Full Judgment Text
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CASE NO.:
Appeal (crl.) 252 of 2002
PETITIONER:
RAJESH @ RAJU CHANDULAL GANDHI & ANR.
Vs.
RESPONDENT:
STATE OF GUJARAT
DATE OF JUDGMENT: 07/03/2002
BENCH:
R.P. Sethi & K.G. Balakrishnan
JUDGMENT:
SETHI,J.
Fairly conceding that in a criminal case while hearing an appeal
by special leave this Court cannot ordinarily embark upon a re-
appreciation of evidence, in view of concurrent findings Mr.Sushil
Kumar, learned Senior Counsel for the appellant has contended that
without appreciating afresh their testimony, the statements of Rakesh
Pravinchandra Kinarivala (PW1) and Satish (PW12), the alleged eye-
witnesses cannot be accepted as their presence on spot is highly
improbable. In support of his contention he has referred to
circumstances which allegedly show that the FIR had been ante-timed only
for the purposes of planting the aforesaid witnesses as eye-witnesses to
the occurrence. Non-mention of the FIR number and the name of the
witnesses in the inquest panchanama (Exh.37) has been cited as an
instance to probabilise that the aforesaid witnesses were introduced
later. Learned counsel has further submitted that as despite taking
finger prints from the place of occurrence and sending it to the expert
for his opinion, the prosecution did not produce the opinion of the
expert in the court, which amounted to withholding of evidence, the
courts should have drawn an inference against the prosecution. It is
submitted that the well settled position of law is that where
suppression of evidence is proved, a presumption of law has to be drawn
that if such an evidence was actually produced, the same would have gone
against the party withholding it. Presence of blood at various places
inside the house of the deceased is suggested to be a strong ground to
hold that occurrence had not taken place outside the house as deposed by
eye-witnesses but the deceased was killed inside the house by some
miscreants. The appellants are alleged to have been implicated merely on
suspicion and convicted completely ignoring the submissions made on
their behalf.
In order to appreciate the submissions of the learned counsel for the appellants, it
is necessary to
have a resume of the facts of the case leading to the conviction and sentence of the appella
nts. Montu a
young lad, nephew of deceased Girish Namdar, had allegedly abducted damsel Namrata, daughter
of
Mukesh Chandulal Gandhi and sister of Accused Sachin (A2) and Accused Duniya (A3). Accordin
g to the
prosecution, seeds of enmity between the families of complainant and the accused-party had b
een sown on
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account of love affair between Namrata and Montu. The enmity thus conceived is stated to be
the motive
for the ghastly and macabre killing of Girish Namdar.
On 7.2.1993 at about 1.00 p.m. Girish Namdar @ Girish Ambalal Gandhi is stated to ha
ve come to
his farm known as Namdar Farm which is situated near Vatva Village about 10-15 kilometers fr
om the
metropolitan city of Ahmedabad. The accused are stated to have hatched a conspiracy, in fur
therance of
which they committed the crime. The accused persons came at the farm in a Maruti Fronti Mod
el car. On
hearing the blow of horn, the deceased called the visitors inside his house through his Cook
Satish (PW12).
Rajesh (A1) and Duniya (A3) came inside the house whereas Sachin (A2) remained in the car.
