Sardarpura Massacre Judgement

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Sessions Case Nos.275/2002, 120/2008, & 7/2009 & 72/2010.
SessionsCaseNo.275/2002 Filedon Registeredon

Decided on Duration 8 27/12/2002 27/12/2002 09/11/2011 Years-Months-Days - 10 - 12

Decided on Duration 08/09/08 08/09/08 09/11/2011 Years-Months-Days 3 2 1

Decided on Duration 2 29/01/2009 29/01/2009 09/11/11 Years-Months-Days 9 - 10

Decided on 18/06/2010 18/06/2010 09/11/11
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Years-Months-Days 1 - 4 - 21
COMMONJUDGEMENT
Passedin SessionsCaseNos.275/2002 120/2008,7/2009&72/2010 INTHECOURTOFSESSIONSJUDGE
At:Mahesana. DESIGNATEDCOURTFOR
VIJAPURPOLICESTATIONI.CR.NO.46/2002 [CORAM:KUM.S.C.SRIVASTAVA,ESQUIRE]
Exh.No.1096 Complainant : THESTATEOFGUJARAT ::VERSUS:: Accused
Sr. No.
:
Age Address U.T.P./ OnBail/
NameofAccused
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Expired SESSIONSCASENO.275/2002 1 2 3 Sr. No. 4 5 6 7 8 9 10 PatelRameshbhaiKanjibhai PatelChaturbhaialiasBhurio Vitthalbhai NameofAccused 23 28 Sardarpur Sardarpur Sardarpur Address OnBail OnBail OnBail U.T.P./ OnBail/ Expired OnBail OnBail OnBail OnBail OnBail OnBail Diedduring thependency ofTrial OnBail OnBail OnBail OnBail OnBail OnBail OnBail OnBail Juvenile
PatelKarshanbhaiTribhovanbhai 56 Age
LakhvaraNarayanlalShitalmal PatelJayantibhaiMangalbhai PatelAmratbhaiSomabhai PrajapatiBabubhaiLavjibhai PatelBhaveshkumarKanubhai PatelJayantibhaiJivanbhai
18 21 25 35 18 35
Sardarpur Sardarpur Sardarpur Sardarpur Sardarpur Sardarpur Sardarpur
PrajapatiRajeshkumarAmrutbhai 18
11 12 13 14 15 16 17 18 19
PatelJagabhaiDavabhai PatelPrahladbhaiSomabhai PatelKacharabhaiTribhovandas PatelJayantibhaiBaldevbhai PatelMangalbhaiMathurbhai PrajapatiGordhanbhaiRevabhai PatelBhikhabhaiJoitabhai
55 32 55 30 65 36 50
Sardarpur Sardarpur Sardarpur Sardarpur Sardarpur Sardarpur Sardarpur Sardarpur Sardarpur
PrajapatiBharatbhaiRameshbhai 18
PrajapatiRohitkumarRamanbhai 17
AsperorderpassedbelowExh.71,Trialagainstsaidaccusedsentto JuvenileJusticeBoard.
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20 21 22 23 24 25 26 27 28 Sr. No. 29 30 31 32 33 34 35 36 37 38 39 40
PrajapatiRavikumarAmratbhai PatelBabubhaiKantibhai PatelDineshkumarBaldevbhai PatelVishnubhaiGopalbhai PatelKanubhaiKarshanbhai PrajapatiDahyabhaiVarvabhai PatelRaghubhaiRevabhai PatelMathurbhaiRamabhai PatelSureshbhaiRanchhodbhai NameofAccused
18 25 22 37 22 35 51 52 22 Age
Sardarpur Sardarpur Sardarpur Sardarpur Sardarpur Sardarpur Sardarpur Sardarpur Sardarpur Address
OnBail OnBail OnBail OnBail OnBail OnBail OnBail OnBail OnBail U.T.P./ OnBail/ Expired OnBail OnBail OnBail OnBail OnBail OnBail OnBail OnBail OnBail OnBail OnBail OnBail
AsperPursissubmittedvideExh.74
PatelChaturbhaiKanabhai Girdharbhai PatelTulsibhaiGirdharbhai PatelRamanbhaiJivanbhai Vanabhai PatelRajeshbhaiKarshanbhai PatelRameshbhaiKantibhai PatelMadhabhaiVitthalbhai PatelSureshkumarBaldevbhai PatelDashrathbhaiAmbalal Dhwarkadas PatelVishnubhaiPrahladbhai
31 34 29 22 24 33 20 26 23
Sardarpur Sardarpur Sardarpur Sardarpur Sardarpur Sardarpur Sardarpur Sardarpur Sardarpur Sardarpur Sardarpur Sardarpur
PatelRajendrakumaraliasRajesh 28 PunjabhaiTribhovandas PatelBaldevbhaiRanchhodbhai Dhwarkadas PatelPrahladbhaiJagabhai 40 23
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41 42 43 44 45 46 47 48 49 50 Sr. No. 51 52 53 54 55
PatelRameshbhaiRamabhai PatelParshottambhaialias PashabhaiMohanbhai PatelAshvinbhaiJagabhai PatelAmbalalMaganbhaiKapoor PatelKalabhaialias KanaiyalalNathabhai PatelRameshbhaiPrabhabhai Gopalbhai PatelJivanbhaiDhwarkadas PatelJayantibhaiAmbalal PatelKanubhaiJoitaram PrajapatiRamanbhai Ganeshbhai NameofAccused
35 45 21 54 30 36 42 43 43 51 Age
Sardarpur Sardarpur Sardarpur Sardarpur Sardarpur Sardarpur Sardarpur Sardarpur Sardarpur Sardarpur Address
OnBail OnBail OnBail OnBail OnBail OnBail OnBail OnBail OnBail OnBail U.T.P./ OnBail/ Expired OnBail OnBail OnBail OnBail OnBail
MarvadiAashutoshalias PavankumarMurlidhar PatelDahyabhaiKacharabhai PatelRameshbhaiBaldevbhai PatelMathurbhaiTrikamdas PatelAshvinbhaiBaldevbhai Joitabhai PatelBabubhaiVanabhai PatelRameshbhaiKacharabhai PatelBabubhaiKanjibhai PatelKanubhaiRevabhai PatelNatvarbhaiKacharabhai
21 36 37 46 30
Sardarpur Sardarpur Sardarpur Sardarpur Sardarpur
SESSIONSCASENO.120/2008 1 2 3 4 5 45 35 35 38 50 Sardarpur Sardarpur Sardarpur Sardarpur Sardarpur U.T.P. U.T.P. U.T.P. U.T.P. U.T.P.
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6 7 8 1
Patel(Nagar)Ashvinbhai Baldevbhai PatelDahyabhaiVanabhai PatelJoitaramRamabhai PatelKantibhaiPrabhudas
48 51 48 61
Sardarpur Sardarpur Sardarpur Sardarpur
U.T.P. U.T.P. U.T.P. Diedduring thependency ofTrial OnBail OnBail OnBail OnBail OnBail OnBail OnBail OnBail U.T.P./ OnBail/ Expired OnBail OnBail OnBail OnBail
SESSIONSCASENO.7/2009
2 3 4 5 6 7 8 9 Sr. No. 10 11 12 1
PatelLaxmanbhaiDhulabhai PatelMaheshbhaiJivanbhai PatelMathurdasDhwarkadas (Davabhai)(Doctor) PrajapatiPrahladbhaiVarvabhai PatelJagabhaiJivanbhai PatelUpendraManilal PatelSanjayAmbalal PatelKalabhaiBhikhabhai NameofAccused
54 33 63 49 42 26 28 37 Age
Sardarpur Sardarpur Sardarpur Sardarpur Sardarpur Sardarpur Sardarpur Sardarpur Address
PatelGovindbhaiMohanbhai PatelBabubhaiGokaldas PatelRameshbhaiTribhovandas PatelArvindKashiram
51 47 42 33
Sardarpur Sardarpur Sardarpur Sardarpur
Shri S.C.Shah ShriV.G.Patel
LearnedPublicProsecutorsAppearingonbehalf oftheprosecution
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ShriY.B.Shaikh
Learnedadvocateappearingonbehalfofthe originalcomplainant. Learned advocate appearing on behalf of accused No.2 to 9, 11 to 18 and 20 to22 in SessionsCaseNo.275/02.
(Duringthetrial,haswithdrawnhisappearancefromthecase)
ShriJ.G.Rajput
ShriH.M.Dhruv
Learned advocate appearing on behalf of the accused No.1 to 12 in Sessions Case No.7/09 andaccusedNo.1inSessionsCaseNo.275/02. Learned advocate appearing on behalf of the accusedNo.1to8inSessionsCaseNo.120/08 and on behalf of the accused No.28 to 55 in SessionsCaseNo.275/02. Learned advocate appearing on behalf of the AccusedNo.2to9and11to18and20to27in SessionsCaseNo.275/02.
ShriB.C.Barot
ShriA.M.Patel
CHARGE:
FortheoffencepunishableunderSection143ofI.P.C.
FortheoffencepunishableunderSection147ofI.P.C. FortheoffencepunishableunderSection144,148ofI.P.C. For the offence punishable under Section 302 read with Section149 inalternateSection302ofI.P.C. For the offence punishable under Section 307 read with
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Section149,inalternateSection307ofI.P.C. For the offence punishable under Section 323, 324, 325 readwithSection149,inalternateSection323,324,325 ofI.P.C. FortheoffencepunishableunderSection395ofI.P.C. FortheoffencepunishableunderSection395,397ofI.P.C. FortheoffencepunishableunderSection396ofI.P.C. For the offence punishable under Section 435, 436 read withSection149,inalternate435,436ofI.P.C. For the offence punishable under Section 447, 448 read withSection149inalternate447,448ofI.P.C. For the offence punishable under Section 336, 337 read withSection149inalternate336,337ofI.P.C. For the offence punishable under Section 295A, 153A, 297ofI.P.C. FortheoffencepunishableunderSection120BofI.P.C. For the offence punishable under Section 135 of Bombay PoliceAct.
COMMONJUDGEMENT
1. Sessions Case No.275/2002, 120/2008 and 7/2009 arise out of one incident bearing I.CR.No.46/2002 of Vijapur PoliceStationofMahesanaDistrictcommittedbeforethis
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Court for trial. It appeared desirable to try all the above three Sessions Cases all together therefore, all the three caseswereorderedtobeconsolidatedandtriedtogetheras per order passed below Exh.25, on 12.06.2009 and therefore,alltheproceedingsareorderedtobecarriedin Sessions Case No.275/2002 being the main Sessions. Moreover,chargesheetagainstArvindbhaiKashiramPatel waspresentedbytheprosecutionon18.05.2010,whichwas committed to the present court on 04.06.2010 by the JudicialMagistrate,FirstClass,Vijapuranditisregistered as Sessions Case No.72/2010. As it arises out of I.CR.No.46/2002 hence it was ordered to be consolidated and proceeded alongwith Sessions Case No.No.275/2002, 120/2008 and 7/2009 hence proceeded accordingly in SessionsCaseNo.275/2010.
2.
The accused are charged in this case u/s.143 of I.P.C., u/s.147ofI.P.C.,u/s.144,148ofI.P.C.,u/s.302readwith Section149inalternateSection302ofI.P.C.,u/s.307read with Section 149, in alternate Section 307 of I.P.C., u/s. 323,324,325readwithSection149,inalternateSection 323,324,325ofI.P.C.,u/s.395ofI.P.C.,u/s.395,397of I.P.C.,u/s.396ofI.P.C.,u/s.435,436readwithSection
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149,inalternate435,436ofI.P.C.,u/s.447,448readwith Section149inalternate447,448ofI.P.C.,u/s.336,337 readwithSection149inalternate336,337ofI.P.C.,u/s. 295(A),153(A),297ofI.P.C.andu/s.120BofI.P.C.,u/s. 135 of Bombay Police Act for forming unlawful assembly, committing rioting armed with deadly weapons like iron pipes,sticks,swordsetc.andvoluntarilycausinggrievous hurtinfurtheranceofcommonobjectofunlawfulassembly orinfurtheranceof theircommonintentioninvillage: Sardarpuron01.03.2002,atabout23.30hours.
3.
Theshortfactsgivingrisetotheprosecution'scaseareas under: On 01.03.2002, at about 23.30 hours, a mob of around 1000 Hindus formed unlawful assembly, carrying deadlyweaponsviz.ironpipes,sticks,swordsandattacked the Shaikh Maholla of Sardarpur village and the houses, cabinsandshopsweresetonfire.Thehousewhereinthe Muslimpersonshadshelteredthemselveswasalsoseton fire wherein 33 Muslims died and about 20 sustained injuries.28accusedarenamedinF.I.R.F.I.R.waslodged on 02.03.2002 at about 9.00 hours. Prior to the occurrence of their incident, on 01.03.2002 there was
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Godhra Railway Carnage incident which occurred on 27.02.2002andtherewas GujaratBandhon28.02.2002. Following the Bandh on 28.02.2002, mob had compelled closureofshopsinSardarpurvillage.Atabout22.30hours to 23.00 hours, a mob of Hindus, set on fire cabins belonging to Muslims and other communities. Upon receivinginformationaboutit,SubInspectorG.K.Parmarof Vijapur Police Station rushed to Sardarpur village and arrangedfire extinguisher and asked the victims to lodge theircomplaint.Onthenextday,BharatBandhCallwas givenandintheevening,ameetingwasorganizedbyP.S.I. G.K.Parmar to make efforts to maintain peace and harmony. He also continued patrolling in the village with his men in police vehicle. He informed the Vijapur Police Station by wireless regarding the tense atmosphere. Thereafter, P.S.I. Shri M.L.Rathod was sent to the Sardarpur village with police mobile van and he reached the spot at about 20.30 hours. Both the SubInspector patrolledinthevillagewithstaffandatabout22.00hours, amobofHinduscomprisingabout1500personscarrying deadly weapons, came shouting against the police and Muslimsandstartedpeltingstonesandburningtheshops, cabinsbelongingtoMuslimsintheBazaruponwhichthe
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police resorted to lathi charge, lobbing tear gas and ultimately,didthefiringanddisbursedthemob.
Meanwhile, the police force came and disbursed the mob.Policeclearedtheblockagesandhurdlesdumpedon roads. Nobody was seen moving in the village as the situation in the Vijapur town had worsened. On the messagefromthe P.I., ShriK.R.Vaghela,policerushedto the village Sardarpur of Vijapur town. Thereafter, on receivingtheinformationthattheatmosphereinthevillage Sardarpur has worsened, SubInspector, M.L.Rathod and G.K.Parmar were sent again. They reached Sardarpur by clearinghurdles dumped onroad. ShriK.R.Vaghelaalso reachedSardarpurwithfirefighters.S.P.andDy.S.P.with their staff rushed to Sardarpur and then the rescue operation started. Fire was extinguished and people of MuslimcommunitywererescuedoutfromShaikhMaholla.
DuringtheattackonShaikhMaholla,manyMuslim persons,womenandchildrentookshelterinsinglepakka building of Shaikh Maholla. The police rushed there and openedthedoorandfoundmanyoftheshelteredpersons dead. From this building, dead bodies of deceased and
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injuredpersonswereshiftedinpoliceandprivatevehicles to Mahesana Civil Hospital. In the incident, 33 Muslims fromShaikhMaholladiedand20sustainedinjuries.
Accordingly, F.I.R. was lodged before the Police InspectorShriK.R.VaghelainCivilHospital,Mahesanaon 02.03.2002 at about 9.00 hours. The said was registered withthepolicestationbyP.S.O.Ambalal Karsanbhaion 02.03.2002atabout11.30hours.Investigationwascarried outbyPoliceInspectorShriK.R.Vaghela.Thereafter,itwas carriedoutbyShriR.D.Barandaandlastly,onhistransfer, investigation was carried out by P.I. Shri K.P.Patel while Shri B.V.Jadeja, Dy.S.P., Visnagar, was the Visitation Officerinthiscasewhosupervisedtheinvestigation.Dead bodiesof28deceasedwereidentified byNazirMohamed Akbarmiya at the Civil Hospital, Mahesana while other dead bodies were identified during the Inquest by the relativesofthedeceased.
On 03.03.2002, Panchnama of the place of offence was drawn. Place was shown by the victim Shaikh BachumiyaImamamiya.Thedamagesdonebythemobto the houses and vehicles, looting of the properties, etc.
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belonging to the Muslim families are shown in the Panchnama.PostMortemReports,InjuryCertificateswere collected by the Investigating Officer. Furthermore, the statementsofeyewitnesses,policewitnesses,Government witnessesandperipheralwitnesseswerealsorecordedby theInvestigatingOfficer.
4.
During the investigation, names of total 55 accused were disclosedbythecomplainantandwitnessesand,allthe55 accusedwerearrestedandsubsequently,chargesheetedon 27.07.2002.Allthe55accusedwerereleasedonbailbythe Sessions Court, Mahesana from time to time. As against those bails, no appeal was preferred by any of the Investigating Officer but the complainant approached the Hon'ble High Court vide Criminal Misc. Application Nos.4026/2002, 3590/2002, 3591/2002 and 2588/2002 requesting the Hon'ble High Court to reject the bail. But thoseapplicationswererejectedbytheHon'bleHighCourt of Gujarat. During the investigation, clothes of deceased after the PostMortem were collected by the Investigating Officer and case property receipts (Muddamal Receipts) wereprepared.DuringinvestigationtheF.S.L.hadvisited the place of offence and collected various necessary
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samples like clothes of the deceased, articles taken from the place of offence, burnt clothes, containers and other samples, 14 weapons were recovered from 14 accused. Ultimately, the chargesheet was submitted before the Court of Judicial Magistrate, First Class, Vijapur, which wasnumberedasCriminalCaseNo.724/2002anditwas chargesheeted against 55 accused. Thus, earlier investigationwascarriedoutfrom01.03.2002to27.07.2002 andduringthatinvestigation,mapofplaceofoffencewas prepared by the Revenue Circle Inspector, Vijapur and photographsofsceneofincidentwerealsotakenduringthe investigation. After submission of chargesheet, Criminal Case was committed to the Sessions Court vide Sessions Case No.275/2002 and it was pending for framing of Charge.ThetrialwasstayedbytheHon'bleSupremeCourt ofIndiainTransferPetition(CriminalNo.194202of2002 and 323329 of 2003 with Criminal Misc. Petition No.69706948 of 2003 and 407410 of 2004 on 21/11/2003) in Writ Petition (Criminal No.109/03 and T.P.No.194/03,202/03,326/03,329/03)filedbyNational Human Rights Commission (N.H.R.C.) in the Hon'ble SupremeCourtofIndia.
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5.
TheHon'bleSupremeCourtofIndiahaspassedorderon 26.03.2002forformingofSpecialInvestigationTeam(S.I.T.) fortheinvestigationof9importantcasesonPostGodhra Carnage inclusive of this case. In transfer petition No.194202/03filedbytheN.H.R.C.11affidavitswerefiled before the Hon'ble Supreme Court of India in connection with this offence and ultimately, as per the direction of Hon'ble Supreme Court, Special Investigation Team has been formed which had taken the charge of further investigation and Shri G.V.Barot, Assistant Director, Anti CorruptionBureau,wasappointedasInvestigationOfficer of the present case with 3 team members and further investigation was carried out accordingly. During their Investigation9(Nine)witnessesintheirfurtherstatements havedisclosedthattheywerealsoinjuredandthisfactwas not disclosed in previous investigation. During the investigation by S.I.T. an advertisement was published in leadingdailynewspapersofGujaratState,invitingpeopleto contactS.I.T.inperson,orthroughwrittenapplicationto give any relevant information or evidence in connection withthecaseundertheinvestigationbyS.I.T.asaresultof which,applicationsinthiscasewerealsoreceivedbythe S.I.T. Statements of 44 witnesses including complainant
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and 15 police persons were verified and their further statementswererecordedbyS.I.T.whilestatementsof39 newwitnesseswererecordedbyS.I.T.
6.
Further,placeofincidentwasvisitedbyS.I.T.tostatethe scene of incident and surrounding geographical situation andadditionalsketchwaspreparedbyS.I.T.withthehelp of Revenue Circle Inspector. Further, some photographs werealsotakenbytheS.I.T.andduringtheirinvestigation, 21personswerenamedbythewitnessesasaccusedand S.I.T. has arrested accused No.1 to 8 of Sessions Case No.120/2008,on26.05.2008.Theywereremandedtopolice custody subsequently, sent to judicial custody on 30.05.2008 still they are in judicial custody and supplementary Chargesheet was field on 22.08.2008 naming13personsasabsconderandaccusedNo.9to21 were arrested on 03.09.2008 by Vijapur Police. On the ReportofS.I.T.,theywereremandedtopolicecustodyupto 09.09.2008 and then sent to the judicial custody on 09.09.2008. They are still in judicial custody. SupplementaryChargesheetweresubmittedagainstthem excludingArvindKashiraminwhosefavourReportunder Section 169 of the Cr.P.C. was made, which was not
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acceptedbytheCourtandtherefore,subsequently,Charge sheet against him, has been submitted and all the cases havebeencommittedtotheSessionsCourtfortrial.Thus, totalnumberoftheaccusedbeforetheSessionsCourtare 76 under all the four Cases. Further permission to prosecute all the accused for the offence under Section 153A of IPC has been obtained from the competent authorities.ShriS.C.ShahhasbeenappointedasSpecial Prosecutor and Shri V.G.Patel has been appointed as Additional Public Prosecutor to conduct the trial of this case,bytheGovernmentofGujarat.
7.
AccusedNo.10ofSessionsCaseNo.275/2002Jayantibhai JivanbhaiPateldiedtherefore,theordertoabatethetrial against him has been passed. Accused No.19 Prajapati Rohitkumar Ramanbhai is juvenile therefore, order vide Exh.61 has been passed dropping him from framing of chargefromthepresentcaseanditisorderedtosendhis casetotheJuvenile JusticeBoardwhile Accused No.1of SessionsCaseNo.7/2009PatelKantibhaiPrabhudashas diedandhence,orderofabatementhasbeenpassedvide Exh.540andExh.543.Accordinglyalltheaboveaccused arefacingtrialforthevariousoffencesbeforethisCourt.
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8.
Thereafter, I have heard learned Public Prosecutor Shri S.C.Shah,onbehalfofprosecutionandlearnedadvocates Shri J.G.Rajput and Shri B.C.Barot on behalf of accused forframingtheChargeandafterhearingboththeparties, ChargeagainsttheaccusedwasframedvideExh.78while the Charge in Sessions Case No.72/2010 was framed on 25.08.2010againsttheaccusedfortheoffencesmentioned intheCharge.HencethefollowingChargehasbeenframed videExh.78: "(A) The Accused No.1 to 9 and 11 to 55 alongwith the deceased accused No.10 Patel Jayantibhai JivanbhaiandJuvenileaccusedNo.19Prajapati RohitkumarRamanbhai,Age17yearsofSessions Case No.275/2002 in collusion with the accused No.1 to 8 of Sessions Case No.120/2008 and accused No.1 to 12 of Sessions Case No.7/2009, alongwith the other persons, had assembled and formed an unlawful assembly for causing hurt, grievous hurt, assault, burning and decoying the property of Sardarpur Muslims, on the base of NationvideStrikeduetotheincidentof burning almost 100 Hindu pilgrims in Sabarmati Express Train, at Godhra, on 01.03.2002 at village :
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Sardarpur, Taluka : Vijapur, during the night between21.30 hours to 02.30 hours and thereby committed offence under Section 143 of Indian PenalCode.
(B)
AlltheaccusedalongwiththedeceasedaccusedNo.10 PatelJayantibhaiJivanbhaiandJuvenileaccused No.19 Prajapati Rohitkumar Ramanbhai, alongwith other persons on the same day and same place, were members of an unlawful assembly of 1000 and in prosecution of the common object of such assembly, for overt act, committedtheoffenceofriotingandtherebythey have committed an offence punishable under Section147oftheIndianPenalCode.
(C)That, all the accused alongwith the deceased accused No.10 Patel Jayantibhai Jivanbhai and Juvenile accused No.19 Prajapati Rohitkumar Ramanbhai, alongwith other persons on the same day and same place, wherein the accused No.1 with burning rag, AccusedNo.2to7and11to13and15to18and20to 22,AccusedNo.24to27withstonesandaccusedNo.14
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withTinandbottleofinflammableitems,accusedNo.28 and30withburningrag,AccusedNo.31,33,37,38,41, 44, 46, 54 armed with deadly weapon Dhariya while AccusedNo.39withSwordandaccusedNo.29,34,47, 51 and 52 with iron pipes,Accused No.42, 50 and 55 withTinofinflammableitemslikelytocausedeath,were membersofanunlawfulassemblyof1000personsand inprosecutionofthecommonobjectofsuchassembly, forovertact,committedtheoffenceofriotingwithdeadly weapon and thereby committed an offence punishable underSection144,148oftheIndianPenalCode.
(D)
That,onthesamedayandsameplace,alltheaccused alongwith the deceased accused No.10 Patel JayantibhaiJivanbhaiandJuvenileaccusedNo.19 Prajapati Rohitkumar Ramanbhai, alongwith otherpersonformedanunlawfulassemblyof1000 personsandinprosecutionofthecommonobject ofsuchassembly,forovertactofburningaliveand murderingbyintentionally(orknowledge)causing the death of Zyadabanu Ibrahimmiya Shaikh (by mistake Zyadabanu was identified as Ruksanabanu and therefore, it is subsequently
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rectified), Sayarabanu Abbasmiya Shaikh, Yunushusen Sherumiya Shaikh, Arifhusen ManubhaiShaikh, SultanMahebubmiyaShaikh, Javedmiya Mustumiya Shaikh, Rasidabanu JamalmiyaShaikh,IdrishbhaiAkbarmiyaShaikh, Mehmudabibi Sherumiya Shaikh, Vahidabanu Nazirbhai Shaikh, Banubibi Babumiya Shaikh, Faridabanu Mahebubmiya Shaikh, Mumtazbanu Makbulhusen Shaikh, Mumtazbanu Sherumiya Shaikh, Parvinabanu Ibrahimbhai Shaikh, Saminabanu Muftumiya Shaikh, Sakkarbanu Mahemubmiya Shaikh, Husenabibi Hibzulmiya Shaikh,AbbasmiyaKesarmiyaShaikh,Raziabanu Ibrahimmiya Shaikh, Bismillabanu Bhikumiya Shaikh, Ruksanabanu Abbasmiya Shaikh, Zohrabanu Manubhai Shaikh, Manubhai Husenbhai Shaikh, Rifakathusen Hizbulmiya Shaikh, Irfanhusen Mahemudmiya Shaikh, Bachumiya Nathumiya Shaikh, Sherumiya Rasulmiya Shaikh, Asiyanabanu Ashikhusen Bachumiya Shaikh, Firoz Makbulhusen Shaikh, Rafik Manubhai Shaikh, Abedabanu Manubhai Shaikh, Suhanabanu Safikmiya Shaikh and
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thereby, committed the offence punishable under Section 302 read with Section 149 of the Indian PenalCode. Inalternateonthesamedayandsameplace,all theaccusedalongwiththedeceasedaccusedNo.10 PatelJayantibhaiJivanbhaiandJuvenileaccused No.19 Prajapati Rohitkumar Ramanbhai alongwith other persons for overt act of burning aliveandmurderingbyintentionally(orknowledge) causing the death of Zyadabanu Ibrahimmiya Shaikh (by mistake Zyadabanu was identified as Ruksanabanu and therefore, it is subsequently rectified), Sayarabanu Abbasmiya Shaikh, Yunushusen Sherumiya Shaikh, Arifhusen ManubhaiShaikh, SultanMahebubmiyaShaikh, Javedmiya Mustumiya Shaikh, Rasidabanu JamalmiyaShaikh,IdrishbhaiAkbarmiyaShaikh, Mehmudabibi Sherumiya Shaikh, Vahidabanu Nazirbhai Shaikh, Banubibi Babumiya Shaikh, Faridabanu Mahebubmiya Shaikh, Mumtazbanu Makbulhusen Shaikh, Mumtazbanu Sherumiya Shaikh, Parvinabanu Ibrahimbhai Shaikh, Saminabanu Muftumiya Shaikh, Sakkarbanu
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Mahemubmiya Shaikh, Husenabibi Hibzulmiya Shaikh,AbbasmiyaKesarmiyaShaikh,Raziabanu Ibrahimmiya Shaikh, Bismillabanu Bhikumiya Shaikh, Ruksanabanu Abbasmiya Shaikh, Zohrabanu Manubhai Shaikh, Manubhai Husenbhai Shaikh, Rifakathusen Hizbulmiya Shaikh, Irfanhusen Mahemudmiya Shaikh, Bachumiya Nathumiya Shaikh, Sherumiya Rasulmiya Shaikh, Asiyanabanu Ashikhusen Bachumiya Shaikh, Firoz Makbulhusen Shaikh, Rafik Manubhai Shaikh, Abedabanu Manubhai Shaikh, Suhanabanu Safikmiya Shaikh and thereby, committed the offence punishable under Section302oftheIndianPenalCode. That, on the same day and same place, you accused alongwith the deceased accused No.10 PatelJayantibhaiJivanbhaiandJuvenileaccused No.19 Prajapati Rohitkumar Ramanbhai, alongwith other persons formed an unlawful assembly of 1000 persons, and in prosecution of the common object of suchassembly and did an actofburningaliveandassaultingMuslimwomen, men and children with such intention (or
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knoweldge)andundersuchcircumstances,thatif thesaidacthadcauseddeath(fornotgettingthe immediate medical treatment) of Shayanbanu Ayubbhai and Bashirabibi and Iliyasbhai, the accused would have been guilty of murder under Section302(andthatthereby,causedhurtbythe said act to Shayanabanu Ayubbhai and BashirabibiandIliyasbhai)andthereby,committed the offence punishable under Section 307 read withSection149oftheIndianPenalCode.
In alternate on the same day and same place, youaccusedalongwiththedeceasedaccusedNo.10 PatelJayantibhaiJivanbhaiandJuvenileaccused No.19 Prajapati Rohitkumar Ramanbhai, alongwithotherpersonsdidanactofburningalive andassaultingMuslimwomen,menandchildren withsuchintention(orknowledge)andundersuch circumstances, that if the said act had caused death (for not getting the immediate medical treatment) of Shayanabanu Ayubbhai and Bashirabibi and Illiyasbhai, accused would have beenguiltyofmurderunderSection302(andthat
// 26 //
thereby, caused hurt by the said act to Shayanabanu Ayubbhai and Bashirabibi and Illiyasbhai) and thereby, committed the offence punishableunderSection307.
