Jayveersinh Vikramsinh Jadeja vs State Of Gujarat
2021 Latest Caselaw 12282 Guj

     R/CR.MA/8908/2021                                        ORDER DATED: 25/08/2021



            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
             R/CRIMINAL MISC.APPLICATION NO. 8908 of 2021
                                With
             R/CRIMINAL MISC.APPLICATION NO. 10323 of 2021
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                         JAYVEERSINH VIKRAMSINH JADEJA
                                     Versus
                               STATE OF GUJARAT
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Appearance:
MR N.D.NANAVATY, SENIOR ADVOCATE MR YASH N NANAVATY(5626)
for the Applicant(s) No. 1
MR KIRTIDEV R DAVE(3267) for the Respondent(s) No. 1
MR RAHUL K DAVE(3978) for the Respondent(s) No. 1
MR MITESH AMIN, PUBLIC PROSECUTOR(2) for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
                  Date : 25/08/2021
                   ORAL ORDER

1. Both the captioned applications are filed under Section 439 of the Code of Criminal Procedure, 1973, for regular bail in connection with FIR being CR-I/11205032210048 /2021 registered with Mundra Police Station, Bhuj-Kachchh for offence under Sections 302, 343, 330, 331, 326, 212, 201, 34 and 114 of the Indian Penal Code and Section 135 of the Gujarat Police Act.

2. With consent of learned advocates for the respective parties, both the applications are taken up for joint hearing and disposal.

3. Mr.N.D.Nanavaty, learned Senior Advocate with Mr.Yash Nanavaty, learned advocate for the applicant-Jayveersinh Vikramsinh Jadeja in Criminal Misc.Application No.8908 of 2021 submits that the applicant is accused of an offence for which FIR initially registered under Sections 302, 343 and 114 of the Indian Penal Code, and thereafter, under report dated 23.01.2021 Sections 326, 330 and 331 of the Indian Penal Code read with Section 135 of the Gujarat Police Act came to be added

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and ultimately, after investigation, charge-sheet came to be filed for the offence under Sections 302, 343, 330, 331, 326, 212, 201, 34 and 114 of the Indian Penal Code and Section 135 of the Gujarat Police Act.

4. Learned Senior Advocate states that this is an offence where three persons were arrested in connection with FIR lodged for theft and these three alleged accused persons were tortured in custody because of which two persons died and 1 person had received serious injuries.

5. It is the case of the prosecution that the entire episode was stage managed for resolving the land dispute at the behest of applicant-Jayveersinh Vikramsinh Jadeja.

6. Learned Senior Counsel submits that the petitioner was not named in the FIR. It was only during the course of investigation that the name of present applicant surfaced and now only on the basis of some evidence and some distant connection regarding the land, the applicant is now projected as the main accused.

7. The entire evidence against the applicant is based on statement given by one witness viz. Shamra, who is one of the three accused arrested in a theft offence along with two others (since deceased).

8. It is submitted that even if the evidence of Shamra is believed then also only evidence against the applicant is that the applicant has given some slap/kick blows to one of the deceased and had caused injuries to this witness Shamra with stick.

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9. It is submitted that such evidence is not enough to try the applicant for the offence under Section 302 of the Indian Penal Code. Moreover, the Statements of Shamra were recorded from time to time and his first version does not disclose anything adverse to the present applicant. However, in the subsequent statements, witness-Shamra has then attributed the role to the applicant.

10. It is submitted that at best even, if the statements of other witnesses, who are the police witnesses are to be believed, then also, at the best, the applicant can be said in company with the police personnel. Merely, being in their company, the applicant cannot be attributed with the object of committing the murder .

11. Learned Senior Counsel has submitted that when three alleged accused persons of the theft offence were brought into the Police Station, the other persons in the lockup would be the natural witnesses. If the statements of these witnesses are perused, then also, the only role attributed is that the applicant had arrived at Police Station. He was seen moving from one room of the police station to another. However, the applicant has already offered an explanation for the reason to be in the police station, which has no connection with brutalizing three accused persons of the offence of theft.