Accused
Rajesh and Duniya initiated the talk about the proposed marriage of Montu with Namrata. The
issue was
hotly debated but as the deceased allegedly did not agree to the proposal, A1 and A3 got enr
aged and
agitated. When A-1 started to leave the house, the deceased persuaded him to sit by catchin
g hold of him
and offered him wine but A1 refused to oblige him. As A1 went out, the deceased also came o
ut of his
house to see him off near the sitting portion in front of the house. Again there was some t
alk between the
deceased and A1 about Namrata. A-1 felt that the deceased was the only obstruction and impe
diment
between the relationship of Namrata and Montu. The deceased consoled him that some concilia
tion and
settlement shall be reached by calling the fathers of the two lovers. It is alleged by the
prosecution that A-1
called the deceased on the side and took him near the Maruti car where A-1 called Sachin (A-
2) and Duniya
(A-3) to take out weapons from the car. Rajesh (A1) took out revolver from his pocket and S
achin (A2)
and Duniya (A3) took out sharp edged weapons from the rear side of the Maruti car with which
they started
assaulting the deceased. Girish Namdar was given several blows one after the other by the a
ccused
persons. Rakesh (PW1) who was standing there was threatened at the point of revolver by Raj
esh (A1) to
get out therefrom and get into the house, since he happened to be the son of sister of the d
eceased, to which
he obeyed. The cook, Satish (PW12) who was talking on phone to the wife of the deceased Uma
, was
intercepted and the complainant Rakesh took the telephone from the hands of Satish and told
Uma, his
aunt, about the assault on Girish by the accused persons requesting her to immediately rush
to the spot with
somebody. When Rakesh again came out of the house, he was threatened and directed to go ins
ide. He
received another telephone call from Smt.Uma, his aunt who was enquiring from him as to what
was earlier
told to her was correct or not. Satish (PW12) who was a cook was threatened by the accused
to run away
from the spot. Sachin (A-2) came inside the house of the deceased and snapped the telephone
connection
and broke the telephone instrument. By the time Rakesh (PW1) came out from the house, Giris
h had
virtually succumbed to the injuries received by him from the accused persons who had by that
time fled
away from the scene of occurrence.
First Information Report was lodged by Rakesh (PW1) at Vatva Police Station which wa
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s
registered as No.49/93 (Exhibit 68) at about 2.40 p.m. After completion of the investigatio
n, the charge-
sheet was presented against the accused persons before the Metropolitan Magistrate who commi
tted them
to the Court of Sessions for standing the trial for the offences punishable under Sections 1
20B, 452, 302
IPC and also under Section 25(1)(b) of the Arms Act and Section 135(1) of the Bombay Police
Act. The
accused pleaded not guilty and claimed to be tried.
In order to prove its case the prosecution produced 14 witnesses and relied upon doc
umentary
evidence. The defence of the accused was of total denial. No evidence was led in defence.
After the conclusion of the trial and on appreciation of evidence, the trial court f
ound the accused
persons guilty for all the offences with which they were charged except the charge under Sec
tion 135 (1) of
the Bombay Police Act. The trial court held that prosecution had successfully established t
hat the deceased
Girish died a homicidal death. The injuries sustained by him were inflicted by the accused
persons which
they had caused after hatching a conspiracy. Rajesh (A-1) was established to be in possessi
on of a revolver
without having a licence though the same was not used during the occurrence. The motive for
commission
of the crime was held established. In appeal, the High Court re-appreciated the whole of th
e evidence and
held that "we have no hesitation to accord our concurrence with the impugned judgment and or
der, while
rejecting the appeal at the instance of the original accused. It has, evidently, been emerg
ed from the proved
set of facts and circumstances, which preceded the main incident coupled with the deep-seate
d motive
generated out of the cordiality and close relationship between Namrata and Montu that all th
e three accused
persons, who are related to each other had hatched a criminal conspiracy and they are the re
al authors of
macabre murder".
FIR (Exhibit 68) is shown to have been recorded on 7.2.1993 at 2.40 p.m. in which th
e time of
occurrence is stated to be 1.15 p.m. The distance between the place of occurrence and the p
olice station
has been mentioned as 4 kilometers. The said information had been recorded on the basis of
the statement
of Rakesh (PW1) who vividly explained the details of the occurrence. In the inquest panchan
ama
(Exh.P37) which is stated to have started at 3 p.m. and completed at 3.45 p.m., the name of
the complainant
or the number of the FIR is not mentioned. However, in the Panchanama (Exh.P32) stated to h
ave been
recorded between 4 to 6 p.m., the name of Rakesh (PW1) and FIR No.49/93 are specifically men
tioned. In
his statement, recorded in the court, Rakesh (PW1) has stated that after about 30-35 minutes
of the
occurrence, the police came on spot. The police took him and others to the police station a
nd recorded his
complaint marked Exhibit 24/1. He claims to have shown the place of incident to the police.
The police
had made panchanama of the scene of offence and collected articles from the said place and s
eized the
Maruti car.