That on the same day and same place, the accused alongwith the deceased accused No.10 PatelJayantibhaiJivanbhaiandJuvenileaccused No.19 Prajapati Rohitkumar Ramanbhai, alongwith other persons formed an unlawful assembly of 1000 persons, and in prosecution of the common object of such assembly, voluntarily caused hurt and grievous hurt, by pelting of stones, to complainant as well as Faridabanu Ashiqhusen Shaikh, Imtiyaz Mahmadhusen Shaikh, Bhikhumiya Kalumiya Shaikh,
Shayanabanu Ayubmiya, Aminabanu Achhumiya, Mustufamiya Rasulmiya, Hizbulmiya Husenmiya, Iqbalmiya Rasulmiya, Akbarmiya Rasulmiya, Nazirmahmad Akbarmiya, Gulamali Akbarmiya, Ruksanabanu Ibrahimmiya, Maqbulmiya
Kesarmiya,RafikmiyaMahmadhusen,Hamidabibi Akbarmiya, Basirabibi Bachumiya, Khatijabibi Dosmahmad Shaikh, Shayanabanu Aashiqhusen,
// 27 //
Saidabibi Hizbulmiya Shaikh and thereby, committed the offence punishable under Section 323, 324 and 325 read with Section 149 of the IndianPenalCode. In alternate, on the same day and same place, theaccusedalongwiththedeceasedaccusedNo.10 PatelJayantibhaiJivanbhaiandJuvenileaccused No.19 Prajapati Rohitkumar Ramanbhai, alongwith other persons voluntarily caused hurt and grievous hurt, by pelting of stones, to complainant as well as Faridabanu Ashiqhusen Shaikh, Imtiyaz Mahmadhusen Shaikh, Bhikhumiya Kalumiya Shaikh, Shayanabanu Ayubmiya, Aminabanu Achhumiya, Mustufamiya Rasulmiya, Hizbulmiya Husenmiya, Iqbalmiya Rasulmiya, Akbarmiya Rasulmiya, Nazirmahmad Akbarmiya, Gulamali Akbarmiya, Ruksanabanu Ibrahimmiya, Maqbulmiya Kesarmiya, Rafikmiya Mahmadhusen,HamidabibiAkbarmiya,Basirabibi Bachumiya, Khatijabii Dosmahmad Shaikh, Shayanabanu Aashiqhusen, Saidabibi Hizbulmiya Shaikh and thereby, committed the offence
// 28 //
punishableunderSection323,324and325.
(E) That, on the same day and same place accused alongwith the deceased accused No.10 Patel JayantibhaiJivanbhaiandJuvenileaccusedNo.19 Prajapati Rohitkumar Ramanbhai, alongwith other persons formed an unlawful assembly of 1000 persons, and have committed dacoity punishableunderSection395oftheIndianPenal Code.
That, on the same day and same place, you accused alongwith the deceased accused No.10 PatelJayantibhaiJivanbhaiandJuvenileaccused No.19 Prajapati Rohitkumar Ramanbhai, alongwith other persons formed an unlawful assembly of 1000 persons committed dacoity (or robbery)and atthetimeof committing thesaid dacoity (or robbery) accused have used deadly weapons and pelted stones and caused hurt and grievous hurt, to complainant as well as Faridabanu Ashiqhusen Shaikh, Imtiyaz Mahmadhusen Shaikh, Bhikhumiya Kalumiya
// 29 //
Shaikh, Shayanabanu Ayubmiya, Aminabanu Achhumiya, Mustufamiya Rasulmiya, Hizbulmiya Husenmiya, Iqbalmiya Rasulmiya, Akbarmiya Rasulmiya, Nazirmahmad Akbarmiya, Gulamali Akbarmiya, Ruksanabanu Ibrahimmiya,
MaqbulmiyaKesarmiya,RafikmiyaMahmadhusen, Hamidabibi Akbarmiya, Basirabibi Bachumiya, Khatijabii Dosmahmad Shaikh, Shayanabanu Aashiqhusen, Saidabibi Hizbulmiya Shaikh and thereby committed an offence punishable under Section395,397oftheIndianPenalCode.
That, on the same day and same place, you accused alongwith the deceased accused No.10 PatelJayantibhaiJivanbhaiandJuvenileaccused No.19 Prajapati Rohitkumar Ramanbhai, alongwith other persons committed dacoity and that at the time of commission of the dacoity, murderwascommittedbytheaccusedpersonsby using petrol, kerosene and other inflammable substancesandburningragsanddeadlyweapons and thereby, caused dacoity with murder in the houseofBachumiyaImammiyaShaikh,residentof
// 30 //
village:Sardarpur,andtherebycommitteddacoity of ornaments worth Rs.60,000 to 70,000/ and thereby, committed offence punishable under Section396oftheI.P.C.
(F) That, on the same day and same place accused alongwith the deceased accused No.10 Patel JayantibhaiJivanbhaiandJuvenileaccusedNo.19 Prajapati Rohitkumar Ramanbhai, alongwith other persons formed an unlawful assembly of 1000 persons, committed mischief by the fire (or anyinflammablesubstances)intendingtherebyto causedamagetoapropertyofMuslimpersonsto the amount of Rs.85,87,500/ alongwith the destructionof19houses,3shops,5pavements,1 Hut,1Jeepand1scooter,andtherebycommitted offence punishable under Section 435 and 436 readwithSection149oftheIndianPenalCode.
Inalternate, onthesamedayandsameplace, accused alongwith the deceased accused No.10 PatelJayantibhaiJivanbhaiandJuvenileaccused No.19 Prajapati Rohitkumar Ramanbhai,
// 31 //
alongwith other persons have committed mischief by the fire (or any inflammable substances) intendingtherebyto causedamagetoaproperty of Muslim persons to the amount of Rs.85,87,500/ alongwith the destruction of 19 houses,3shops,5pavements,1Hut,1Jeepand1 scooter,andtherebycommittedoffencepunishable under Section 435 and 436 of the Indian Penal Code.
(G)
Onthesamedayandsameplace,accusedalongwith the deceased accused No.10 Patel Jayantibhai JivanbhaiandJuvenileaccusedNo.19Prajapati Rohitkumar Ramanbhai, alongwith other persons formedanunlawfulassemblyof1000personsand have committed tress pass by entering into the house of Bachumiya Imammiya Shaikh (or upon) (orbyillegally/unlawfullyremainingon),religious place of Muslim as well as graveyard of Muslim, with an intent to commit the offence (or to intimidate, insult or annoy the possession of Muslim people's property, and thereby committed offence punishable under Section 447, 448 read
// 32 //
withSection149oftheIndianPenal.
In alternate, on the same day and same place, accused alongwith the deceased accused No.10 PatelJayantibhaiJivanbhaiandJuvenileaccused No.19 Prajapati Rohitkumar Ramanbhai, alongwithotherpersonshavecommittedtresspass by entering into the house of Bachumiya Imammiya Shaikh (or upon) (or by illegally / unlawfullyremainingon),religiousplaceofMuslim aswellasgraveyardofMuslim,withanintentto commit the offence (or to intimidate, insult or annoy the possession of Muslim people property, and thereby committed offence punishable under Section447,448oftheIndianPenal.
(H) On the same day and same place, you accused alongwith the deceased accused No.10 Patel JayantibhaiJivanbhaiandJuvenileaccusedNo.19 Prajapati Rohitkumar Ramanbhai, alongwith other persons formed an unlawful assembly of 1000personshavecausedhurtandgrievoushurt to the complainant and witnesses so rashly (or
// 33 //
negligently) as to endanger human life (or the personal safety of others) and thereby committed offence punishable under Section 336, 337 read withsection149oftheIndianPenalCode.
Inalternate, onthesamedayandsameplace, youaccusedalongwiththedeceasedaccusedNo.10 PatelJayantibhaiJivanbhaiandJuvenileaccused No.19 Prajapati Rohitkumar Ramanbhai, alongwith other persons have caused hurt and grievoushurttothecomplainantandwitnessesso rashly (or negligently) as to endanger human life (or the personal safety of others) and thereby committedoffencepunishableunderSection336, 337oftheIndianPenalCode.
(I)
Onthesamedayandsameplace,accusedalongwith the deceased accused No.10 Patel Jayantibhai JivanbhaiandJuvenileaccusedNo.19Prajapati Rohitkumar Ramanbhai, alongwith other 1000 persons have insulted (or attempted to insult the religionofMuslimresidingatvillage:Sardarpur, (or the religious belief of Muslim) residing at
// 34 //
Sardarpur),byutteringwords"SalaBandiyaone Maro" and by using those words with deliberate and malicious intention to outrage the religious feelingsofMuslimcommunity/class,ofcitizensof India,and therebycommittedoffencepunishable underSection295AoftheIndianPenalCode.
Onthesamedayandsameplace,youaccused alongwith the deceased accused No.10 Patel JayantibhaiJivanbhaiandJuvenileaccusedNo.19 Prajapati Rohitkumar Ramanbhai, alongwith other persons, the accused No.9 to 12 and 14 of Sessions Case No.7/09 at village Sardarpur, by uttering words " Ek pan Bandiyao Bachvo Joiye Nahi,Teone marinakho, kapi nakho, ballikuto", promotedthefeelingofenmity(orhatred)between (Muslim classes) of His Majesty's subjects and thereby committed offence punishable under Section153AoftheIndianPenalCode.
On the same day and same place accused alongwith the deceased accused No.10 Patel JayantibhaiJivanbhaiandJuvenileaccusedNo.19
// 35 //
Prajapati Rohitkumar Ramanbhai, alongwith other persons have entered the graveyard of Muslim community with intention of hurting the feelings of Muslims or insulting the religion of Muslims thereby, committed trespass in place of setapartfortheperformanceoffuneralritesoras a depository for the remains of the dead and thereby, committed offence punishable under Section297ofI.P.C.
(J) Onthesamedayandsameplace,accusedalongwith the deceased accused No.10 Patel Jayantibhai JivanbhaiandJuvenileaccusedNo.19Prajapati Rohitkumar Ramanbhai, alongwith other persons formedanunlawfulassemblyof1000persons,and did, in prosecution of common object of such assembly,suchasthemembersofthatassembly knew to be likely committed in prosecution of common object of said assembly, committed offence of rioting, with deadly weapons (or with anything which used as weapon of offence was likelytocausedeath),accusedhaveinsulted (or attempted to insult the religion of Muslim) the
// 36 //
feelingofMuslimresidingatvillage:Sardarpur,(or the religious belief of Muslim) residing at Sardarpur), by uttering words namely " Sala BandiyaoneMaro"andthataccusedhaveuttered saidwordswithdeliberateandmaliciousintention to outrage the religious feelings of Muslim community/class,ofcitizensofIndia,andentered thegraveyardofMuslimcommunitywithintention ofhurtingthefeelingsofMuslimsorinsultingthe religionofMuslimsthereby,committedtrespassin place of set apart for the performance of funeral ritesorasadepositoryfortheremainsofthedead and also committed murder by intentionally (or knowledge)causingdeathofMuslimpersonswith such intention (or knowledge) and under such circumstances, accused have caused death of Muslimpersons,accusedwouldhavebeenguiltyof murder under Section 302 (and that thereby, causedhurttothesaidpersons,bythesaidact), accused have committed mischief by the fire (or anyinflammablesubstances)intendingtherebyto (or knowing it to be likely that you will thereby) causedamagetothepropertyofMuslimpersonsto
// 37 //
the amount of Rs.85,87,500/ alongwith the destructionof19houses,3shops,5cabins,1Hut, 1 Jeep and 1 scooter and thereby committed offenceunderSection147,149,435,436,447,448, 395, 396, 324, 325, 302, 307, 336, 337, 295A, 153(A)readwithSection120BoftheIndianPenal Code.
(K) Onthesamedayandsameplace,accusedalongwith the deceased accused No.10 Patel Jayantibhai JivanbhaiandJuvenileaccusedNo.19Prajapati Rohitkumar Ramanbhai, alongwith other person committed offence under Section 435, 436, 323, 324,325,447,448,302,307,336,337readwith Section34oftheIndianPenalCode.
(L) Onthesamedayandsameplace,accusedalongwith the deceased accused No.10 Patel Jayantibhai JivanbhaiandJuvenileaccusedNo.19Prajapati Rohitkumar Ramanbhai, alongwith other person knowing fully about the Notification in existence, issued by District Magistrate, the accused No.1 armedwithdeadlyweaponswhereas,theAccused
// 38 //
No.2to7and11to13and15to18and20to22 and 24 to 27 were pelting stones and accused No.14,42,50and55werepossessinginflammable substanceswhereasaccusedNo.21,31,33,37,38, 41,44, 46, and54alongwithaccusedNo.39, 29, 34, 47 and 51 armed with deadly weapons and thereby, committed offence under Section 135 of theBomabyPoliceAct.
9.
So far as accused Arvind Kashiram of Sessions Case No.72/2010isconcerned,chargeagainsthimwasframed on25.08.2010inthemiddleoftrial.Theabovementioned Charge was read over to the Accused Persons and they have denied all the charges leveled against them vide Exh.79to151.
10.
Insupportoftheircaseprosecutionhasexaminedfollowing witnesses:
ORALEVIDENCEOFMEDICALWITNESSES: P.W. No. 1 2 Nameofthewitness Dr.DhreejkumarJivanlalSoni Dr.PravinkumarPopatlalSoni Exh. No. 158 211 Remarks
// 39 //
3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 45
Dr.BabubhaiNathubhaiChaudhari Dr.IshvarsinhRatansinhSolanki Dr.PrakshbhaiLaxmandasShah Dr.ShaileshkumarShivabhaiPatel Dr.AnjuMuljibhaiParmar Dr.NilimaAjaybhaiTalvelkar Dr.KokilabenMaganbhaiSolanki Dr.SangeetabenKailaschandraJain Dr.AlkabenDungarbhaiPatel Dr.PrakashPravinbhaiPatva Dr.KantilalBabaldasPatel Dr.BharatkumarBabubhaiSolanki Dr.VijaykumarVitthalbhaiOza Dr.ArvindKantilalKapadia Dr.VinayakraoVasudevPatil Dr.DharmeshSomabhaiPatel Dr.VikramKalidasPardhi
233 244 252 262 271 278 283 290 295 302 308 312 322 331 339 344 461
Dr.JagdishkumarKhodabhaiSolanki 317
ORALEVIDENCEOFPANCHWITNESSES: P.W. No. 20 P.W. No. 21 22 Nameofthewitness ShaikhAbdulbhaiDalubhai Nameofthewitness JitranaMahemudabenFaridkhan ParmarPravinkumarArjanbhai Exh. No. 353 Exh. No. 355 356 Remarks Remarks
// 40 //
23 24 25 26 27 28 29 30 31 32 33 34 35 38 97
PatelIshvarbhaiGopalbhai PatelJayantibhaiBaldevbhai ThakorJayantijiVarvaji GoswamiChandrakantgiriRamgiri KadiaShamalbhaiGopalbhai KureshiSarafatHusenSabdalbhai PatelNaranbhaiManilal PatelBabubhaiMathurbhai PatelArvindbhaiBecharbhai PatelBabubhaiVarvabhai ThakorAmrajiKodarji OzaManishkumarBabubhai ChauhanFulajiSomaji ShaikhInayatHusenBachumiya LodhaHafijbhaiNasirbhai
362 364 365 368 370 372 376 387 389 391 392 396 399 423 725 Hostile Hostile Hostile Hostile Hostile Hostile Hostile Hostile Hostile
ORALEVIDENCEOFOTHERWITNESSES:
P.W. No. 36 37 39 40 41 42
Nameofthewitness ChaudhariIshvarbhaiBababhai SathwaraBabubhaiKhodidas MemonJanmahmodIsmilbhai MemonMahmodAarifJanmahmod MemonAbdulkadirIsmilbhai MemonAltafhusenValibhai
Exh. No. 405 418 438 441 444 446
Remarks
// 41 //
P.W. No. 43 44 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68
Nameofthewitness MemonAarifbhaiValibhai MansuriMunirahmedNoormahmed PathanSabirmiyaAkumiya ShaikhIbrahimbhaiRasulbhai ShaikhSabirhusenKadarmiya ShaikhIqbalmiyaRasulmiya ShaikhJakirhusenKadarmiya ShaikhNazirmahmedAkbarmiya ShaikhHizbulmiyaHusenmiya ShaikhKulsumbibiKadarmiya ShaikhSharifmiyaBhikhumiya ShaikhAashiqhusenBachumiya ShaikhAyubmiyaRasulmiya ShaikhMustufamiyaRasulmiya FakirSabirhusenImamsha ShaikhMohmadSattarBachumiya ShaikhBachumiyaImammiya ShaikhSafikmiyaBabumiya ShaikhRafikmiyaMahmadhusen ShaikhBhikhumiyaKalumiya ShaikhRafikmiyaBabumiya ShaikhAkbarmiyaNathumiya ShaikhAkbarmiyaRasulmiya ShaikhImtiyazbhaiMahmadhusen ShaikhGulamaliAkbarmiya
Exh. No. 449 455 475 485 491 500 505 507 513 524 527 530 535 546 553 557 563 570 575 580 583 586 591 594 603
Remarks
// 42 //
69 70 71 P.W. No. 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 96 98 108
ShaikhMahemudmiyaHusenmiya PathanMunsafkhanYasinkhan RawalMangabhaiRamabhai Nameofthewitness RawalPrahladbhaiNathabhai ShaikhFaridabibiAashikhusen ShaikhSikandarmiyaRasulmiya ShaikhFirozabanuBachumiya ShaikhHamidabibiAkbarmiya ShaikhBadrunnishaAkbarmiya ShaikhBasirabibiBachumiya ShaikhSamimbanuMahemudmiya ShaikhRuksanabanuIbrahimmiya ShaikhDilavarkhanAbbasmiya FakirSabirabibiSabirhusen FakirSharifabanuSabirhusen KureshiImtiyazaliHusenmiya ParmarPravinkumarKhemabhai PatelDineshbhaiBhagvanbhai PatelJitubhaiChhaganbhai ModiHasmukhlalThakorlal PurshottambhaiNathabhai PrajapatiRevabhaiShankarbhai OzaVipulkumarBhogilal
606 609 627 Exh. No. 628 631 632 637 638 639 642 647 650 651 655 656 657 662 664 670 674 719 729 760 Remarks
ORALEVIDENCEOFPOLICEWITNESSES:
// 43 //
P.W. No. 89 90 91 P.W. No. 92 93 94 95 99 100 101 102 103 104 105 106 107 109 110 111 112 11.
Nameofthewitness MakwanaAmbalalKarshanbhai ParmarGalbabhaiKhemabhai RathodMahendrasinhLalsinh Nameofthewitness GoswamiJivagiriVihagiri SadhuHargovandasMohandas SolankiChandansinhNanusinh BiholaVikramsinhNarsinh KrushnakumarKantilal RajakbhaiAllarakhabhai KhodidasGovindbhai DesaiLaljibhaiArjanbhai GanpatbhaiNarsinhbhai JadejaBachubhaVesalji GehlotAnupamsinhShreejaysinh SisodiyaJagdevsinhTakhatsinh ChauhanRamtujiKanaji BarandaRohitkumarDhuljibhai VaghelaKakusinhRanjitsinh PatelKantibhaiParshottamdas BarotGautamkumarVishnubhai
Exh. No. 687 695 699 Exh. No. 701 707 711 715 734 736 737 739 740 744 750 754 755 770 810 877 895
Remarks A.S.I. P.S.I. P.S.I. Remarks A.S.I. A.S.I. A.S.I. A.S.I. Po.Con. Po.Con. Po.Con. A.S.I. HeadP.C. Dy.S.P. D.S.P. P.I. P.S.I. Dy.S.P. P.I. P.I. I.O.
Insupportoftheircaseprosecutionhasproducedfollowing
// 44 //
documentaryevidence: Sr. No. 1 Detailsofdocument TreatmentCertificateofShaikhRafikbhai Manubhai,issuedbytheGeneralHospital, Mahesana. CasepapersofRafikbhaiManubhaiShaikh. TreatmentCertificateofComplainantShaikh IbrahimmiyaRasulmiya,issuedbytheGeneral Hospital,Mahesana. Detailsofdocument XRayPlates(Total6)ofComplainantShaikh IbrahimmiyaRasulmiya. Exh. No. 159
2 3
160 161
Sr. No. 4 5
Exh. No. 162
TreatmentCertificateofwitnessShaikh 163 RafikhusenMahmadhusen,issuedbytheGeneral Hospital,Mahesana. Casepapersofwitness ShaikhRafikhusenMahmadhusen. TreatmentCertificateofwitnessShaikh FirozmiyaMaqbulmiya,issuedbytheGeneral Hospital,Mahesana. Casepapersofwitness ShaikhFirozmiyaMaqbulmiya TreatmentCertificateofwitnessShaikh IqbalmiyaRasulmiya,issuedbytheGeneral Hospital,Mahesana. Casepapersofwitness ShaikhIqbalmiyaRasulmiya TreatmentCertificateofwitnessShaikh 164 165
6 7
8 9
166 167
10 11
168 169
// 45 //
AkbarmiyaRasulmiya,issuedbytheGeneral Hospital,Mahesana. 12 TreatmentCertificateofwitnessShaikh BasirabibiBachumiya,issuedbytheGeneral Hospital,Mahesana. Casepapersofwitness ShaikhBasirabibiBachumiya TreatmentCertificateofwitnessShaikh HizbulmiyaHusenmiya,issuedbytheGeneral Hospital,Mahesana. Casepapersofwitness ShaikhHizbulmiyaHusenmiya TreatmentCertificateofwitnessShaikh Nazirhusen,Akbarmiya,issuedbytheGeneral Hospital,Mahesana. Detailsofdocument TreatmentCertificateofwitnessShaikh MustufamiyaRasulmiya,issuedbytheGeneral Hospital,Mahesana. Casepapersofwitness ShaikhMustufamiyaRasulmiya TreatmentCertificateofwitnessShaikh SaidabibiHizbulmiya,issuedbytheGeneral Hospital,Mahesana. Casepapersofwitness ShaikhSahidabibiHizbulmiya TreatmentCertificateofwitnessShaikh Suhanabanu,Safikmiya,issuedbytheGeneral Hospital,Mahesana. Casepapersofwitness 170
13 14
171 172
15 16
173 174
Sr. No. 17
Exh. No. 175
18 19
176 177
20 21
178 179
22
180
// 46 //
ShaikhSuhanabanuSafikmiya 23 TreatmentCertificateofwitnessShaikh GulamaliAkbarmiya,issuedbytheGeneral Hospital,Mahesana. TreatmentCertificateofwitness ShaikhImtiyazMahmadhusen, issuedbytheGeneralHospital,Mahesana. Casepapersofwitness ShaikhImtiazMahmadhusen TreatmentCertificateofwitness ShaikhHamidabibiAkbarmiya, issuedbytheGeneralHospital,Mahesana. Casepapersofwitness ShaikhHamidabibiAkbarmiya TreatmentCertificateofwitness ShaikhSainbanuAyubmiya, issuedbytheGeneralHospital,Mahesana. Casepapersofwitness ShaikhSainbanuAyubmiya Detailsofdocument TreatmentCertificateofwitness ShaikhFaridabibiAshifhusen, issuedbytheGeneralHospital,Mahesana. Casepapersofwitness ShaikhFaridabibiAshikhusen TreatmentCertificateofwitness ShaikhMakbulmiyaKesharmiya, issuedbytheGeneralHospital,Mahesana. Casepapersofwitness ShaikhMakbulmiyaKesharmiya 182
24
183
25 26
184 185
27 28
186 187
29 Sr. No. 30
188 Exh. No. 189
31 32
190 191
33
192
// 47 //
34
TreatmentCertificateofwitness ShaikhSaynabanuAsikhusen, issuedbytheGeneralHospital,Mahesana. Casepapersofwitness ShaikhSaynabanuAshikhusen TreatmentCertificateofwitness ShaikhRukshanabanuIbrahimmiya, issuedbytheGeneralHospital,Mahesana.
193
35 36
194 195
37 38 39 40 41 42 43 Sr. No. 44 45 46
LetterwrittenbythePolicetotheMedicalOfficer 196 fortheP.MofShaikhAshiyanabanuAshikhusen. PosthumousFormof ShaikhAshiyanabanuAshikhusen InquestPanchanama ShaikhAshiyanabanuAshikhusen P.M.NoteofShaikhAshiyanabanuAshikhusen CauseofdeathCertificate ShaikhAshiyanabanuAshikhusen 197 198 199 200
CauseofdeathCertificate 201 ShaikhShakkarbanuMahemudmiyaHusenmiya. PosthumousFormof ShaikhSakkarbanuMahemudmiyaHusenmiya. Detailsofdocument P.M.NoteShaikhSakkarbanuMahemudmiya Husenmiya ThreeCasepapersofShaikhAbedabanu Manubhai TreatmentCertificateofwitness ShaikhAbedabanuManubhai, issuedbytheGeneralHospital,Mahesana. 202 Exh. No. 203 212 213
// 48 //
47 48
Casepapersofwitness ShaikhAminabibiAbumiya TreatmentCertificateofwitness ShaikhAminabibiAbumiya, issuedbytheGeneralHospital,Mahesana. Casepapersofwitness ShaikhKhatinabibiDosmahmad TreatmentCertificateofwitnessKhatinabibi issuedbytheGeneralHospital,Mahesana. Casepapersofwitness ShaikhBhikhumiyaKalumiya InjuryCertificateofwitness ShaikhBhikumiyaKalumiya issuedbytheGeneralHospital,Mahesana. P.M.NoteShaikhParvinbanuIbrahimbhai LetterwrittenbytheP.I.VijapurfortheP.M.to theGeneralHospital,Mahesana.
214 215
49 50 51 52
216 217 218 219
53 54 55 56 57 58 59 Sr. No. 60 61
220 222
OriginalInquestPanchanamapreparedforTotal 223 28deadbodies PosthumousFormofShaikhParvinbanu Ibrahimbhai CauseofdeathCertificateofShaikhParvinbanu P.M.NoteofShaikhSamimbanuMustumiya PosthumousFormofShaikhSamimbanu Mustumiya Detailsofdocument 224 225 226 227 Exh. No.
CauseofdeathCertificateofShaikhSamimbanu 228 Mustumiya Receiptofdeadbodies 229
// 49 //
62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 Sr.
PosthumousFormofShaikhRuksanabanu Ibrahimmiya P.M.NoteofShaikhRukshanabanuIbrahimmiya P.M.NoteofShaikhJayadabanuIbrahimbhai Rasulmiya CauseofdeathCertificateofShaikh RukshanabanuIbrahimmiya. P.M.NoteofShaikhSairabanuAbbasmiya PosthumousFormofShaikhSairabanu Abbasmiya CertificateofcauseofDeathofShaikh SayarabanuAbbasmiya P.M.NoteofShaikhYunushusenSherumiya PosthumousFormofShaikhYunushusen Sherumiya CertificateofcauseofDeathofShaikh YunushusenSherumiya. P.M.NoteofShaikhArifhusenManubhai CauseofdeathCertificateShaikhArifhusen Manubhai P.M.NoteofShaikhSultanbhaiMahemudmiya PosthumousFormofShaikhSultanbhai Mahemudmiya CauseofdeathCertificateofShaikhSultanbhai Mahemudmiya P.M.NoteofShaikhJavedmiyaMustufamiya Detailsofdocument
234 235 236 237 238 239 240 245 246 247 248 250 253 254 255 256 Exh.
PosthumousFormofShaikhArifhusenManubhai 249
PosthumousFormofShaikhJavedmiyaMustufamiya 257
// 50 //
No. 80 81 82 83 84 85 86 87 88 89 90 91 92 93 94 95 96 CauseofdeathCertificateofShaikhJavedmiya Mustufamiya P.M.NoteofShaikhRasidabanuJamalbhai PosthumousFormofShaikhRasidabanu Jamalbhai
No. 258 263 264
CauseofdeathCertificateofShaikhRasidabanu 265 Jamalbhai P.M.noteofShaikhIdrishbhaiAkbarbhai PosthumousFormofShaikhIdrishbhai Akbarbhai CauseofdeathCertificateofShaikhIdrishbhai Akbarbhai P.M.NoteofShaikhMehmudabibiSherumiya PosthumousFormofShaikhMehmudabibi Sherumiya CauseofdeathCertificateofShaikh MehmudabibiSherumiya P.M.NoteofShaikhVahidabanuNajirbhai PosthumousFormofShaikhVahidabanu Najirbhai 266 267 268 272 273 274 275 276
CauseofdeathCertificateofShaikhVahidabanu 277 Najirbhai P.M.NoteShaikhBismillabanuBhikhumiya PosthumousFormofShaikhBismillabanu Bhikhumiya CauseofdeathCertificateShaikhBismillabanu Bhikhumiya P.M.NoteofShaikhBarubibiBabumiya 279 280 281 284
// 51 //
97 98 Sr. No. 99 100 101 102 103 104 105 106 107 108 109 110 111 112
PosthumousFormofShaikhBarubibiBabumiya CauseofDeathCertificateShaikhBarubibi Babumiya Detailsofdocument P.M.NoteofShaikhFaridabanuMehbubbhai PosthumousFormofShaikhFaridabanu Mehbubbhai CauseofdeathCertificateofShaikhFaridabanu Mehbubbhai P.M.NoteofShaikhRuksanabanuAbbasmiya PosthumousFormofShaikhRuksanabanu Abbasmiya CauseofdeathCertificateofShaikh RuksanabanuAbbasmiya P.M.NoteofShaikhMumtazbanuMaksudhusen PosthumousFormofShaikhMumtazbanu Maksudhusen
285 286 Exh. No. 287 288 289 291 292 293 296 297
CauseofdeathCertificateofShaikhMumtazbanu 298 Maksudhusen P.M.NoteofShaikhMumtazbanuSherumiya PosthumousFormofShaikhMumtazbanu Sherumiya 299 300
CauseofdeathCertificateofShaikhMumtazbanu 301 Sherumiya P.M.NoteofShaikhJohrabanuW/o.Manubhai Shaikh PosthumousFormofShaikhJohrabanuW/o. Manubhai 303 304
// 52 //
113 114 115 116 Sr. No. 117 118 119 120 121 122 123 124 125 126 127 128
CauseofdeathCertificateofShaikhJohrabanu W/o.Manubhai PosthumousFormofShaikhHusenabibiW/o. Hizbulmiya CauseofdeathCertificateofShaikhHusenabibi W/o.Hizbulmiya Detailsofdocument P.M.NoteofShaikhRifakathusen S/o.Hizbulmiya PosthumousFormofShaikhRifakathusenS/o. Hizbulmiya
305
P.M.NoteofShaikhHusenabibiW/o.Hizbulmiya 309 310 311 Exh. No. 313 314
CauseofdeathCertificateofShaikhRifakathusen 315 S/o.Hizbulmiya P.M.NoteofShaikhManubhaiHusenbhai PosthumousFormofShaikhManubhai Husenbhai CauseofdeathCertificateofShaikhManubhai Husenbhai P.M.NoteofShaikhBachumiyaNathumiya PosthumousFormofShaikhBachumiya Nathumiya CauseofdeathCertificateofShaikhBachumiya Nathumiya P.M.NoteofShaikhSherumiyaRasulmiya PosthumousFormofShaikhSherumiya Rasulmiya CausedeathCertificateofShaikhSherumiya Rasulmiya 318 319 320 323 324 325 326 327 328
// 53 //
129 130 131 132 133 134 Sr. No. 135 136 137 138 139 140 141 142 143 144 145
P.M.NoteofShaikhAbbasmiyaKesarmiya PosthumousFormofShaikhAbbasmiya Kesarmiya CauseofdeathCertificateofShaikhAbbasmiya Kesarmiya PosthumousFormofShaikhRajiyabanuD/o. Ibrahimbhai CauseofdeathCertificateofShaikhRajiyabanu D/o.Ibrahimbhai Detailsofdocument LetterwrittenbyAhmedabadPolicetotheCivil Hospital,Ahmedabad. P.M.NoteofShaikhAbedabanuManubhai PosthumousFormofShaikhAbedabanu Manubhai CauseofdeathCertificateofShaikhAbedabanu Manubhai P.M.NoteofShaikhRafikManubhai PosthumousFormofShaikhRafikManubhai CauseofdeathCertificateofShaikhRafik Manubhai P.M.NoteofShaikhFirozMakbulhusen PosthumousFormofShaikhFirozMakbulhusen CauseofdeathCertificateofShaikhFiroz Makbulhusen LetterwrittenbyAhmedabadPolicetotheCivil Hospital,Ahmedabad.
