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2021 DIGILAW 145 (GUJ)

Jayantilal Jethalal Thakkar v. State of Gujarat

2021-02-17

A.Y.KOGJE

body2021
ORDER : 1. The present application is filed under Section 439 of the Code of Criminal Procedure, 1973, for regular bail in connection with FIR being I-CR No.03 of 2019 registered with Gadhidham Railway Police Station, Kachchh for offence under Sections 302, 120(B), 397, 201 and 34 of the Indian Penal Code, under Sections 25(1)(b)(a) and 27 of the Arms Act, under Sections 155, 141 and 145(B) of the Indian Railways Act and under Section 135 of the Gujarat Police Act. 2. Learned advocate Shri J.M. Panchal for learned advocate Mr. Hardik A. Dave for the applicant submits that the applicant is arraigned as accused No.2 in the supplementary charge-sheet and it was only through local newspaper that the applicant came to know that he has been implicated as an accused in the offence and immediately on his own contacted the concerned Police Officer and had expressed his willingness to extend co-operation and in fact on 09.01.2019, remained present before the Investigating Agency and till the date of arrest of applicant on 11.04.2019, had extended full co-operation. It is submitted that the conduct of the applicant therefore be appreciated in his forthwith co-operating with the Investigating Agency. 3. Learned advocate has thereafter drawn attention of this Court to the sequence of incident, wherein the deceased was done to death in a running train by two assailants who boarded the train, fired shots at the deceased and made their escape by stopping the train and with the help of their accomplices, made an escape by using a motorcycle which was later found discarded. It is submitted that the applicant is not a assailant and not even present at the place of incident. There is no Call Detail Records connecting the applicant with the assailants accused persons. It is submitted that the applicant and the accused No.1 as well as the deceased were in the same political party and were frequently in contact with each other. Therefore, the Call Detail Records if any with accused No.1 cannot be treated as a strong evidence of participation of the applicant in conspiracy. It is submitted that the applicant and the accused No.1 as well as the deceased were in the same political party and were frequently in contact with each other. Therefore, the Call Detail Records if any with accused No.1 cannot be treated as a strong evidence of participation of the applicant in conspiracy. 3.1 It is submitted that the prosecution has projected the case of eliminating a political rival, but the investigation as well as the history of politics of the local area suggest that the applicant was never a political rival of the deceased and rivalry, if any, of the deceased was with accused No.1 being in one party and shifted to another and the deceased and the applicant both from the beginning, belonging to the one party and that tickets for contesting the election of the party was issued to the accused No.1 and not to the deceased and that had flared up rivalry between the two, but the applicant was never in fray. It is submitted that the statements of various witnesses go on to suggest that when the accused No.1 was trying to malign character and political life of the deceased, the applicant was person who played role to see to it that the differences are settled and to get extended had sided the deceased for benefit of his political career and therefore, there cannot be any motive attributed to applicant to make any political gain by hatching conspiracy to murder the deceased. It is submitted that the theory of the prosecution about role of the applicant is to have given financial aid however, there is no single piece of evidence to suggest that the applicant made payment of any money. 3.2 It is lastly submitted that after filing of the charge-sheet, the role of the applicant is not coming on record and it is only a perception of the Investigating Officer which is reflecting in the story given in the charge-sheet. He drew attention of this Court to the narration made in column-5 that the intention of the applicant was to work from behind the scene and provided financial assistance which is reflected from the telephonic conversation which is part of the investigation record. Now this, piece of audio clippings cannot be treated to be good evidence. He drew attention of this Court to the narration made in column-5 that the intention of the applicant was to work from behind the scene and