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According to the statement of this witness, he left the place of occurrence in the c
ompany of the
police after about 30 to 40 minutes of the occurrence, i.e. 1.45-2.00 p.m. He claims to be
at the police
station upto 4.30 p.m. The Panchanama Exh.37 was started to be drawn at 3 p.m. and complete
d at 3.45
p.m., obviously when the aforesaid witness was not on the spot and the FIR was being recorde
d at the
police station. Panchanama Exh.P-37 only refers to the message received from the Control Ro
om
regarding some scuffle having taken place in the Namdar Farm. When the police came on the s
pot
consequent upon the information, they found the dead body of Girish lying there. PW1 and ot
hers were
sent to the police station for the purpose of recording the statement of PW1 and registering
a case and
panchama was prepared during the aforesaid period. Non mentioning of the name of the afores
aid witness
and the FIR number is, therefore, obvious. Learned counsel for the appellants referred to t
he statement of
Abdul Rehman Munshi (PW14) who has stated on oath that he received information from the Cont
rol
Room at 2.10 p.m. that in Namdar Farm near Vatva there has been a big quarrel. He along wit
h other
police officials came on the spot where they saw dead body of Girish Namdar. On inquiry, ne
phew of the
deceased lodged a detailed complaint which was sent to Vatva police station for registration
. The report
was written by one Mr.Jadhav. The complaint was sent through policeman at the police statio
n. After
recording the complaint and registering it scene, of occurrence was visited and inquest panc
hanama of the
dead body was made which is Exhibit P-37. In cross-examination, the witness has denied the
suggestion
that the recording of the complaint in the case started at 4.00 p.m. and was over by 4.45 p.
m. Pointing out
to the contradiction in the statement of PW 1 and PW14, the learned senior counsel submitted
that the
circumstances of the case probabilised that the FIR was ante-timed to facilitate the introdu
ction of the
alleged eye-witnesses.
It is true that PW1, in his statement, has stated that he was taken to the police st
ation where the
complaint was recorded. There does not appear to be any material contradiction between his
statement and
the statement of PW14 except that IO has stated that complaint though lodged before him was
sent through
policeman at the police station. He has not contradicted the version of the PW1 that he had
gone to the
police station alongwith other policemen. There is nothing on the record to show that the
investigating
officer had known the FIR number of the case at the time when he recorded panchanma Exh.P-37
or at the
time of recording of the aforesaid panchanama PW1 was present at the place of occurrence. P
ossibly, it
appears that after taking his statement PW1 was sent to the police station where detailed co
mplaint marked
24/1 was recorded and he remained there at the police station upto 4.30 p.m. or 4.55 p.m. an
d during that
interval Panchanama Exh.37 was recorded at the spot. Otherwise also merely non mentioning o
f the
number of crime registered upon FIR or name of prosecution witness in Exh.P-37 would not lea
d the court
to believe that the FIR had been ante-timed in view of the unequivocal, reliable and confide
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nce inspiring
testimony of PW1. The trial court in para 39 of its judgment dealt with this aspect of the
matter and found
that on the date of incident firstly police staff of Aslali police station and thereafter pe
rsons of Ahmedabad
city (Vatva) Police Station had come which means police from Aslali and Vatwa Police station
had come at
the scene of occurrence. Before recording the complaint there was some discussion whether t
he
complainant would go to Vatva police station or Aslali police station. At the time of recor
ding the
complaint Satish (PW12) and family members of Girish were stated to be present. Abdul Rehma
n (PW14)
in his cross-examination has stated that before he reached Namdar Farm, police of Aslali Pol
ice Station had
come there. The Namdar farm is situated where the jurisdiction of two police stations, namel
y, Aslali and
Vatva meets. It was decided on spot to get the complaint recorded at Vatva Police Station.
In this regard
the trial court held:
"A question has been raised in this case why in inquest
panchanama, there is no mention of name of Rakesh and Crime
Register number. If we look to the inquest Panchanama which
is completed at 3.45, there is no mention of crime Register
number. But thereafter within 15 minutes, the panchanma of
scene of offence is prepared, there is mention of Crime
Register No. and the sections of offences and who is the
complainant is given. From this, it cannot be said that
inquest panchanama is First Information Report. In that
there is possible that on inquiry from Rakesh, the complaint
was recorded, it was sent to Vatva Police Station for
registration of the offence and on the other side, the work
of preparing inquest panchanama was immediately started.