12. Learned Senior Counsel submits that the evidence of CCTV video also do not indicate any role of the applicant in assaulting the deceased or the injured witness. The reason for assaulting them could be that the police officers were investigating the theft case and deceased were suspects, but the applicant is not police officer, who would have any interest in solving the case of theft

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registered with that police station. In fact, as one of the friends of the applicant was brought to the police station as a witness, it was in this regard only that the applicant had visited the police station and such visit to the police station even if recorded in CCTV footage cannot be considered to be an evidence sufficient to implicate the applicant in serious charge of murder.

13. Learned Senior Counsel emphatically submitted that the theory of the police connecting the applicant with the murder of the two persons in the custody that the land dispute with the deceased persons is also far fetched. The tenancy case where the family of the deceased claimed to be tenant was going on with the original land owner. The applicant, at the relevant time, had helped the land owner in disposing of such land and that entire process was already concluded in the year 2017 and since then, the applicant has nothing to do with the land.

14. Over and above, the investigating agency have failed to bring on record any evidence about the land dispute existing or past. It is submitted that such land in question has become part of the acquisition and subjected to the acquisition proceedings by the State.

15. Mr.Maulin Pandya, learned advocate for the applicant - Narvirsinh Ganpatsinh Sarvaiya in Criminal Misc.Application No.10323 of 2021 while adopting the arguments of learned Senior Counsel in connection with accused-Jayveersinh Vikramsinh Jadeja has further submitted that the applicant is not named in the FIR, but the reference of the applicant is found in the FIR as a person wearing ear butty.

16. It is submitted that in the FIR, first informant is Arjan, who

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is one of the deceased, however, said Arjan has never named the applicant. Moreover, statement of other deceased is also recorded where the name of the applicant is not coming out. It is only in the statement of the injured witness-Samara, the name of the applicant is reflected, however, there is a reason why this applicant is seen in the company with the police, as the applicant has time and again stood as panch witness in several offences registered with this particular police station. Therefore, any evidence with regard to the presence of the applicant in the police station is only a natural presence, but the same cannot be used to connect the applicant with this offence.

17. It is further submitted that the injured witness - Shamra cannot be treated to be reliable witness at all, as over the period, in statements recorded from time to time, he has kept change his version, which would mean that said witness has improved his version to suit the investigating agency.

18. It is submitted that the present applicant has no animosity with either of the three persons, who were arrested in the theft case, and therefore, motive cannot be attributed to the applicant.

19. Mr.Mitesh Amin, learned Public Prosecutor for the respondent-State submitted that the offence is a serious offence where for the purpose of personal gain in a land dispute, the police machinery is set in motion and that too to such an extent that innocent persons were first implicated in a registered offence of theft against the unknown persons. These persons were subjected to brutalities and the brutalities were also to such an extent that two persons are died and one has received serious injuries.

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20. Learned Public Prosecutor submits that in the aforesaid offence, 10 accused persons have been charge-sheeted out of which 6 persons are police personnel of Mundra Police Station, 2 persons are from the GramRakshak Dal and 2 persons are the civilians, who are the present applicants before this Court.

21. The medical certificates and also the postmortem reports clearly indicate the extent of brutalities committed by all the accused persons by which two persons have been murdered and one has received serious injuries. The role of each individual has been clearly depicted in the evidence of witnesses and that nature of role of the present two applicants cannot be segregated and viewed independent of entire offence and in fact, accused- Jayveersinh is a root cause of the entire incident.

22. It is submitted that said accused-Jayveersinh was power of attorney holder of the original owner of the land in question where the family of the deceased were agricultural tenants. There was a litigation on the revenue side already going on. On the basis of power of attorney, accused-Jayveersinh has sold the land to 3rd party and received huge amount of money, however, on account of on going litigation with the family of the deceased, he was also unable to give clear title etc. to the purchaser and that is how he appears to have taken the route of using police machinery for getting the deceased persons in an offence, which was registered against the unknown persons.