provided financial assistance which is reflected from the telephonic conversation which is part of the investigation record. Now this, piece of audio clippings cannot be treated to be good evidence. Learned advocate also drew attention to the statement to the brother of the deceased-Manjibhai which indicates that it was the applicant who had warned the deceased about the character of co-accused Manisha Goswami and that he should be careful about it. The co-accused have been considered by this Court who have also played same role in the offence. Reference is made to the order passed by this Court in case of Criminal Misc. Application No.16359 of 2019 and Criminal Misc. Application No. 220 of 2020 and Criminal Misc. Application No. 11040 of 2019. 4. Learned Additional Public Prosecutor opposes the grant of bail application submitting that it is a case of political murder and the manner and method in which the offence was carried out clearly indicates that it is an outcome of conspiracy of highest level and with full precaution that the accused persons would not be detected even after the offence. He thereafter, narrated the manner in which the offence had taken place in the train where two accused persons were hired as sharp shooters and the offence being carried out in a moving train and after the offence, escape plan by stopping the train at pre-decided place and meeting the another accused with whom escape plan was made. Considering the sequence of evidence in the offence, it is clear that the travel plan of the deceased, compartment he was going to occupy, timing of the train to reach a particular place where train was boarded by the sharp shooters carrying out the actual shooting, stopping of the train, deboarding the train and make escape route with co-accused waiting at the pre-decided destination. This sequence was within the knowledge of each and every conspirators, where the applicant is named as an accused accomplice with the common object. Learned APP submits that as a part of conspiracy and preparation to commit offence on 16.07.2018 the applicant had visited co-accused Manisha Goswami in company with accused No.1. This was preceded by the jail visit on 20.06.2018 by accused No.1 and co-accused Sujit Bhavu. Learned APP submits that as a part of conspiracy and preparation to commit offence on 16.07.2018 the applicant had visited co-accused Manisha Goswami in company with accused No.1. This was preceded by the jail visit on 20.06.2018 by accused No.1 and co-accused Sujit Bhavu. 4.1 Strong reliance is placed by the public prosecutor on the pen drive which has been recovered during the course of investigation from accused No.1, wherein the conversation between accused No.1 and the applicant has been recorded. The proximity of the conversation with the date of incident is suggesting the role played by the applicant, not only that the content of the conversation also indicates the intention was to malign the deceased by involving him in false charges of serious offence like rape to be filed at Districts like Ahmedabad and Surat which actually had been filed. The conversation also indicates that each accused had been assigned specific role and the voice spectography confirms the voice that to be accused No.1 and the present applicant. In the direction of the conspiracy, DVD has been recovered from office at Mumbai which according the prosecution is of the applicant and co-accused who met at that place at a particular date prior to the incident. It is submitted that on 03.01.2019, the co-accused persons including the applicant had travelled from Bombay to Kutch in a plane together. This aspect is evident from the statement recorded of the witnesses. It is therefore, submitted that considering all these aspects together, the main object is coming out. 5. Learned senior advocate Mr. N.D. Nanavaty with learned advocate Mr. K.S. Chandrani for the original complainant submitted that offence is a result of meticulous hatched and executed conspiracy and the manner and method the offence of shooting was carried out clearly indicate work of professional execution by hired sharp shooters. In such an offence there cannot be avert act that may be attributed to the applicant. However, it goes to the extent of meeting of mind and the common intention. The material collected clearly indicates the meeting of mind and the mobile phone conversation recorded and part of the investigation is completely incriminating the meeting of the mind to the extent of committing murder of the deceased. Learned advocate submits that