submissions advanced by the
learned advocates for the respective parties and has perused the
record and proceedings, as pointed out to the court and has perused
the findings recorded by the trial court in the impugned judgment. On
a perusal of the findings recorded by the trial court, prima facie, it
appears that the trial court has based the conviction on the
testimonies of the three police officers, namely, the police officer who
had registered the first information report (PW 12), the police officer
who had recorded the complaint (PW 13) and the Investigating
Officer who had recorded the statements of the witnesses (PW 14).
The impugned judgment and order of conviction, therefore, appears
to be based upon the statements made by the witnesses under
section 161 of the Code before the Investigating Officer, which,
according to the trial court, have been proved through his testimony.

5. In view of the above, it appears that the applicants have a
prima facie case in their favour and an arguable case in the appeal.
The court is, therefore, inclined to exercise discretion in their favour.

6. For the foregoing reasons, the application succeeds and is,
accordingly, allowed. The execution of the sentence awarded by the
learned Special (POCSO) Judge, Jamnagar, vide judgment and

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order dated 06.07.2019 passed in Special (POCSO) Case No.42 of
2016, is hereby kept in abeyance qua the present applicants,

i) Khimraj Bhayabhai Rajani, ii) Harjog Palabhai Najani, iii) Savan
Jentibhai Hingrajia and iv) Himanshu Kamleshbhai Modha, till the
final hearing of the appeal.

The applicants be released on regular bail on their executing a
personal bond of Rs.10,000/- (rupees ten thousand only) each with
one solvent surety each of the like amount to the satisfaction of the
trial court, subject to the following conditions:

(a) they shall not take undue advantage of their liberty or
abuse their liberty;

(b) they shall maintain law and order;

(c) they shall surrender their passports, if any, to the lower
court within a week and if they do not possess any passport,
then they shall make a declaration to that effect before the trial
court;

(d) they shall furnish the present addresses of their
residences to the Investigating Officer and also to the Court at
the time of execution of the bond and shall not change the
places of residences without the prior permission of the trial
court.

7. Bail bonds before the trial court having jurisdiction.

8. It is made clear that any observations made while deciding this
application are merely prima facie observations made for the purpose
of grant of bail and shall have no bearing on the final outcome of the
appeal.

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9. Records and proceedings to be sent back to the trial court for
the purpose of preparation of paper book. Rule is made absolute
accordingly.

10. Direct service is permitted.

[ Harsha Devani, J. ]

[ Vireshkumar B. Mayani, J. ]
hiren

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