23. Learned Public Prosecutor heavily relied upon the statement of injured witness- Shamra and submitted that his version will have to be given full credence in view of the fact that this witness was present through out undergone the brutalities

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of the police authorities as well as the applicants and the torture appears to be such an extent that he was unable to given full version of the incident at the very first instance. However, there is no reason to disbelieve the version of this witness.

24. In so far as role of the present applicants is concerned, there does not appear to be any reason why the applicants should be in the police station, but their presence not only at the police station, but also, three different places where the deceased persons and the injured witness taken at Village:Pragpar and Village:Samghogha, the presence of the applicants is also found there. The CCTV footage of the police station clearly establishes the presence of the applicants and from the evidence, the investigation will be able to establish that the visit of the applicants to the police station is not confined to one area, but they have moved at all the places where the deceased and the injured witness were kept.

25. It is submitted that there are evidence of witnesses, who are the police personnel on duty in the police station and their evidence cannot be disbelieved. Their evidence clearly implicates the present applicants.

26. Not only the CCTV footage, but call record would also indicate that the applicants were consistently in touch with other accused person viz. police officers, who are responsible for brutalizing the deceased while in custody.

27. It is submitted that accused-Jayveersinh is highly influenced person in the local area and has committed several offences earlier. There are earlier approximately 6 offences registered against this applicant, and therefore, discretion may

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not be exercised in favour of the present applicants.

28. It is submitted that natural conduct of both the applicants would indicate their involvement, as both of them had fled away and after some efforts, came to be arrested after lapse of some time where applicant-Jayveersinh was arrested from Lonawala, Maharashtra and applicant-Narvarsinh was arrested from Mount Abu, Rajasthan.

29. Mr.Kirtidev Dave, learned advocate for the private complainant in assistance of the learned Public Prosecutor submitted that the accused-Jayveersinh was holding the power of attorney of the original owner and immediately upon power of attorney received by him had executed a sale-deed to a purchaser. The revenue proceedings and the documents would clearly indicate that the accused-Jayveersinh had interest in the land where the family of the deceased were in occupation since long as agricultural tenants and revenue proceedings in that connection were still going on.

30. It is submitted that the accused-Jayveersinh has received huge amount for clearing the land. As the Gadhavi family was in occupation of the land, they were not relenting at his behest, as Jayveersinh was a head strong person known locally and was also Sarpanch of the Village, though deceased-Arjan, deceased- Harjog and injured- Shamra were not involved in the theft offence, they were falsely involved in the commission of offence of theft and were taken in custody. However, the police authority only because of the influence of the applicant did not even follow the basic requirements of Cr.P.C. like formal arrest of these persons and producing them before the Magistrate within

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stipulated period and continued to hold their custody without any authority and without producing them before the Magistrate.

31. In rejoinder, learned Senior Counsel submitted that accused-Jayveersinh has been acquitted in 4 offences out of 6 offences, which were registered against him.

32. Considering the arguments of learned advocates for the respective parties and considering the documents available on record, this case is of custodial death where three persons viz. Arjan, Harjog and Samara were arrested in an FIR registered for theft. The said FIR was registered against the unknown persons and under the purported investigation of the offence of theft the aforesaid three persons were taken to the Mudra Police Station. It appears that while three persons were in custody of the police personnel, they have received serious injuries to the extent that Arjan and Harjog died on account of such injuries caused during the custodial interrogation and Injured Witness-Sharman has received serious injuries.

33. While considering the question of bail, the detailed analyses of nature of evidence is not required, however, while dealing with the points raised on behalf of the accused persons, the discussion to some extent on the evidence available on record is found necessary.