332 333 334
P.M.noteofShaikhRajiyabanuD/o.Ibrahimbhai 335 336 337 Exh. No. 340 341 342 343 345 346 347 348 349 350 351
// 54 //
146 147 148 149 150 151 152 153 154 Sr. No. 155 156 157 158 159 160 161
InquestPanchanamaof ShaikhFirozMakbulhusen InquestPanchanamaofShaikhRafikManubhai ArrestPanchanamaoftwoaccused ArrestPanchanamaofoneaccused ArrestPanchanamaoftwoaccused Slip,dulysignedbythePanchasfor MuddamalArticleNo.A/1toA/28
357 359 363 366 369 373
PanchnamaofCloths,recoveredfromthe28dead 374 bodies. C/1Slip,dulysignedbythePanchasfor MuddamalArticleNo.37Dhariya. C/2Slip,dulysignedbythePanchasfor MuddamalArticleNo.38Dhariya. Detailsofdocument C/3Slip,dulysignedbythePanchasfor MuddamalArticleNo.39Sward. C/4Slip,dulysignedbythePanchasfor MuddamalArticleNo.40IronPipe. C/5Slip,dulysignedbythePanchasfor MuddamalArticleNo.41IronPipe. C/6Slip,dulysignedbythePanchasfor MuddamalArticleNo.42Dhariya. C/7Slip,dulysignedbythePanchasfor MuddamalArticleNo.43Dhariya. C/8Slip,dulysignedbythePanchasfor MuddamalArticleNo.44Stick. C/9Slip,dulysignedbythePanchasfor MuddamalArticleNo.45IronPipe. 377 378 Exh. No. 379 380 381 382 383 384 385
// 55 //
162 163 164
C/10Slip,dulysignedbythePanchasfor MuddamalArticleNo.46Stick. C/11Slip,dulysignedbythePanchasfor MuddamalArticleNo.47Dhariya. C/12Slip,dulysignedbythePanchasfor MuddamalArticleNo.48Dhariya. Slip,dulysignedbythePanchasforMuddamal ArticleNo.50Dhariya. Slip,dulysignedbythePanchasforMuddamal ArticleNo.51. Slip,dulysignedbythePanchasforMuddamal ArticleNo.52. Notification,issuedunderSection37(1)ofthe BombayPoliceAct,bytheAdditionalDistrict Magistrate,Mahesana,dated25.02.2002. PosthumousFormofShaikhIrfanhusen Mahemudmiya Detailsofdocument P.M.NoteofShaikhIrfanhusenMahemudmiya CauseofdeathCertificateofShaikhIrfanhusen Mahemudmiya Sketchofsceneofoffence Sketchofsceneofoffence Panchanamaofsceneofoffence SlipofMuddamalArticleNos.29to36 MuddamalSlipdulysigned. TransferMemoofRafikbhaiManubhaiShaikh
386 390 393
165 166 167 168
394 397 398 406
169 Sr. No. 170 171 172 173 174 175 176 177
412 Exh. No. 413 414 420 421 424 425to 431 432 463
// 56 //
178 179 180 181 182 183 184 185 186 187 188 189 190 191 Sr. No. 192 193 194 195 196
CasepapersofRafikbhaiManubhaiShaikh TransferMemoofShaikhAbidabenManubhai CasepapersofShaikhAbidabenManubhai PapersofBurnsDivisionofAbidabenManubhai TransferMemoofShaikhFirozbhaiMakbulbhai LetterwrittenbythePoliceDepartmentforthe P.M.ofShaikhRafikManubhaiShaikh LetterwrittenbyHeadConstablefortheP.M. LetterwrittenbyHeadConstablefortheP.M. ComplaintofIbrahimbhaiRasulbhai DeathRegistrationCertificateofSuhanabanu, issuedbytheIlolGramPanchayat
464 465 466 467 468 469 470 471 487 571
PanchnamaofburialofSuhanabanu,executedin 572 presenceofTalati. CertifiedcopyofLetterwrittenbywitnessPathan 615 MunsafkhanYasinkhantoD.S.P.,Gandhinagar LetterwrittenbyS.I.TGandhinagar,to UttarGujaratVijCompanyLimited,Vijapur 666
ReplygivenbyUttarGujaratVijCompanyLimited 667 toS.I.T.,Gandhinagar. Detailsofdocument InspectionReportofF.S.LOfficerShriModi Exh. No. 675
LetterwrittenbyP.I.,VijapurtosendF.S.LVanat 676 SceneofOffence ExaminationReportofF.S.L,Ahmedabad 677 DispatchNoteofMuddamal,FromP.I.Vijapurto 679 F.S.L.,Ahmedabad AcknowledgementReceiptofMuddamal. 680
// 57 //
197 198 199 200 201 202 203 204 205 206 207 208
ForwardingofMuddamal AcknowledgementReceiptofMuddamal. ExaminationReportofMuddamal ExaminationReportofMuddamal LetterwrittenforlodgingComplaint DeputeOrder TrueCopyofStationDiaryofI.Cr.R.No.45/02 ExaminationReportofMuddamal LetterwrittenforsendingbacktheMuddamal ListofElectricConnection,producedbyDeputy Engineer,G.E.B.,Ladol TrueCopyoflistofElectricConnectionof Dt.01.03.2002 LetterwrittenbyP.S.O.,MahesanaforInquest PanchanamaofdeadbodyofAshiyanabanu AshikhusentoExecutiveMagistrate InquestPanchnamaofShaikhAbedabanu Manubhai ListofPapersofShaikhAbedabenManubhai ListofPapersofdeceasedFirozMakbulhusen OfficeCopyofLetterwrittenbytheAdditional Secretary,Gandhinagar,seekingpermission underSection196(1)ofCr.P.C.Forsubmitting Chargesheetagainst8Accused. Detailsofdocument OfficeCopyofLetterwrittenbytheAdditional Secretary,Gandhinagar,seekingpermission underSection196(1)ofCr.P.C.Forsubmitting
681 682 683 684 688 689 690 691 692 696 697 708
209 210 211 212
712 714 717 720
Sr. No. 213
Exh. No. 721
// 58 //
Chargesheetagainst8Accused. 214 OfficeCopyofLetterwrittenbytheAdditional Secretary,Gandhinagar,seekingpermission underSection196(1)ofCr.P.C.Forsubmitting Chargesheetagainst68Accused. OfficeCopyofLetterwrittenbytheAdditional Secretary,Gandhinagar,seekingpermission underSection196(1)ofCr.P.C.Forsubmitting Chargesheetagainst67Accused. CopyofGazette OriginalCertificateregardingburialof SuhanabanuatIlolMuslimGraveyard. LetterofPanchanamaofrecoveryofclothsfrom theDeadBody. Videocassette Photographsofsceneofoffence LettersofP.I.Vijapur LettersofP.I.Vijapur PanchanamaofArrestofeightaccusedand Recoveryofweapons OfficeCopyofRemindersenttoMamlatdar, VijapurforpreparingandsendingtheSketchof Sceneofoffence OfficeCopyofletterwrittentoSurgeon, AhmedabadforgivingP.M.NoteofShaikh Abedaben. PanchanamaofshopofwitnessMemon AbdulbhaiKadarbhai 722
215
723
216 217 218 219 220 221 222 223 224
724 726 727 764 765 771to 775 776to 777 778 779
225
780
226
790
// 59 //
Sr. No. 227 228
Detailsofdocument
Exh. No.
YadiwrittenbyP.I.ShriM.L.RathodtoTalaticum 791 Mantri,BhalakGramPanchayat ReceiptofitemstakenfromdeadbodyofWife Vahidabanuandother28deadbodiesbythe Nazirmahmed. ArrestPanchanamaof25accusedpersons. ReportmadeformakingentryintheStation DiaryinrespectofinformationgivenbyP.I. VijapurtotherelativesofaccusedRameshbhai Kanjibhaiandanother. 811
229 230
814 815
231
ReportmadeformakingentryintheStation 816 DiaryinrespectofinformationgivenbyP.I. VijapurtotherelativesofaccusedAmratbhaietc. 25persons. ProductionReportofP.I.,Vijapurinrespectof accusedRameshbhaiKanjibhaiandanother. RemandApplication,submittedbyP.I.Vijapur, seekingremandforaccusedRameshbhai Kanjibhaiandanother. ProductionReportof25accusedsubmittedby P.I.Vijapur. RemandApplication,submittedbyP.I.Vijapur, seekingremandofaccusedAmratbhaietc.25 accused. 817 818
232 233
234 235
819 820
236 237 238
OfficeCopyofReportofProductionof25accused 821 byP.I.Vijapur. PanchanamaofArrestof12accusedand Recoveryofweapons 822
ReportmadeformakingentryinaStationDiary 823
// 60 //
forarrestofaccusedMadhabhaietc.12accused byP.I.Vijapur. 239 Sr. No. 240 ProductionReportofaccusedSureshbhaietc.12 824 persons,submittedbyP.I.Vijapur. Detailsofdocument RemandApplication,submittedbyP.I.Vijapur, seekingremandofaccusedSureshbhaietc.12 accused. AbstractofentryNo.10ofVijapurPoliceStation Diary. ReportseekingpapersoftreatmentfromCivil Hospital,Ahmedabad,inrespectofinjured Rafikbhaiotherthreepersons. Exh. No. 825
241 242
826 827
243
OfficeCopyofReportmadebyP.I.Vijapur,adding 828 3numberinthefigureofdeadpersonsonthe groundofdeathofthreepersonsatAhmedabad. PanchanamaofArrestoffouraccusedand Recoveryofweapons. ReportmadeformakingentryintheStation DiaryinrespectofinformationgivenbyP.I. Vijapurtotherelativesofaccused Parshottambhaietc.4. 829 830
244 245
246
RemandApplication,submittedbyP.I.Vijapur, 831 seekingremandofaccusedParshottambhaietc.4 accused. PanchanamaofArrestthreeaccusedand Recoveryofweapons OfficeCopyofLetterwrittenbyP.I.Vijapurto MedicalOfficer,GeneralHospital,Mahesana,to issueCauseofDeathCertificateaswellasP.M. 834 835
247 248
// 61 //
Noteof28deadbodiesafterperformingP.M. 249 OfficeCopyofLetterwrittenbyP.I.Vijapurto MedicalOfficer,GeneralHospital,Mahesana,to issueMedicalCertificateandP.M.Noteof RuksanabanuandRafikbhaiManubhaiShaikh. 836
250
LetterwrittenbyP.I.VijapurtoSurgeonofCivil 837 Hospital,AhmedabadtoissueP.M.NoteofShaikh FirozMakbul,ShaikhRafikbhaiManubhaiand ShaikhAbedaManubhai. Detailsofdocument Exh. No.
Sr. No. 251
OfficeCopyofLetterwrittenbyP.I.Vijapurtoadd 838 Section307,397and120(B)ofI.P.C.inthe Complaint. OfficeCopyofReportofProductionofAccused Rameshbhaietc.2byP.I.Vijapur. OfficeCopyofReportofProductionofAccused Sureshbhaietc.12byP.I.Vijapur. OfficeCopyofReportofProductionofAccused Parshottambhaietc.4byP.I.Vijapur. 839 840 841
252 253 254 255
OfficeCopyofRemandApplication,submittedby 842 P.I.Vijapur,seekingremandofaccusedAmbalal Maganlaletc.3accused. ReportmadeformakingentryintheStation DiaryinrespectofinformationgivenbyP.I. VijapurtotherelativesofaccusedAmbalaletc.3. 843
256
257 258 259
OriginalreportofShahibaugPoliceStationtoP.I. 844 Vijapurtokeeptheoriginalpapersintherecord. OfficeCopyofReportofProductionofAccused Parshottambhaietc.4byP.I.Vijapur. OfficeCopyofReportofProductionofAccused 845 846
// 62 //
AmbalalMaganlaletc.3byP.I.Vijapur. 260 261 OfficeCopyofReportofProductionofAccused AmbalalMaganlaletc.3byP.I.Vijapur. OriginalletterwrittenbuCivilSurgeon, MahesanatoP.I.Vijapurexplainingthemistake innameinsteadofRuksanabanuinfactthe deceasedisJahedabanu(Saharabanu)Ibrahim Rasulmiya. OriginalLetterofDistrictPanchayat,Mahesana sendingwiththelettermentionedatSr.No.261. OfficeCopyofLetterwrittenbyP.I.,Vijapurto CivilSurgeonforSr.No.261&262 Detailsofdocument 847 848
262 263 Sr. No. 264 265 266 267 268 269 270 271
849 850 Exh. No.
OriginalLetterwrittenbyD.S.P.MahesanatoP.I. 851 Vijapur,inrespectofSr.No.261&262 OfficeCopyofLetterwrittenbyP.I.Vijapurto D.S.P.,MahesanainrespectofSr.No.261&262 LetterwrittentoMamlatdar,Vijapurtoprepare andsendthesketchofsceneofoffence TrueCopyofI.Cr.No.45/02ofVijapurPolice Station TrueCopyofI.Cr.No.51/02ofVijapurPolice Station TrueCopyofI.Cr.No.54/02ofVijapurPolice Station TrueCopyofI.Cr.No.62/02ofVijapurPolice Station Reportforseekingtheremandofaccusedfrom J.M.F.C.,Vijapur 852 853 856 857 858 859 901
// 63 //
272 273 274 275
ProductionReportsubmittedbeforetheJ.M.F.C. 902 Vijapur. Reportforseekingtheremandofaccusedfrom J.M.F.C.,Vijapur LetterwrittentoMamlatdar,Vijapurtoprepare andsendthesketchofsceneofoffence OfficeCopyofletterwrittenbytheInvestigation Officer,S.I.T.toJ.M.F.C.VijapurtoaddSection 295. 903 904 905
276 277
OfficeCopyofletterwrittenbytheInvestigation 906 Officer,S.I.T.toJ.M.F.C.VijapurtoaddSec.153A FaxMessage,informingtoP.I.VijapurbyDy.S.P., 907 S.I.T.,Gandhinagarinrespectofarrestof13 accused. ReporttomakeentryintheStationDiaryin respectofarrestofaccusedtoChargeOfficer, VijapurPoliceStation. Detailsofdocument 908
278
Sr. No. 279 280 281 282 283 284
Exh. No.
ProductionReportsubmittedbeforetheJ.M.F.C. 909 Vijapurinrespectof13accused. Reportforseekingtheremandof13accusedfor 910 theperiodof7daysfromJ.M.F.C.,Vijapur ProductionReportsubmittedbeforetheJ.M.F.C. 911 Vijapurinrespectof13accused. Reportforseekingtheremandof13accusedfor 912 theperiodof5daysfromJ.M.F.C.,Vijapur ProductionReportsubmittedbeforetheJ.M.F.C. 913 Vijapurinrespectof13accused. LeaveReportofaccusedGovindbhaiPatel 914 JuniorAssistanttoDy.Engineer,G.E.B.,Kheralu.
// 64 //
285
InformationLetterinrespectofAccused GovindbhaiPatel,JuniorAssistant,bytheDy. Engineer,G.E.B.,Kheralu. CopyofDeathCertificateofShaikhSayarabanu Abbasmiya CopyofDeathCertificateofJayadabibi IbrahimbhaiRasulmiya
915
286 287 288 289 290 291 292 293 294 Sr. No. 295 296 297 298
916 917
CopyofDeathCertificateofAbedabenManubhai 918 Shaikh CopyofDeathCertificateofRafikManubhaiShaikh 919 CopyofDeathCertificateofShaikhFiroz Makbulhusen CopyofDeathCertificateofYasinabanu AashiqhusenShaikh CopyofDeathCertificateofShaikhSherumiya Rasulmiya CopyofDeathCertificateofShaikhBachumiya Nathumiya CopyofDeathCertificateofShaikhIrfanhusen Mahemudmiya Detailsofdocument CopyofDeathCertificateofRifakathusen Hizbulmiya 920 921 922 923 924 Exh. No. 925
CopyofDeathCertificateofManubhaiHusenbhai 926 Shaikh CopyofDeathCertificateofJohrabanuManubhai 927 Shaikh CopyofDeathCertificateofRuksanabanu AbbasmiyaKesarmiya 928
// 65 //
299 300 301 302 303 304 305 306 307 308 309 310 Sr. No. 311 312
CopyofDeathCertificateofBismillabanu BhikhumiyaKalumiyaShaikh CopyofDeathCertificateofRaziyabanu IbrahimbhaiRasulmiya
929 930
CopyofDeathCertificateofAbbasmiyaKesarmiya 931 Shaikh CopyofDeathCertificateofHusenabibi HizbulmiyaHusenmiyaShaikh CopyofDeathCertificateofSakkarbanu MahemudmiyaHusenmiyaShaikh CopyofDeathCertificateofParvinbanu IbrahimbhaiRasulmiya CopyofDeathCertificateofShamimbanu MustumiyaRasulmiya CopyofDeathCertificateofFaridabanu MahebubbhaiHusenbhai CopyofDeathCertificateofMumtazbanu SherumiyaRasulmiya CopyofDeathCertificateofMumtazbanu MakbulhusenKesarmiyaShaikh CopyofDeathCertificateofBarubibiBabumiya MotamiyaShaikh CopyofDeathCertificateofVahidabanu NazirbhaiAkbarbhaiShaikh Detailsofdocument CopyofDeathCertificateofMahemudabibi SherumiyaRasulmiyaShaikh CopyofDeathCertificateofShaikhIdrishbhai Akbarbhai 932 933 934 935 936 937 938 939 940 Exh. No. 941 942
// 66 //
313 314 315 316 317 318
CopyofDeathCertificateofJavedmiya MustumiyaRasulmiyaShaikh CopyofDeathCertificateofRasidabanu JamalbhaiDosubhaiShaikh CopyofDeathCertificateofSultanbhai MahemudmiyaHusenmiyaShaikh CopyofDeathCertificateofShaikhAarifhusen Manubhai CopyofDeathCertificateofYunushusen SherumiyaRasulmiyaShaikh
943 944 945 946 947
LetterseekinginformationfromR.T.O.inrespect 949 ofownershipofJeepNo.GJ17A8775and ScooterNo.GAF4710 LetterseekinginformationfromS.D.O.T.Vijapur seekinginformationabouttheownership,name andaddressofthepersonhavingTelephone Number32328ofSardarpurVillage. LetterwrittenbyBharatSancharNigamLimited submittinginformation. 950
319
320 321
951
OfficeCopyofLetterseekingdetailsfromP.I. 966 VijapurabouttheMobilebyD.S.P.andI.O.,S.I.T. Gandhinagar. LetterwrittenbyP.I.VijapurtoShriG.V.Barot, 967 I.O.,S.I.T.Gandhinagarabouttheinformationof MobileNumbers OriginalpapersofdetailsofMobileofPolice OfficersofVijapurPoliceStationfortheYear 2002. Detailsofdocument 968
322
323
Sr. No.
Exh. No.
// 67 //
324
CopyofLetterwrittenbyG.V.Barot,S.P. GandhinagartoRegionalSecretary(Legal) Vodafone,Ahmedabad. LetterinformingtheMobileNumbers ArrestPanchnamaofaccused. ProsecutionhaspassedclosingPursisvideExh.977.
969
325 326 12.
970 971
13.
Thereafter, Further Statements of the accused were recorded in which they have denied the allegations made againstthemandalsodeniedevidenceoftheprosecution. Thedefenceoftheaccusedpersons,asappearingfromthe crossexamination of the prosecution witnesses and from theirexaminationunderSec.313ofCr.P.C.isoftotaldenial. Thebasicdefenceoftheaccusedpersonsisthattheyhave beenfalselyimplicated.Theyclaimthattheyareinnocent. Theywerenotpresentatthetimeofincident.Theyhavenot takenpartintheincidentnortheywerepartofconspiracy fortheincident.Theyhadnotpeltedstonesnorattacked MuslimcommunityinShaikhMahollanortheywerearmed withdeadlyweapons,norransackedanybodyorsetonfire cabins, houses etc., as alleged. Further, they have submittedthattheyareresidingintheSardarpurandthe Muslimsinthevillage:Sardarpurarealsoresidinginthe villagesincetheirbirth.Theyhavenopreviousenmitywith
// 68 //
anycommunity.MuslimpersonsofSardarpurvillagewere safe.Earliertherewerenocommunalriotsinthevillage.As theGodhratrainincidentoccurred, inmanypartsofthe Gujarat, riots took place but in Sardarpur village, there were no untoward incident occurred, no complaint was lodgedforanysuchincident.Sundarpuris1.00Km.away fromSardarpur.MukeshbhaiMadhabhaiPatel,residentof SundarpurwasinSabarmatiExpressTrain,onhisreturn hearrangedsomemeetingsandinstigatedthepublicwho attackedthehousesofMuslimsinSundarpur,Ladoland there was a tense atmosphere in different villages of Mahesana District but Sardarpur village was peaceful. Muslims of Sundarpur came to Pathan Maholla in Sardarpuron01.03.2002atabout5.00P.M. Soonasthe personsfromtheSundarpurvillagecametoknowthisfact, they came to Sardarpur and came to the office of Panchayatasmob.Thepolicehadlobbedteargasshellsand lathi charged and firing in the air was also done. Thereafter,themobwasdisbursed.Thereafter,amobfrom SundarpurandKamalpurreachedthebacksideofShaikh MahollaandattackedthehouseofMahemudmiyaaswell asShaikhMahollaandotherhousesofShaikhMahollaand the said incident occurred. As the Muslims of Sardarpur
// 69 //
thoughtthattheHindupersonsfromSardarpurhavenot protected them they prepared Yadi to take the name of persons from Sardarpur and Yadi was prepared by Munusfkhan Pathan and the eminent persons from the village are implicated in the incident. On 04.03.2002, 25 persons werefalsely arrested bythepolice.Graveyard is situatedbehindShaikhMaholla.Itishighlyimpossiblethat 1000 to 1500 persons can reach in Shaikh Maholla at a time.WitnessofShaikhMahollaarefalselydeposingbefore theCourt.ConsideringthesituationofthehouseofShaikh Maholla,ifknownpersonsattacks,itishighlyimpossibleto savethepersonsresidinginShaikhMaholla.TheMuslims ofShaikhMahollaaretellinglieattheinstanceofTeesta Setalvad and falsely identifying the accused before the Court.NoattacktookplaceinanyotherMuslimareainthe village. Munusfkhan Pathan being Police Officer is well awareofthelaw.Afalsecomplainthasbeenlodgedbythe complainant by alleging against the accused persons of Sardarpur. Application by Pathan Sabirmiya Akumiya is falsely made before S.I.T. after 6 years. Mangabhai Ramabhai Rawal and Prahaladbhai Nathabhai are the friends of Munsufkhan Pathan and at the instance of Munsufkhan they have deposed falsely before the Court.
// 70 //
WitnessesfromMemonandFakirfamiliesarealsodeposing falsely.OneImtiyazaliKureshiiswitnessfromSundarpur. HehasdeposedabouttheinjurytoBabubhaiPanchaland hasadmittedabouttenseatmosphereatSundarpurwhich supports the theory of the accused that the people from SundarpurhaveattackedMuslimsinSardarpur.Further,it is submitted by them that the streetlight connection in Sardarpurvillagewasdisconnectedduetononpaymentof amountofbillandatthetimeofincident,streetlightwas notworking.Someofthewitnesseshavefalselycreatedthe evidence in respect of Halogen light. Further statements andaffidavitssubmittedbythewitnessofShaikhMaholla areincollusionjusttomisguidetheCourtattheinstance ofTeestaSetalvadandotherinstitutions.Noweaponswere tendered by the accused. All Panchnamas are falsely created. Map is also falsely prepared. Doctors have not deposedindependentlyinthedeposition.Depositiongiven by the Doctors in respect of injuries are not proper. Histories are also falsely endorsed by the doctors. No independentinvestigationiscarriedoutbyS.I.T.andtheir Investigating Officers and they have suppressed the fact that mob from Sundarpur have attacked the Shaikh Maholla. The involvement of the accused in the incident
// 71 //
which occurred in Shaikh Maholla as alleged is to be discarded.
14.
In addition to that, the accused No.6 of Sessions Case No.7/2009, has stated that he is resident of Sardarpur carrying agricultural work. Persons from Shaikh Maholla wereworking as labourers withhim therefore, theyknow him very well. With an intention to involve the village persons,hehasfalselybeeninvolvedbytheMuslims.He was not present in the mob at the time of the incident. WhileaccusedNo.2inSessionsCaseNo.275/02hasadded that Aashiqmiya Bachumiya Shaikh and Samirmiya Bachumiya are drivers and he himself is also a driver therefore,theyknoweachotherverywell.AccusedNo.9of Sessions Case No.275/02 has added in his Further Statement that, he is the son of Kanubhai the then Sarpanchatthetimeofincident,hewasstudyingin12th Standard.Hewaspreparingforhisexamination.Simply,he is the son of Kanubhai, he has falsely been involved. AccusedNo.14ofSessionsCaseNo.275/02hasaddedthat earlier,hewasSarpanchofthevillagehence,peoplefrom thevillageknowhimverywell.Ifanyofficercallshim,he hastogotothatofficerinthecapacityofSarpanch.Police
// 72 //
hadcalledhimatabout2.00O'clockinthemidnightand arrestedhim.HisnameisnotmentionedintheF.I.R.but he has falsely been involved by the complainant and witnesses. In the year 2002, he was in jail even though persons from each community of the village had selected him as Sarpanch. He had done good work for the village andhehadmadeattemptsthatallpersonsfromdifferent community resides in the village cordially. He has made attempts for the development of each community but he hasfalselybeeninvolvedintheincident.AccusedNo.18of Sessions Case No.275/02 has added in his Further Statementthat,onthebacksidewallofthehouseofthe accused,ShaikhMahollaissituatedandaccusedisfalsely involved. Accused No.20 of Sessions Case No.275/02 has addedthathewasstudyinginStandard12thandduring themidnighton04.03.2002,hewassleeping,atthattime, he was arrested. Accused No.26 of Sessions Case No.275/02 has added that he was carrying business of milkandbuttermilketc.therefore,personsfromthevillage know him well therefore, he was identified falsely by the witnesseswhoareresidingbehindhishouse.Theaccused No.29ofSessionsCaseNo.275/02hasaddedthathisold house is 62 to 70 Ft. away. Since the year 1997 he is
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staying 0.5 Km. away from the village. As earlier, he was staying in the old house therefore, the witnesses were knowntohim.AccusedNo.35ofSessionsCaseNo.275/02, hasaddedthattheMunsufkhanPathanhasnotgivenhis nameinanyofhisstatementbutjusttoinvolvehiminthe incident,heisidentifiedbytheMunusfkhanPathanforthe firsttime.TheaccusedNo.38ofSessionsCaseNo.275/02 has added that he is residing in Sardarpur village and witnesses were working in their field therefore, the witnesseswereknowinghimwellandhehasfalselybeen involved in the incident. Accused No.39 of Sessions Case No.275/02hasaddedthatheisanactingmemberofSeva Sahakari Mandali and Umiya Kisan Dairy since last 15 yearstherefore,justtocausedamagetohisimage,hehas falsely been involved. Accused No.40 and 43 of Sessions Case No.275/02, respectively have stated that in the incident Shri Ram Parlour, which was carried out by accused No.40 and his brother, was set on fire and Rs.2000/ispaidbytheGovernmenttowardsthedamages. Since1996to2002theywerecarryingthebusinessinthe name of Dairy Parlour and Candy Parlour therefore, they areknownbythevillagehavepersonstherefore,theyfalsely beeninvolved.Insupportofhissay,hehasproducedcopy
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ofpaymentreceipt,rationcardandcopyoflistofpersons whosecabinsweredamaged.TheaccusedNo.41hasadded that he was member of Gram Panchayat during the year 19982002hewasSecretaryofSarvodayaKelvaniMandal. He was working as Sarpanch and member of Taluka Panchayatandjusttocausedamagetohisimage,hehas falselybeeninvolved.TheaccusedNo.42ofSessionsCase No.275/02 has added that so as to cause financial loss anddamagetohisimage,hehasfalselybeeninvolved.The accusedNo.44ofSessionsCaseNo.275/02hasaddedthat hewasactiveinpublicworkinthepublicinstitutionssuch asGramPanchayat,SevaSahakariMandali,VijapurTaluka MarketCommittee,SarvodayaKelvaniMandalandhewas also working as President, Secretary, Member etc. in the above institutions. He has further narrated that he has renderedhisservicesintheaboveinstitutionssincelast25 yearsand therefore,thepersonsofvillageknowhimwell and due to political enmity Munsufkhan has falsely involvedhimasaccused.AccusedNo.45ofSessionsCase No.275/02hasstatedthatheisateacherofPrivateTuition ClassandisconnectedwithPandurangShastriandjustto cause damage tohis image, he has falsely beeninvolved. AccusedNo.48ofSessionsCaseNo.275/02hasstatedthat
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hewasanactingmemberofSardarpurHighSchoolduring the years 20002009 and Secretary from the year 20092010 and he was also an acting member in Seva SahakariMandalifortheperiodfrom2005to2010.Heis wellacquaintedwiththeofficeofKisanDiaryandhewasa Governmentemployeeandatthetimeofincident,hewasin his office for Programme. On 28.02.2002 he was at Karanpurandon09.03.2002,hewasatAithorforBilling programme. To support his this say, he has produced Certificate of Umiya Kisan Diary, Sardarpur, Certificate from Sardarpur Seva Sahakari Mandali Ltd., Certificate fromSarvodayaKelvaniandalandCertificatefromGujarat Vidyut Board, SubDivision office Patan. The Accused No.49ofSessionsCaseNo.275/02hasaddedthathewas Sarpanch of the village in the year 2002 Mahemudmiya HusenmiyaandotherpersonsoftheShaikhMahollahad appliedunderSardarAvasYojnaforfreehouse.Application of Mahemudmiya was granted while applications of other persons were rejected and with that political enmity, the Muslims and Munusfkhan have involved him as accused and false applications and affidavits are filed by the witnesses. A peace committee met in the house of Munsufkhan Pathan and in the presence of P.S.I. Shri
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G.K.Parmar, he alongwith other 4 Patel persons were present in the meeting at the relevant time. He came to knowthefactthat,MuslimsfromSundarpurwerebrought to Sardarpur. He has further stated that, people of the Village were agreed to maintain peace in the village. On 28.02.2002,duringnight,hewasatKhedhbrahmatemple asheusedtogothereonthatdaysincelast25years.And onthatdayhissonBhaveshandothertwopersonswere there alongwith him at Khedhbrahma. On 01.03.2002 at about10.00A.M.hecameinthevillageandcametoknow abouttheincident.On02.03.2002atabout6.00A.M.,he was called byMamlatdar,Talati, P.I. etc. He went tothat placeandhisstatementwasrecorded.Heofferedtolodgea complaint but the Police Inspector refused to take the complaint as the complaint was already lodged and in complaint, his name was not there. He was assisting Government officers. On 04.03.2002, Bachumiya ImammiyaShaikhandothertwopersonsoftheirMaholla came to Sardarpur and at that time Munsufkhan and P.S.I. Parmar were with them. At that time, he came to know about the names mentioned in the complaint. Munsufkhan toldthat, he did notknow thepersonswho camefromoutsidebuttheyhavetotakethenamesofthe
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village persons whether theywere involvedor not, if they wantedtosavethemselvestheyshouldgivethenamesof thepersonswhocamefromoutside.Hehasrefusedtogive thenamesofthevillagepersonsasthevillagepersonswere notinvolvedintheincident.Munsufkhanwasthemember ofPanchayatandhehaspoliticalrivalrywiththeaccused, therefore,nameoftheaccusedhasfalselybeeninvolvedby the complainant in the application and affidavit before S.I.T. and witnesses have falsely taken his name as an accused. Accused No.50 of Sessions Case No.275/02 has statedthathewasservantandhehasfalselybeeninvolved. AccusedNo.52ofSessionsCaseNo.275/02hasstatedthat duringtheincident,hewasbedriddenduetoaccidentand in support of his say, he has produced Disability Certificate, issued by the Resident Medical Officer, Civil Hospital, Ahmedabad. Accused No.54 of Sessions Case No.275/02hasaddedthat,hewasworkinginGEBsince theyear1999to2009andhehadworkedasvillagehelper. Duringtheincidenttime,hewasinhisserviceandvillage persons knowhim well. Aftertwotothree months of the incident,hisnamehasbeenaddedasanaccused,asheis aGovernmentServant. Hishouseis1.00Km.awayfrom Shaikh Maholla. His name has falsely been added in the
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incident. 15. AccusedNo.2ofSessionsCaseNo.7/09hasaddedthathis house is just adjacent to Shaikh Maholla therefore, the witnessesknowhimwell,hence,after7yearsofincident, hehasfalselybeeninvolvedwhereasAccusedNo.2and3of SessionsCaseNo.7/09havestatedthattheyhavesigned one of the Panchnama of the incident, therefore after 6 years of the incident, they have falsely been involved. Accused No.4 of Sessions Case No.7/09 has stated since theyear1970to1978hewasatSuratandthereafter,heis stayingatVijapurandintheyear2002hisfamilymembers werefalselyarrestedinSardarpurcaseandhehadtaken part for releasing them on bail therefore, he has falsely beeninvolvedintheincidentafter7years.AccusedNo.5of SessionsCaseNo.7/09hasstatedthathishouseisnearer to Shaikh Maholla and witnesses know him well and therefore, after 7 years, he has falsely been involved. AccusedNo.6ofSessionsCaseNo.7/09hasstatedthathe isanagriculturistandpersonsfromShaikhMahollaused to work as labourers with him therefore, they know him wellhenceafter7years,hehasfalselybeeninvolvedand takenasanaccused.AccusedNo.7and9ofSessionsCase No.7/09haveaddedthatjusttocausementalandfinancial
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harassment,theirnameshavebeenaddedasanaccusedin theincidentasaccusedNo.7andNo.9respectively,after7 years.AccusedNo.8ofSessionsCaseNo.7/09hasstated thathishouseisjustadjacenttoShaikhMahollatherefore, the witnesses know him well hence, he has falsely been addedasanaccusedafter7years.Hisfatherisalsotaken as accused from the very beginning. He is very eminent personofthevillageandconnectedwithdifferentsocieties andbeingsonofAmbalalMaganbhaihehasfalselybeen implicatedasanaccusedafter6years.AccusedNo.10 of SessionsCaseNo.7/09hasaddedthathehasfalselybeen implicatedasanaccusedafter7years.Heisanemployee of North Gujarat Electricity Company, just to cause damage to his image and with intention to get him dismissedfromhisservice,hehasfalselybeeninvolvedin theincident.