What is correct and what is wrong, can be decided from the
facts. In this case at that time the complainant was
started recording, and where it was recorded and where it
was started recording and in that if there is some
miscalculation of time in recording complaint, preparing
inquest panchanama and panchanama of scene of offence, of
where or at which place the complaint was recorded, in that
there is no scope for saying that looking to the facts of
the case, a false case has been concocted and therefore, the
facts stated by Umaben, complainant and Satish Maharaj get
support from medical evidence. As stated above, when police
came, all the information is received, cannot be said to be
incorrect or wrong. Police had reached the farm on the
information received from Control room that there is quarrel
in the farm. When they reached the farm, there was truth in
it. And the persons who can give information regarding the
incident were present at the scene, so there was no question
of asking as to who had informed the control room. And the
persons present there, on asking as to who was know about
the incident, it was known that Rakesh was knowing about the
incident, it can be said that police had received First
Information Report from Rakesh. Again in this case, it
transpires that there was message from control room, does
not mean that there was telephonic message or information.
But the information was given by wireless, that fact is
disclosed. Therefore, why message was not noted down and
what was message on phone. There is no scope for receiving
other particulars and thereafter concocting false story.
There is no scope for the same. If message is received that
there is quarrel on the farm and if police reaches there and
so that particular message is only the First Information and
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if thereafter any if any complaint is recorded, it cannot be
said that the same cannot be treated as First Information.
It also cannot be said that in this case the inquest
panchanama Ex.37 was started and completed, that is the
first information. Because there is sufficient evidence
that before the same was started writing, before that police
had received so much information. In this inquest
panchanama, there is no name of the complainant or accused
and before recording complaint, directly inquest panchnama
cannot be prepared. Lastly if no body is present and if
Rakesh or Satish Maharaj would not have been present there,
even complaint of Umaben would also be recorded. In this
case when there is mention of presence of Umaben in Inquest
Panchanama, it cannot be said that no complaint was recorded
and only panchanama was drawn. To the most, it can happen
that after recording the complaint, Rakesh can be sent for
registration of the complaint to the police station, which
is nereby as complainant. The person who has to lodge a
complaint, he has to lodge the complaint, put his signature,
receive its copy and that would take sometime and after
Rakesh was sent there, in the meanwhile inquest panchnama
might have started. And after Rakesh must have returned
from police station after lodging the complaint, the
panchanama of scene of offence must have been drawn and
after starting panchnama of scene of offence, it is known
that complaint is registered, in the said panchnama note
about it must have been made. In this connection when
inquest was started, police has stated one fact that what is
the reason for doing inquest? On what basis or information
the said deadbody was found at that place? and only fact is
noted in that. On 7.2.93 they were present at Vatva Police
Station, Police Inspector, who had given particulars about
this inquest, as per his say, when he was present at Vatva
Police Station, at about 14.40 they have received message
from Control room that there is a quarrel in Namdar Farm in
Vatva village. So they would reach there. Therefore,
immediately they came to Vatva in Namdar farm. On reaching
Namdar farm, they saw that there was murder of Girish
Ambalala and his dead body is lying there. In that, the
facts which are stated that when they reached the farm and
the dead body was lying in murdered position and the
particulars regarding the same were noted down and not the
particulars about the dead body lying at the time and was
seen by them at that time. In that inquest also, the
injuries caused to Girishbhai are noted. And there is
opinion to know the definite reason about the death of
Girishbhai, the dead body is sent to Civil Hospital for post
mortem examination. An opinion in that regard is given, by
panchas and panchanama is prepared to know the exact reason
for which injuries death of Girishbhai is caused. For that
medical evidence is necessary. For that it was decided to
send dead body for P.M. - Examination. In this way, inquest
panchnama is FIR which cannot be mean like that. In this
way considering the timely evidence, it is difficult to hold
that the prosecution case against the accused is false."
On this aspect the High Court held that merely, "on account of
some irregularities in mentioning the names or noting the timing during
the course of investigation by the prosecution or some discrepancies and
contradictions, which are at the micro-level could not be said to be
sufficient and efficient to discard and dislodge the otherwise weighty
and very important, serious and sound testimony of eye-witness, PW1,
Rakesh, one of the close relatives of the deceased, whose presence, we
have found, quite natural and whose evidence is, also, found to be quite
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reliable and dependable and, rightly, accepted by the trial court".