the applicant was the Chairman of KDCC Co-operative Bank and is having 15 antecedents which indicates the criminal mind. The material collected clearly indicates the meeting of mind and the mobile phone conversation recorded and part of the investigation is completely incriminating the meeting of the mind to the extent of committing murder of the deceased. Learned advocate submits that the applicant was the Chairman of KDCC Co-operative Bank and is having 15 antecedents which indicates the criminal mind. It is submitted that on account of the development of the deceased being implicated in false serious cases of rape, the deceased was usually residing out of Kutch and was to attend a social function for which the deceased had made train reservation. He was to travel to Kutch on 05.01.2019 and the train ticket was booked for 09.01.2019. The applicant as well as co-accused travelled to Kutch from Bombay on 03.01.2019. The manner in which the crime was committed clearly indicates that the accused persons were aware of the travel plan of the deceased and had accordingly sketched the plan to commit the offence. 6. In rejoinder, it is submitted that statement is recorded of one witness Sanjay Patel, an advocate who was involved with legal work of the deceased. However, in the entire statement, only role and involvement of accused No.1 is coming out on record, but nothing to indicate any role of the applicant. The visit to the jail is not reflected in the counter of the charge-sheet though the narration in the counter of the charge-sheet is made with great precision. With regards to the telephonic conversation, it is submitted that such record cannot be considered to be an admissible evidence. Moreover, if the recording is considered, the intention of the applicant insofar as the deceased was concerned was to make the deceased leave the politics, but never reflected an intention to commit murder. The travel with the co-accused is merely a co-incident and that it has been stated so even from the statement of the witness to whom applicant had candidly revealed that while he was traveling from Mumbai, he had met co-accused Maisha Goswami in the flight. Such incident described cannot be treated as evidence against the applicant. 7. The Court has heard learned advocates for the rival parties and perused the documents placed on record, which includes the relevant case papers submitted by applicant, prosecution as well as original complainant. Such incident described cannot be treated as evidence against the applicant. 7. The Court has heard learned advocates for the rival parties and perused the documents placed on record, which includes the relevant case papers submitted by applicant, prosecution as well as original complainant. The offecne is clearly political murder, where the motive attributed by the prosecution is that the deceased Late Mr. Jayantibhai Purshottambhai Bhanushali was a leader of Kachchh District BJP in the year 1988. Jayantibhai Jethabhai Thakkar-applicant was active in the politics of Kachchh District in Congress Party since 1995, who left the Congress party and joined BJP in the year 1998. Hence the relations between Jayantibhai Bhanushali and Jayantibhai Thakkar were good as both of them were doing political work in the same District and Taluka. Jayantibhai Thakkar gained trust of Jayantibhai Bhaunshali due to the service which he rendered during the earth quake which affected Kachchh in the year 2001. In the year 2007, Jayantibhai Thakkar and Jayantibhai Bhaunushali have demanded for the ticket in the election of Lagislative Assembly. As the ticket was issued to Jayantibhai Bhanushali, Jayantibhai Thakkar propagated for Jayantibhai Bhanushali. Jayantibhai Bhanushali won that election. Due to victory on the seat of Legislative Assembly of Abdasa-Kachchh constituency, the relations between both of them became more homely and strong. In the Legislative Assembly Election in the year 2012, Jayanti Bhanushali lost election against Chhabilbhai Patel, who was from the Congress party, but in the year 2014, Chhabilbhai Patel resigned from Congress party and joined BJP and in the by-election of the year 2014, as Chhabilbhai Patel got the ticket from BJP, Jayantibhai Thakker had worked for Chhabilbhai Patel. Chhabilbhai Patel lost in this election, hence Jayantibhai Thakkar reported the Party in his letter pad on 10-06-2014 that Jayantibhai Bhanushali has done activity against the party. Due to that reason Jayantibhai Bhaunshali was dis-pleased with Jayantibhai Thakkar. In the year 2017, Jayantibhai