http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 4  

PETITIONER: RAZAKALI KHURESHI SANDHI

       Vs.

RESPONDENT: STATE OF GUJARAT

DATE OF JUDGMENT:       05/05/1997

BENCH: G.T. NANAVATI, S.P. KURDUKAR

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T S.P. KURDUKAR, J.      This appeal  under Section  19 of  the  Terrorists  and Disruptive Activities (Prevention) Act, 1987 (for short ‘the TADA’) is  filed by  the appellant  challenging the legality and correctness  of the judgment and order of conviction and sentence passed  by the  Designated Judge, Jam Nagar on June 19, 1996 for various offences punishable under Sections 302, 307, 225, 333 of the Indian Penal Code. 2.   Briefly stated the prosecution case is as under:-      On March  22, 1992,  the Custom  Officers intercepted a ship  called   Safina-Al-Burhani  and  upon  search  thereof recovered five  belts of  gold biscuits  of foreign  origin. During interrogation,  Abbas Hasan  Subhaniya, the tandel of the said  ship, disclosed  that Harun  Jusab Bhaya (A-8) and for that a team of Custom Inspectors along with three sepoys went to  Khambhalia in  a jeep which was driven by Chuni Lal Barad (PW  46). The  Custom Officers  came to  the office of Brother & Brother Transport at Khambhalia where they spotted A-8  and   informed  him  that  he  was  being  arrested  in connection with  the smuggling  of gold.  A-8  then  started running away  but the Custom Officers chased and apprehended him. When  A-8 was  being taken  to Jam  Nagar in a jeep for further investigation, he became violent and tried to escape from the grip of the Custom Officers who, therefore, stopped the jeep  near Shrijee  Hotel with  a view to tie him with a rope which they fetched from the nearby shop of Puncturwala. When A-8  was being  tied with  a  rope,  according  to  the prosecution, suddenly  a truck bearing Registration No. GTE- 7461 came  from Khambhalia  side and dashed against the jeep of the Custom Officers. As a result of this dash, the Custom Officers who  were standing  near the  jeep fell  down.  Mr. Jacob (PW 2) and Mahendrasinh Rayjada, a sepoy sustained the injuries. The  said truck  immediately took a turn and again dashed against  the jeep  and in  this  process,  A-8  could succeed in  escaping himself from the clutches of the Custom Officers. A-8  then boarded  another truck  which was parked nearby  and   fled  away.   According  to  the  prosecution, appellant who  was the  driver of  the  truck  intentionally dashed his  truck  against  the  jeep  whereby  two  person,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 4  

namely, Mahindersinh  Rayjada, a sepoy died on the sport and Somaji Thakor,  another sepoy  died  in  the  hospital.  The appellant then fled away. 3.   The Custom  Inspector Mr. P.N. Desai (PW 1) then took a lift on the motor cycle of Jadeja and reached the factory of Meera Tiles  and gave  telephone calls to the Customs Office and also informed the police station at Khambhalia about the incident. He then came back to the place of incident. In the meantime, police  officers reached the place of incident and thereafter the  injured were  removed to  the  hospital.  At about 8.30  p.m., an FIR was lodged by Mr. P.N. Desai (PW 1) in the police station. After completing the investigation, a charge sheet  for offences  punishable under  Sections  147, 302/149, 307/149,  332, 333/149  of the Indian Penal Code as also under Section 3(a) of the Demolition of Public Property Act and  under Sections 3 and 4 of TADA came to be submitted in the  Court of  Judicial Magistrate  Ist Class, Khambhalia against the  appellant and  seven other accused persons. The case was  then committed  for trial  to the Designated Court for the aforesaid offences. 4.   The appellant  and other  seven accused  persons denied the charges and claimed to be tried. According to them, they have been falsely implicated in the present crime. 5.   The prosecution  in support  of its  case  adduced  the evidence of  four eye  witnesses, namely, Mr. P.N. Desai (PW 1), Jacob  (PW 2), Bharat Trivedi (PW 3) and Chuni Lal Barad (PW 46).  In addition to the above evidence, the prosecution also placed  reliance upon the medical evidence to prove the cause of  deaths of  Mahindersinh Rayjada and Somaji Thakor. The evidence  relating to the Test Identification Parade was also produced  at the trial. The appellant, however, did not lead any evidence in support of his defence. 6.   The Designated  Judge, Jamnagar, after careful scrutiny of oral  and documentary  evidence on record by his judgment and order  dated June 19, 1996 convicted the appellant under Section 302  of the  Indian Penal  Code and sentenced him to suffer imprisonment  for life  and to  pay  a  fine  of  Rs. 30,000/-; in  default to  undergo further sentence of RI for two years.  In addition to this, the appellant was convicted under Section 307, 225, 332 and 333 of the Indian Penal Code and was sentenced to suffer RI for various terms in addition to the  payment of fine. Harun Jasub Bhaya, original accused No. 8,  however, was  convicted under  Section  224  of  the Indian Penal  Code and  was sentenced  to suffer  RI for two years and  to pay  a fine  of Rs.  5,000/-;  in  default  of payment of  fine to  suffer further  RI for  a period of six months. In  this appeal,  we are  however not concerned with the conviction  and sentence  of A-8.  Rest of  the  accused persons were,  however, acquitted  of all  the charges.  The appellant aggrieved by this order of conviction and sentence has filed  this appeal to this Court under Section 19 of the TADA. 7.   At the  outset, it  may be  stated that  it is  not and cannot be  disputed that  two sepoys  of Custom  Department, namely, Mahindersinh  and Somaji Thakor died in the incident in question.  Both of  them were crushed to death because of the dash  given by  the truck  bearing registration No. GTE- 7461. It  is, therefore,  needless to  refer to  the medical evidence on  record. In  addition  to  these  two  unnatural deaths, P.N. Desai (PW 1) and Jacob (PW 2) were also injured in the same incident. No sustainable arguments were advanced before us  to the  contrary and we, therefore, see no reason to confirm  the finding  of the  learned  trial  court  that Mahinersinh Rayjada  and Somaji  Thakor met  with  unnatural deaths and  P.N. Desai  (PW 1)  and Jacob  (PW 2)  sustained

