Decided on October 04,1966

STATE Respondents


A.D.DESAI, B.J.DIVAN - (1.) 34 In our opinion it should be further noted at this stage that it was not for the first time before the Sessions Court that an allegation was made by Bai Sita and others that their statements had not been correctly recorded by the police. On the night of February 13/14 1964 a telegram was sent from Jambusar to the I. G. P. and also to the D.S.P. That telegram was over the signature of Khoda and is Ex. 41 in the present case. The original telegram as received in the office of the I.G.P. at Ahmedabad was produced by Vasant Shantaram Vaidyay P. W. 9 Ex. 40. Vaidya was a clerk working in the office of the I.G.P. and Ex. 41 the telegram which was received in the office of the I.G.P. on February 14 1964 The telegram runs as follows:- My father Zaver Desai murdered at Tankari by (1) Adesang Bava (2) Jitu Patel (3) Uncle of Jitu (4) Jesang Bhukhan (5) Shanker Khusal (6) Shana Khusal (7) Mohmed Ise Umar (Stop) Police not making proper inquiries abusing complainant and witnesses and asked to cancel names of murderers Jitu Patel and Jesang Bhukhan and trying to save them. Therefore request you to appoint special police officer in this inquiry. Khoda Zaver of Tankari. In connection with this telegram the prosecution also examined Advocate Jayvadan Shah of Jambusar P. W. 18 Ex. 69. This witness has stated in his deposition that he was a lawyer practising at Ahmedabad. On February 13 1964 he was at his house at Jambusar and at about 1-30 A.M. on February 14 1964 Badharsing came to his house. Badharsing shouted for Jayvadan and the witness came down. At that time Khoda was in the company of Badharsing. Some women were also with him. Badharsing told Jayvadan:- Khodas father is murdered and in that connection we have to take your advice. Thereafter Jayvadan opened his office and Badharsing Khoda Amarsing and the women came inside the office. Khoda then told Jayvadan: My father is murdered. Seven persons have committed the murder. We have lodged the complaint. The police abused us and tell us that the names of all are not to be written. Jayvadan asked Khoda as to who had witnessed the murder and Khoda called his mother who was Sitting outside. Khodas mother stated to Jayvadan the names of all the 7 persons who had committed the murder. Jayvadan did not remember those names. Khoda asked Jayvadan as to what they should do. Jayvadan advised them to inform the higher authorities by sending telegrams to three persons viz. D. S. P. D. I. G. and I. G. P. Amarsing wrote down the telegram in Gujarati as dictated by Jayvadan and the thumb-mark of Khoda was taken after Amarsing wrote it. Telegram Ex. 41 was shown to Jayvadan and he stated that it was the true translation of what he had dictated to Amarsing. In his cross-examination he stated that he had not questioned any other women except Bai Sita. He had talked to Bai Sita for about 5 or 7 minutes and these persons were with him for about half an hour. He had rendered this friendly service to Badharsing. He had not kept a copy of the telegram with him. He had not charged any fees for the advice that he gave; nor had he received any fees in this connection and in answer to a question put to him by the Court he said that Badharsing was an old client of his and his senior Mr. S. M. Nanavati and therefore this friendly advice was given.
(2.) In view of the evidence of Jayvadan and in view of the telegram Ex. 41 it is clear that within 12 hours of the recording of their statements viz. of Bai Sita Bai Kushal and Bai Kashi it was complained that the police officer P. S. I. Patel was not writing down correctly all that the witnesses had stated and some twist was being given to the statements which these witnesses were making before the investigating officer.
(3.) In view of the testimony of Vakhatsing and in view of the contents of Ex. 15 it is clear that at the earliest opportunity Bai Sita had come out with the version that accused Nos. 1 to 6 had jointly assaulted her husband and had caused his death. It is true that Ex. 15 came to be written out because of what Khoda Zaver told Head Constable Takhatsing; but in view of the fact that Khoda had come to know of this information from Bai Sita in the presence of Takhatsing himself and also in view of the fact that even before the arrival of Khoda Bai Sita had mentioned the names of these six assailants to Head Constable Takhatsing we hold that the contents of Ex. 15 are nothing else but a statement made by Bai Sita through the mouth of Khoda and Khoda merely acted as a conduit pipe for conveying the message which Bai Sita had to convey to the P. S. I. The formal complainant was Khoda but the real person giving the information was Bai Sita.;

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