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2022 DIGILAW 1672 (GUJ)

Parsottam Lalji Dodiya v. State Of Gujarat

2022-12-01

UMESH A.TRIVEDI

body2022
ORDER : 1. This revision application is filed by the petitioner – accused challenging an order passed below Exhibit-57 by the Sessions Judge, Surendranagar dated 13.09.2022 in Sessions Case No. 82 of 2019, whereby his application filed under Section 220 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code") came to be rejected, refusing relief to frame common charge in two different sessions cases and proceed de novo against him. 2. The petitioner – accused is alleged to have committed murder of one Bhavikaben as also Suryaben – mother of Bhavikaben, in two different incidents in a time gap of 1 ½ hours at different places for which two different offences have been registered, one in Joravarnagar Police station, District: Surendranagar and another in Wadhvan Police station by the Police officer concerned in both the cases. 2.1 After the police investigation in both the cases, police authority filed charge-sheets and both the cases were differently numbered and being tried, maybe in one Court. However, after framing of the charges on 26.03.2021 and seven witnesses examined in both the sessions cases, the petitioner – accused has come out with this application before the Court not raising such plea even at the time of investigation, submission of charge-sheets or even framing of the charge and after examination of even six of the witnesses. 3. Mr. Ashish M. Dagli, learned advocate for the petitioner – accused, submitted that after committing murder of Bhavikaben, from whom he had borrowed money and since she was demanding the same and repeatedly taking cudgels with him, the incident, as aforesaid registered at Joravarnagar Police station occurred and in the same transaction, as alleged by the prosecution, according to the submission of learned advocate Mr. Ashish M. Dagli, mother of Bhavikaben was also assaulted and she had succumbed to her injuries instantaneously. Therefore, he has submitted that the accused is common in both the cases, victim being daughter and mother but both were lending money to him, and thereafter demanding the same, and therefore, as alleged by the prosecution, both have been eliminated, it can be termed to have been caused in one series of acts so connected together as to form the same transaction, and therefore, both cases should have been tried as one case. 3.1 On the ground of prejudice argued before the trial Court at the time of hearing of application Exhibit-57, it is submitted that if in one case he is given benefit of doubt, his defense in another may be prejudiced, as similar such witnesses who are examined in an earlier case would be going to be examined in another case and there may appear different evidence in that case. Therefore, it is submitted that application Exhibit-57 submitted by the petitioner – accused requesting the Court to permit common charge for both the cases and proceed de novo against him in one trial is required to be granted. 3.2 In support of his submission learned advocate for the petitioner – accused has relied on a decision of the Karnataka High Court in the case of M.S. Sheshappa vs State Of Karnataka, reported in 1994 Cri.L.J. 3372 for a proposition that the acts in both the cases are so connected with each other so as to form the same transaction, and that a continuous thread runs through the acts complained of, and therefore, joint trial of both the cases should be ordered as one case and it should start de novo. 3.3 Mr. Ashish M. Dagli, learned advocate for the petitioner – accused, has further relied on a decision of the Supreme Court in the case of Ms. P. v. State of Uttarakhand and another, rendered in Criminal Appeal No. 903 of 2022, more particularly drawing attention of the Court to para 17 and 20 thereof, wherein Supreme Court has relied on its earlier decisions on the issue of ‘same transaction’ interpreting Section 220 of “the Code” for the proposition that the circumstances of a given case indicating proximity of time, unity or proximity of place, continuity of action and community of purpose or design would be the factors for deciding whether certain acts form parts of the same transaction or not. 4. As against that Mr. Utkarsh Sharma, learned APP, submitted that both the cases filed against the petitioner – accused are different, committed at different time and place and there is no proximity in time or even a place so as to successfully argue that it is committed in a ‘same transaction’. 4. As against that Mr. Utkarsh Sharma, learned APP, submitted that both the cases filed against the petitioner – accused are different, committed at different time and place and there is no proximity in time or even a place so as to successfully argue that it is committed in a ‘same transaction’. It is further submitted that both the cases have been filed at different police stations for a distinct and different offence of murdering two individuals having no nexus of any commonality, and therefore, learned Judge has rightly rejected the application filed by the petitioner – accused. 