Bhaushali demanded ticket, but Chhabildas Patel was given ticket. This time also Jayantibhai Thakkar worked for Chhabilbhai. But Chhabilbhai Patel lost once again. Chhabil Patel thought that he got defeated because Jayantibhai Bhanushali has done the activities against the party. Due to that reason Jayantibhai Bhaunshali was dis-pleased with Jayantibhai Thakkar. In the year 2017, Jayantibhai Bhaushali demanded ticket, but Chhabildas Patel was given ticket. This time also Jayantibhai Thakkar worked for Chhabilbhai. But Chhabilbhai Patel lost once again. Chhabil Patel thought that he got defeated because Jayantibhai Bhanushali has done the activities against the party. Chhabilbhai Patel thought that his political carrier has been destroyed by Jayantibhai Bhaunshali, hence he had made-up his mind to end the political carrier of Jayantibhai Bhanushali and was waiting for an opportunity in which there was the consent of Jayantibhai Thakkar also. 8. As per the prosecution, the case against the applicant is that Jayantibhai Thakkar-residing at- Bhuj who was the friend of Chhabilbhai Patel and Jayantibhai Bhaunushali-was not in favor of this compromise. According to him, if this compromise would take place than he could not get the chance to politically defame Jayantibhai Bhanushali. Hence due to this reason he did not let this compromise take place. Jayantibhai Thakkar, as a friend of Jayantibhai Bhanushali persuaded that Manisha Goswami will not create further trouble if she remains in a jail and considering it, Jayantibhai Bhanushali filed other complaints also against Manisha Goswami. Manisha Goswami was arrested for the offence being I.CR.No.97/2018 registered at Naroda Police Station under section-328, 384 etc. of IPC on 14/06/2018. Manisha Goswami was in Judicial Custody in Sabarmati Jail from 14-06-2018 to 03-08-2018. 8.1 When Manisha Goswami was in jail, Chhabil Patel and Sujit Pardeshi alias Bhau, the other friend of Manisha Goswami and resident of Keshavnagar, Mundhva, Pune, Maharashtra went to meet Manisha Goswami in jail and assured Manisha Goswami of complete help. Chhabil Patel, Sujit Pardeshi @ Bhau and Jayantibhai Thakkar made attempts to take out Manisha from the cases which were filed against her by Jayantibhai Bhanushali. As per their guidelines, a lady namely Nidhi Barvaliya filed a complaint of illegal acts against Jayantibhai Bhanushali in Sarthana Police Station-Surat City, on 10-07-2018. 8.2 Jayantibhai Bhanushali came under pressure due to this application filed in Sarthana Police Station, Surat. Chhabilbhai Patel, Jayantibhai Thakkar and others made great efforts to defame Jayantibhai Bhanushali in news media. Jayantibhai Bhanushali again initiated attempts for settlement. Leaders of Bhanushali community Manji Bhanushali, Bhimji Vador and Chhabil Patel, Sujit Bhau and Jayanti Thakkar for Manisha Goswami participated in the settlement. Chhabilbhai Patel, Jayantibhai Thakkar and others made great efforts to defame Jayantibhai Bhanushali in news media. Jayantibhai Bhanushali again initiated attempts for settlement. Leaders of Bhanushali community Manji Bhanushali, Bhimji Vador and Chhabil Patel, Sujit Bhau and Jayanti Thakkar for Manisha Goswami participated in the settlement. According to which, Chhabil Patel raised the demand that all the cases against Manisha Goswami should be withdrawn and Jayanti Bhanushali should leave the politics and the same was supported by Jayanti Thakkar also. But Jayantibhai Bhaunshali did not accept it. Hence, finally on the basis of application of Surat, the complaint was lodged against Jayanti Bhanushali vide I-CR no. 247 / 2018 at Sarthana Police Station u/s. 376(2) N, 294(KH), 506(2), 420, 342, 465, 471, 354, 354(A), 354(B), 365 of IPC. At this point of time, Jayanti Bhanushali was caught in embarrassing situation and hence, he struck compromise. Due to this, Jayantibhai Bhanushali relieved from the above case on 07-08-2018 and Manisha Goswami was also released from the Jail on 03-08-2018. Chhabil Patel and Jayanti Thakkar were still not in the favour of this compromise until Jayanti Bhanushali leaves the politics. 