16.
Accused Nos.1 and 2 of Sessions Case No.120/08 have added that just to cause mental and economical loss to them, they have falsely been implicated as accused after 6/7years,respectively.Furthermore,theaccusedno.2and hisfamilymembersarefacingmentaltorture.AccusedNo.3
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of Sessions Case No.120/08 has added that in the year 2002,hehadmadeattemptsforreleaseofsomeaccusedin thepresentcasetherefore,after6years,hehasfalselybeen involvedintheincident.Hehasalsostatedthatheisan agriculturist, used togotohis field regularly and on the dayofincident,hehadbeentohisfieldandonthenext day, hecameback.Hisfieldis 2.00Kms. awayfromthe place of incident. Accused No.4 of Sessions Case No.120/08hasaddedthathehasfalselybeeninvolvedafter 6 years. Accused No.5 of Sessions Case No.120/08 has added that Mangabhai Rawal has encroached upon the openlandintheyear2003tocarryoutillegalconstruction of house which was encroaching the way causing disturbancetotheagriculturistforoutgressandingressto theirfieldtherefore,anapplicationwasgivenbyhimtothe SardarpurGramPanchayatandTalukaPanchayat,Vijapur tostophiswork,accordinglythatworkwasstoppedbythe Panchayat. After 6 years, with a malafide intention, the nameoftheaccusedisfalselybeeninvolvedintheincident. Further,intheyear2002hehadmadeattemptsforrelease of some of the accused. Accused No.6 of Sessions Case No.120/08 has added that just to cause physical, mental and financial torture, after 7 years, he has falsely been
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involved in the incident. Accused No.7 of Sessions Case No.120/08 hasstatedthatheishavinghisshopjustin frontofShaikhMaholla,therefore,theyknowhimverywell hence, after 6 years, he has falsely been involved in the incident. Accused No.8 of Sessions Case No.120/08 has added that he is a teacher, just to cause damage to his image and toget him dismissed from his service, he has falselybeeninvolvedintheincidentafter6years.
17.
I have heard the arguments advanced by Shri S.C.Shah, learned Special Prosecutor, who is assisted by Additional Special Prosecutor Shri V.G.Patel, appearing on behalf of the Prosecution as well as I have also heard the learned advocatesShriH.M.Dhruv,ShriB.C.Barot,ShriA.M.Patel, appearing on behalf of the accused persons. I have also gone through the Written Arguments produced vide Exh.1042,submittedbyLearnedAdvocateShriY.B.Shaikh, appearingonbehalfoftheoriginalcomplainant.
This court has paid sufficient attention towards the oral as well as written arguments advanced and/or submittedbythelearnedadvocates,appearingonbehalfof both the sides and they are discussed hereunder, at the
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relevantpointinthisJudgementandtherefore,atthecost ofrepetitionitisnotproducedhere.
18.
In this case, the Special Prosecutor Mr.S.C.Shah and Additional Special Prosecutor Mr.V.G.Patel as well as learned advocates appearing on behalf of the original complainantMr.Y.B.Shaikh,havecitedsomeauthorities,in supportoftheircase.Ontheotherhandlearnedadvocates appearing on behalf of the accused Mr.H.M.Dhruv, Mr.B.C.Barot and Mr.A.M.Patel have also cited some authorities.Thiscourthasrespectfullyowesdownwiththe lawlaiddownbytheHon'bleApexCourtofIndiaaswellas by the Hon'ble High Court of Gujarat and other Hon'ble High Courts and all the citations are discussed at the relevantpointinthisJudgement,hereunderforthesakeof convenience.
19.
Followingpointsariseformydeterminationofthiscase:
POINTS
(1) Whethertheprosecutionprovesthat,deathofthe33 (Thirtythree)personsarehomicidaldeath? (2) Whethertheprosecutionprovesthat,theaccusedor
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any of them in furtherance of common object formed unlawful assembly with the common objectofvoluntarilycausinghurt,grievoushurt, murder, burnt and to rob the properties of the Muslimcommunityandtherebybecamemember ofUnlawfulAssembly?
(3)
Whethertheprosecutionprovesthat,theaccusedor anyofthemformedunlawfulassemblywiththe common object of voluntarily causing hurt, grievous hurt, murder, burnt and to rob the propertiesoftheMuslimcommunityandthereby becamememberofUnlawfulAssembly?
(4)
Whethertheprosecutionprovesthat,theaccusedor any of them committed rioting by arming themselveswithdangerousweapon?
(5)
Whethertheprosecutionprovesthat,theaccused in furtherance of common object of unlawful assembly by using force and violence have committedrioting?
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(6) Whethertheprosecutionprovesthat,theaccused in furtherance of common object of voluntarily causedgrievoushurtburntaliveandassaulted Muslimmen,womenandchildrenwithintention knowing fully well that if the said act is done, theymay cause deathof persons and bydoing thisact,theyhavecommittedoffence?
(7)
Whethertheprosecutionprovesthatalloranyofthe accusedhavecommittedoffencecausingmurder of33(thirtythreepersons)?
(8)
Whethertheprosecutionprovesthatalloranyofthe accusedhaveinfurtheranceofcommonobjectof unlawfulassemblybyburningmen,womenand children of Muslim Community have attempted to commit murder of Shayanabanu Ayubbhai Shaikh, Basirabibi Bachumiya Shaikh and Iliyasbhai?
(9)
Whethertheprosecutionprovesthatalloranyofthe accused have by burning men, women and children of Muslim Community have attempted
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to commit murder of Shayanabanu Ayubbhai Shaikh, Basirabibi Bachumiya Shaikh and Iliyasbhai?
(10) Whethertheprosecutionprovesthat,accusedNo.10 Patel Jayantibhai Jivanbhai alongwith other persons by forming unlawful assembly committed dacoity of ornaments worth Rs.60,000/?
(11) Whethertheprosecutionprovesthat, infurtherance ofcommonobjectofsuchunlawfulassembly,all theaccusedoranyofthemhavecauseddamage tothepropertyofMuslimpersontotheamount of Rs.85,87,500/ alongwith destruction of 19 houses,3shops,5cabins,1hut,1Jeepand1 scooterandtherebycommittedoffence?
(12) Whethertheprosecutionprovesthat,infurtheranceof commonobjectofsuchunlawfulassemblyallthe accused or any of the accused have committed criminal trespassby enteringinto thehouse of Bachumiya Imammiya Shaikh or upon the
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religiousplaceofMuslimaswellasgraveyardof Muslimwithanintenttocommitoffenceofinsult andannoythepossessionoftheMuslimpeople's property?
(13) Whethertheprosecutionprovesthat,infurtheranceof common object of such unlawful assembly accused No.10 alongwith other person caused hurt, grievous hurt to the complainant and witnessessorashlyandnegligentlytoendanger humanlife?
(14) Whethertheprosecutionprovesthatinfurtheranceof common object of such unlawful assembly accusedNo.10alongwithotherpersonspokethe words "Sala Bandiyao ne Maro" with deliberate andmaliciousintentionofoutragethereligious feelingofMuslimcommunityandpromotedthe feelingsofenmity?
(15) Whethertheprosecutionprovesthatinfurtheranceto common object of such unlawful assembly accused No.10 alongwith other persons had
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entered in the graveyard of Muslim community andhavedamagedtheGraveyardwithintention toinsultthefeelingsofMuslims?
(16) Whethertheprosecutionprovesthat,alltheaccused or any of them have committed criminal conspiracytocommitanoffencepunishablewith death imprisonment for life or rigorous imprisonment?
(17) Whether the accused have committed offence by committingbreachoftheNotificationofDistrict Magistrate by arming themselves with burning rags, stones, Dhariya, sword, iron pipe and inflammableitemsetc.?
(18) Whichoftheaccusedareliableforcommittingoffence andifyes,underwhichsections?
(19) Whatorder? 20. Myfindingstotheabovepointsareasunder:
(1)
Intheaffirmative.
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(2)
Intheaffirmative forAccusedNos.1,2,5,6,11,14, 16,18,27,28,30,31,32,33,34,35,37,38,40,41, 42,43,44,46,48,49,50,52,54ofSessionsCase No.275/2002, Accused No.7 of Sessions Case No.120/2008, Accused No.9 of Sessions Case No.7/2009& InthenegativeforaccusedNos.3,4,7,8,12,13,15, 17,20,21,22,23,24,25,26,29,30,36,39,45,47, 51,53,55ofSessionsCaseNo.275/2002, Accused Nos.1 to 6 and 8 of Sessions Case No.120/2008, Accused Nos.2, 3, 4, 5, 6, 7, 8, 10, 11 and 12 of Sessions Case No.7/2009 and Accused of Sessions CaseNo.72/2010.
(3)
(4) IntheaffirmativeforaccusedNos.28,32,33,34,44, 52ofSessionsCaseNo.275/2002andinthenegative forotheraccused.
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(5)
(6)
(7) (8)
Independentlyinthenegative. Intheaffirmative forAccusedNos.1,2,5,6,11,14,
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16,18,27,28,30,31,32,33,34,35,37,38,40,41, 42,43,44,46,48,49,50,52,54ofSessionsCase No.275/2002, Accused No.7 of Sessions Case No.120/2008, Accused No.9 of Sessions Case No.7/2009&
InthenegativeforaccusedNos.3,4,7,8,12,13,15, 17,20,21,22,23,24,25,26,29,30,36,39,45,47, 51,53,55ofSessionsCaseNo.275/2002, Accused Nos.1 to 6 and 8 of Sessions Case No.120/2008, Accused Nos.2, 3, 4, 5, 6, 7, 8, 10, 11 and 12 of Sessions Case No.7/2009 and Accused of Sessions CaseNo.72/2010. (9) Intheaffirmative forAccusedNos.1,2,5,6,11,14, 16,18,27,28,30,31,32,33,34,35,37,38,40,41, 42,43,44,46,48,49,50,52,54ofSessionsCase No.275/2002, Accused No.7 of Sessions Case No.120/2008, Accused No.9 of Sessions Case No.7/2009& InthenegativeforaccusedNos.3,4,7,8,12,13,15, 17,20,21,22,23,24,25,26,29,30,36,39,45,47, 51,53,55ofSessionsCaseNo.275/2002, Accused Nos.1 to 6 and 8 of Sessions Case No.120/2008, Accused Nos.2, 3, 4, 5, 6, 7, 8, 10, 11 and 12 of Sessions Case No.7/2009 and Accused of Sessions CaseNo.72/2010. (10) Inthenegative. (11) Intheaffirmative forAccusedNos.1,2,5,6,11,14, 16,18,27,28,30,31,32,33,34,35,37,38,40,41,
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42,43,44,46,48,49,50,52,54ofSessionsCase No.275/2002, Accused No.7 of Sessions Case No.120/2008, Accused No.9 of Sessions Case No.7/2009& InthenegativeforaccusedNos.3,4,7,8,12,13,15, 17,20,21,22,23,24,25,26,29,30,36,39,45,47, 51,53,55ofSessionsCaseNo.275/2002, Accused Nos.1 to 6 and 8 of Sessions Case No.120/2008, Accused Nos.2, 3, 4, 5, 6, 7, 8, 10, 11 and 12 of Sessions Case No.7/2009 and Accused of Sessions CaseNo.72/2010. (12) Intheaffirmative forAccusedNos.1,2,5,6,11,14, 16,18,27,28,30,31,32,33,34,35,37,38,40,41, 42,43,44,46,48,49,50,52,54ofSessionsCase No.275/2002, Accused No.7 of Sessions Case No.120/2008, Accused No.9 of Sessions Case No.7/2009& InthenegativeforaccusedNos.3,4,7,8,12,13,15, 17,20,21,22,23,24,25,26,29,30,36,39,45,47, 51,53,55ofSessionsCaseNo.275/2002, Accused Nos.1 to 6 and 8 of Sessions Case No.120/2008, Accused Nos.2, 3, 4, 5, 6, 7, 8, 10, 11 and 12 of Sessions Case No.7/2009 and Accused of Sessions CaseNo.72/2010. (13) Intheaffirmative forAccusedNos.1,2,5,6,11,14, 16,18,27,28,30,31,32,33,34,35,37,38,40,41, 42,43,44,46,48,49,50,52,54ofSessionsCase No.275/2002, Accused No.7 of Sessions Case No.120/2008, Accused No.9 of Sessions Case
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No.7/2009& InthenegativeforaccusedNos.3,4,7,8,12,13,15, 17,20,21,22,23,24,25,26,29,30,36,39,45,47, 51,53,55ofSessionsCaseNo.275/2002, Accused Nos.1 to 6 and 8 of Sessions Case No.120/2008, Accused Nos.2, 3, 4, 5, 6, 7, 8, 10, 11 and 12 of Sessions Case No.7/2009 and Accused of Sessions CaseNo.72/2010. (14) Intheaffirmative forAccusedNos.1,2,5,6,11,14, 16,18,27,28,30,31,32,33,34,35,37,38,40,41, 42,43,44,46,48,49,50,52,54ofSessionsCase No.275/2002, Accused No.7 of Sessions Case No.120/2008, Accused No.9 of Sessions Case No.7/2009& InthenegativeforaccusedNos.3,4,7,8,12,13,15, 17,20,21,22,23,24,25,26,29,30,36,39,45,47, 51,53,55ofSessionsCaseNo.275/2002, Accused Nos.1 to 6 and 8 of Sessions Case No.120/2008, Accused Nos.2, 3, 4, 5, 6, 7, 8, 10, 11 and 12 of Sessions Case No.7/2009 and Accused of Sessions CaseNo.72/2010. (15) Intheaffirmative forAccusedNos.1,2,5,6,11,14, 16,18,27,28,30,31,32,33,34,35,37,38,40,41, 42,43,44,46,48,49,50,52,54ofSessionsCase No.275/2002, Accused No.7 of Sessions Case No.120/2008, Accused No.9 of Sessions Case No.7/2009& InthenegativeforaccusedNos.3,4,7,8,12,13,15,
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17,20,21,22,23,24,25,26,29,30,36,39,45,47, 51,53,55ofSessionsCaseNo.275/2002, Accused Nos.1 to 6 and 8 of Sessions Case No.120/2008, Accused Nos.2, 3, 4, 5, 6, 7, 8, 10, 11 and 12 of Sessions Case No.7/2009 and Accused of Sessions CaseNo.72/2010. (16) Inthenegative. (17) IntheaffirmativeforaccusedNos.28,32,33,34,44, 52ofSessionsCaseNo.275/2002andinthenegative forotheraccused. (18) Asperfinalorder. (19) Asperfinalorder.
::REASONS::
21. Before entering into the appreciation of evidence and decidingallthepointsinthecase,itisdesirabletodiscuss anddecidethepointregardingF.I.R.first. As per the case of the prosecution complainant, Ibrahimmiya Rasulmiya Shaikh has lodged complaint beforetheVijapurPoliceinMahesanaCivilHospitalwhich isproducedduring thedepositionofthecomplainant.To Exhibit the said complaint, objection was raised by the advocateappearingonbehalfoftheaccused.
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After considering the arguments advanced by the advocatesandonperusingthecitationsonbehalfofboth thesidesandkeepinginmindthefactthatthedocument inquestionwasexecutedinMahesanaCivilHospitalandit was written as per the say of the complainant and complainanthassignedthecomplaintandconsideringthe citations, the complaint was given tentative Exhibit as Exh.484.NowwhetheritshouldbeconsideredasF.I.R.or not or it should regularly Exhibited. For this purpose, relying upon the evidence of complainant & police witnesses,itisarguedbytheSpecialProsecutorthatdelay hasbeencausedinlodgingthecomplaintduetoemergency oftreatmenttotheinjuredpersons,asitwasemergencyto giveprioritytosavethelifeofthevictims.Further,Vijapur is45Kms.awayfromMahesana.Thus,thedelaywhichhas beencausedinlodgingcomplaintisreasonableoneandthe complaint lodged by Ibrahimmiya Rasulmiya Shaikh, is coveredunderSection157ofCr.P.C.whichissignedbythe complainant and written at his instance and it was read overtohimthereafter,itwassignedbythecomplainantas well as the P.I. Furthermore, the incident occurred on 01.03.2002during9.30P.M.to2.30A.M.Insupportofhis arguments,hehasrelieduponthefollowingrulings:
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Sr.No. 1 2 3 4 5 6 7
Citation
2010(3)G.L.R.Page2617 D.A.SolankiVs.StateofGujarat, 1978SCpage1142 SonilalandothersVs.StateofU.P., 1994G.L.H.page329 RamsinhBavasinhJadejaVs.StateofGujarat, AIR2009SC2292 HimmatSukhdevVs.StateofMaharashtra, 2009(2)G.L.R.Page1189 HarijanKeshubhaiBhadajiVs.StateofGujarat 2009(3)G.L.R.Page2298 AherPrafulMeramChhahyaV.StateofGujarat, AIR2010SC3300 CriminalAppealNo.342/07,D/1506/0 ShmabudasAliaVs.BijaStateofAssam,
Therefore, it is submitted by the prosecution that F.I.R. which is given tentative Exhibit should be given regularExhibitanditshouldbetreatedasF.I.R. While on behalf of the accused, it is argued that thoughdisclosureofcommissionofcognizableoffencewas known to the police officers, they have neither given the complaintbythemselvesnorrecordedthecomplaintofthe persons, who were interrogated. Even initial interrogation
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asadmittedbythewitnessesdisclosethatamobattacked the houses of Mahemudmiya. Police officers have not clearedtherecordofthepersonswhowereinterrogatedand whodisclosedthecommissionofcognizableoffence.They havegivenveryinvasivereplyintheircrossexaminationfor not recording the complaint of any of the persons interrogatednorwithregardtowhytheythemselveshave not given any complaint. Inquest Panchnama of Ashiyanabanu was executed by Hargovandas Mohandas Sadhu.Thus,itwasknowntohimthatinCriminalriots deceasedhadreceivedinjuriesanditcanbesaidtobea cognizable offence. Therefore, it is the say of Shri Dhruv thattentativeF.I.R.hasbeenlodgedaftertheexecutionof Inquest Panchnama. In view of the decision of Hon'ble Supreme Court, F.I.R. cannot be lodged after the Inquest Panchnamaisdrawn.Stillhowever,nocomplainthasbeen recorded.Further,itisarguedbyShriDhruvthatasper thedepositionofthecomplainant,complaintwasrecorded at about 12.00 hours. After recording the complaint, P.I. has sent the said complaint to Vijapur Police Station for registration. Exh.487 discloses the registration time as 11.30 A.M. Inquest panchnama of 28 dead bodies was executed from 10.00 A.M. to 2.00 P.M. The same was
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started in the morning before the registration of F.I.R. In spiteofthat,InquestPanchnamareflectsthecrimeregister Number. Thus, there is concoction in F.I.R. though commissionofcognizableoffencewasrevealedtoallpolice officersbuttheyhavenotrecordedthecomplaintinviewof Section157oftheCriminalProcedureCode.Onreceiptof informationorotherwise,thepoliceofficerhastoforward hisReporttotheMagistrateempoweredtotakecognizance ofsuchoffence.Therewereevenhighrankpoliceofficers whowerepresentatthetimeofcommissionofcognizable offencebutneitherofthemgavetheF.I.R.norrecordedthe F.I.R.ofanyofthepersonswhowereinterrogatedbythem. Ontheabovecircumstances,tentativeExhibitgiventothe F.I.R. as Exh.487, is required to be deExhibited. For his arguments, Mr.Dhruv has relied upon following authorities: InthecaseofA.I.R.1955S.C.196,H.N.RISHBUDv. STATEOFDELHI,theHon'bleSupremeCourtofIndiahas observed that, under the Code investigation consists generallyofthefollowingsteps:(1)Proceedingtothespot, (2) Ascertainment of the facts and circumstances of the case,(3)Discoveryandarrestofthesuspectedoffender,(4) Collection of evidence relating to the commission of the
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offencewhichmayconsistof(a)theexaminationofvarious persons(includingtheaccused)andthereductionoftheir statements into writing, if the order thinks fit, (b) the searchofplacesorseizureofthingsconsiderednecessary fortheinvestigationandtobeproducedatthetrial,and(5) Formation of the opinion as to whether on the material collected there is a case to place the accused before a Magistratefortrialandifsotakingthenecessarystepsfor thesamebythefilingofachargesheetu/s.173. In the case of 1964 (1) CRIMINAL LAW JOURNAL 140 , STATE OF U.P. v. BHAGWANTKISHORE JOSHI, the Hon'ble Supreme Court of India has observed that, though ordinarily investigation is under taken on information received by a police officer, the receipt of informationis not a conditionprecedentfor investigation. Section157prescribestheprocedureinthematterofsuch an investigation which can be initiated either on informationwhichcanbeinitiatedeitheroninformationor otherwise. It is clear from the said provisions that an officerinchargeofapolicestationcanstartinvestigation eitheroninformationorotherwise. In the case of (2009) 1 SUPREME COURT CASES
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(CRI.)212,RAMESHBABURAODEVASKARv.STATEOF MAHARASHTRA, theHon'bleSupremeCourtofIndiahas observedthat, Afirstinformationreportcannotbelodged inamurdercaseaftertheinquesthasbeenheld. Ifthe said prosecution witness who claimed himself to be the eyewitness was the person who could lodge a first information report, there was absolutely no reason as to why he himself did notbecome the first informant. Itis further held that, FIR cannot be lodged in murder case after inquest was held. Names of all the assailants not disclosed. FIRnotreliable.Lodgingofafirstinformation reportisnecessaryforsettingthecriminallawinmotion. It can be lodged by anybody. In a case of this nature, enmitybetweentwogroupsisaccepted. Inasituationof thisnature,whetherthefirstinformationreportwasante timed or not also requires serious consideration. First informationreport,inacaseofthisnature,providesfora valuable piece of evidence although it may not be substantialevidence.Thereasonforinsistingonlodgingof first information report without undue delay is to obtain the earlier information in regard to the circumstances in which the crime had been committed, the name of the accused,thepartsplayedbythem,theweaponswhichhad
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beenusedasalsothenamesofeyewitnesses. Wherethe parties are at loggerheads and there had been instances whichresultedindeathofoneortheother,lodgingofafirst informationreportisalwaysconsideredtobevital.Inthe cited ruling the copy of F.I.R. was sent to the Magistrate concerned after four days. There was sharing of common objectbyotheraccusedpersonswiththeaccusedwhowas named in the F.I.R. not made out. One witness turned hostile and other two witnesses were not reliable. It was heldthatitwouldbehazardoustorecordconvictionofthe appellant. In the case of AIR 1993 SUPREME COURT PAGE 1544, PARESJ KALYANDAS BHAVSAR v. SADIQ YAKUBBHAI JAMADAR AND OTHERS, the Hon'ble Supreme Court of India has observed that in a case of Murderduringcommunalriots, Murdertookplaceinside the house informant stating in F.I.R. only that part of occurrence that he had seen from a nearby house no attemptmadetogivedetailsofoccurrencethattookplace insidehousenamesofonly9accusedmentionedinF.I.R. indicating that there was no attempt of exaggeration or wholesale roping of persons of any community after
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deliberationsF.I.Reportwastruedelayifanysendingit to Magistrate would not be a ground to doubt its genuineness. Further it is held that, Murder during communalriotsinformationaboutriotsalreadywithpolice statementcanalsobeusedtocorroborateevidenceofother eyewitnesses. In the case of (2010) 1 SUPREMECOURT CASES (CRI.) PAGE 413, (2009) 10 SUPREME COURT CASES (CRI.) PAGE 773, PANDURANG CHANDRAKANT MHATREANDOTHERSv.STATEOFMAHARASHTRA,it isobservedbytheHon'bleSupremeCourtofIndiathat,A firstinformationreportcannotbelodgedinamurdercase aftertheinquesthasbeenheld. When we peruse the deposition of the complainant, complainanthasdeposedthathehassignedthecomplaint in MahesanaCivilHospitalinthepresenceofthepolice anditwaswrittenasperhissay.Inhiscrossexamination he has deposed that, it is not true that complaint was recorded at about 9.30 A.M., complaint was recorded at about 12.00 Noon and at that time Medical Officer had examined him. There were approximately 15 persons of their Maholla in the Civil Hospital for treatment. In
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continuationofcomplainthisstatementswererecordedon 10.03.2002,01.06.2002andwhilerecordingstatementson 10.03.2002and01.06.2002complaintwasreadovertohim andatthattimehehasstatedthatthecomplaintistrue. For this purpose, when we peruse the deposition of P.W.89MakwanaAmbalalKarshanbhaiwhohasdeposed on oath that, he was on his duty as P.S.O. and Police constable Nasirali and Wireless Operator Babubhai were with him and in the second shift, Head Constable DevjibhaiandAshokkumarwerethere. On01.03.2002,at about 14.00 hours to 20.00 hours, he was on duty and duringthatperiod,theinformationwhichhereceived,he hadnoteditandaccordingly,hehasacted.Atabout11.30 hours,on02.03.2002,hewasondutyandoneYadicame tohimtoregisterthecomplaintandhehasregisteredthe complaint vide I.CR.No.46/2002 which was relating to Section 302 of I.P.C. etc. and further investigation was handedovertoP.I.ShriVaghela.Theyadiwhichwassent to him for registering the complaint is produced vide Exh.688 and he has passed a Depute Order which is produced vide Exh.689. Copy of the Station Dairy is produced vide Exh.690. When we peruse the cross examination of this witness, in the crossexamination,
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advocate for accused side has tried to bring the irregularitiescommittedbythepolicewhileregisteringthe complaintbutthoseirregularitiesarenotmuchimportant fromwhichtheoffenceregisteredbythiswitnessbecomes fatal.SimplybecausetherewasBandobastandnoentryis madeinrespectofBandobastatabout8.00P.M.,whenwe perusethedepositionofMr.Parmar,P.S.I.,whetherhewas in patrolling or not, all these entries are not made in register as those are minor irregularities and all these crossexaminations will not be helpful to the accused. EvidenceofallthesewitnessesaresupportedbyExh.688, 689 and 690. Thus, it is proved by the prosecution that P.W.89MakwanaAmbalalKarshanbhaihasregisteredthe FI.R..