34. As per the investigation, in connection with the incident of house breaking at Samaghogha village, offence u/s-454, 457, 380 of IPC was registered on 28/12/2020 vide Part A CR no.1617/2020 at Mundra police station. In the aforementioned case, the deceased Arjan Gadhvi was brought on 12/01/2021, deceased Harjog Gadhvi and injured Shamra Gadhvi were

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brought on 16/01/2021 at the office of Mundra police station surveillance (D-staff) by the accused persons. In order to fulfill their common intention, the accused persons unlawfully kept them there till 19/01/2021. The accused police personnel have knowledge of the law and completely aware with the D.K.Basu judgment of the Supreme Court, yet they did not implement the same and they did not implement the provisions of sections- 56,57 of Cr.PC. The accused persons involved in this case, for interrogation and recovery of muddamal of theft and confession of house breaking from the deceased Arjan Kheraj Gadhvi, deceased Harjog Hari Gadhvi and injured witness Shamra Pabu Gadhvi, beat them with stick and belt, fist and kicks, threatened with electric current, placed the rags of inflammable liquid on their body, caused injury to the genital of the injured person with the mobile charger cable and thus caused death of Arjan Kheraj Gadhvi and Harjog Hari Gadhvi and caused injuries to the witness Shamra Pabu Gadhvi.

35. During the investigation against accused Narvirsinh Ganpatsinh Sarvaiya, evidences have been found. The facts thereof are such that during the investigation of offence of house breaking and theft at Samaghogha, the policemen performing duty with the Surveillance Squad of Mundra Police Station brought three accused persons to their office and detained them unlawfully. On 12/01/2021, deceased Arjan Gadhvi and on 16/01/2021, deceased Harjog Gadhvi and witness Shamra Gadhvi, who was caused injuries, were brought to the office of surveillance squad at Mundra Police Station and they were detained there unlawfully. Accused Narvirsinh Ganpatsinh Sarvaiya used to visit the office of 'D' Staff at the

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police station frequently. He also used to accompany the policemen of 'D' staff during the raids and sign the panchnamas as a pancha witness. Accused Narvirsinh Ganpatsinh Sarvaiya used to do all the work which he was asked to do by the accused persons, who were the members of 'D' Staff, Shaktisinh Gohil, Ashok Kanad and Jaydevsinh Zala. At the office of 'D' Staff at Mundra Police Station, whenever the accused persons Shaktisinh Gohil, Ashok Kanad and Jaydevsinh Zala beat deceased Arjan Gadhvi, deceased Harjog Gadhvi and Shamra Gadhvi who was caused injuries, with belts and sticks, accused Narvirsinh caught hold of the above noted two deceased persons and the injured person. Accused Narvirsinh Ganpatsinh Sarvaiya also used to beat them with blows of fists and kicks. On 16/01/2021, the accused persons Narvirsinh Ganpatsinh Sarvaiya, Ashok Kanad and Gafurji Thakor took Shamra Gadhvi, the accused of offence of theft who was caused injuries, to the waste land located at the tower near Pragpar-2 Patiya. They took Shamra Gadhvi there in the red colored Breeza car of accused Ashok Kanad for discovering muddamal. Thereafter, other accused persons Kapilbhai Desai, Viral alias Maraj, Shambhu Devraj Jaru took Arjan Gadhvi and Shamra Gadhvi there and searched for the muddamal of theft. When the muddamal was not found, Narvirsinh Ganpatsinh Sarvaiya had beaten Arjan Gadhvi and Shamra Gadhvi with stick. On 18/01/2021, the accused persons Narvirsinh Ganpatsinh Sarvaiya, Ashok Kanad, Jaydevsinh Zala and Jayveersinh Jadeja took Shamra Gadhvi, the accused of the offence of theft, in Ashok Kanad's Breeza car, to Samaghogha Vadi area for discovering the muddamal of theft. When the muddamal was not found there, accused Narvirsinh Ganpatsinh Sarvaiya beat Shamra Gadhvi with stick. Though