8.3 On the other hand, on getting free from the above case, he firmly believed that, Jayanti Thakkar and Chhabil Patel are the only cause of his disrepute. Accordingly now Jayanti Bhaushali has re-established his relations with Manisha Goswami and by doing so, now he had started to raise other complaints against Chhabil Patel and tried to trap him in the Court cases. Moreover, as he was having extreme displeasure against Jayanti Thakkar, he had tried to see that the Stay of criminal proceedings gets vacated regarding the investigation of the financial translations of KDCC Bank which was pending in CID- Crime against Jayanti Thakkar. During this time, a complaint was filed against Chhabil Patel on 16/10/2018 at Dwarka (North) Police Station, Delhi vide FIR No.350/2018 as per section- 376, 506(2), etc. of IPC. Chhabilbhai Patel felt that Jayantibhai Bhanushali has got this complaint lodged. Jayantibhai Bhanushali has initiated attempts to lodge such more cases against Chhabilbhai Patel. Chhabil Patel came to know about these attempts of Jayantibhanushali through Manisha Goswami and others. Therefore, angered chhabil Patel felt that now Jayantibhanushali will spoil his reputation and economic condition by constantly filing false complaints of his misdeeds and this will cause him to commit suicide. Under such situation he discussed with Jayanti Thakkar. Chhabil Patel came to know about these attempts of Jayantibhanushali through Manisha Goswami and others. Therefore, angered chhabil Patel felt that now Jayantibhanushali will spoil his reputation and economic condition by constantly filing false complaints of his misdeeds and this will cause him to commit suicide. Under such situation he discussed with Jayanti Thakkar. Jayanti Thakkar himself felt that, if the investigation of the financial translations of KDCC Bank is started, then he could have to face big difficulty. Hence both of them have decided to eliminate Jayantibhai Bhaushali forever. It was decided that Chhabil Patel would arrange for contract killer and Jayanti Thakkar will help him financially as well as render all the possible help. 9. The nature of evidence collected during the course of investigation is mobile call conversation recorded, transcript of which is produced on record at page-258 onwards, which is conversation in the month of October-November 2018 where exchange of dialogs clearly indicates the applicant and the accused No.1 had treated the deceased as common enemy. Some of the relevant conversation would be as under:- “Jayanti Thakkar : You bring the bomb, leave everything else to me, understood? and just give me five lakh rupees for Supreme Court and you send the remaining five lakhs, I have made arrangements with an organization from Delhi, we will talk later personally. Jayanti Thakkar : We will throw bomb in Prashant Bhushan. Jayanti Thakkar : Want to make him suffer indeed. (abusive word) just want to kill him then it will be out of question. Chhabildas Patel : Alright.. alright... Jentibhai. Jayanti Thakkar : Rape case against Jayanti Bhanushali. B.J.P may suspend Bhanushali from the post of Member. Membership of Bhanushali will be suspended if found guilty. Chhabildas Patel : The thing is that, that woman is dangerous. Such news has received. Jayanti Thakkar : Now tell that woman that, (abusive word) why Congress is still asleep, that not arresting not arresting. Congress... Chhabildas Patel : Yes. But who is this woman? That woman who has made No.164 taken. That is Congress. She only has taken. Jayanti Thakkar : Now that we are at work then..... Chhabildas Patel : No no no, it is out of question, I am with you and just as I have said earlier, you are the leader of our team, I am small for that, I am small for that. That is Congress. She only has taken. Jayanti Thakkar : Now that we are at work then..... Chhabildas Patel : No no no, it is out of question, I am with you and just as I have said earlier, you are the leader of our team, I am small for that, I am small for that. Jayanti Thakkar : No no, we both will arrange it together, you don't worry, just give this, if you can find. Chhabildas Patel : alright alright Jayanti Thakkar : Now, we should hand over all this to the Congress. Now, will you give yours or I tell through my source, at X Y places that, we will hand over all the literature to them which is with the lawyers. As a result there will be uproar. If there isn't any uproar, the police will 100% eat up this matter. Understood?, just as the Ahmedabad girl did and narco test and all that was done in it and was made (abusive word), now filling C final. Make sure that it does not happen like that. Understood? Jayanti Thakkar : We tried to finish it from outside, but did not mange to do it, ask this Raval Saheb. - hmm - Let's both of us get out by saying in this manner. Lets hand over everything to someone else. You think about everything, and inform me if you found it proper. I will reach Ahmedabad tomorrow night, understood? - alright Jayanti