P.W.110 Vaghela Kakusinh Ranjitsinhhas recorded the complaint. For this purpose, when we peruse the depositionofShriVaghela,hehasdeposedthatintheCivil Hospital,complainantIbrahimmiyaRasulmiyaShaikhhas shownhiswillingnesstolodgethecomplainttherefore,the complaintwasrecordedasperthesayofthecomplainant anditwaswrittenbywriter Manharsinhanditwasread over to the complainant thereafter, it was signed by the
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complainant and P.I., Mr.Vaghela and it was recorded at about9.30A.M.andthatcomplaintwasverifiedbyDy.S.P. Jadeja on 03.03.2002 and the complaint was sent to P.S.O.,Vijapurforregistration.PoliceConstableSomabhai RanchhodbhaihadtakenYaditoVijapurPoliceStationand complaint was registered by P.S.O. P.W.89 Makwana Ambalal Karshanbhai vide I.Cr.No.46/2002. When we perusethecrossexaminationofthiswitness,itcomesout thatwhenhereachedattheplaceofoffence,hehasnot heardabouttheincidentfromP.S.I.ParmarandRathod and he came to know about the incident only when he reached Shaikh Maholla. He came to know that, persons wereburntandsomepersonsweredeadandsomepersons werealive.Hecametoknowaboutthecognizableoffence buthehasnotinformedtheVijapurPoliceStationtolodge thecomplaintinspiteofhavingwirelessandmobilefacility norheinstructedtheP.S.I.ParmarorRathodtolodgethe incident before the Vijapur Police Station. No one has lodged the complaint at that time. He has not taken any complaint. At the time of place of incident, he has not informed the Executive Magistrate under Section 174 of Cr.P.C.HehasseentheinjuredpersonsintheMahollabut hasnotaskedthosepersonstolodgethecomplaint.Those
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personswhowerenotinjuredwerealsonotaskedbyhimto lodge the complaint. He has denied the fact that P.S.I. Parmar and Rathod had told him that unknown persons have burnt the Shaikh Maholla. It is denied by him that before recording the complaint of Ibrahimmiya Rasulmiya inMahesanaCivilHospital,hewashavingfullinformation about the incident. In his crossexamination, he has admitted that the complaint was recorded at about 9.30 A.M.anditissignedbyhim.Hehasdeniedthefactthathe hasnotrecordedtheevidenceatabout9.30A.M..Hehas statedthatafterrecordingthecomplaintatCivilHospital, Mahesana, to register the complaint, Yadi was written immediately.IntheYadi,atwhattime,Reportwassentto theVijapurPoliceStationforregistration,isnotmentioned. Asperthesayofthewitness,thereisnosuchprocedure. Atwhattime,F.I.R.wassenttotheMagistrate,hehasno knowledge. Vijapur is 45 Kms. away from Mahesana. SomajiRanchhodjitooktheyadiandafterregisteringthe offenceatabout12.30hours,allthepaperswerereceived bythiswitness.Timewrittenincomplaintisthetimewhen writing of complaint was over. No statement of Police Constable Ranchhodaji Somaji is recorded. He has admittedthathehasnottakencomplaintattheplaceof
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incident though persons were present over there. This witnesshasexplainedthesituationthatatthetime,itwas necessarytosavelifeofthepersonsinspiteofrecording the F.I.R. therefore, they had made attempts to take the injuredpersonstotheHospitalwithoutdelay. For this purpose, when we peruse the cross examinationofP.W.105GehlotAnupamsinhShreejaysinh, it comes out from the evidence in the crossexamination thatsoonashesawtheincident,hecametoknowabout thecognizableoffencebuthehasnotgivenanycomplaint nor instructed anyone to record the complaint of two persons who met him and told him about the injured persons inside the Mahemudmiya's House. For this purpose, D.S.P. Shri Gehlot, has explained that both two persons were in burnt condition and it was necessary to shifttheminthehospitalfortreatmentattheearliest.No doubt, those two persons were important witnesses but they were so burnt that, they were bitterly in need of treatment. Thereafter,personsfromordi(Mahemudmiya's House)andotherpersonswhowereburntwereshiftedto the MahesanaCivilHospitalanditwasnecessarytosave andtreattheinjuredpersonsfirstatthattime,insteadof lodgingthecomplaint.Heinquiredabouttheoffenceandat
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thattime,hecametoknowabouttheattackbymob. P.W.90 Parmar Galbabhai Khemabhai who is the P.S.I. was present in the village prior to the present incident.Inhiscrossexamination,hehasadmittedthathe reachedwiththepolicestaffinmobilevanatabout1.45 A.M. P.S.I. Rathod had also reached there, P.I. Shri Vaghela,P.S.I.Gohel,Dy.S.P.JadejaandD.S.P.Gehlot,all camethere.HesawtheburningofthehousesinShaikh Maholla.Theytriedtosavethepersonsfromthere.Hehas not recorded any statement of any person. He has not recordedthecomplaintofanypersonsbecausehewasbusy to save the life of all the persons. He has not taken the name of two persons who told him about the incident because,hewasbusyinsavingthelifeofthepersons.He hasnotinquiredabouttheincident. P.W.112 Barot Gautamkumar Vishnubhai has deposed that he has recorded the statement of the complainant after his complaint and statement was read overtohim. When we peruse the evidence of P.W.93 Sadhu Hargovandas Mohandas, in cross examination, he has
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admittedthathecametoknowaboutthecognizableoffence buthehasnottakenthecomplaint.Thereisnoreasonfor him for not recording the offence as P.I Vaghela was recordingthecomplaint.
Prosecution has relied upon 2010(3) G.L.R. PAGE 2617 IN THE CASE OF D.A.SOLANKI VS. STATE OF GUJARAT inwhich,ithas beenobservedthatF.I.R.was lodged on next day however, witness had narrated the incidenttootherssoonafteritsoccurrenceinthenight.It was held that late filing of the F.I.R. pales into insignificance. In another citation 1978 SC PAGE 1142 SONILAL AND OTHERS VS. STATE OF U.P., cited by prosecutionoccurrencetookplaceinthemidnightwherein theinformanthadlosthistwosons.Hemusthavebeenin shockparticularlywheneventhecorpsesoftwodeceased were not spared but were taken away by the accused. Accused were armed with deadly weapons. F.I.R. was lodged at 9.00 A.M. next morning. Under above circumstances, Hon'ble Supreme Court of India has held that there is no delay. In another citation (2009) 10 SUPREMECOURTCASES477 VISHNUANDOTHERSV. STATEOFRAJASTHAN, the Hon'ble Supreme Court of
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India has held that, merely because FIR handed over to police on next day of incident, would not show that no incident took place all undoubtedly, appellants were membersofunlawfulassembly,commonintentionofwhich wastomountattackandcauseinjuriesanddeathtofirst informant and his relatives Hence, held conviction justifiedcriminalprocedurecode1973S.154Delayin lodgingFIR satisfactoryexplanation. Inanothercitation 1982CR.L.J.PAGE36RAMCHANDRAANDANOTHER v. THE STATE OF RAJASTHAN relied upon by the prosecution,therewasdelayinlodgingthecomplaintand thedelaywascausedduetoanxietyofrelativestoprovide medicalaidtotheinjuredpersonsbeforethefilingofF.I.R. It was observed that delay must be deemed to be well explained.Theanothercitation1994(2)G.L.H.PAGE329 IN THE CASE OF RAMSINH BAVASINH JADEJA VS. STATEOFGUJARAT isinrespectofCryptictelephonic message.Givinginformationofcognizableoffenceitcannot beconsideredasF.I.R.Inanothercitation A.I.R.2009SC 2292 IN THE CASE OF HIMMAT SUKHDEV AND OTHERS VS. STATE OF MAHARASHTRA, it has been observed that delay in filing the F.I.R. and conduct of investigationincircumstancesbecomeinsignificant.HereI
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wouldliketorelyupon2009(2)G.L.R.PAGE1189INTHE CASE OF HARIJAN KESHUBHAI BHADAJI VS. STATE GUJARAT OF InthecitedrulingF.I.R.waslodgedafterthe Inquestbutwithinthreehoursofincidentanditwasheld thatitdoesnotsufferfromphaseofdelay.FurtherF.I.R. wasnotlodgedbyaproperpersonbutbyeyewitness,itwas heldproper.Iwouldalsoliketorelyupon 2009(3)G.L.R. PAGE 2298 IN THE CASE OF AHIR PRAFUL MIHRAM CHHAYAANDANR.VS.STATEOFGUJARAT.Inthecited ruling,F.I.R.waslodgedaftertheInquestPanchnamawas done. The first, informant was one of the panch of the Inquest and had seen the injuries. It was held that prosecution case would not become doubtful due to this reason.IwouldalsoliketorelyuponAIR2010SC3300 CRIMINALAPPEALNO.342/07,D/1506/0INTHECASE OFSHMABUDASALIAVS.BIJASTATEOFASSAM, itis observedintherulingthatifF.I.R.islodgedafterInquest Report,lossofauthenticityofF.I.R.,notanuniversalrule tobeappliedinallcircumstances. Keeping in mind the ratio laid down in the cited rulings,whenweperusethefactsofthepresentcase,the explanation which has been given by all the police
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witnessesfornotlodgingthecomplaintimmediatelythough theyhadreceivedknowledgeaboutthecognizableoffence, theywere rushingtosavethelifeoftheinjuredpersons, immediately tothe hospital and inthat circumstances, if thecomplainthasbeenlodgedonnextdayatabout9.20or 9.30A.M.,thenthatdelayissatisfactoryexplainedbythe prosecution.
SofaraspointofdrawingofInquestPanchnama,in the present case is concerned, no doubt Inquest Panchnama of Ashiyanabnau was executed by Mr.Sadhu prior to the lodging of complaint, but the Inquest Panchnamaofotherdeadbodieswereunderprocessand duringthatperiod,complainthasbeenrecordedbytheP.I. ShriVaghelaintheCivilHospitalandcomplainthasbeen given by Ibrahimmiya Rasulmiya Shaikh, resident of ShaikhMahollaanditwasreadoverandexplainedtohim anditissignedbyhimaswellasby P.I.ShriVaghela. Thereafter, it was sent with police Yadi to Vijapur for registration and it was registered with the Vijapur police stationatabout11.30A.M.on02.03.2002andF.I.R.was sent to the Magistrate at about 23.45 hours and considering the ratio laid down in above cited rulings, if
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F.I.R.issentatabout23.45hourstotheMagistrate,itis not fatal. So far as the case Reported in 2009(2) PAGE 1189 IN THE CASE OF RAMESH BABURAV DEVSHANKAR VS. STATE OF MAHARASTHRA is concerned, It is observed in it that, F.I.R. lodged after executionofInquestPanchnama,byeyewitnessisproper. Furthermore,F.I.R.wasnotlodgedbyeyewitnessmadeby himtotheinformant.TheCourthasobservedthatifthatis so,whythepersonwhogaveinformationdidnotbecome first informant himself. Here is no such case and during thedrawingofInquestPanchnama,recordingofcomplaint hadstarted.InquestPanchnamaofonlyAshiyanabanuwas completed by A.S.I. Sadhu but keeping in mind the ratio laiddowninAIR2010SC3300theobjectofrepressionof Inquest Report as the preposition of lodging the F.I.R. underSection154ofCr.P.C.isdescribedinthecitedruling. Here, the complaint given by Ibrahimmiya Rasulmiya ShaikhvidetentativeExh.487complyalltherequirement providedunderSection154oftheCr.P.C.andconsidering aboveall,itrequirestobeconsideredasF.I.R.andthesay of Mr.Dhruv that it should be deExhibited, cannot be considered in the eye of law. Simply in the cross examination, complainant has stated that he has given
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complaintat12.00Noon.Documentsproducedshowthat therecordingofcomplaintwasstartedat9.30A.M.andin chiefexamination, complainant has stated that the recording of the complaint started at about 9.30 but in crossexamination,hehasstatedthetimeas12.00Noon. Sayofthecomplainantinchiefexamination,inrespectof time, is supported by deposition of police witnesses and also supported by documentary evidence. In that, circumstances,ifincrossexamination,heistellingtimeas 12.00 Noon, that may be due to some misunderstanding which is not supported by any document nor by any witnesshence,hissayinchiefexaminationisprovedand can be relied upon while his say in crossexamination aboutrecordingofcomplaintat12.00Noonisrequiredto beignored.
In the crossexamination of P.W.110 Vaghela Kakusinh Ranjitsinh, it has come out that Dr.Soni had giveninformationbutthiswitnesshasnoknowledgeabout thisfact.Informationwasgivenon6.20A.M.inMahesana City Police Station vide telephonic message/Information was registered vide No.190/02 informing that Ashiyanabanu,DaughterofAshikmiyaBachumiya,resident ofSardarpur,hasbeenadmittedinthehospital.Shehad
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sustainedinjuryduetoburning.Hehadnotverifiedfrom Mahesana City Police station. From the information register,hehasnottakenthestatementofShriSadhunor heinquiredabouttheInquestpapersofAshiyanabanu.Itis admittedbythiswitnessthaton02.03.2002,atabout2.05 P.M., they received dead bodies of 28 persons. Before registeringtheF.I.R.ifanymessageisreceived,hehasnot collected that message. Thus, the contents of the documentswerefreelyreferredtointhecrossexamination andthewitnesseswerequestionedwithregardthereto.No prejudice, has thus been caused to the defence in any mannerbydecidingtheobjectionaboutitsadmissibility. Itmaybeobservedthatthequestionoftimeanddate ofrecordingofF.I.R.assumesimportanceinmanycasesfor thepurposeofappreciatingtheevidence.Ifitisestablished that the F.I.R. has been lodged immediately after the occurrence it strengthens the case of the prosecution showingthattheinformationcontainedinitwasavailable immediately and thereby reduces the possibility of concoction, fabrication etc. when the time of lodging of F.I.R. would be in dispute the issue as to when the complaint or F.I.R. was received by Magistrate assumes importance.ThedelayinsendingF.I.R.totheMagistrateis
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relevant for ascertaining whether F.I.R. had indeed been lodgedatwhenitisclaimedtohavebeenlodged.
Onperusalofcitationsproducedonbehalfofboththe sides in respect of delay in sending the F.I.R. to the Magistrate,thereisnonecessitytomakeanyreferenceto theauthoritiesaslegalpositioniswellsettled.Thedelayin sendingtheF.I.R.totheMagistratemaycreatedoubtinthe mindofthecourtwhetheratthetimeoflodgingtheF.I.R., as in such a claim, is indeed correct. In such cases, the possibilityoftheF.I.R.havingbeenlodgedsubsequentlyor havingbeentamperedwith,isrequiredtobekeptinmind. However,itcannotevenremotelybesuggestedthatthetime oflodgingtheF.I.R.hastobeprovedonlyfromthefactof the time of its receipt by the Magistrate, though being external check of an authentic nature, it would assume importance.Allthatcanbesaidthatisthatreceiptcopyof theF.I.R.byaMagistrateisasurerwayofestablishingthat bythattime,theF.I.R.hadalreadybeenlodged.Inviewof above discussion, it is hereby ordered to give regular ExhibittoF.I.R.asExh.487andthatitistobetreatedas F.I.R.
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POINTNO.1:
22. Asperthecaseoftheprosecution,33personshavediedin the incident and their death is unnatural and homicidal. Thefollowingpersonshavedied: Sr. No. 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. Nameofdeceasedperson AsiyanabanuAsikhusenBachumiyaShaikh SakkarbanuMahemudmiyaShaikh ParvinabanuIbrahimbhaiShaikh SamimbanuMustumiyaShaikh ZayadabanuIbrahimShaikh SayarabanuAbbasmiyaShaikh YunushusenSherumiyaShaikh ArifhusenManubhaiShaikh SultanabanuMahemudmiyaShaikh JavedmiyaMustumiyaShaikh RasidabanuJamalbhaiShaikh IdrishbhaiAkbarbhaiShaikh MehmudabibiSherumiyaShaikh VahidabanuNazirbhaiAkbarbhai BismillabanuBhikumiyaShaikh BarubibiBabumiyaShaikh FaridabanuMahebubbhaiShaikh RuksanabanuAbbasmiyaShaikh MumtazbanuMaksubhusenShaikh MumtazbanuSherumiyaShaikh JohrabanuManubhaiShaikh HusenabibiHibzulmiyaShaikh
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23. 24. 25. 26. 27. 28. 29. 30. 31. 32. 33. 23.
RifakathusenHijbulmiyaShaikh ManubhaiHusenbhaiShaikh BachumiyaNathumiyaShaikh SherumiyaRasulmiyaShaikh AbbasmiyaKesarmiyaShaikh RaziabanuIbrahimmiyaShaikh AbedabanuManubhaiShaikh RafikManubhaiShaikh FirozMahemudhusenShaikh IrfanhusenMahemudmiyaShaikh SuhanabanuSafikmiyaShaikh
For this purpose prosecution has relied upon the depositionsofDoctors,P.M.Reports,F.S.L.Reports,Cause ofDeathCertificates,InquestPanchnamas&depositionsof witnessesofInquestPanchnama&otherPanchasaswell depositionsofotherwitnesses.
Whileitisarguedonbehalfofaccusedthatinsomeof theclothesarticles,humanbloodontheclothesisfound. ThePostMortemReportsofallthedeceasedshowinjuries onthebodiesincludingCLWandfracture,suggestingthat thedeceasedmighthavebeenassaultedfirstandthenthey had been set on fire inside the house of Mahemudmiya. There is no question of injury over any of the deceased eitheroffractureorCLW.Further,itisarguedthatitisnot
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thecaseoftheprosecutionthatfirsttheywereassaulted and then set on fire and secondly, as to how the blood stainshavebeenfoundontheclothes,isnotexplainedby theprosecution.Further,itisarguedthatincaseofburns, nobloodwouldbefoundoverthebodywhichlastoverthe clothes. Thus, it is the say of the accused that the prosecution is suppressing the genesis and origin of the occurrence.Further,itisarguedonbehalfoftheaccused that the prosecution has failed to establish how the residues of Kerosene and Hydrocarbon, have been found fromtheclothesofthedeceased.Sincethedeceasedappear tohavediedbecauseofflameburns,thereisnoquestionof residuesofKeroseneandHydrocarbontobefoundoverthe clothes. Looking to the amount of heat generated which claimed lives of total 33 persons, it is impossible that residuesofkeroseneandhydrocarbonwouldbefoundon clothes.Thus,itisthesayoftheaccusedthattheF.S.L. Reportwillnotbehelpfultotheprosecution.
Considering the arguments advanced on behalf of both the sides and on perusing the depositions and documents, details of their depositions and their documents supporting the case of the prosecution, is as under:
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P.W.1 Dr.Dhreejkumar Jivanlal Soni
has
performed the PostMortem of Asiyanabanu D/o. Aashiqhusen Bachumiya and Sakkarbanu W/o MahemudmiyaShaikh. HehasproducedthePosthumous Form of Ashiyanabanu vide Exh.197, PostMortem Report videExh.199,CauseofDeathCertificateofAshiyanabanu vide Exh.200. He has also produced the P.M.Note of Sakkarbanu Mahemudmiya Husenmiya Shaikh vide Exh.201, Posthumous Form of Sakkarbanu vide Exh.202 and Cause of Death of Sakkarbanu Mahemudmiya HusenmiyaShaikhvideExh.203.
In his deposition he has deposed that during the PostMortem, he found that Ashiyanabanu was a female childwithageof10monthsandthereweresingingofscalp hairs, clothes were torn, body was burnt more on back, body was fairly nourished and cold. Face was slightly blackenedduetotheburns.Therewere1st,2ndand3rd degree burns by flame over back of chest, abdomen, 1st, 2ndand3rddegreeburnsoverfaceandfrontofneck.1st and2nddegreeburnsoverbothupperlimbsandbothlegs. Alltheinjurieswereantemortem.Lungswerecongested. Some carbon particles were present in nose and trachea
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andboththechambersoftheheartwerefullofbloodand as per his opinion, she died due to shock and extensive burns.
In support of his oral version, when we peruse Exh.199and200,boththedocumentssupportthesayof Dr.Soni.Duringthecrossexaminationonthispointmuch hasbeenaskedaboutthedegreeofburns,typesofburns butfromwholecrossexamination,nothinghascomeoutto suggest that there were no smoke of carbon particles in noseandtracheaortherewerenoburnsoverupperlimbs andbothlegsornoburnsoverfaceandfrontofneckorno hairs at forehead or scalp were singing Thus, from the deposition of Dr.Soni as well as from the PostMortem Report and death certificate, it is established by the prosecution that Ashiyanabanu has died and her Post Mortem was performed by Dr.Soni and she died due to shockduetoextensiveburns.
P.W.21 Jitrana Mahemudaben Faridkhan is examinedvideExh.355asInquestPanchwitness.Inquest Panchanama of Ashiyanabanu Aashiqhusen Shaikh is producedvideExh.198whichwasexecutedinpresenceof
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MahemudabenFaridkhanJitaranaandshehasdeposedon oath that the Inquest panchanma of Ashiyanabanu was done in her presence in Room No.17 of Civil Hospital, Mahesanaon02.03.202atabout7.00A.M.Fromthecross examination, nothing comes out from which, the say of Inquestpanchinchiefexaminationcanbedenied,whoalso supportsthesayofDr.Soni.InquestPanchnamaproduced videExh.198supportsthesayofMahemudaben.Exh.196 Yadi of Death of Ashiyanabanu also supports the say of Dr.Soni.
So far as the death of Sakkarbanu Mahemudmiya HusenmiyaShaikhisconcerned,asperthedepositionof Dr.Soni, he has received police yadi from P.S.I. Vijapur alongwithInquestPanchnamatoperformthePostMortem andhehadperformedthePostMortemofSakkarbanuon 02.03.2002atabout12.30hourstill15.00hours.Asper thesayofDr.Soni,shewasafemaleagedabout38years, herscalphairsweresinging,bodywasnourishedandcold. Wholebodywasblackenedduetoburns,eyesandmouth were closed, external genital were burnt, scalp hairs on foreheadweresingingTherewere1st,2ndand3rddegree burnsovertheface,neck,abdomen,frontandbackBoth
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upperandlowerlimbsincludingsolesandfoots,frontand backexceptleftlegupper3rddegreeburnsabout98%to 100%. All the injuries were ante mortem. Lungs were congested. Smoke particles were present in the nose and trachea.Boththechambersoftheheartwerefullofblood and as per the say of the doctor, Sakkarbanu Mahemudmiya Husenmiya Shaikh died due shock of extensiveburns.Insupportofthesay,hehasproducedP.M Note vide Exh.201 and cause of Death Certificate vide Exh.203. PostMortem and cause of Death Certificate supportsthesayoftheDr.Soni.
For this purpose, when we peruse the Inquest Panchnama of Sakkarbanu at Exh.223, P.W.20 Shaikh AbdulbhaiDalubhaiisexaminedvideExh.353andasper hissay,InquestPanchnamawasexecutedinCivilHospital, Mahesanaon02.03.2002atabout10.00A.M.Therewere total 28 dead bodies and the Inquest Panchnama was executed in his presence. After verifying the dead bodies, Nazirmiyahadidentifiedthedeadbodies.Insupportofhis say,hehasproducedthePanchnamavideExh.223.Inhis crossexamination, position of dead bodies is brought on record.Hehasstatedincrossexaminationthat,fromdead
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bodyNo.5onlysmellofkerosenewascomingandthisfact is not written in the Panchnama of other dead bodies. Thus,fromthedepositionofthisInquestpanch,factsofthe Inquest panchnama is established. It supports the say of the witness. As per F.S.L. Report in Muddamal article No.19 which were the clothes of Sakkarbanu, smell of kerosenewascomingfromtheclothes,whichalsosupports thesayofthiswitness.
Prosecution has also relied upon the deposition of P.W.2Dr.PravinkumarPopatlalSoni whohasdeposed on oath vide Exh.211 that he had performed the Post MortemofSamimbanuMustumiyaRasulmiyaShaikh,aged about24years.HerdeadbodywasbroughttohimforPost Mortem on 02.03.2002 and he had performed the Post Mortem at about 2.05 P.M. till 4.15 P.M. There were 3rd degree burns all over the body except the left eye, scalp hairswereburnt,4thand5thdegreeburnsoverrightand leftfeet.Carbonparticleswerepresentinnoseandtrachea. Therightventriclewasfullandleftwasempty.Asperhis say,shediedduetoshockofextensiveburns.Insupportof hissay,hehasproducedPostMortemReportvideExh.226, PosthumousFormvideExh.227,CauseofDeathCertificate
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videExh.228andReceiptofdeadbodyvideExh.229.Post Mortem Report and Death Certificate supports the deposition of Dr.P.P.Soni. Inquest Panchnama of SamimbanuwhichisproducedvideExh.223,supportsthe sayoftheDr.P.P.Soni.
Dr.P.P.Soni has also performed the PostMortem of Parvinbanu Ibrahimmiya Rasulmiya Shaikh. Yadi of Post MortemisproducedvideExh.222,InquestPanchnamaof thedeadbodyisproducedatExh.223,PosthumousForm videExh.227andCauseofDeathCertificateofParvinbanu is produced at Exh.225 while the PostMortem Report is producedatExh.220.Itisdeposedbyhimthatthedead body was of young girl aged about 12 years. The Post Mortem of Parvinbanu was conducted on 02.03.2002 at 2.05P.M.till3.15P.M.Therewere3rddegreeburnsover right upper limb, left upper limbs, pale, right anterior chest, right lateral abdomen, left lateral chest and burns overbackwithpostchest.3rddegreeburnswerescatters over face, right lower leg, right dorsal .... Further, there were carbon particles present in the nose and trachea. Rightventriclewasfullandleftwasempty.Asperthesayof Dr.P.P.Soni, cause of death was shock due to extensive
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burns.ThedocumentswhichareproducedbyDr.P.P.Soni supports the say of Dr.Soni. This witness is cross examined at length about the burns but from the whole crossexamination, nothing has come out from which we cancometoconclusionthattherewerenoburnsordeath hasnotcausedduetoburnsinjuries.InquestPanchnama ofParvinbanu,producedat Exh.223supportsthesayof thiswitness.AsperF.S.L.ReportinrespectofMuddamal Article Nos.9/1 and 9/2, which are the clothes of Parvinabanu, smell of kerosene was coming from said MuddamalArticles.
The prosecution has relied upon the deposition of P.W.3 Dr.Babubhai Nathubhai Chaudhari, who is examined at Exh.233 and from his deposition and Post Mortem Report, it appears that there was a mistake in identification of dead body of Zayadabanu Ibrahimmiya Rasulmiya instead of Ruksanabanu Ibrahimmiya RasulmiyaShaikhandaccordingly,itisamendedanditis producedvideExh.236.
TheInquestPanchnamaofZayadabanu,producedat Exh.223,supportsthesayofwitness.AsperF.S.L.Report
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inrespectofmuddamalarticleNos.4/1and4/2,whichare theclothesofZayadabanu,smellofkerosenewascoming fromthesaidMuddamalArticles.
P.W.4 Dr.Ishvarsinh Ratansinh Solanki, who is examined at Exh.244 had performed the PostMortem of Yunushusen Sherumiya Rasulmiya and his PostMortem Report is produced at Exh.245, Posthumous Form at Exh.246 and Cause of Death Certificate is produced at Exh.247. Itisdeposedbyhimthatthedeadbodywasof male child about the age of 12 to 13 years. The Post Mortemwasconductedon02.03.2002from14.15hoursto 15.25hours.Itisdeposedbythedoctorthattherewasa tattoomarkoverthebody,theteethwasintact,thebody wasfairlybuilt,rigormortiswaspresentalloverthebody, P.M.lividitywasnotdetected,eyelidslightlyopenwitheye lashesburnt,factstainwithblacksootyparticles,mouth cavity slightly open, teeth intact, blood staining seen in bothnostrilandearwasintactrightearpinaburnt.There were3rddegreeburnsoverbothlegbelowkneejointwith skincharredoverburntarea.Therewerealsodeepburns overrighthandwithfingertipslost.3rddegreeburnsover hand dorsal aspect, 3rd degree burns over face mouth
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towardsrightcheekandrightsupraorbitalregionwithhair singingoverscalp.3rddegreeburnsoverfrontpartleftside ofchestabout5cmdiameterandrightearpinaburnt.All theinjurieswereantemortem,therewerecarbonparticles present in trachea and larynx, all the four chambers of heart were filled with blood. As per the say of Dr.I.R.Solanki, cause of death was due to burns with asphyxiaduetosuffocation. Documentsproducedbythis witness supports his version. In the crossexamination muchhasbeenaskedabouttheburnsbutfromthewhole crossexamination, nothing has come out from which we cancometoconclusionthattherewerenoburnsordeath hasnotcausedduetoburns.
On perusal the Inquest panchnama of Yunushusen SherumiyaShaikhatExh.223,itsupportsthesayofthe witness. As per F.S.L. Report in respect of muddamal articleNos.21/1and21/2whicharetheclothes(shirtand pant)ofYunushusen,therewassmellofkerosenecoming fromthesaidMuddamalarticles.
Dr.IshwarbhaiRatansinhSolankihadalsoperformed the PostMortem of another deceased namely, Arifhusen
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ManubhaiShaikh.PostMortemReportofthedeceasedis produced at Exh.248, Posthumous Form at Exh.249 and Cause of Death Certificate is producedat Exh.250. It is deposed by him that the dead body was of Muslim male agedabout 1314years.ThePostMortemwasconducted on02.03.2002atabout14.15hoursto16.30hours.Itis deposed by the doctor that the body was fairly built and cold.Somesmokeanddustpresentoverfaceandinfrontof chest.Twobothtoothmouthcavityslightlyopenup,teeth andnoseintact.3rddegreeburnsoverrightcheektowards right ear. 3rd degree burns over both palm and towards wrist.Alltheinjurieswereantemortem.Carbonparticles werepresentintracheaandlarynxwithcongestion.Allfour chambers filled with blood. As per the say of Dr.Solanki, cause of death was due to shock due to asphyxia and burns. Onperusalofthedocumentswhichareproducedby Dr.Solanki, it supports his version. In the cross examination much has been asked about the burns but from the whole cross examination, nothing has come out fromwhichwecancometoconclusionthattherewereno burns or death has not been caused due to burns. On
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perusal the Inquest Panchnama of Arifhusen Shaikh at Exh.223,itsupportsthesayofthewitness.AsperF.S.L. Report, Muddamal Article Nos.22/1 and 22/2, which are theclothes(shirtandpant)ofArifhusen,therewassmellof kerosenecomingfromthesaidMuddamalArticles. P.W.5Dr.PrakshbhaiLaxmandasShahisexamined onoathatExh.252,whohasperformedthePostMortemof deceasednamely:SultanbhaiMahemudmiyaShaikh.Post Mortem Report of the deceased is produced at Exh.253, Posthumous Form at Exh.254 and Cause of death CertificateisproducedatExh.255. Itisdeposedbyhim thatthedeadbodywasofmalechildagedabout7years. The PostMortem was conducted on 02.03.2002 at about 14.15hoursto15.25hours.Itisdeposedbythedoctorthat thebodywasnormalandcold.Botheyebrowswereburnt. Nostrilsburnt.Both ears burnt. Longhairs seenonthe head. The hairs were twisted with each other. Right face burntandskinoffacehadturnedblackduetoburns.Left faceskinwasmoresevereanddesquamatedfromface,base red.Bothupperlimbslevelshouldertowristjoinburnt and scattered desquamated skin. There were 3rd degree burns seen. Both hand fingers and thumbs, both hands bendtowardshead,chest,abdomennotburnt.Backregion
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blackduetotheburns.Bothlowerlimbs,hipjointtoankle joint,skinblackincolouranddesquamated.Itsuggest3rd degree burns, left foot burnt blackish and toes are full burnt. Foot bend (flexion). Right foot burnt and black in colour in comparison with left foot. All the injuries were antemortem.Carbonparticlespresentintrachea.Asper thesayofDr.P.L.Shah,causeofdeathduetosevereburns withasphyxiaandduetosuffocation.
Onperusalofthedocumentswhichareproducedby Dr.Shah, it supports the say of Dr.Shah. In the cross examination much has been asked about the burns but from the whole crossexamination, nothing has come out fromwhichwecancometoconclusionthattherewereno burns or death has not caused due to burns. For this purpose, when we peruse the Inquest Panchnama of SultanbhaiMahemudmiyaShaikhatExh.223,itsupports thesayofthewitness.AsperF.S.L.Reportinmuddamal article No.17/1 and 17/2 which was the clothes of Sultanbhai,smellofkerosenewascomingfromtheclothes.