4.1 Drawing attention of the Court to the impugned order, he has further submitted that the petitioner is, on one hand claiming his constitutional right of a speedy trial and when trial has already been fixed in a scheduled manner, he has frustrated the same by giving such application, that too, after seven of the witnesses in each case have been examined. As such, as observed by the Court, neither the accused nor his advocate remained present to proceed with the case after rejection of his application Exhibit-57. Therefore, according to the submission of learned APP, the conduct of the accused also is to be seen while entertaining application at his instance challenging the order passed by the trial Court. Therefore, he has submitted that this revision application is without substance and it is required to be rejected with cost. 5. Since no other submissions made, having heard learned advocate for the petitioner – accused as also learned APP, it emerged on record that, on 27.07.2019, at about 8:00 a.m., petitioner – accused committed murder of Bhavikaben Durlabhbhai Bhatt at Ratanpar Rameshwar Township, where she was staying adjoining to the house of the petitioner – accused for the motive that he borrowed some money from her and when she was demanding the same very strictly, he got enraged and thereby, he is alleged to have committed the offence of murder, which came to be registered at 7:15 p.m. at Joravarnagar Police station. In the said case, after the conclusion of the investigation, he was charge-sheeted and he is shown to have assaulted deceased – Bhavikaben with sword on different parts of the body and she succumbed to the injuries instantaneously. In the said case, after the conclusion of the investigation, he was charge-sheeted and he is shown to have assaulted deceased – Bhavikaben with sword on different parts of the body and she succumbed to the injuries instantaneously. 5.1 At least 1½ hours after the first incident, the petitioner committed another offence, again of murder, that too, of one Suryaben, who is said to be the mother of the victim in earlier case – Bhavikaben, at a different place, in different jurisdiction of a police station where he is alleged to have inflicted several blows with knife causing instant death of even Suryaben. 5.2 Considering the FIR, charge-sheet and the papers of investigation in both the cases, it is clear that both the offences are distinct, committed at different point of time, in different area, in different police jurisdiction, with different weapon, which is prima-facie suggestive of distinct offences for which petitioner – accused is required to be tried separately and not in a common trial. It is not the case of either prosecution or of the accused that while committing murder of Bhavikaben, another murder is committed because she tried to intervene. It is also not an outcome of series of acts constituting same transaction as with the same sword Suryaben is also not attacked, that shows that he had a pause of one hour and a half before committing another murder for which he had sufficient time to even think over, appearing to be a well-prepared assault, maybe for any reason, with different weapon, and therefore, there is nothing common in both the offences apart from any proximity of time, unity or proximity of a place or a continuity of action or community of purpose. What is connecting link in both the offences is only that second victim – Suryaben is the mother of the first victim – Bhavikaben, except that, there is nothing of the sort saying to be an offence committed in a same transaction committed by the same person. 5.3 Apart from aforesaid facts on merit, since 26.03.2021, different charge in both the cases came to be framed and at that time, no such plea was ever raised. Not only that, even during the course of the investigation or even the second investigation no such plea was ever raised by the accused. 5.3 Apart from aforesaid facts on merit, since 26.03.2021, different charge in both the cases came to be framed and at that time, no such plea was ever raised. Not only that, even during the course of the investigation or even the second investigation no such plea was ever raised by the accused. Not only that, thereafter in both the cases, in all seven witnesses have come to be examined. As recorded in the impugned order, at para 9, since accused was in custody from the year 2019, projecting delay in trial as a shield, asked for the bail and at that time, concerned Court had, keeping in mind his constitutional right of speedy trial, given schedule for examination of witnesses at least for three dates i.e. 06.09.2022, 13.09.2022 and 20.09.2022 directing the prosecution to keep all witnesses present on those two dates. Not only that, those witnesses were summoned also. However, as observed in that paragraph, on 06.09.2022, in both the cases when witnesses were present, calculatedly the advocate, who represented the accused, retired from the case and he engaged another Lawyer for his defense to shatter the schedule of trial. At that point of time, the advocate, who replaced the earlier advocate orally submitted that he intends to give such application as Exhibit-57 and asked for time. 5.4 From the application Exhibit-57, it appears that it has been filed on 09.09.2022. However, prior to schedule program of examining the witnesses in the month of August, 2022, it was again scheduled to be done even prior thereto in the month of June, 2022, as observed in an order passed below Exhibit-01 in Sessions Case No.69 of 2019 dated 13.06.2022, which is annexed with the petition at page 56, wherefrom it appears that on 13.06.2022, despite Court waited till 4:17 p.m. and calling out the case time and again, neither the accused nor his advocate remained present. It would be profitable to record that on that date, i.e. on 13.06.2022, the petitioner – accused was on temporary bail and he was supposed to remain present, if on bail, otherwise he would have been kept present through jail. It would be profitable to record that on that date, i.e. on 13.06.2022, the petitioner – accused was on temporary bail and he was supposed to remain present, if on bail, otherwise he would have been kept present through jail. 5.5 It is further observed in order that despite case scheduled much prior to the date and advocate of the accused was aware of the same, he also did not remain present, and therefore, witnesses had to go without their deposition being recorded, which caused delay in proceeding in the trial. Therefore, Court was constrained to issue bailable warrant in the sum of Rs.5,000/- as accused committed breach of condition of an order of High Court granting him temporary bail. Though, temporary bail came to be granted for 1 week, it was got extended further for 1 week and thereafter again for 10 days on different causes, despite that as it appears he did not remain present before the Court. 