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 4  

injuries in the same incident. 8.   The main  contention raised  on behalf of the appellant is that  there is  no satisfactory  material  on  record  to establish the  identity of the appellant being the driver of the truck  bearing registration  No. GTE-7461.  In order  to establish the  identity, the  prosecution  relied  upon  the evidence of four witnesses, namely, P.N. Desai (PW 1), Jacob (PW 2),  Bharat Trivedi  (PW 3) and Chuni Lal Barad (PW 46). The learned trial judge, however did not accept the evidence of Jacob  (PW 2) and Chuni Lal (PW 6) as dependable to prove the identity  of the  appellant being the driver of the said truck. However, in our considered view, the evidence of P.N. Desai (PW  1) and Bharat Trivedi (PW 3) is totally unblemish and credible  one to establish the identity of the appellant being the driver of the said truck. P.N. Desai (PW 1) in his evidence has  stated that  he has  seen the appellant 4 to 5 times before the incident in the B & B Transport Company. He came to  know the  name of  the appellant  six months before this incident.  He was  introduced by senior Custom Officers for preventive  purpose. When  the jeep  was  standing  near Shrijee Parotha  House, they  were not  aware that any truck was coming  from behind.  When the  truck  came  and  dashed against  them,   they  all   fell  down   and  the  head  of Mahindersinh was  crushed. The  truck thereafter  went ahead and dashed  against the electric poll and thereafter it came in reverse.  Seeing this incident, Somaji who was sitting in the jeep,  got down  and ran  towards the road side. At that time, the  truck took  a turn  and came  in speed and dashed against  Somaji.   On  both  these  occasions,  he  saw  the appellant being  the driver  of the truck from a distance of 80-100 feet. The defence although cross-examined the witness at great length but there is hardly any material brought out during   cross-examination   which   could   discredit   his testimony. We  have carefully  gone through  the evidence of this witness and we see no hesitation to accept his evidence being credible  one. The identity of the appellant being the driver of  the truck  is fully  established. The material on record also  proves that  the appellant was the associate of Harun Jusab  Bhaya (A-8).  The manner  in which the incident took place  leaves no  manner of  doubt that  the  appellant purposely and  intentionally  dashed  against  these  Custom Officers wherein  Mahindersinh was  crushed  to  death.  The appellant on the second time also brought the truck in speed after taking  a turn and dashed against Somaji who sustained injuries and  lateron died in the hospital. In view of these circumstance, we  have no manner of doubt that the appellant has intentionally  caused the deaths of Mahindersinh Rayjada and Somaji Thakor. 9.   The FIR  was lodged  by P.N.  Desai (PW 1) within a few hours wherein  the name of the appellant being the driver of the truck  No. GTE-7461  was mentioned.  The FIR also made a mention of  all details  about the  incident  and  it  fully corroborates the evidence of P.N. Desai (PW 1). The evidence of P.N. Desai (PW 1) finds corroboration from that of Bharat Trivedi (PW  3) who has also sustained minor injuries during the incident  in question.  He asserted that he was standing at a distance of 60 to 70 feet when the truck dashed against Mahindersinh Rayjada.  He had seen the appellant driving the truck in  a great  speed. We  have gone through his evidence carefully and  we find  that his  evidence suffers  from  no infirmity as  regards the  identity of  the  appellant.  The learned Advocate for the appellant despite his efforts could not persuade  us to  disbelieve the  evidence of  these  two witnesses. The  trial court,  in our  opinion,  has  rightly believed the  evidence of  these two witnesses. The evidence

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 4  

of both  these witnesses  has clearly  established that  the appellant   has   intentionally   caused   the   deaths   of Mahindersinh  and  Somaji  Thakor.  The  conviction  of  the appellant passed under Section 302 of the Indian Penal Code, therefore, does  not suffer  from any infirmity. The learned Advocate for the appellant was unable to point out any error in the  impugned judgment  as regards the convictions of the appellant passed  on other  counts.  Thus,  this  appeal  is devoid of any merit. 10.  For the  foregoing conclusions, we see no merit in this appeal and the same is dismissed.