P.W.5 Dr.Prakshbhai Laxmandas Shah has also performed the PostMortem of another deceased namely:
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JavedmiyaMustumiyaShaikh.PostMortemReportofthe deceased is produced at Exh.256, Posthumous Form at Exh.257 and Cause of Death Certificate is produced at Exh.258. Itisdeposedbyhimthatthedeadbodywasof male child aged about 4 years. The PostMortem was conducted on 02.03.2002 at about 14.15 hours to 16.50 hours.Itisdeposedbythedoctorthatbotheyes,eyebrows wereburnt,Mouth,bothnasalwereburnt,Rightfaceburnt andblackishincolour.Infewpartsoffaceabrasion.There were3rdand1stdegreeburns.The rightupperlimbwas bentatelbowjointtowardsface,chestandabdomen.Both kneejointsskincoverwereoutafterburns.Scatteredskin wascomingoutfrombothlowerlimbsandonbackregion black skin. All the injuries were ante mortem. Carbon particleswerepresentintracheaandlarynx.Asperthesay ofDr.P.L.Shah,causeofdeathwasasphyxiaduetoburns and suffocation. On perusal of the documents which are produced by Dr.Shah, it supports his say. In the cross examination much has been asked about the burns but from the whole crossexamination, nothing has come out fromwhichwecancometoconclusionthattherewereno burnsordeathhasnotcausedduetoburns.For this
purpose, on perusal of the Inquest Panchnama of
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JavedmiyaMustumiyaShaikhatExh.223,itsupportsthe sayofthewitness.AsperF.S.L.Report,smellofkerosene wascomingfromthehairsofthedeceased.
P.W.6 Dr.Shaileshkumar Shivabhai Patel has performed the PostMortem of deceased namely: RasidabanuJamalbhaiShaikh.PostMortemReportofthe deceased is produced at Exh.263, Posthumous Form at Exh.264 and Cause of Death Certificate is produced at Exh.265. Itisdeposedbyhimthatthedeadbodywasof female aged about 35 years. The PostMortem was conductedon02.03.2002from14.15hoursto15.20hours. Itisdeposedbythedoctorthatthebodyofthedeceased waswellbuilt,wellnourishedandcold.Backofbodywas burnt.Theeyeswereclosed,teethwereseen,mouthwas semiopen,tongueinsidethemouthcavityandtherewas noENTdischarge.Therewere3rddegreeburnsonscalp forehead,neck.Bothpinaburnt.Blackparticlesseeninear canal.3rddegreeburnsonwholechestregion.3rddegree burnsonleftarm,forearmandhand.3rddegreeburnson anteriors. Surface of right arm, forearm and hand. Deep burnsonposteriorssurfaceofrightarmandshoulder.3rd degree burns on anteriors side of both thigh up to knee joint. 3rd degree burns, antro medial side of right leg of
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middlepart.3rddegreeburnsonbackofchest,abdomen and on buttock. The above injuries were ante mortem. Therewereburnthaironscalp.Bothpinawereburnt.3rd degree burns on whole chest region. Carbon particles present in trachea and larynx. All chambers filled with blood. Asperthesayof Dr.S.S.Patel,causeof deathwas shockduetoextensiveburns.Onperusalofthedocuments whichareproducedbytheDr.S.S.Patel,itsupportshissay. Inthecrossexaminationmuchhasbeenaskedaboutthe burnsbutfromthewholecrossexamination,nothinghas comeoutfromwhichwecancometoconclusionthatthere werenoburnsordeathhasnotcausedduetoburns.For this purpose,whenweperuse theInquest Panchnamaof RasidabanuJamalbhaiShaikhatExh.223,itsupportsthe sayofthewitness.AsperF.S.L.Report,fromMark15/1, 15/2 and 15/3, which were the clothes of Rasidabanu, therewassmellofkerosenecomingfromtheclothes.
P.W.6 Dr.Shaileshkumar Shivabhai Patel had performed the PostMortem of another deceased namely: Idrishbhai Akbarbhai Shaikh. PostMortem Report of the deceased is produced at Exh.266, Posthumous Form at Exh.267 and Cause of Death Certificate is produced at
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Exh.268. Itisdeposedbyhimthatthedeadbodywasof male boy aged around 19 years. The PostMortem was conductedon02.03.2002from14.15hoursto16.30hours. Itisdeposedbythedoctorthatthebodywaswellbuilt,well nourished and cold. Lividity seen on back of abdomen, back of chest and buttocks. The mouth of the body was semi open, eyes closed, upper teeth seen, tongue inside mouthcavityandnasalwaterydischarge.Itisthefurther say of thewitness that abrasiononfrontforehead 4 X 2 Cm. transversally. Deep burns from left shoulder to left elbowjointondorsalsurface.Deepburnsondorsalsurface of left hand. 3rd degree burns on ventral surface of left arm,forearmandhand.3rddegreeburnsonrighthand. 3rddegreeburnsonanteriorsabdominalwallfromlower endofsternumtoumbilicus.3rddegreeburnsonantro lateral and posterior side of left thigh. There were hair singingoverscalp.Carbonparticleswerepresentintrachea andlarynx.Allchamberswerefullwithblood.Further,50 ccurinepresentinbladder.AsperthesayofDr.S.S.Patel, causeofdeathwasshockandasphyxiaduetoburnsand suffocation. On perusal of the documents which are produced by the Dr.S.S.Patel, it supports his say. In the crossexaminationmuchhasbeenaskedabouttheburns
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but from the whole crossexamination, nothing has come outfromwhichwecancometoconclusionthattherewere noburnsordeathhasnotcausedduetoburns. Forthis purpose, on perusal of the Inquest Panchnama of Idrishbhai Akbarbhai Shaikh at Exh.223, it supports the sayofthewitness.AsperF.S.L.Report,fromMark10/1 and10/2,whichweretheclothesofIdrishbhai,therewas smellofkerosenecomingfromtheclothes. P.W.7 Dr.Anju Muljibhai Parmar has performed the PostMortem of deceased namely Mahemudabibi Sherumiya Rasulmiya Shaikh. PostMortem Report of the deceased is produced at Exh.272, Posthumous Form at Exh.273 and Cause of Death Certificate is produced at Exh.274. Itisdeposedbyherthatthedeadbodywasof female aged about 30 years. The PostMortem was conductedon02.03.2002from14.10hoursto15.00hours. It is deposed by the doctor that the clothes were stained with smoke and sand. The body of the deceased was averagelybuiltandaveragelynourishedandcold.Eyeswere closed,mouthclosed,tongueinsidethemouth,teethnot seen,nodischargefromnostrils,earswereopenandthere was no discharge from ears. Hairs were singing over the scalp. 3rd degree burns were there on face and on both
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forearmsandhands.Therewere2nddegreeburnsonlegs andfeetaswellasabrasiononrightkneeand3rddegree burnsonbackand1stdegreeburnsonchest.Itisthesay ofthewitnessthatalltheinjurieswereantemortem.Black sooty carbon particles present in trachea and larynx. All chambersfullwithblood.Fiscalmaterialwithgaspresent in intestine. 50 CC urine present in bladder. In the uterus, transverse scar was present over the anterior abdominal wall. Uterus was absent. As per the say of Dr.A.M.Parmar,thecauseofdeathwasshockduetoburns withsuffocation. Onperusalof the documents whichare producedbytheDr.A.M.Parmar,itsupportshersay.Inthe crossexaminationmuchhasbeenaskedabouttheburns but from the whole crossexamination, nothing has come outfromwhichwecancometoconclusionthattherewere noburnsordeathhasnotcausedduetoburns. Forthis purpose, on perusal of the Inquest Panchnama of MahemudabibiSherumiyaRasulmiyaShaikhatExh.223,it supportsthesayofthewitness.AsperF.S.L.Report,from Mark 25/1 and 25/2, which were the clothes of Mahemudabibi smell of kerosene was coming from the clothes.
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P.W.7Dr.AnjuMuljibhaiParmarhadalsoperformed thePostMortemofanotherdeceasednamelyVahidabanu Nazirbhai Akbarmiya Shaikh. PostMortem Report of the deceased is produced at Exh.275, Posthumous Form at Exh.276 and Cause of Death Certificate is produced at Exh.277. It is deposed by her that, the dead body is of Muslimfemale,agedabout24yearsThePostMortemwas conductedon02.03.2002from14.10hoursto16.00hours. It is deposed by the doctor that the clothes were stained withsmokeandsand.Thebodywasmoderatelybuiltand nourished and cold. It is the say of the witness that the hairsweresingingoverscalp.Therewere3rddegreeburns on face and over both forearms and hands. 2nd degree burns on both legs and feet. skin charred on right leg. Therewere3rddegreeburnsalsoontheleftbuttock.All theinjurieswereantemortem.Blacksootycarbonparticles werepresentintracheaandlarynx.Allchamberswerefull withbloodandcongestedFaecalmaterialwithgaspresent inintestine.Therewasnongraviduterus.Further,50cc urinepresentinbladder.AsperthesayofDr.A.M.Parmar, thecauseofdeathwasshockduetoburnsandsuffocation. On perusal of the documents which are produced bythe Dr.A.M.Parmar, it supports her say. In the cross
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examination much has been asked about the burns but from the whole crossexamination, nothing has come out fromwhichwecancometoconclusionthattherewereno burnsordeathhasnotcausedduetoburns.For this
purpose, on perusal of the Inquest Panchnama of Vahidabanu Nazirbhai Akbarbhai Shaikh, produced at Exh.223,itsupportsthesayofthewitness.AsperF.S.L. Report,fromMark2/1and2/2,whichweretheclothesof Vahidabanu, smell of kerosene was coming from the clothes.
P.W.8Dr.NilimaAjaybhaiTalvelkarhadperformed the PostMortem of deceased namely Bismillabanu Bhikhumiya Shaikh. The PostMortem Report of the deceased is produced at Exh.279, Posthumous Form at Exh.280 and Cause of Death Certificate is produced at Exh.281. It is deposed by her that, the dead body is of Muslimfemaleagedabout40years.ThePostMortemwas conductedon02.03.200214.05hoursto16.00hours.Itis deposedbythedoctorthattheclotheswereblackishand stained. The body was moderately built, nourished and cool.ThedeceasedhadsustainedinjurysuchasAbrasion 4x2Cm.overrightcheek.Abrasion2x2Cm.overnose.
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Slight1st burnsoverrightlegandskin curledup.Both soleoffeetwereblackishandunburnt.Bothhandunburnt. Itisthesayofthewitnessthatalltheinjurieswereante mortem. Brain tissues and meninges congested. Black sootycarbonparticlespresentinnasopharynx,tracheaand larynx.Darkredcolourbloodhadcomeoutoncutsection and were also present on cut section. Gas and Faecal material with gas present in intestine. 30 50 ml. urine presentinbladder.AsperthesayofDr.N.A.Talvelkar,the cause of death was shock due to asphyxia and due to suffocation. On perusal of the documents which are produced by the Dr.N.A.Talvelkar, it supports her say. In the crossexamination much has been asked about the burnsbutfromthewholecrossexamination,nothinghas comeoutfromwhichwecancometoconclusionthatthere werenoburnsordeathhasnotcausedduetoburns.For this purpose, on perusal of the Inquest Panchnama of BismillabanuBhikhumiyaShaikh,producedatExh.223,it supportsthesayofthewitness.AsperF.S.L.Report,from mark12/1and12/2,smellofkerosenewascomingfrom thebodyofthedeceased.
P.W.9 Dr.Kokilaben Maganbhai Solanki had
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performedthePostMortemofdeceasednamely Barubibi Babumiya Motumiya. The PostMortem Report of the deceased is produced at Exh.284, Posthumous Form at Exh.285 and Cause of Death Certificate is produced at Exh.286.Itisdeposedbythedoctorthatthedeadbodyis of Muslim female aged about 50 years. The PostMortem was conducted on 02.03.2002 from 14.10 hours to 15.00 hours. It is deposed by the doctor that the clothes were stained with smoke, sand and blood. The body was moderately built, nourished and cold. The deceased had sustainedinjurysuchas1stto2nd,3rddegreeburnsin bothhandsandfootregion.1stdegreeburnsonface,neck and front of chest. Contused Lacerated wounds admeasuring 4 cm X 1cm Xscalp deep on rightside of forehead region. It is the say of the witness that all the injurieswereantemortem.Thehairsingingoverscalpand bloodstainedwereabout1footinsize.Braincongested. Carbonparticleswerepresentintracheaandlarynx.Heart congestedandwasfullwithblood.GasandFaecalmaterial with gas present in intestine. 50 CC urine present in bladder. There was no gravid uterus. As per the say of Dr.K.M.Solanki,thecauseofdeathwasshockduetoburns and suffocation. On perusal of the documents which are
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producedbytheDr.K.M.Solanki,itsupportshersay.Inthe crossexaminationmuchhasbeenaskedabouttheburns but from the whole crossexamination, nothing has come outfromwhichwecancometoconclusionthattherewere noburnsordeathhasnotcausedduetoburns. Forthis purpose,OnperusaloftheInquestPanchnamaofBarubibi BabumiyaMotumiya,producedatExh.223,itsupportsthe say of the witness. As per F.S.L. Report, in Muddamal articleMark18/1and18/2,smellofkerosenewascoming fromtheclothesofthedeceased.
P.W.9 Dr.Kokilaben Maganbhai Solanki had also performed the PostMortem of another deceased namely FaridabanuMahebubbhaiShaikh.ThePostMortemReport ofthedeceasedisproducedatExh.287,PosthumousForm atExh.288andCauseofDeathCertificateisproducedat Exh.289.Itisdeposedbythedoctorthatthedeadbodyis of Muslim female aged about 25 years. The PostMortem was conducted on 02.03.2002 from 14.10 hours to 16.05 hours. It is deposed by the doctor that the hairs were stainedwithbloodabout1footinsizeandsingingpartly. Theclotheswerestainedwithsmokeandsand.Thebody was moderately built, nourished and cold. Rigor mortis
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present on all over body. The deceased had sustained injuries such as 1st to 2nd degree burns on face, both hands and both legs. 1st Degree burns on neck, front of chest,abdomenandbothfootregion,ContusedLacerated Wound onmiddleofforeheadabout4cmX1cmxscalp deep.ContusedLaceratedWoundonrighttemporalregion 4 cm X 1 cm x scalp deep. All the injuries were ante mortem.Brainwascongested.Carbonparticlespresentin tracheaandlarynx.Heartiscongestedandfullwithblood. Faecalmaterialwithgaspresent.50CCurinepresent.Non graviduterus.AsperthesayofDr.K.M.Solanki,thecause ofdeathwasshockduetosevereburns.Onperusalofthe documents which are produced by the Dr.K.M.Solanki, it supportshersay.Inthecrossexaminationmuchhasbeen asked about the burns but from the whole cross examination, nothing has come out from which we can cometoconclusionthattherewerenoburnsordeathhas notcausedduetoburns.Forthispurpose,Onperusalof the Inquest Panchnama of Faridabanu Mahebubbhai Shaikh, produced at Exh.223, it supports the say of the witness. As per F.S.L. Report, in muddamal article Mark 6/1 and 6/2, smell of kerosene was coming from the clothesofthedeceased.
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P.W.10 Dr.Sangeetaben Kailaschandra Jain had performed the PostMortem of deceased namely Ruksanabanu Abbasmiya Kesarmiya Shaikh. The Post Mortem Report of the deceased is produced at Exh.291, Posthumous Form at Exh.292 and Cause of Death Certificate is produced at Exh.293. It is deposed by the doctorthatthedeadbodyisofMuslimfemaleagedabout 35years.ThePostMortemwasconductedon02.03.2002 from 14.05 hours to 16.00 hours. It is deposed by the doctorthat thebodywascold,wellbuiltandnourished. 1stto3rddegreeburnsoverleftlegandbelowkneeofleft leg. Both sole were black and burnt. Both hands were unburnt. The injuries were ante mortem. Brain tissues were congested. Black carbon particles present in nasopharynx,tracheaandlarynx.Heartwascongestedand full of blood. Dark red blood present in heart on cut section. Gas and Faecal material with gas present in intestine.30.50mlurinepresentinbladder.Therewasno graviduterus.AsperthesayofDr.S.K.Jain,thecauseof death was shock and asphyxia due to burns and suffocation. On perusal of the documents which are produced by the Dr.S.K.Jain, it supports her say. In the
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crossexaminationmuchhasbeenaskedabouttheburns but from the whole crossexamination, nothing has come outfromwhichwecancometoconclusionthattherewere noburnsordeathhasnotcausedduetoburns.Forthis purpose, on perusal of the Inquest Panchnama of Ruksanabanu Shaikh produced at Exh.223, it supports thesayofthewitness.AsperF.S.L.Report,inmuddamal article Mark 4/1 and 4/2, there were smell of kerosene comingfromtheclothesofthedeceased. P.W.11 Dr.Alkaben Dungarbhai Patel had
performed the PostMortem of deceased namely Mumtazbanu, W/o.Makbulhusen Kesarmiya Shaikh. The PostMortem Report of the deceased is produced at Exh.296, Posthumous Form at Exh.297 and Cause of DeathCertificateisproducedatExh.298.Itisdeposedby the doctor that the dead body is of Muslim female aged about 30 years. The PostMortem was conducted on 02.03.2002from14.10hoursto15.00hours.Itisdeposed bythedoctorthattheclothesofthedeceasedwerestained withsmoke andsand. Thebodywascold,averagelybuilt andaveragelynourished.Thedeceasedhadsustained3rd degree burns overexternalgenitals. Singing of scalphair wereseen.3rddegreeburnsonface,neckandonchestand
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back. 3rd degree burns onbothULand onbothLL. 3rd degreeburnsonexternalgenitals.Alltheinjurieswereante mortem. Brain congested. Black sooty carbon particles presentintracheaandlarynx.Theheartisfullwithblood andcongested.GasandFaecalmaterialwithgaspresentin intestine. 50 CC urine present in bladder. There was no graviduterus.AsperthesayofDr.A.D.Patel,thecauseof deathwasshockduetoextensiveburns.Onperusalofthe documents, which are produced by the Dr.A.D.Patel, it supportshersay.Inthecrossexaminationmuchhasbeen asked about the burns but from the whole cross examination, nothing has come out from which we can cometoconclusionthattherewerenoburnsordeathhas notcausedduetoburns. Forthispurpose,onperusalof the Inquest Panchnama of Mumtazbanu Makbulhusen Shaikh, produced at Exh.223, it supports the say of the witness.AsperF.S.L.Report,inmuddamalarticleNo.11/1, 11/2 and 11/3, smell of kerosene was coming from the clothesofthedeceased.
P.W.11Dr.AlkabenDungarbhaiPatelhadperformed the PostMortem of deceased namely Mumtazbanu Sherumiya Shaikh. The PostMortem Report of the
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deceased is produced at Exh.299, Posthumous Form at Exh.300 and Cause of Death Certificate is produced at Exh.301.Itisdeposedbythedoctorthatthedeadbodyis of female aged about 24 years. The PostMortem was conductedon02.03.2002from14.10hoursto16.00hours. Itisdeposedbythedoctorthatclotheswerestainedwith smoke and sand. The body was average built, average nourished and cold. White froth was discharging from Nostril.Therewassingingofscalphair.3rddegreeburns onface.Abrasiononforehead. 3rddegree burns onboth forearmandhands,abrasiononleftarm,2nddegreeburns onbothfeet,abrasiononjustbelowtherightkneeand1st degreeburnsonfrontofchest.Alltheinjurieswereante mortem. Brain congested. There were black sooty carbon particles present in trachea and larynx. Heart full with bloodandcongested.Faecalmaterialandgaspresentand 50 Cc urine present. As per the say of Dr.A.D.Patel, the cause of death was shock due toburns with suffocation. On perusal of the documents which are produced bythe Dr.A.D.Patel,itsupportshissay.Inthecrossexamination muchhasbeenaskedabouttheburnsbutfromthewhole crossexamination, nothing has come out from which we cancometoconclusionthattherewerenoburnsordeath
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hasnotcausedduetoburns. Forthispurpose,onperusal theInquestPanchnamaofMumtazbanuSherumiyaShaikh producedatExh.223,itsupportsthesayofthewitness.As per F.S.L. Report, inthe Muddamal article at Mark 20/1 and20/2, thereweresmellofkerosenecomingfromthe clothesofthedeceased.
P.W.12 Dr.Prakash Pravinbhai Patva
had
performed the PostMortem of deceased namely JoharabanuManubhaiShaikh.ThePostMortemReportof thedeceasedisproducedatExh.303,PosthumousFormat Exh.304 and Cause of Death Certificate is produced at Exh.305.Itisdeposedbythedoctorthatthedeadbodyis of a female aged about 40 years. The PostMortem was conductedon02.03.2002from14.05hoursto16.00hours. Itisdeposedbythedoctorthattherewassmellofkerosene fromtheclothesofthedeceasedaspertheColumnNo.8of thePostMortemReportandthatthecolouroftheclothes had turned blackened. The body of the deceased was averagelybuilt,nourishedandthatthebodywascool.The facewasburnt.Thehairovertheforeheadwassinging1st, 2nd and 3rd degree burns over face, both shoulder, forearm, arm with epliation, epidermis over some burns
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werefoundinthebodyof thedeceased.Bothsoleofthe footandhandwereunburnt.Rednessseenoverburntarea. Itisthesayofthewitnessthatalltheaboveinjurieswere ante mortem. Black sooty carbon particles were present inside chest, Nasopharynx, Trachea, Larynx were congested. On dissection, dark red blood had come out fromtheheart. Therewasdarkredcolourpresentinthe heart.AsperthesayofDr.PrakashPravinbhaiPatva,the cause of death was shock due to burns withsuffocation. On perusal of the documents which are produced bythe Dr.Prakash Pravinbhai Patva, it supports his say. In the crossexaminationmuchhasbeenaskedabouttheburns but from the whole crossexamination, nothing has come outfromwhichwecancometoconclusionthattherewere noburnsordeathhasnotcausedduetoburns. Forthis purpose, On perusal of the Inquest Panchnama of Joharabanu Manubhai Shaikh produced at Exh.223, it supportsthesayofthewitness.AsperF.S.L.Report,inthe MuddamalarticleatMark7/1and7/2,smellofkerosene wascomingfromtheclothesofthedeceased.
P.W.13Dr.KantilalBabaldasPatel hadperformed the PostMortem of deceased namely Husenabibi
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Hizbulmiya Shaikh. The PostMortem Report of the deceased is produced at Exh.309, Posthumous Form at Exh.310 and Cause of Death Certificate is produced at Exh.311.Itisdeposedbythedoctorthatthedeadbodyis of a female aged about 23 years. The PostMortem was conductedon02.03.2002from14.15hoursto15.45hours. Itisdeposedbythedoctorthatthebodyofthedeceased wasburntanditwasadheredtotheclothes. Thebodyof the deceased was averagely built, nourished and fair and cold. The body of the deceased was disfigured due to extensiveburns.Therewere1stto4degreeburnsallover thebody.Thescalphairwassinging. Itisthesayofthe witnessthatalltheaboveinjurieswereantemortem.Black sooty carbon particles were present inside Nasopharynx, andTrachea.Heartwascongested.Rightsidewasfull,left sidewasempty.Therewasfluidblood.AsperthesayofDr. K.B.Patel,thecauseofdeathwasshockduetoextensive burns.Onperusalofthedocumentswhichareproducedby the Dr.K.B.Patel, it supports his say. In the cross examination much has been asked about the burns but from the whole crossexamination, nothing has come out fromwhichwecancometoconclusionthattherewereno burns or death has not caused due to burns. For this
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purpose, On perusal of the Inquest Panchnama of Husenabibi Hizbulmiya Shaikh, produced at Exh.223, it supportsthesayofthewitness.AsperF.S.L.Report,inthe muddamal article at Mark 23/1, smell of kerosene was comingfromtheclothesofthedeceased. P.W.14 Dr.Bharatkumar Babubhai Solanki had performed the PostMortem of deceased namely RifakathusenHizbulmiyaShaikh.ThePostMortemReport ofthedeceasedisproducedatExh.313,PosthumousForm atExh.314andCauseofDeathCertificateisproducedat Exh.315. Itisdeposedbythedoctorthat,thedeadbody was of a boy aged about 5 years. The PostMortem was conducted on 02.03.2002 from morning 14.10 hours to 15.30hours.Itisdeposedby thedoctor thatthe clothes werestainedandwereblackenduetosmoke.Thebodyof thedeceasedwasfairlybuiltandcold. Therewere1stto 3rddegreeburnsalloverthebodyexceptpenisscrotum. Itisthesayofthewitnessthatalltheaboveinjurieswere Antemortem. Blackish carbon particles present in Nasophaynx, and Trachea. The left chamber of the heart wasempty.AsperthesayofDr.B.B.Solanki,thecauseof deathofthedeceasedwasshockduetoextensiveburns. Onperusalofthedocuments,whichareproducedbythe
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Dr.B.B.Solanki, supports his say. In the cross examination much has been asked about the burns but from the whole crossexamination, nothing has come out fromwhichwecancometoconclusionthattherewereno burns or death has not caused due to burns. For this purpose, on perusal of the Inquest Panchnama of RifakathusenHizbulmiyaShaikh,producedatExh.223,it supportsthesayofthewitness.AsperF.S.L.Report,inthe Muddamalarticleatmark5/1and5/2,smellofkerosene wascomingfromtheclothesofthedeceased.
P.W.15Dr.JagdishkumarKhodabhai Solanki had performedthePostMortemofdeceasednamelyManubhai Husenbhai Shaikh. The PostMortem Report of the deceased is produced at Exh.318, Posthumous Form at Exh.319 and Cause of Death Certificate is produced at Exh.320. Itisdeposedbythedoctorthatthedeadbody was of male aged about 40 years The PostMortem was conductedon02.03.2002from14.05hoursto15.45hours. Itisdeposedbythedoctorthattheclotheswereblackish andwerebloodstained.Thebodyofthedeceasedwaswell built,wellnourishedandbodywascold.Therewereclotted bloodwithblackishdischargefrommouthandbothnostril.
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Therewere1stto3rddegreeburnsoverrightupperlimbs, leftupperfaceandforehead.Therewereabrasionof2cmX 2cmoverrightleganterioroblique. Itisthesayofthe witnessthatalltheaboveinjurieswereAntemortem.Blood stainedfrothyfluidandcarbonparticlespresentinnose, nasopharynxandtrachea.Bothchambersoftheheartwere fullofbloodandthatthecolourofbloodwascherryred.As per the say of Dr.J.K.Solanki, the cause of death of the deceased was shock due to burns with asphyxia due to suffocation. On perusal of the documents which are producedbytheDr.J.K.Solanki,itsupportshissay.Inthe crossexaminationmuchhasbeenaskedabouttheburns but from the whole crossexamination, nothing has come outfromwhichwecancometoconclusionthattherewere noburnsordeathhasnotcausedduetoburns.Forthis purpose, when we peruse the Inquest Panchnama of Manubhai Husenbhai Shaikh produced at Exh.223, it supportsthesayofthewitness.AsperF.S.L.Report,inthe Muddamal article at Mark 16/1 and 16/2, smell of kerosenewascomingfromtheclothesofthedeceased.
P.W.16 Dr.Vijaykumar Vitthalbhai Oza had performedthePostMortemofdeceasednamelyBachumiya
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Nathumiya Shaikh. The PostMortem Report of the deceased is produced at Exh.323, Posthumous Form at Exh.324 and Cause of Death Certificate is produced at Exh.325. Itisdeposedbythedoctorthatthedeadbody was of male aged about 55 years. The PostMortem was conductedon02.03.2002from14.15hoursto15.30hours. It is deposed by the doctor that the clothes were stained withblood.Thebodyofthedeceasedwaswellbuilt,well nourishedandcool.Thedeceasedhadsustained1stto2nd and3rddegreeburnsonbackofrighthand.Fractureat lowerendsofrightradiusandulnabones.Therewere1st, 2ndand3rddegreeburnsonleftforearmandleftfingers. There were fracture of left index finger and left fingers. Fractureatvertexoftheskull.Itisthesayofthewitness that all the injuries were ante mortem. Carbon particles werepresentintrachea.Allthechambersoftheheartwere filledwithblood.AsperthesayofDr.V.V.Oza,thecauseof deathofthedeceasedwasshockduetoburnsandhead injuries.Onperusalofthedocumentswhichareproduced by the Dr.V.V.Oza, it supports his say. In the cross examination much has been asked about the burns but from the whole crossexamination, nothing has come out fromwhichwecancometoconclusionthattherewereno
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burns or death has not caused due to burns. For this purpose, on perusal of the Inquest Panchnama of Bachumiya Nathumiya Shaikh, produced at Exh.223, it supportsthesayofthewitness.AsperF.S.L.Report,inthe muddamalarticleatMark8/1and8/2,smellofkerosene wascomingfromtheclothesofthedeceased.
P.W.16 Dr.Vijaykumar Vitthalbhai Oza had also performedthePostMortemofanotherdeceasednamely: SherumiyaRasulumiyaShaikh.ThePostMortemReportof thedeceasedisproducedatExh.326,PosthumousFormat Exh.327 and Cause of Death Certificate is produced at Exh.328.Itisdeposedbythedoctorthatthedeadbodyof maleagedabout40years.ThePostMortemwasconducted on 02.03.2002 from 14.15 hours to 16.45 hours. It is deposed by the doctorthat theclothes werestained with blood. The body of the deceased was well built, well nourishedandcool.Thedeceasedhadsustained1stto2nd and 3rddegreeburnsattheleftknee. There were1stto 2ndand3rddegreeburnsatrightear,backofneck,left indexfingerandrightand1stand2ndfingers,onbackof chest, abdomen and gluteal region. All the injuries were antemortem.Carbonparticleswerepresentintracheaand
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larynx.AsperthesayofDr.V.V.Oza,thecauseofdeathwas shock due to burns and suffocation. On perusal of the documents which are produced by the Dr.V.V.Oza, it supportshissay.Inthecrossexaminationmuchhasbeen asked about the burns but from the whole cross examination, nothing has come out from which we can cometotheconclusionthattherewerenoburnsordeath hasnotcausedduetoburns.Forthispurpose,onperusal oftheInquestPanchnamaofSherumiyaRasulmiyaShaikh, producedatExh.223,itsupportsthesayofthewitness.As per F.S.L. Report, in the muddamal article at Mark 13/1 and13/2,smellofkerosenewascomingfromtheclothesof thedeceased.
P.W.16 Dr.Vijaykumar Vitthalbhai Oza had also performed the PostMortem of another deceased namely SherumiyaRasulumiyaShaikh.ThePostMortemReportof thedeceasedisproducedatExh.326,PosthumousFormat Exh.327 and Cause of Death Certificate is produced at Exh.328. It is deposed by the doctor that the dead body wasofamaleagedabout40years.ThePostMortemwas conductedon02.03.2002from14.15hoursto16.45hours. It is deposed by the doctor that the clothes were stained
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withblood.Thebodyofthedeceasedwaswellbuilt,well nourishedandcool.Thedeceasedhadsustained1stto2nd and 3rddegreeburnsattheleftknee. There were1stto 2ndand3rddegreeburnsatrightear,backofneck,left indexfingerandrightand1stand2ndfingers,onbackof chest, abdomen and gluteal region. All the injuries were antemortem.Carbonparticleswerepresentintracheaand larynx.AsperthesayofDr.V.V.Oza,thecauseofdeathwas shock due toburns and suffocation. On perusal of the documents which are produced by the Dr.V.V.Oza, it supportshissay.Inthecrossexaminationmuchhasbeen asked about the burns but from the whole cross examination, nothing has come out from which we can cometotheconclusionthattherewerenoburnsordeath hasnotcausedduetoburns.Forthispurpose,onperusal oftheInquestPanchnamaofSherumiyaRasulmiyaShaikh, producedatExh.223,itsupportsthesayofthewitness.As perF.S.L.Report,inthemuddamalarticleatMark13/1, 13/2and13/3,therewassmellofkerosenecomingfrom theclothesofthedeceased.