After going through the testimony of the prosecution witnesses
particularly those of PWs1 and 14, perusing the record including FIR
No.49/93, Exhibits 37 and Exhibit 32, we are of the opinion that the
plea of ante-timing of the FIR is the figment of imagination of the
defence and not a reality. Assuming that the FIR number and the name of
the complainant was known at the time of recording of Panchanama (Exh.P-
37) and it was not mentioned therein, such circumstance would not
probabilise the defence version that the FIR had been ante-timed, in
view of the cogent, reliable and confidence inspiring testimony of
Rakesh (PW1), Satish (PW12) and Umaben (PW10).
Taking advantage of the statement of Dr.Pratik Navjibha Patel
(PW9) in which, during cross-examination, he had stated that the death
had occurred within 9-12 hours before the post-mortem examination, the
learned counsel has submitted that the deceased must have died much
before 1.15 p.m. as concededly the post mortem examination was conducted
between 6.10 p.m. to 7.00 p.m. A perusal of his statement shows that in
reply to a further question in the cross-examination the aforesaid
witness had stated "it may be that the death might have occurred between
9-12 hours. This 9 to 12 hours means the 9 to 12 hours before the time
I started the post mortem and completed the post-mortem". At another
place the said witness had stated "I can say that probably the death of
the deceased might have occurred within about 12 hours from the time of
starting the post-mortem examination". The doctor had formed his
opinion on the basis of rigor mortis and the lividity found at the time
of post-mortem. There is, therefore, no medical expert opinion about
the exact time of death. Otherwise also the opinion of the doctor
cannot be substituted for the statement of the eye-witnesses who have
been believed by both the courts. From the statements of Rakesh (PW1),
Umaben (PW10) and Satish (PW12) it is established that deceased was
alive upto 1.15 p.m. and had died after receiving about 30 injuries on
his person mostly with sharp edged weapons. Even on this ground also it
would not be probable to hold that the First Information Report had been
ante-timed.
Both the trial court as well as the High Court have found on facts
that the First Information Report was lodged without delay and its copy
despatched to the Magistrate. The delay of receipt of the copy of the
FIR by the magistrate, if any, was held to have been properly accounted
for by the prosecution. Abdul Rehman (PW14) who is the investigating
officer had stated that after registration of the case a report under
Section 157 Cr.P.C. was also sent. The circumstances emerging from the
prosecution evidence show that the occurrence had taken place at about
1.15 p.m., the information of the scuffle was received by the police at
2.10 p.m., Smt.Umaben (PW10) reached on the spot at 2.30 p.m. and Rakesh
(PW1) sent to the police station for recording the FIR at 2.40 p.m. The
Inquest (Exh.P-37) was prepared between 3.00-3.45 p.m. and Inquest
(Exh.P-32) between 4 to 6 p.m. The events of circumstances narrated by
the witnesses do not leave any doubt in our mind to hold that the
occurrence had actually taken place at about 1.15 p.m. in consequence of
which Girish Namdar died and the FIR was registered on the basis of the
statement of Rakesh (PW1) at 2.40 p.m. in Police Station Vatva.
Relying upon the judgment of Meharaj Singh (L/Nk.) v. State of
U.P. [1994 (5) SCC 189], the learned counsel appearing for the
appellants has submitted that FIR in a criminal case is a vital and
valuable piece of evidence for the purpose of appreciating the evidence
led in the trial. The object of insisting upon prompt lodging of the
FIR is to obtain information regarding the circumstances in which the
crime was committed including the names of actual culprits and the part
played by them, the weapon of offence used as also the names of the
witnesses. One of the external checks which the courts generally look
for is the sending of the copy of the FIR along with the dead body and
its reference in the inquest report. The absence of details in the
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inquest report may be indicative of the fact that the prosecution story
was still in embryo and had not given any shape and that the FIR came to
be recorded later on after due deliberations and consultation and was
then ante-timed to give it a colour of prompt lodged FIR. The reliance
of learned counsel for the appellant on Meharaj Singh’s case is of no
help to him in the instant case inasmuch as all requisite details are
mentioned in Panchanama Exhibit P-32. Mere omission to mention the
number of the FIR and the name of the complainant in Exh.P-37 has not
persuaded us to hold that the FIR was ante-timed in view of the peculiar
facts and circumstances of the case as noticed by the trial court, the
High Court and by us hereinabove.