Thakkar : Now, you can not understand anything else, we are criminal persons, you are a gentleman, you may be well versed in political matters, we are ignorant. Now, we should get his goods, understood? Chhabildas Patel : Yes, yes, we will do it by any means, we should say that, the goods must be retrieved. Jayanti Thakkar : Come with me tomorrow, we will go together. (Abusive word) he will not let you go in this, he has money. Has done it here, today. May be tomorrow will do in Mumbai and then will do in Delhi, then Nagpur, will do in this manner all the time. Chhabildas Patel : And when this goods will arrive, media will immediately jump into it and...” 10. (Abusive word) he will not let you go in this, he has money. Has done it here, today. May be tomorrow will do in Mumbai and then will do in Delhi, then Nagpur, will do in this manner all the time. Chhabildas Patel : And when this goods will arrive, media will immediately jump into it and...” 10. Over and above, the conversion referred to hereinabove, the extensive reference in the entire conversation to the co-accused persons prima-facie indicates that the applicant was not only within the knowledge of the conspiracy hatched, but had actively participated in planning out the manner in which the offence is to be committed. The version also indicates the applicant sharing common intention with the accused No.1 as well as other co-accused persons. 11. The Court has also taken into consideration the evidence in the form of panchnama drawn while taking the recording of CCTV footages of a time proximate to the date of incident at Bombay which appeared to be the place of the applicant where accused persons namely Manisha Goswami and Sujit Bhavu and other had gathered. Considering this in context of the travel of the applicant from Mumbai to Kutch on 03.01.2019, where the deceased was to arrive at Kutch from Ahmedabad on 05.01.2019, which has been recorded in evidence of a witness suggesting that the applicant was known to co-accused persons had in fact traveled with them. The communication by the applicant to the witness mentioning to him how co-incidentally he had met co-accused Manisha Goswami and Sujit Bhavu at the Airport appears to be the afterthought to cover up at later stage his travelling alongwith the co-accused in a period proximate from the date of incident and therefore, the argument of the applicant that it was a mere co-incident cannot be accepted when the Court considers the overall picture. 12. The other evidence is of the applicant accompanying accused No.1 to meet co-accused Manisha Goswami while she was lodged in jail also cannot be treated as a mere co-incident or the meeting any other for purpose which is not even suggested by the applicant in his pleadings. During the argument, it is submitted that from the jail record the only document referring to the entries one name Jayanti is written alongwith other co-accused visitors which in itself is not sufficient to establish that it was the applicant who had visited. During the argument, it is submitted that from the jail record the only document referring to the entries one name Jayanti is written alongwith other co-accused visitors which in itself is not sufficient to establish that it was the applicant who had visited. Considering the over all facts and the evidence in form of jail record, prima-facie the Court is inclined to believe that the name reflected in the entry as Jayanti is that of the applicant and none else. 13. Insofar as the claim to parity is concerned, the Court has examined the role of the applicant because persons who were enlarged, qua them it is observed that the role attributed to these accused persons is to have acted on the say of the accused No.1 to provide a motorcycle and place to reside at the agricultural field managed by them as the person who was to visit was interested in studying the horticulture methods adopted in Kutch however, the said person turned out to be the co-accused who had participated in commission of crime alognwith the sharp shooters. In the case of the applicant, sufficient evidence is available that the applicant had participated in the thick conspiracy to commit the political murder. 14. The Court has perused the judgment of the Sessions Court, wherein the Sessions Court has assigned cogent and convincing reasons while rejecting the application of the applicant. 15. In view of the aforesaid reasonings, no case is made out to exercise discretion in favour of the applicant. The application deserves to be and the same is hereby dismissed.