P.W.17Dr.ArvindKantilalKapadia hadperformed thePostMortemofdeceasednamelyAbbasmiyaKesarmiya
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Shaikh. The PostMortem Report of the deceased is producedatExh.332,PosthumousForm atExh.333and Cause of Death Certificate is producedat Exh.334. Itis deposedbythedoctorthatthedeadbodywasofMuslim maleagedabout40years.ThePostMortemwasconducted on 02.03.2002 from 14.10 hours to 15.10 hours. It is deposedbythedoctorthatthebodyofthedeceasedwas averagely well built, well nourished and cold. There were 1st, 2nd and 3rd degree burns all over the body. Both chambersoftheheartwerefullofblood.Asperthesayof theDr.A.K.Kapadia,thecauseofdeathwasshockdueto extensive burns. On perusal of the documents which are produced by Dr.A.K.Kapadia, it supports his say. In the crossexaminationmuchhasbeenaskedabouttheburns but from the whole crossexamination, nothing has come outfromwhichwecancometotheconclusionthatthere werenoburnsordeathhasnotcausedduetoburns.For this purpose, on perusal of the Inquest Panchnama of Abbasmiya Kesarmiya Shaikh produced at Exh.223, it supportsthesayofthewitness.AsperF.S.L.Report,inthe muddamal article at Mark 27/1 and 27/2, smell of kerosenewascomingfromtheclothesofthedeceased.
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P.W.17 Dr.Arvind Kantilal Kapadia had also performed the PostMortem of another deceased namely: Raziabanu,D/o.IbrahimbhaiRasulbhaiShaikh.ThePost Mortem Report of the deceased is produced at Exh.335, Posthumous Form at Exh.336 and Cause of Death Certificate is produced at Exh.337. It is deposed by the doctor that the dead body was of female aged about 18 years.ThePostMortemwasconductedon02.03.2002from 14.10hoursto16.15hours.Itisdeposedbythedoctorthat thebodyofthedeceasedwasaverage,wellbuilt,nourished and cold. The deceased had sustained contusion on foreheadregionmedically3cm.x2cm.1st,2ndand3rd degreeburnsalloverthebody.Boththechambersofthe heart were full of blood. As per the say of the Dr.A.K.Kapadia,thecauseofthedeathwasshockdueto extensive burns. On perusal of the documents which are produced by the Dr.A.K.Kapadia, it supports the say of Dr.Kapadia.Inthecrossexaminationmuchhasbeenasked about the burns but from the whole crossexamination, nothing has come out from which we can come to conclusion that there were no burns or death has not causedduetoburns. Forthispurpose,onperusalofthe Inquest Panchnama of Raziabanu, D/o.Ibrahimmiya
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Shaikh, producedatExh.223,itsupportsthesayofthe witness.AsperF.S.L.Report,inthemuddamalarticleat Mark26/1and26/2,smellofkerosenewascomingfrom theclothesofthedeceased.
P.W.18 Dr.Vinayakrao Vasudev Patil
had
performedthePostMortemofdeceasednamelyAbedabanu Manubhai Shaikh. The yadi is produced at Exh.340, the PostMortem Report of the deceased is produced at Exh.341,PosthumousFormatExh.336andCauseofDeath Certificate is produced at Exh.337. It is deposed by the doctor that the dead body was of a Muslim female aged about 10 years. The PostMortem was conducted on 02.03.2002from00.10hoursto02.00hours.Itisdeposed bythedoctorthatthebodyofthedeceasedwasaveragely wellbuilt,wellnourishedandthatthetemperatureofthe body was of room temperature. The deceased had sustained injuries which are 1st degree thermal burns present on left forearm and elbow up to the dorsum of wrist,marginsofthewoundwereinflamedandreddened. Alltheinjurieswereantemortem.Chestwascongestedand inflamed.Trachea,larynxandlowerrespiratorytractwere inflamed.Bothlungswerecongested. Ontheleftsideof
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lung,therewascutsectionfromwherethereddishblood stainedforthwascomingout.Stomachwasempty.Asper thesayofDr.Patil,thecauseofdeathwasduetoburnsand itscomplications(hotsmokeinjurytolungs).Onperusalof the documents which are produced by the Dr.V.V.Patil, it supportshissay.Inthecrossexaminationmuchhasbeen asked about the burns but from the whole cross examination, nothing has come out from which we can cometotheconclusionthattherewerenoburnsordeath has not caused due to burns. For this purpose, Inquest PanchnamaofAbedabenManubhaiShaikhisproducedat Exh.712,itsupportsthesayofthewitness. P.W.19 Dr.Dharmesh Somabhai Patel had performedthePostMortemofdeceasednamely Rafikbhai ManubhaiShaikh.ThePostMortemReportofthedeceased isproducedatExh.345,PosthumousFormatExh.346and Cause of Death Certificate is produced at Exh.347. It is deposedbythedoctorthatthedeadbodywasamaleaged about 12 years. The PostMortem was conducted on 02.03.2002from11.15hoursto12.00hours.Itisdeposed bythedoctorthattherewasnoclothonthebodyofthe deceased.Skinwasburntatvariousplaces.Thedeceased hadsustainedinjuriessuchas(1)Baseofburnsareredin
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colourofplaces,(2)Bothpalmandsoleshave1stto2nd degreeburnsandburnswerepresentonface,(3)frontof chest,frontofabdomen,boththighand(4)about36to40 percent of total surface area were burnt. All the injuries were ante mortem in nature. Carbon soot mixed with material present in trachea. Bothlungs, Heart and blood vesselswerecongested.Bloodisfluidinqualityandisof cherryredincolour.AsperthesayoftheDr.D.S.Patelthe reasonofdeathwasduetoshockasaresultofburns.On perusal of the documents which are produced by the Dr.D.S.Patel itsupportsthesayof Dr.Patel.Inthe cross examination much has been asked about the burns but from the whole crossexamination, nothing has come out fromwhichwecancometotheconclusionthattherewere noburnsordeathhasnotcausedduetoburns. P.W.19 Dr.Dharmesh Somabhai Patel had also performed the PostMortem of another deceased namely FirozMahemudhusenShaikh.ThePostMortemReportof thedeceasedisproducedatExh.348,PosthumousFormat Exh.349, Cause of Death Certificate is produced at Exh.350andYadi351.Itisdeposedbythedoctorthatthe deadbodywasofachild(male)agedabout8months.The PostMortem was conducted on 02.03.2002 during 11.00
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hoursto12.00noon.Itisdeposedbythedoctorthatthere were no cloth on the dead body. The dead body was averagelybuiltandnourished.Deadbodyiscold.Itisthe say of the witness that the deceased had sustained (1) Contused Lacerated Wounds present on the left side of head on the left front temporal region. The C.L.W. is surgicallystitchedbearingsize3x3x1cm.(2)Basesof theburnswereredincolourattheplaceondeadbody,(3) 1stto2nddegreeburnspresentonthehead,face,neck, back of chest and abdomen and on both thighs and (4) About36to40%burnspresentonthebodysurfacearea. Alltheinjurieswereantemortem.Carbonsootmixedwith other material present in trachea. Both the lungs were congested and oedematous. Heart and blood vessels were alsocongestedandthatthebloodwascherryredincolour. Itwasdarkandfluid.AsperthesayoftheDr.D.S.Patel, thereasonofdeathwasduetoshockasaresultofburns. On perusal of the documents which are produced bythe Dr.D.S.Patelitsupportshissay.Inthecrossexamination muchhasbeenaskedabouttheburnsbutfromthewhole crossexamination,nothinghascomeoutfromwhichwe can come to the conclusion that there were no burns or death has not caused due to burns. For this purpose,
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Inquest Panchnama of Firoz Mahemudhusen Shaikh is producedatExh.357anditsupportsthesayofthewitness. Astherewerenoclothesonthebodyofthedeceased,there isnoF.S.L.Report. P.W.95BiholaVikramsinhNarsinh,whoisserving intheKagadapithPoliceStation.Atthetimeofincident,he wasinShahibaugpolicestation,hewaspresentintheCivil Hospital, and he received a message that Firoz Mahemoodhusen Shaikh, aged about 8 Months was broughttothehospitalduetoburninjury,intheincident occurredinSardarpur,Ta.Vijapur,Dist.Mahesana,whowas declared dead, at about 12:30. EPR No. 290/6/02, was posted, and Inquest Panchnama of Firoz Mehmoodhusen Shaikh was done in the presence of panchas, which is produced vide Exh.357. Dead body was identified by Maqbul Husen Kesarmiya. As per his disposition, the deceasedwasagedabout8Monthsandhehadsustained headinjuryaswellashealsosustainedburninjuriesin chest.Hehasproduced PosthumousForm videExh.349, he also performed Inquest Panchnama of Rafikbhai ManubhaiShaikhagedabout12Years,whowasdeclared deadinAhmedabadCivilHospitalon02.03.2002at12:30. InquestpanchnamaisproducedvideExh.359,Panchnama
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was prepared in the presence of Panchas and dead body wasidentifiedbyRafikMohamedhusen.PosthumousForm is produced vide Exh.346. Information entry is produced vide Exh. 717. For this purpose, Inquest Panchnama of RafikbhaiManubhaiShaikhisproducedatExh.359,which hasbeenExhibitedwithconsentanditsupportsthesayof thewitness.Astherewerenoclothesonthebodyofthe deceased,thereisnoF.S.L.Report.
P.W.2Dr.PravinkumarPopatlalSonihasdeposedon oath that the PostMortem of Irfanhusen Mahemudmiya ShaikhwasconductedbyDr.S.H.PatelandthatDr.P.P.Soni had worked with Dr.S.H.Patel. Itis alsofurther deposed thatShriS.H.Patelhadretiredfouryearsbackandhecan identifythewritingandsignatureoftheDr.S.H.Patel.Post Mortemformwasbroughtbythepolicewhichisproduced atExh.412andDr.P.P.Sonihasidentifiedthesignatureof Dr.S.H.Patel. PostMortem Report and Death certificate is producedvideExh.412&414.
TheInquestpanchnamaofIrfanhusenMahemudmiya Shaikh isproducedatExh.223.AsperF.S.L.Report,in the muddamal article at Mark 3/1 and 3/2, there was
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smellofkerosenecomingfromtheclothesofthedeceased.
Inquest Panchanama of Firoz Manubhai Shaikh is producedvideExh.357whichwasdoneinthepresenceof P.W.22 Parmar Pravinkumar Arjanbhai and he has deposedonoathvideExh.356that,theInquestpanchnama ofAshiyanabanuwasdoneinhispresenceatabout2.30 P.M.on02.03.2002atCivilHospital,Mahesana.Twopolice men and father of the deceased, were present and panchnamawasexecutedinhispresenceandthereafter,he hadsignedthePanchnama.Insupportofhissay,hehas produced the Panchnama vide Exh.357. From the cross examination,nothing comesout from whichwecandeny thechiefexamination.
P.W.94SolankiChandansinhNanusinhA.S.I.has been examined vide Exh.711, who has deposed on oath thatfrom02.03.2002atabout20.00hoursto03.03.2002 upto08.00hours,hewasatAhmedabadCivilHospital.On 02.03.2002, at about 21.00 hours, he received an information about the death of Abedabanu Manubhai Shaikh and therefore, he had written a Yadi to the Executive Magistrate for Inquest Panchnama and after
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obtainingpermission,InquestPanchnamawaspreparedin thepresenceofpanchasanddeadbodywasidentifiedby ImtiyazkhanMahemudhusenSipai,whohappenstobethe uncleofthedeceased.Insupportofhisdeposition,hehas producedInquestPanchnamavideExh.712.Afterfillingthe PosthumousForm,thedeadbodywassentforPostMortem andafterthePostMortem,deadbodywashandedoverto the relatives and he has produced the documents vide Exh.714. The documents produced vide Exh.712 and Exh.714supportsthesayofthiswitness. Nothingcomes outfromthe crossexamination, from whichwe candeny the determents made in chiefexamination as well as documentsproducedonrecord. Further when we peruse the evidence of the complainantaswellastheevidenceofwitnessesaswellas the evidence of police officers, it has come out that 28 personshavediedonthespotattheplaceandtimeofthe incident and rest of the four deceased died during treatment. In their deposition, complainant as well as witnesseshaveidentifiedtheclothesofthedeceasedwhich weresenttotheF.S.L.inpropermannerandtheReportof F.S.L.isreceived,whichhasbeenExhibitedwithconsent.
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Whenweperusethedepositionof P.W.110Vaghela Kakusinh Ranjitsinh Exh.810, who happens to be the InvestigatingOfficerhasdeposedonoaththat,soonashe received the message about the incident, he went to Sardarpurandthepersonswhowereinjuredandthedead bodies which were brought from Mahemudmiya's house were shifted to Civil Hospital, Mahesana. Inquest panchnama of Aashiyanabanu Aashiqhusen Bachumiya wasexecutedbyA.S.I.ShriH.N.Sadhu,hereceivedallthe concerned papers and he received the cloths, recovered fromthedeadbodies,panchnamaofsceneofoffencewas executed by him in the presence of Panchas. Further during his investigation, he received the certificates of Abedabanu Manubhai Shaikh, Bhikhumiya Kalumiya Shaikh, Aminabibi Bachumiya Shaikh, Fatmabibi Dostmohmad Shaikh and has received PostMortem ReportsofManubhaiHusenbhai,Parvinbanu,D/o.Ibrahim Rasulmiya, Aminabanu Mustufamiya, Asrafkhan Hizbulmiya.HehasalsoreceivedtheInquestPanchnama, Receipt of dead bodies handed over to their respective relatives and all the concerned documents are produced alongwith the Chargesheet. His deposition supports the versionofMedicalOfficers,Panchasandotherwitnesses.
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Consideringtheargumentsadvancedonbehalfofthe accusedaswellasonbehalfoftheprosecutionsideandon perusalofthedepositionanddocumentsaswellasF.S.L. Report,doctorsareindependentwitnessesandthedoctors whohaveperformedthePostMortemshavedeposedbefore theCourt. Notonlythatbutthedocumentsproducedon recordspeaksaboutthesamethattheclotheswhichwere takenfromthedeadbodyweresenttoF.S.L.initsoriginal conditionandinF.S.L.Reports,residuesofKeroseneand HydroCarbonarefoundandthatReportofF.S.L.,supports the medical evidence therefore, the say of the medical officersinrespectofhomicidaldeathofThirtytwopersons isacceptableandthereisnothingincrossexaminationor otherwise which can create doubt about the homicidal deathofabovesaidthirtytwopersons.Fromthedeposition ofwitnessesalongwiththepolicewitness,ithascomeout thatdeceasedwereshiftedtoMahesanaCivilHospitaland PostMortemswereperformedin MahesanaCivilHospital andPostMortemwasalsoperformedinAhmedabadCivil Hospital. Thus, from the above allevidences, it is proved beyond reasonable doubt that 32 persons died due to homicidaldeath.Itisnotthesayoftheaccusedthatthose personshavenotdied.
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24.
So far as the death of Suhanabanu Safikmiya Shaikh is concerned,P.W.97LodhaHafijbhaiNasirbhaihasdeposed videExh.725,whereinhehasdeposedthattheburialritual ofSuhanabanuwasdoneinhispresenceinthegraveyard andinsupportofhissay,hehasproducedtheCertificate vide Exh.726. Further, he has deposed that Talaticum Mantri has prepared the Panchnama in his presence on 03.03.2002 which is signed by him and the same is producedvideExh.572.Further,hehasdeposedthatPolice Inspector, Vijapur was informed about the Death of Suhanabanu and letter of Bachumiya Imammiya Shaikh, Certificate produced vide Exh.726 and Panchnama Exh.572,supportsthesayofthewitness.Thereisnocross examinationofthiswitness.Thus,fromthedepositionand documents, it is proved by the prosecution that Suhanabanu Safikmiya Shaikh has died and her burial rituals was performed in the graveyard of Taluka : Ilol, District : Himmatnagar on 03.03.2002. But from the evidenceonrecordwhetherherdeathistheresultofthe injuriessustainedbyherintheincident,itisnotprovedby theprosecutionbeyondreasonabledoubt.Toestablishthe homicidal death, it is the first and foremost duty of the prosecution to prove beyond reasonable doubt that,
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deceaseddiedduetoinjuriessustainedintheincidentand death is the result of those injuries. Here, in case of Suhanabanu,itisnotprovedbeyondreasonabledoubtby theprosecutiontothebestsatisfactionofthecourtthat, death of Suhanabanu Safikmiya Shaikh is the homicidal death. Therefore, I answer Point No.1 accordingly in the affirmative.
POINTNOS.2TO17:
25. Thesubjectmatterofallthesepointsissocorelatedand therefore, for the sake of convenience and brevity, it is desirable to discuss and decide all the points simultaneously. Hence, I am discussing and deciding all thesepointsaltogether. 26. To decide all the above points, the first and foremost requirementistodiscussaboutthetime,dateandplaceof theincident.Asperthecaseoftheprosecution,incident occurred in the village Sardarpur. Major portion of the incident occurred in Shaikh Maholla and that is too in Mahemudmiya'shouse.Asperthecaseoftheprosecution, panchnamaofsceneofoffencewasdrawninthepresence of Panchas. Some articles were also recovered from the sceneofoffence.
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OnthebasisofthePanchnamaofthesceneofoffence and deposition of witnesses, map, videography and photography, it is submitted by the Spl. Prosecutor Shri Shah that it is proved by the prosecution that, in Mahemudmiyashousetherewasanirondoortowardsthe backsideofthehouseandthattheirondoorwasinbroken conditionandforcewasusedforbreakingthatirondoor.In the second iron door there were signs of using force and fingerprintswerealsofoundinthewallinsidethehouse.It isfurtherarguedbyShriShahthat,firstmobhadtriedto breakthedoorsandthensetonfirethelineofthehouses fallingtowardsgraveyard.Oppositelineisjustadjacentto thehouseofPatelMahollaandinthehinderwallofPatel Mahollahouses,therewerewindowsalso.Ifthehousesof Shaikh Maholla falling towards the hinder wall of Patel Maholla wereburnt, itwould havealsoaffectedthePatel Maholla. Therefore, intentionally, the line of houses of Shaikh Maholla falling towards the graveyard was set on fire.
Further,itissubmittedbySpl.ProsecutorShriShah thatasperthesayofthedefence,amobcamefromthe
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backside of Mahemudmiya's house while as per the Panchnama, at first, the cabins, cycle, jeep and scooter weresetonfireandthereafter,thehousesfallingtowards thegraveyardwereburntandtosavetheirlives,persons fromShaikhMahollawenttothehouseofMahemudmiya and the house of Mahemudmiya was burnt. Thus, mob came from the front side of the Maholla. From the Panchnamaanddepositionofpanchwitness,thisfactgets supportthatthemuchdamagesarecausedtothehouses fallingtowardsthegraveyardwhileonlyonehouseinthe line falling towards the hinder wall of Patel Maholla was burnt. There is normal damage to that house. It is also arguedbyShriShahthatonejeepwasjustadjacenttothat house,wasalsoburntbythemob,whichhouseisonlythe house falling in the line towards the hinder wall of Patel Maholla.OnthebasisofdepositionandPanchnama,Shri Shah has further argued that, there was damage in graveyard also. Muddamal articles which were recovered fromtheplaceofoffenceweresealedandslipsofsignature of panch witnesses were kept inside, which are produced videExh.425toExh.432.Muddamalhasbeenidentifiedby the panch witnesses in the court. Drawing the attention towardsthebacksideofMahemudmiyashouseitisargued
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byShriShahthat,halfburnedpiecesofwoodlyingthere alsosuggestthat,mobhadattackedMahemudmiya'shouse from the backside also. Further, it is submitted by him thatthemeasurementofthehouseofMahemudmiyawas taken at the time of preparing Panchnama whereas measurementofrestoftheportionwasnottaken.Further, it is argued by him that, while entering in the Maholla, first there is a road and from thatroad, Mahemudmiya's housecaneasilybeseenandthepersonsstandinginthe MahollacanseethepersonsstandingoutsidetheMaholla. Mob of 1000 to 1500 persons can enter in the Maholla. Further, referring to the Panchnama produced vide Exh.424,itisarguedbyShriShahthatthereisonegallery in between Abbubhai's house and Bachumiya's house whichisknownasNaveli.
Whilerelyinguponthedepositionofpanchwitnesses andVideographycassetteanddepositionofP.W.66Shaikh AkbarmiyaRasulmiya,itisarguedbyShriDhruvthatall theseevidencesshowthatalmostallthehousesofShaikh Maholla were found ransacked and set on fire. P.W.59 Shaikh Mohmad Sattar Bachumiya and P.W.60 Shaikh Bachumiya Imammiya have deposed about the loot in certainhouses.Further,thescooterandjeeparealsofound
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tobesetonfireinMaholla.Videography,photographsand thedepositionofP.W.38ShaikhInayatHusenBachumiya andP.W.88ModiHasmukhlalThakorlal,showsthatthe position of front and rear side windows of the house of Mahemudmiya and the front and rear doors, residue of burnt herbage were found on the ground level near the windows of the houses of Mahemudmiya, the walls were blackenedneartherearsidewindowofthehouse.Further, onthebasisofthedepositionsofthewitnesses,itisargued byShriDhruvthat,thereisexclusivedamagetothehouse of one Fakir witness, situated at the entrance of village : Sardarpur.ComingfromvillageSundarpur,ShaikhMaholla is situated. Besides the graveyard, at the outskirts of village: Sardarpur, shops, cabins and road of the market werealsosetonfire.Thereisnodamagetothehouseof MuslimsorMuslimMaholla,whicharesurroundedbythe houseofPatelsandotherHinducommunity.Therearetwo roads leading to the Shaikh Maholla. One road passes throughthevillagetoShaikhMahollaandtheotherroad known as SundarpurKamalpur Road, coming from Sundarpur to village Kamalpur, comes after passing the house of Fakir witness and the Telephone Exchange of village. It also passes through the Mahadev temple and
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graveyard. The said road leads to Rawalvas from the backsideofShaikhMaholla.ItisarguedbyShriDhruvthat maps prepared by Circle Inspector does not disclose the actualandrealpositionofsceneofoffence.Thosemapsare notasperthescaleandmapsarepreparedonthebasisof Panchnamaonly.Thereisnothingtoshowthat,thosemaps are prepared after verification of the spot. Except the Mahemudmiya's house, no measurement of other houses arementionedinthemapproducedvideExh.420.Names of owners of the houses are mentioned on the basis of Panchnama. Nodistance hasbeen recordedby theCircle Inspector and house of Thakor Laxmanji Bhikhaji is situatedintheentranceofShaikhMahollauptothehouse ofMahemudmiyaintheShaikhMaholla.Nomeasurement hasbeenrecordedbytheCircleInspectornorthedistance hasbeenmentionedinthemap.HousesinShaikhMaholla areintworow.Oneontherighthandandotherattheleft side.Measurementbetweenthetworowsisnotmentioned. ItisfurtherarguedbyShriDhruvthatlookingtothemap, thedistancebetweenthetworowsisshowntobeatequal distance.Whilefromcrossexamination,itcomesoutthat distance is not at equal distance. The distance differs at each and every house. Relying upon this fact, it is also
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arguedbyShriDhruvthat,CircleInspectorhasnotvisited the scene of offence. Further, it is argued that the measurement of wall of graveyard is also not taken. Map whichwaspreparedon17.09.2004showsthesituationof two cabins, one handcart, scooter, jeep, two plastic cans, onecabinandcycleonlyandthebloodstainsinthehouse ofMahemudmiya.Allthesethingsareshowninthemapon the basis of Panchnama. Further, it is argued by Shri Dhruvthatactualpositionofironrodsinthewindowsof Mahemudmiya's house as well as the actual position of wallsofMahemudmiya'shousearealsonotshownproperly. Even the houses were ransacked and burnt and that condition is not shown in Exh.420. Further, distance betweenthehouseofwitnessSabirhusenImamhusenand ShaikhMahollaisnotmentionedinthemap.Themapdoes notreflectalltheroadsofthevillage.Thus,itisarguedby Shri Dhruv that maps are prepared only on the basis of Panchnama.Witnesshadnotvisitedtheplaceanditdoes notreflecttherealandcorrectpositionofsceneofoffence immediatelyaftertheincidenttherefore,thosemapscannot bereliedupon.
Considering the arguments advanced on behalf of
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both the sides as well as on perusal of the depositions, Panchnama as well as keeping in mind the settled proposition of law, I would like todiscuss firstabout the mapproducedvideExh.420and 421.Boththe mapsare producedinthedepositionofCircleInspector. P.W.37 Sathwara Babubhai Khodidas has been examined vide Exh.418 who has deposed that on 07.08.2003,hewaspostedasCircleOfficerandtilltheyear 2006,hewasCircleOfficerandon30.06.2008,heretired fromthesaidjob.Itisthesayofthewitnessthatwhenhe was present at Vijapur at that time, he received a police reminderformakingmapoftheincidentoccurredatvillage : Sardarpur, on 19.07.2004. It is the further say of the witnessthatwhenhewentforpreparingthemap,hetook thePanchnamaalongwithhimandalsocalledtwopanchs of village : Sardarpur namely : Prajapati Babubhai Ganeshbhai and Revabhai Jeenabhai Prajapati and they wenttoShaikhMaholla.Itisthefurthersayofthewitness thatwhenhehadmadethemapatthattime,therewere two kachcha shops of pan, one handcart and one cycle towards the north of the public road. Shaikh Maholla is locatedfromsouthtonorthandpublicroadislocatedfrom easttowest.Afterleavingtheshop,thereisoneDhaliyaof
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Thakor Laxmanji Bhikhaji towards north, then after, followinghousesarelocatedinchronologicalorder:
HouseofPainterManubhaiAalamkhan HouseofAkbarmiyaNathumiya, Open space of Shaikh Babubhai Mahemudbhai, whereinascooterwaspositionedinaburntcondition asperthePanchnama.
HouseofIkbalmiyaRasulmiya HouseofAbumiyaIsmailmiya HouseofRafikbhaiMahmadbhai HouseofMakbulmiyaKesarmiyaShaikh HouseBachumiyaNathumiya Houses of Akbarmiya Rasulmiya and Ibrahimmiya Rasulmiya.