5.6 As further submitted by learned advocate for the petitioner – accused, though as per the schedule witnesses were to be examined, petitioner again prayed for an adjournment on the ground that he has preferred a revision application challenging order passed below Exhibit-57 dated 13.09.2022. However, after the revision application appears to have been signed by his advocate on 21.09.2022, it was first listed on 23.09.2022, where learned advocate wanted to supply the charge-sheet papers, and therefore, it was adjourned to 30.09.2022. It appears that, thereafter also it has been adjourned on several occasions either at the request of the learned advocate or for any other reason. But there was no stay granted by this Court against the trial, and therefore, it appears that Court must have imposed cost to be paid to the witnesses, who were ordered to remain present, keeping in mind the right of the accused of speedy trial as he propounded that, for the purpose of bail and thereafter, forgot that right. It appears that accused is playing very calculatedly, raising his right of speedy trial and at the same time, sabotaging the same for his ulterior motive by employing different tricks, remaining absent despite released on bail for the purpose of trial, changing the advocate at a crucial time and even the advocate is also not remaining present when the witnesses were present, such conduct of the accused is required to be deprecated. 5.7 As dealt with earlier on merit also, both the cases cannot be said to have arisen from the same transaction, even the decisions relied on by the learned advocate for the petitioner are also not of any help to him as in the decision in the case of M.S. Sheshappa (supra), it was acts of committing multiple murders, three at a time in one house for property dispute and expressing his intention to commit fourth murder and doing the same within few minutes, it may be held to be forming same transaction. However, in the present case, as determined aforesaid, in no case it can be said to have occurred in a same transaction, and therefore, the said decision is not applicable at all. 5.8 Another decision of the Supreme Court, which is relied on by the learned advocate for the petitioner in the case of Ms. P. (supra), though it is not a precedent on the issue argued before this Court, Supreme Court had dealt with earlier decisions dealing with Section 220 of “the Code” and there also, it is observed by the Supreme Court that the expression ‘same transaction’, from its very nature, was incapable of an exact definition and it was not possible to enunciate any comprehensive formula of universal application for the purpose of determining whether two or more acts constitute the same transaction. However, in the aforesaid decision at para 4, it is very clearly stated that:- “Where two incidents are of different times with involvement of different persons, there is no commonality and the purpose thereof different and they emerge from different circumstances, it will not be possible for the court to take a view that they form part of the same transaction and therefore, there could be a common FIR or subsequent FIR could not be permitted to be registered or there could be common trial.” 5.9 Therefore, the said decision also cannot be relied upon by the learned advocate for the petitioner to support his case. However, as observed by the learned Judge in para 6 of the impugned judgment, relying on a decision of the Supreme Court in the case of Mohinder Singh v. State of Punjab & Haryana, reported in AIR 1999 SC 211 , quoting para 3 thereof that:- “Section 220 of the Code is an enabling provision which permits the Court to try more than one offence in one trial, the Court may or may not try all the offences together in one trial. It cannot be said that by trying separately, the designated Court committed any illegality”. 5.10 The learned advocate for the petitioner is not able to point out that even if any such case is falling under Section 220 of "the Code", Court must deal with the accused in the same trial as Section 220 of "the Code" is appearing to be not mandatory and it is enabling the Court to do the same but not compelling the Court to do the same. As such this case does not fall in that category as aforesaid. Therefore, the said aspect is also out of question. 6. In view thereof, I find no merit in this revision application as not only the accused has misused the liberty granted to him, he has derailed his prosecution by adopting different tricks for avoiding speedy trial, e.g. relieving his advocate on the day when witnesses were summoned and present, not remaining present before the Court when he was already on a temporary bail, even thereafter not proceeding with the trial despite the witnesses were called on the ground that his revision application is pending, without there being any stay granted by this Court. As such it is rejected with cost of Rs.25,000/- but on repeated request not to impose the cost as accused is not able to bear the same, said part though dictated it is ordered not to transcribe the same, on relook to the position of accused. Hence, it is rejected.