It has also been argued on behalf of the appellants that for
withholding of opinion of finger print expert, adverse inference be
drawn against the prosecution. It has come in evidence (Exh.32) that
finger print expert was present on spot who had taken the prints from
the pieces of broken glass and some other articles lying in the farm of
the deceased. It is also not disputed that the report of the finger
print expert has not been produced in the case. The withholding of the
report of the finger-print expert, if any, would definitely cast a doubt
on the prosecution version and presumption of such report being against
the prosecution has to be drawn. However, in the facts of the case we
find that despite taking doubted finger prints from the spot, the
investigating officer had not taken finger prints of any of the accused.
The investigating officer has stated in the court that on 25.2.1993
total 31 items were sent for examination. In Exh.64 there is a note at
Item No.9 of having sent broken pieces of glass at No.11 having found
chance print and Item No.12 of having found another chance print. The
pieces of glass sent show that there was "B" group blood which was the
blood group of the deceased. In the absence of finger prints of the
accused persons no finger print expert could have given any opinion
regarding the chance prints found on glasses and other articles. It
appears that as no finger prints for comparison were taken or sent,
there is no possibility of any report of the expert being in existence
in that regard, which was allegedly suppressed warranting the drawing of
a presumption against the prosecution. It might have been a lapse on
the part of the investigating agency for not taking the finger prints of
the accused persons but merely because the finger print expert had taken
some prints from the glasses would not justify in holding that there
existed a comparative finger print expert report which was allegedly
suppressed or withheld by the prosecution.
Learned counsel then drew our attention to the fact that blood
stains were found on a number of places in the house of the deceased
which suggested that occurrence had not taken place outside the house as
alleged by the prosecution and that as the deceased was indulging in
gambling there was a probability of some other people having committed
the offence. In this regard our attention was drawn to an advertisement
(Exh.P31) which, according to the defence, probabilised that the
deceased was indulging in Satta betting for riots by ante-social
elements, with reference to riots of Ayodhya. He is stated to be living
in the area where people belonging to muslim community lived. His
indulgence in satta relating to riots with respect to Ayodhya is
suspected to have infuriated the muslim community who might have
committed the crime in his house and the prosecution wrongly involved
the appellants in the crime merely on suspicion allegedly on account of
the dispute existing with respect to the love affair between Montu and
Namrata and some complaint earlier filed against the accused. Such a
plea cannot be accepted because the advertisement and the public notice
(Exh.P.31) has not been duly proved. There is no evidence on the record
to show that the deceased had ever indulged in satta business. PW1 in
his statement has admitted that a news was published in the newspaper
that deceased used to bet as to whether and when the riot incident would
break and in turn notice was published allegedly on his behalf that such
allegations were false and if anyone proved the same, he would be paid
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Rs.10 lakhs. All such evidence referred to by the defence with respect
to the alleged indulgence of the deceased in betting is based upon
hearsay and not legally admissible in evidence. Therefore, no inference
on that basis can be drawn against the prosecution. Otherwise also both
the trial court and the High Court have found cogent explanation and
reasons for the presence of the blood at various places in the house of
the deceased. In the absence of any evidence to the contrary there is
no occasion for this Court to interfere with the finding of fact arrived
at on proper appreciation of evidence.
After going through the whole of the evidence, the other record
produced in the case and the judgments of the trial court and the High
Court we find no reason to interfere in the concurrent findings of fact
arrived at against the accused holding them guilty for which they have
been convicted and sentenced.
There is no merit in this appeal which is accordingly dismissed.
......................J.
(R.P. Sethi)
......................J.
(K.G. Balakrishnan)
March 7, 2002
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.252 OF 2001
Rajesh @ Raju Chandulal Gandhi & Anr. .... Appellants
Versus
State of Gujarat .... Respondent
Dear Brother
Draft judgment in the above noted matter is sent herewith for
perusal and kind consideration.
.......................J.
(R.P. Sethi)
4.3.2002
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HON’BLE MR.JUSTICE K.G. BALAKRISHNAN
14