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the accused Narvirsinh Ganpatsinh Sarvaiya was knowing that Arjan Kherajbhai Gadhvi had died on 19/01/2021, he gave the car which was owned and possessed by him, bearing registration number GJ-12-DS-9250, to accused (1) Shaktisinh Yogendrasinh Gohil, (2) Ashok Liladhar Kanad and (3) Jaydevsinh Ajitsinh Zala. As the accused persons were given the car for running away, they remained absconding for sixty five (65) days after committing an offence. Even when accused (1) Shaktisinh Yogendrasinh Gohil, (2) Ashok Liladhar Kanad and (3) Jaydevsinh Ajitsinh Zala were absconding, accused Narvirsinh Ganpatsinh Sarvaiya was constantly providing information to accused Jaydevsinh Ajitsinh Zala through whatsApp calls. He used to delete the call details after making calls with an intention to save the accused persons from being caught. He also remained absconding for twenty days for avoiding his arrest. Later, he was caught from Mt.Abu.

36. The facts of the evidence found during the investigation against Jayveersinh Vikramsinh Jadeja, are that, the policemen, performing duty in a surveillance staff of Mundra Police Station took deceased persons - Arjan Gadhvi, Harjog Gadhvi and injured witness - Shamra Gadhvi to the office of surveillance staff of Mundra Police Station on 12/01/2021, 16/01/2021 and 16/01/2021 respectively and illegally detained them in the case of house-breaking at Samaghogha village, without undertaking any legal procedure at the office. Meanwhile, Jaydevsinh Zala and Ashok Kanad, the main accused persons and accused Jayveersinh Vikramsinh Jadeja took Chandrasinh alias Munno Ganubha Jadeja to Mundra Police Station at about seven o'clock in the evening on 12/01/2021 for detection of house-breaking

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took place in Samaghogha village on 28/12/2021. For what reason, the personnel of D-Staff of Mundra Police Station took Chandrasinh alias Munno, it was informed that he was taken there for enquiring deceased Arjan Gadhvi and making him confess the offence of theft. Accused J Jayveersinh Vikramsinh Jadeja is ex-sarpanch of Samaghogha village and is dealing in real estateb. There is a land being, Revenue Survey No.23/2 admeasuring 1 Hectare 39 Are 62 Sq.M. in the sim of Samaghogha village. Its original owner was Ladhu Mavji Makwana (Rajpoot). Late Mansi Nagshi Barot (Gadhvi) and his heirs have been cultivating this land from three generations and even at present, the heirs of Late Mansi Nagshi Barot (Gadhvi) live with family of deceased - Harjog Hari Gadhvi and injured witness - Shamra Pabu. This land is situated in developed area near Samaghogha village. As accused Jayveersinh Vikramsinh Jadeja wanted to grab this land from the Gadhvi family in any way, he obtained the land from the heirs of the original owner through power of attorney dated 13/06/2016 and got the land on sale to the present owner - Pratapsinh Sabalsinh Jadeja, R/o

- Samaghogha, Ta.- Mundra for Rs.25,00,000/-. But, the sale deed was prepared for the amount of Rs.12,00,000/- (Rupees twelve lakh) and at the behest of accused Jayveersinh Jadeja, Pratapsinh Jadeja gave rupees nine lakh to the original owners. Accused Jayveersinh Jadeja informed to give the remaining rupees eleven lakh after registration of the deed. Meanwhile, deceased - Harjog Gadhvi, having the land in possession made application to the office of Mamlatdar, Mundra and did not get the compensation amount for Narmada Canal and the original owners did not receive the remaining amount of rupees eleven lakh. Therefore, the original owners were demanding the money

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from accused Jayveersinh Vikramsinh Jadeja and therefore, to have the amount paid to them and with regard to the amount of Rs.69,63,147/-, to be received as a compensation for Narmada Canal passing through the land, accused Jayveersinh Jadeja, having good terms with police personnel of D-Staff of Mundra Police Station and taking disadvantage of the same, went to office of the D-Staff and forced deceased persons - Harjog Gadhvi and Shamra Gadhvi to confess the offence of theft and threatened them to have them beaten by the police staff if they would not confess the offence of theft and gave them kick blows. The accused persons - Jaydevsinh Ajitsinh Zala, Ashok Liladhar Kanad, Narvirsinh Ganpatsinh Sarvaiya and Jayvirsinh Vikramsinh Jadeja took witness - Shamra Gadhvi to the canal near Madpir Temple in Samaghogha Vadi area in Brezza car of accused Ashok Kanad at about half past three in the afternoon on 18/01/2021. The witness - Shamra Gadhvi did not show muddamal of theft there. Therefore, accused Jayveersinh Vikramsinh Jadeja assaulted witness Shamra Gadhvi with stick and remained absconding to avoid his arrest and got arrested from Lonawala after thirty days.

37. The Court has perused the statements of witnesses particularly statement of injured witness-Shamra. The statement of injured witness-Shamra was recorded from time to time. The first being on 20.01.2021. In this statement, the reference is made to the accused-Jayveersinh Jadeja whose presence was found along with police personal, who have taken both the deceased and this witness purportedly for the purpose of investigation of the theft offence to the agricultural field of this witness. At that place, both the deceased and this witness were assaulted with sticks and accused-Jayversinh Jadeja has also

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alleged to have assaulted. The another statement was recorded on 23.01.2021, wherein again this witness confirms what he has stated in the earlier statement and again refers to the incident of 18.01.2021 and 19.01.2021 when both the deceased and the injured witness were taken to the agricultural field purportedly for investigation of the theft offence. In this statement, accused- Narvirsinh presence is also shown and identified as a person wearing earbutty. Another statement of this injured witness was recorded on 27.01.2021 in which he reiterates the version of his first statement.

38. Over and above, the presence of both the applicants were shown when the deceased and the injured witness were taken near the canal where the police persons (accused persons) had beaten both the deceased and the injured witness brutally with sticks where the role is also attributed to both the applicants viz. Jayveersinh Jadeja and Narvirsinh Sarvaiya.

39. In the statements of Injured witness - Shamra dated 05.02.2021 and 14.02.2021, the role of the applicant Jayveersinh Jadeja is stated to indicate that Jayveersinh Jadeja was interested in grabbing the ancestral land of this witness and had also issued threats to admit to the offence of theft or else the witness would be brutally beaten. The statement also refers to the continuous torture in different ways including tieding the mobile charging cable on the private party while in custody.

40. The argument on behalf of the applicants regarding change in version of injured witness - Shamra will have to be viewed particularly, considering the fact that the injured witness though had not committed any offence was implicated in the offence. He was brutally beaten and the deceased persons, who are relatives

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of this injured witness were brutalized to such an extent that both the persons had died.

41. The postmortem report indicate the seriousness of the injuries received by both the deceased and such injuries can easily be co-related to the version given by the witnesses when both the deceased were being beaten.

42. Over and above, injured witness himself is an eye-witness and his version will have to be given due weightage and his versions prima facie implicate the applicants in the offence and attribute some role to them.

43. There are other independent witnesses also i.e. independent witnesses, who are accused in the police station in front of whom both the deceased and the injured witness were tortured. These witnesses narrates how from time to time both the deceased were taken out of the police station and were brought back in injured condition.

44. The other evidence which is available on record of the investigation is the C.C.T.V. footage which shows the presence of both the applicants in the police station and as per the say of the investigation, their presence was also inside with two deceased and the injured witness.

45. The Investigation has also collected evidence with regard to the call records and location of the applicants on the basis of their mobile locations. This evidence is also supporting the case of the prosecution to prima facie indicate the role of the applicants.

46. While considering the conduct of the applicants-accused

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persons, the commission of offence is also relevant and as indicated by learned Public Prosecutor, both the applicants were not available to the investigation immediately upon registration of the FIR and with some amount of exercise undertaken by the investigating agency, these accused persons are arrested from far places like Lonawala, Maharashtra and Mt.Abu, Rajasthan.

In view of aforesaid reasons, the Court is not inclined to exercise the discretion in favour of the applicants and both the applications required to be rejected and are hereby rejected.

(A.Y. KOGJE, J) GIRISH