HouseofAbbasmiyaKesarmiya. HouseofSherumiyaRasulmiya
Thereafter, 28 Ft. ahead, the house of Mahemudmiya Husenmiya, admeasuring 16 x 11 Ft. is situated, it is constructedbyCementplaster,withpakkaterraceandin the northsouth of the said house, there is iron window, thereisslabmeasuring9Ft.widefrominsideand6Ft.in length and 32 Ft. in height and in the front of the said
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house,thereispakkaOtla,admeasuring6x11Ft.,there are two iron windows and in the north south direction there are two doors. The door facing north direction was openingtowardsinsideandinwhichdirectionthesecond dooropensornotisnotknownbythiswitness.Boththe windowshavetwodoors.Therewasplasticbagintheeast of the house in which H.P.L. was written as per Panchnama.TherewasaroofofSteelsheets.Outsidethe room in the north direction and at the back side of the roomBathroomissituated.Towardsthesouthdirectionof theroomthereisanopenspaceVerandaof22Ft.which belongstoMahemudmiyaandinthesouthdirection,house of Rasulmiya is situated, then house of Bhikumiya Kalumiya,thenhouseofBalamiya,thenhouseofAbubhai Rasulbhai, then there was an open space, the house of Bachumiya Imammiya Shaikh is located, then house of Imammiya, then house of Akbarmiya Rasulmiya, then house of Mustufamiya Rasulmiya, then house of Patel Tulsibhai Zaverbhai is situated in the southern direction. TherewasalsoaJeepbearingNo.GJ17A8775shownin panchnama and near to that jeep there is one plastic Gallonisshown.HouseofMahemudmiyaHusenmiyaad measuring11X16Ft.isalsoshowninthePanchnamaand
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towardsthewesterndirection,wallofgraveyardhasbeen shown and after that wall, graveyard is shown. Towards, theeasternsideofthesaidhouse,onbacksidehousesof Patelcommunitiesaresituated.Whenthewitnesssawthe housesitwaslikesunken(khander).Thewiresofwindows anddoorsofmanyhouseswereuprootedandcrooked.The terraceandwallshadturnedblackincolour.Therewere bloodspotsinsidetheroomasperthePanchnamaandthe saidwitnesshadpreparedthemapasperthePanchnama. ThehousesoftheMuslimpeopleshowninthemaparein sunkenandbrokencondition.Whenthemapwasprepared therewasnohabitationinthehouses.Itisthefurthersay ofthewitnessthatthesaidwitnesshadreceivedanother yadi for taking his statement and at the time of making map,thereweremanythingswhichwereremainingtobe drawnandhence,forfurthermakingofmap,thewitness alongwith the Circle Officer present on 02.08.2008 had prepared the additional map. The said maps have been producedatExh.420andExh.421.Theaccusedsidehad taken objection to Exhibit both the maps and both the mapsweregivententativeExhibitatthetimeofrecording ofevidence.Now,firstandforemostquestionwhichrequires tobedecidedisthatwhetherboththemapsarerequiredto
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beExhibitedregularly.Forthispurpose,whenweperuse the depositionof ShriSathwara,he has deposed thathe haspreparedthePanchnamaoftheplaceofincidentandit ismentionedinthemapsthatthemapsarepreparedon thebasisofpolicePanchnama.MapproducedvideExh.420 issignedbytwopanchasandalsobyCircleInspectorandit waspreparedon17.09.2004i.e.aftertwoyearsofincident while the map which is produced vide Exh.421 is the additional map which is prepared on 02.08.2008. It is signedbytwopanchasandExCircleInspectorandpresent InspectorandplacementionedisSardarpur.Nodoubt,in Exh.420,placewherethismaphasbeenprepared,isnot mentioned but it is signed by two panchas and Circle Inspector. Panchas are not examined by the prosecution. Inthecrossexamination,hehasadmittedthathehasnot mentionedbelowExh.420thatmaphasbeenpreparedat theplaceofsceneofoffence.Itisalsoadmittedbyhimthat in which the major incident took place, is also not mentioned in the map. Furthermore, as to how many houseswereburntorruined(Khander)isnotmentionedin themap.OnlythemeasurementofMahemudmiya'shouse wastakenbyhim.Thenameswhicharementionedinthe map are mentioned on the basis of Panchnama and the
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nameofIbrahimmiyaRasulmiyaismentionedatthesayof panchas.Distancebetweenthehouses,isalsonotwritten. Notonlythatbuttheheightofwallofgraveyardisneither measured nor mentioned. Distance between the house of Sherumiya Rasulmiya till the doors of the house of Mahemudumiya,isshownonthebasisofPanchnama.The itemswhichareshowninthemapareshownonthebasis of Panchnama. Hinder wall of Patel's house is mentioned andonwhatbasisitismentionedisnotspecifiedinthe map. That, the wall is also shown on the basis of Panchnama. Blood stains in the house of Mahemudmiya arealsoonthebasisofPanchnama.Itisadmittedbyhim thatthehouseinShaikhMahollaareintwolinesbutthey areinzigzagcondition.Distancebetweenthetwolinesand thehousesaredifferent.Itisalsoadmittedbythiswitness thathehasnotpreparedthemapafterthemeasurement. WhetherthereisanychangeintheplaceforthatnoReport ofTalatiwasobtained.Thus,fromthewholedepositionof thewitness,ittranspiresthatmapproducedvideExh.420 istotallybasedonpolicePanchnama.Witnesshadvisited theplace.Nodoubt,panchasarenotexaminednorinthe map, the place has been mentioned but it is the say of witnessthathehadvisitedtheplaceandthereafter,onthe
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map, prepared on the basis of panchanama, cannot be discardedanditcanbegivenregularExhibitandhence, nowitisregularlyExhibitedasExh.420.Evidentialvalueof this map is a different thing, as it is prepared after two years. It can be considered only for rows of the houses showninthemapandthedirectionsofroadsanddistance betweenthetworowsasthismapistotallybasedonthe Panchnama and hence, we have to consider this map in supportofPanchnamaonly.SofarasmapvideExh.421is concerned,itisverymuchclearthatitispreparedatthe placeofoffencebythepresentandExCircleInspectorand bothhavemarkedtheirsignaturesanditispreparedinthe year2008anditisanadditionalPanchnama.Now,itisto beregularlyExhibitedasExh.421.Itisalsototallybasedon Panchnamabutfromthedepositionofthiswitnessaswell asfromthesetwomaps,ittranspiresthatwitnesseshave visitedtheplaceofsceneofoffenceandpreparedthemaps accordingly.Therefore,thesituationwhichisshowninthe mapsarerequiredtobeconsideredalongwiththesituation showninthePanchnama.Hencebotharetobeconsidered andappreciatedalongwiththePanchnama. So far as the Panchnama produced vide Exh.424 is concerned,P.W.38ShaikhInayatHusenBachumiya has
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beenexaminedvideExh.423andhehasdeposedthaton 03.03.2002, he was called by the police as panch at the police station and then, they had gone to the village : Sardarpur between morning 6.30 to 7.00 hours. It is the sayofthewitnessthatwhentheyreachedtheSardarpur village, there were one P.I., two Constables and witness himself in the police jeep. One Bachubhai with another personwasalsothereaspanchandonaskingthenameof thatperson,hetoldthathisnamewasAjitbhaiJoshi.Itis the say of the witness, the said person had drawn their attentiontothespotwherethepeoplewereburntandthat placecomesunderShaikhMaholla.Itisthefurthersayof thewitnessthatattheentranceofthesaidplacetherewas acabinwhichwasalsosetonfireandthatcabinbelongsto Rafikbhaiandthesaidcabinhadturnedintoashes. The saidcabinwasshownbyBachubhaiandinthesamelineof thecabin,therewasonecycleintheburntconditionand adjoining to that, cabins of Abumiya and Iqbalbhai were there and those cabins were also in a burnt condition. Nearertotheonesidedsloppingroof,thereexistedhouseof Manubhaiandoninspectingthesaidhouse,articlesofthe housewerefoundburnt,whichwereturnedintoashesand all the articles were lying down, the doors were broken,
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burntand turned intoashes. The house adjoining tothe house of Manubhai was also inspected wherein also, the articles were lying down and black particles were on the doors. The witness does not remember the owner of the housebutaspersayofthewitnessadjoiningtothathouse, houseofAkbarmiyaexistedandoninspecting,itwasfound thatarticleswerescatteredonthefloorwhichwastotally burnt and there were black particles in the iron bed. In frontofthesame,onelanewasthereandinfrontoflane, there was one Bajaj Chetak Scooter in a burnt condition andhedidnotrememberthenumberoftheScooterandin frontoflane,thereexistedelectriclineandnearertothat therewasonehouseandhedidnotrememberthenameof theowner.Oninspectingthesaidhouse,itwasfoundthat thearticleswerelyingonthefloorinburntconditionand doors were broken. The second house wasalso inspected wherein the articles were lying scattered, burnt and in broken condition. Further going ahead, there was one pakka house and there is distance of 28 Ft. from rest of houses mentioned above and the said house is of Mahemudmiya.Thereisonesmallplatformwhichisabout 3 to4 ft. widehaving lengthof 11 Ft. and awriting Ya GaribNawazwasinscribedonthewallofthesaidplatform
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alongwith the figures 786 and Year2001 in Arabi language. Entering the said house, there existed an iron doorwithshutterandawidowadmeasuring3x6Ft.and thesaidpanchhasopenedthedoorwithforceandentered intothehouse.Theirondoorwasintightconditiondueto theflameoffire.Theshuttersofthedoorwerefixedwith wireswhichwerebrokenwithforceandwerelyingonthe ground.Thenafter,enteringthehouse,therewasaniron bed and household items were burnt. Furthermore, the electric wires of the P.V.C. Pipe were also burnt and hanging.Onfurtherinspectingthehouse,tornclotheswere foundwhichwere kept inaplasticbagaspersay ofthe panch and a slip of paper bearing the signature of the panchwasputintothebagandthesaidbagwassealed and given to the panch. On proceeding further into the house,therewasanotherdoorwhichwasalsoanirondoor with two shutters and wires and both the doors opened frominsidethehouseandadjoiningtothedoor,therewere ironwindowswithwiresopeningfrominside.Onthesaid wall,therewasonespaceforlightningoflampforGodand oneIslamicCalendarwasalsopendentonthewallwhich hadturnedblackincolour.Onthesaidwall,scratchesof the five fingers of hands were seen. The Constable had
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takenthesampleofthesamethroughcottonandsignature ofthepanchinapieceofpaperandthesamewashanded overtothepanch.Itisthefurthersayofthewitnessthat adjoining tothe main door, there existed an iron window with iron wires which opened from inside and under the base of the window there were blood marks which were takenbytheConstablethroughcottonandthesamewere kept into a plastic bag alongwith a chit containing the signature of the panch and the same was sealed and handedovertothepanch.Furthermore,therewasafanon theceilingwhichturnedintoashesduetoburnsandone tubelightwhichwasalsoturnedintoblackincolour.The utensilswerealsoscatteredonthegrounds.Thefloorand ceilingofthehousehadalsoturnedblackishincolour.In one wall in the height of 3 Ft. one constructed wall is situated for keeping water utensils. After that, the panch andotherpoliceofficialshadmadetheirexitfromthemain door of the house. Next to the said house, there was Veranda(compoundwall)ofPatelcommunity.Betweenthe Verandaandhouse,therewasaGallonlyingontheside and for holding that one wire was tagged to it and on smellingthesame,theremightbeasmellofkeroseneor petrol.Signatureofthepanchwastakeninaslipofpapers
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alongwith the other panch which was taken into the possession. Further moving two steps ahead, there was anotherGallon,onwhichH.P.L.waswrittenandonpicking up the same, therewas 100Gms.of kerosene inside the Gallon.Thepoliceofficialshadrecoveredthesamewitha capandtookthesignaturesofboththepanchandotheron the slip of paper and the same was taken into the possession. On the back portion of the house, there was onebathroomandbehindthehousetherewasoneDung Hill and beside the Dung Hill, house of one Rawal is situated and from there, the panch and other officials returnedbackthroughmaindoor.Inthefrontofthedoor therewasasmallplatformandadjoiningtoit,thereissink inthesizeof4x4Ft.Fromthere,theywentintheopposite lane, where there is open space and nearer to that open spacethereexistedahouseandthathousewasalsoseton fire.Onenteringthehouse,thearticleswerelyingonthe groundandthepanchdidnotrememberthenameofthe resident of the said house. In the said lane, there were about13to14housesandopenspaceandonthesayof Bachumiya,thenameoftheownerswerementionedinthe Panchnama.Allthehouseswerebrokenfieldedandallthe articles were lying on the ground and on the said lane,
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Bachumiya occupied two houses. The doors of both the houses were different and on entering one house, it was brokenfielded,articleslyingonthegroundandstoneswere lyingontheroofofthehouses.Oneoftheroofwasinopen orbrokencondition.Inthefrontofthehouse,onejeephad turnedintoashesandbesidethesaidjeep,therewasone gallonlyingontheground,whichthepoliceofficials had takenintotheirpossessionandonthesame,thesignatures ofboththepanchasweretakenandthesamewassealed andgiventopanchtokeepinhispossession.Thesaidjeep isof Mahindra&MahindraCompany. Thepanch did not remembertheregistrationnumberofthejeep.Attheendof the1314housesandbeforethestartingofpublicroad,the wall of the Patel community's houses is situated. On the left side of the house of Mahemudmiya, one Veranda for Graveyard has been constructed. On entering the graveyard, there were 45 graves which were broken, the brickswereremovedfromitand damageswerecausedto the graveyard. After existing from there and on moving ahead,therewasagodownofcementwithbrokendoors. The tubs of washroom were also broken. As per say of Bachumiya that godown belongs to one Memon whose namewasnotknownbythepanch.Neartoit,therewasa
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clothshopwhichwasalsosetonfire.Neartothatshop, shop of goldsmith was situated and damages were also causedtothatshopbutthepanchdidnotrememberthe quantum of damages. From there the panch and other police officials have proceeded towards Sundarpur and therewasonePanshopwhichwasturnedintoashes.On proceeding further, there was one more shop opposite to thetemplewhichwasapakkashopwhoseshutterwasin brokenandburntcondition. Onproceedingfurther,there wasoneHutofFakirneartotheTelephoneExchangebut thepanchwasunabletorememberthenameoftheFakir andasperthesayofBachumiya,stoneswerepeltedand two Huts were set on fire. Accordingly, Panchnama was prepared and panch alongwith other panchas in the presenceofP.I.,hadputhissignatureinthePanchnama whichisproducedatExh.424whichfullycorroboratesthe sayofthepanch.
Inthecrossexamination,hehasdeposedthatpriorto this incident, he had never visited Sardarpur. In the morningwhenhewassittingjustinthefrontofPanchayat, police had called him and took him with them and they went to Sardarpur. He has admitted that at that place
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exceptBachumiyanootherpersonwaspresentandthere wasnogalloninsidethehouseofMahemudmiya.Hehas also admitted the fact that inside the house of Mahemudmiya, piece of burnt wood were lying a mentioned,whichistrue.Hehasadmittedthattherewere tworoutesforenteringintothebathroomonefrominside roomandonefromoutsideroom.Hehasalsoadmittedthat thereisonlyonedoorinbathroom,andi.e.fromoutside. He has admitted that no measurement was taken of any houses in Shaikh Maholla except Mahemudmiya's house. Measurementofthewallandgraveyardwastakenbutitis not mentioned in the Panchnama. From the house of Mahemudmiya to the entrance of Shaikh Maholla, measurementwasnottaken,electricpoleisnotmentioned inthePanchnama,backsidewallofPatelMahollaisabout 25Ft.inheightandtherearetwodoorsinMahemudmiya's house. He has also admitted that Bachumiya Imammiya has not told as to where was he at the time of incident. Thereweretwoironrodstothewindows ofthehouseof Mahemudmiya. All the walls and the roof of Mahemudmiya's house was blackened. The floor and window were also blackened, iron rods were free from weldingduetoheat.TherewereDungHillbehindthehouse
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ofMahemudmiyaandtowardstherightside,Rawalvasis situatedandonleftside,thereisroadforpassingtowards graveyard. It is admitted by him that a person can pass fromRawalvastoKamalpurfromtheleftsideofroadfrom graveyard to Mahadev then the main road which goes towards Sundarpur via Telephone Exchange is 1.00 Km. awayfromShaikhMaholla.Situationwhichisshowninthe deposition of this panch is supported by the Panchnama drawnvideExh.424.
P.W.48SabirhusenKadarmiyaShaikh,videExh.491 has deposed in this regard that, he is the resident of Sardarpur, his house is situated just opposite to Kapoorvas,atthetimeofincidenthewasresidingwithhis family members, Sharifmiya was residing in the adjacent house, he was residing with his family members, on one sideofthehouseofthiswitness,houseofSharifmiyawas situated vide on other side there was another house, Sharifmiyawasdoingdriving,onthedayofoccurrencehe wasinhishouse,hehasdeniedthat,hisbrotherhadleft thehouseon01.03.2002andwenttoShaikhMaholla.They wenttoShaikhMahollaatabout7.007.30P.M.,during wholeincidenttheywereinShaikhMaholla.Further,itis
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deposedbyhimthat,justadjacenttohishousethereare Muslim Houses and Pathanvas is situated, on left side there is way for passing towards Shaikh Maholla and on right side there is a way to approach to Pathanvas. Pathanvas is situated at the distance of 90 to 100 Ft., approximately,40to45housesaresituatedinPathanvas whileShaikhMahollaissituatedatthedistanceofabout 200Ft.,thereisnodoorofPathanvas,Kapoorvasisatthe distanceof30Ft.,PatelsareresidinginKapoorvas,there areonly3housesofShaikh,thatisnotknownasShaikh Maholla.Thehouses,wheretheincidentoccurredisknown asShaikhMaholla.Furtheritisdeposedbyhimthat,just in front of his house there is a way for passing towards Rawalvas and that way passes through Kapoorvas and thereareagriculturalfieldstowardsRawalvas. P.W.49 Shaikh Iqbalmiya Rasulmiya has admitted that, his house is just in front of Bachumiya Imammiya Shaikh. His house is falling towards the graveyard while Bachumiyas house is falling towards the hinder wall of Patels.DoorsofBachumiyashouseandthosehousesare notfacetoface.Further,thedoorsofboththehousesare notinoneline.Thereisroadinbetweenthetwohouses.
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Thereisapproximately10Ft.distanceinboththehouses. Thus, behind the house of this witness, graveyard is situated. If a person wants to go to graveyard from his house,hecangobyjumpingthewall.Areaofgraveyardis approximately500Ft.whichisopenandfromgraveyarda personcangotoagriculturalfieldandRawalvaswhichis justbehindthehouseofMahemudmiya,therewasHeapof Grassandfrombackside,apersoncangotoRawalvasand graveyard.Furthermore,fromShaikhMahollatotheright andleftsideofthehouseofMahemudmiya,apersoncan gofromboththesides.
P.W.110VaghelaKakusinhRanjitsinhhasdeposedat Exh.110that,on03.03.2002,hehascalledtwopanchasfor preparingPanchnamaofsceneofoffence,sceneofoffence wasshownbyBachumiyaImammiyaShaikh.FourGallons wererecoveredfromplaceofoffence,outofwhichinone Gallontherewas100Ml.keroseneandfromthehouseof Mahemudmiya, half burnt pieces of clothes and clothes withbloodstainswererecoveredinthepresenceofpanchas andbothweresealedinthepresenceofpanchas.Boththe panchashave signedthe slipsas well asthePanchnama andPanchnamahadstartedatabout7.30A.M.anditwas
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completedatabout11.30A.M.Itwaswrittenbythewriter Manharsinh as per his instruction and thereafter, it was read over to the panchas. Panchas have admitted and signedthePanchnama.Cabins,jeep,scooterandhouses, wereburnt.ThehouseofMahemudmiyawaspakkahouse havingmeasurementof11Ft.towardsEastWestandwas 16.5 Ft. wide in length towards NorthSouth. There were twoirondoorsoneinthefrontsideandsecondintherear side and twowindows. Itwas pakkaconstruction. It was burnt inside and blackened marks were inside the room, wires were also burnt, house articles were also burnt, stones were lying in the Maholla, graveyard is situated towards the north side of the house of Mahemudmiya whichwasalsodamagedwhilebreakingthewallandtaking the bricks from grave, grass was also burnt, Muddamal articleNo.29,35,36,irongallon,redcolourplasticgallon and one gallon of gulf company and another gray colour plastic gallon were recovered from the place of offence. MuddamalarticleNo.31,32,33and34are cotton gauze, halfburntclothes,dotsofbloodwhichweretakenfromthe placeofoffence.AllthearticlesweresenttotheF.S.L.He has admitted in his deposition that signatures in slips whichareproducedvideExh.425andExh.432aretheslips
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whicharesignedbythepanchasinhispresence.Further, the videography and photography were also done in his presenceanddamageswhichweredoneinShaikhMaholla as well as graveyard were recorded in videography and thereafter,thephotographsofthehouseofMahemudmiya weretaken.Thedurationoftakingphotographstookabout onehourtooneandhalfanhour.Thesaidphotographsare producedvideExh.764andphotographsalbumisproduced videExh.765. In the crossexamination, he has admitted that the placeswhicharementionedinthePanchnamawereshown byBachumiyaImammiyaandhemetthematSardarpur. ThehouseofthepainterManubhaiAbubhaiwasshownby Bachumiya. Manubhai was not present therefore, the damagesarenotmentionedinPanchnama.Itisadmitted thatnomeasurementofthedistanceoftheMahemudmiya housefromtheentranceofShaikhMahollawastaken.No measurementofdistancebetweenthetworowswastaken. It is also admitted that it is not mentioned in the Panchnamaastowhetherthepersoncanseethehouseof Mahemudmiya from the entrance of Shaikh Maholla. MeasurementofwallfromShaikhMahollatograveyardwas nottaken.ItisdeniedbyInvestigatingOfficer,thatfromthe
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entrance of Shaikh Maholla, house of Mahemudmiya cannot be seen. It is admitted by I.O, that two rows in Shaikh Maholla are in zigzag and he has prepared the Panchnama from the entrance of Shaikh Maholla to graveyard, Darbargadh, Masjid, Memonvas, Holi chakla, JogniMatastemple,Sundarpurroad,TelephoneExchange and house of Fakirs are situated. It is also admitted by InvestigatingOfficerthat,hehasnoknowledgeaboutthe waywhichispassingtowardsSundarpurfromKamalpur, situated on the back side of Mahemudmiya's house. Photographs and videography were taken after the completionofPanchnamaandphotographsweretakenin hispresence.Itisadmittedbyhimthathehasknowledge aboutthepreparationofmapandmapsshouldbeprepared in its scale map. It is denied by the Investigating Officer that persons who have seen the incident are required to remain present at the time of preparing the map. Verification of map with the witnesses were not done by Investigating Officer. From the deposition of Investigating OfficeraswellasfromthedepositionofPanchwitnesses, Panchnamaofsceneofoffencewaspreparedattheearliest, Panchnama supports the fact. No doubt, maps were prepared subsequently. Much reliance cannot be placed
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upon those maps but those maps can be looked into for calculatingthesituationofthehousesinShaikhMaholla and situation of Sardarpur, which are mentioned in the map.
Sofarcrossexaminationofthiswitness,inrespectof sceneofoffenceisconcerned,accusedhavetriedtobring onrecordthatastowhetheranythingisremainingabsent orwhetheranythingiswritteninaccessinthePanchnama and for that, the witness has stated that whatever, they haveseen,theyhavenarratedinthePanchnama.Suppose, somethingremainsthenalso,fromthat,nodoubtcanbe createdaboutthisPanchnamadrawnbytheInvestigating Officer.Ithasalsocomeoutfromthecrossexaminationof this witness that on 03.03.2002, he went to draw the Panchnamaofsceneofoffenceandatthattime,hehadnot felttotakethephotographsandVideographyastherewas no reason to wait for Videographer and photographer for drawing the Panchnama. When the Videographer and photographer came, Panchnama of place of offence was completed and there is no reason for not drawing the Panchnama of Videorgraphy and photography. The Videography and Photography were done in his presence andhehasnotseentheVideography.Hehadnotseenthe
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Videography and photography, till the Videogrpahy was completed.Thearticleswhichwererecoveredfromtheplace of offence were not sealed. He has not recorded the statementsofVideographerandphotographer.Sofarasthe map is concerned, he has admitted that, to prepare the mapisimportant.Infact,insuchseriousoffence,hehas admittedthattillthemapisprepared,placeofoffenceis required to be protected. There is no reason for not preparingthemapimmediately.Hehasdeniedthefactthat atthetimeofpreparingthemap,thewitnesswhohadseen theincidentarerequiredtoremainpresentandfromwhere theyhaveseentheincidentisrequiredtobementionedin Panchnama. He has not verified the map with the eye witnesstoclarifyastofromwherethewitnesseshaveseen the incident. He had not instructed how to prepare the map.ThedistancebetweenShaikhMahollatoPathanvasis 150 to 200 Mtr. and he is unable to say the distance between Telephone Exchange and place of offence. He is unable to say the distance between Telephone Exchange and residence of Fakir. Further, as per the cross examination, he has not made investigation about the distanceofHarijanvasandfieldfromShaikhMaholla.He hasnotinquiredwhetherapersoncanseetheoffenceform
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Harijanvasorfromfield.HehadinformedtheVideographer torecordeverythingfromShaikhMahollatomarketandof every place where obstacles were there. From Sardarpur road, the Videographer had started the recording and at that time, he was present. During Videography, from Sardarpurto1Km.towardstheVijapur,theyhaverecorded Videography. There were hurdles towards the left side of Sardarpur, one road passes towards Kamalpur. No Videogrpahyofthatroadwasrecorded.Theyhaverecorded Videographyofplacewheredamageswerecausedandlastly theywenttoShaikhMahollaandstartedVideogrpahyfrom Sardarpurroad. P.W.108 Oza Vipulkumar Bhogilal has been examinedvideExh.760 whorunsaStudiointhenameof Oza Studio at Vijapur, on Khatri Kuva Road and the witnessistheownerofthatstudio.On03.03.2002,hewas calledbytheVijapurPolicefortakingthephotographyand Videography of village : Sardarpur. He had first gone to police station and then they went to Shaikh Maholla at SardarpurvillageandhehadtakentheVideographyofall thehousesatShaikhMaholla.Itisthesayofthewitness that all houses were having roofs and they were burnt. Therewere1010housesinbothdirectionandinthelast,
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therewasonepakkahousewhichwasalsoincludedinthe Videography.ThesaidVideographycontinuedforonehour andthereare1516numbersofphotographs.Neartothat therewasonegraveyardandhedidnotrememberwhether he had taken the Videography of the said graveyard. The said Videography has been produced at Exh.764 and photographsareproducedatExh.765. In the crossexamination, he has admitted that, photographsweretakenofthesceneofoffenceasitisin positionandatthattimeP.I.ShriVaghelaandtwoPolice Constableswerepresent.Itisadmittedbythewitnessthat photograph No.15 was not taken by him. Some questions wereasked about the photographNo.2 and 15which are admittedbythisphotographerbutitisalsoadmittedthat photographNo.15wasnottakenbyhimwhilephotograph Nos.4, 5, 6 and 10 are of front side of the house. The photographNos.4,5and6werehandedovertothepolice while photograph No.10 was not taken by him and photograph No.10 and 15 were not given by him to the police. Inpursuanceofdepositionofthiswitness,itisargued bySpl.ProsecutorShriShahthat,heistheownerofStudio
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and he was called for photographs and Videography of SardarpurVillage.ThephotographyandVideographywere done by him. There is no audio in the Videography. This Videography and photographs support that, the incident occurred in Shaikh Maholla from the entrance. Further, thereisnodisputeabouttheplaceofoffence.Independent policeofficershavealsonarratedtheplaceofoffencethat incidentoccurredinthehouseofMahemudmiya. P.W.88ModiHasmukhlalThakorlal hasdeposed onoathatExh.674andhasstatedthat,onreceivingthe message, he went to Village Sardarpur and personally visitedthesceneofoffenceandreportwaspreparedbyhim. Onvisitingthesceneofoffence,itwasfoundbyhimthat, there was one Pakka house, there was iron rod on front side and second on rear side, accordingly there weretwo windowsfrominspectionofsaidhousefromoutside,there aremarksofpeltingbrickstonesontheoutsiderwallsand brickstoneswerelyingintheopenandonthebacksideof the house, just below the windows burnt pieces of wood werelyingandthereweredotsonthewallofthewindow andthereweremarksofusingforceonthe windowsand fiveironrodsofthedoorwasseparatedfromwelding.There wasblackishinhalfdoorofwindow,therewasblackishon
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aldropalso,doorwasopeninginsideandonthebackside ofthehousealsotherewasblackishinthedoor,aldropand whichwasnotclosedfrominside,inthehousetherewere halfburntpiecesofclothsandtheewereredcolourdots, there was blackish on the walls, doors and following samplesweretakenbythem. Blackish(mesh)fromburnt piecesofclots,reddishdotsontin,oneplasticgallonwere recovered from there accordingly he has prepared the report,whichisproducedonrecordatExh.675andYadiis producedatExh.676. Inthecrossexamination,itisadmittedbyhimthatin all the four walls and ceiling, it was black. There is no mentioningabouttheelectricalswitch,hehadnotinquired abouttheshortcircuit.Astheburntpiecesofwoodwere outsidetherefore,inthewall,thedotswhichwereshown werenotmentioned,whethertheywereinsideoroutside. Whetherthosedotswereduetopetrolorkerosene,hehad not inquired. Force was used in window. Force was used from inside the window. Efforts were made to open the window from outside and there were marks of force from outside also. Whether there were stoppers inside the windowornot,itisnotmentionedinhisrecord.Nomarks of force were seen in the front side of window. No
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photographs of stoppers were taken when he had visited theplaceofsceneofoffence.Whetherthestopperwasopen fromoutsideorinside,itisnotinquiredbyhim.Therewere dotsofbloodintheroom.Howmanydotswerethereisnot written. Samples were taken by Investigating Officer therefore, he had not taken the sample towards the backsideofthehousenorwindow.Theburntpieceofwood andclotheswerelyingandreddotswerethereinthefloor. Insupportofhisdeposition,whenweperuseExh.675,it supportsthesayofScientificofficer.
Insupportoftheircase,prosecutionhasproducedthe F.S.L. Report vide Exh. 677 in which article No.29, there wereoneplasticgallonwith100Ml.kerosene,onegallonin whichHP100wasdulywritten,onegauzecottonfromthe wallofMahemudmiyawherehydrocarbonwasfound,half burntpieceofclothfromtheroomofMahemudmiya,gauze cotton with blood stains in the room of Mahemudmiya, plasticgallonswithsmellofkerosene.ArticleNo.29and30, 36and35wererecoveredandweresenttoF.S.L..Asper the deposition of Scientific Officer and as per the Report producedvideExh.677andExh.675,thesayofthepanch witnessissupported.AspertheReportofF.S.L.produced
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videExh.675,inwindows,marksofforcewerefoundand bothdoorswerenotclosedfrominside. P.W.112BarotGautamkumarVishnubhaihasvisited the place of offence. As the map was incomplete, he had instructed the Circle Inspector to complete the map and letterisproducedvideExh.904.Hehasadmittedthatmob hasnotscaledthemapandthemapwhichispreparedfor second time is also not scaled map. From the entrance placeofShaikhMahollatoMahemudmiyashouse,distance isabout50to60Ft.Housesareintworowsontheright sideandontheleftside.Measurementofthehouseshas notbeenrecorded.Itistruethatallthehousesintworows arenotequal.Hehadnottakenthemeasurementofthe wallfromgraveyardsideandfromShaikhMahollaside.Itis admitted by him that the place which are shown in Panchnama,measurementofthosedistanceshavenotbeen recorded. He was not there at the time of preparing the map.Fromwherethewitnesshasseentheincidenthehad not inquired this fact by himself. By going to Shaikh MahollanodemonstrationofPanchnamawasprepared. An application for local inspection of the place of offence and other surrounding places, was requested by
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accusedatthestageofclosingofevidenceofprosecution side.TheLearnedAdvocatefortheaccusedhasmadean applicationafterrecordingfurtherstatementprayingthat, localinspectionshouldbecarriedoutandcontendedinthe applicationthattheincidentoccurredintheyear2002and witnesseshavedeposedaboutdifferentroads,housesand theroadsconnectingothervillagesandhasfurtherdeposed abouthousesinShaikhMahollaandotherMuslimshouses and Patelvas etc. To appreciate the evidence of those witnesses,itisverymuchnecessarytohaveaninspection oftheinsideroadofShaikhMahollabytheCourt.Unless, theCourtpersonallyvisitstheplaceofincident,Courtwill not be in a position to appreciate the evidence properly. Some of the witnesses claimed that they have seen the accused from the particular place but unless the court visits the place, it will be very difficult to appreciate the evidence. The houses in Shaikh Maholla are in row and zigzag condition and there is distance between houses of ShaikhMaholla.Itisnotpossiblethat,mobof1000to1500 persons could enter in Shaikh Maholla. If cabins were burnt,thenfromwherewouldthewitnesseshaveseenthe incidentofburning.Further,itisnotcomingonrecordas towhatisthelocation,fromShaikhMahollatoHarijanvas
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and Rawalvas,agriculturefieldand position ofroad from front and backside of Shaikh Maholla to Pathanvas, position of graveyard, Shaikh Maholla to Pathanvas, location of houses of Pathanvas and surrounding houses and position of approach road from one village to other villageroad.Fortheaccuratedecision,itisnecessaryfor theCourttovisittheplaceforconclusiveproof.Noneofthe witnesseswhoclaimstohaveseentheaccusedandgrave prejudicewillbecausedtotheaccused,ifthisisnotdone at this time. Considering contents of the application it appearsthatitisnecessarytohaveavisitoftheplaceof the offence just to reach at conclusive and accurate decision in the present matter in respect of the facts mentioned in the application. Therefore, this application was allowed and local inspection was carried out on insistingbyaccused,inthepresenceofSpecialProsecutor and all advocates appearing on behalf of accused accordingly.Memorandumofthefactsobservedinthesaid inspectionwhichisproducedonrecordvideExh.1081. Considering above all oral as well as documentary evidenceonrecord,wehavetoappreciatetheevidenceof the witnesses by keeping in mind the above situation of scene of offence and also by keeping in mind the note
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preparedatthetimeofInspectionvisitbytheCourt. P.W.36 Chaudhari Ishvarbhai Bababhai has been examinedbytheprosecutionatExh.405.Heisservingas Clerk in the office of the District Magistrate. He has produced Notification dated 25.03.2002, which was published from their office, which is produced vide Exh.406.Heiscrossexaminedbythedefence.Inhiscross examination, he has admitted that he has deposed by verifyingtherecord.Wholeprocedurewasnotdonethrough him. He has admitted that in the notification the words pipe and dhariya are not mentioned but he has deposed willinglythatinthenotificationweaponsbywhichaperson cansustainphysical injuryis mentioned.Thus, from the deposition as well as from the document produced vide Exh.406, prosecution has proved that, at the time of incident Notification under Section 135 of B.P.Act was in force.Theevidenceadducedinthisregardmuchsupported by the documentary evidence is reliable and trustworthy, thereisnoreasontodiscardthisevidence.
FromthedepositionofP.W.38ShaikhInayatHusen Bachumiya, which is supported by the panchnama,
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producedatExh.424,ithascomeoutthat,atthetimeof drawing Panchnama it was found that, on entering into graveyard there were 4 to 5 graves, which were broken, brickswereremovedanddamageswerecausedtothesaid graves. In support of this fact, P.W.112 Barot Gautamkumar Vishnubhai has deposed that during investigation, he found that 13 other persons were also involvedinthemob.Theywereabscondingandtherefore, tosearchthem,aletterwaswrittenbyhimtoP.I.,Vijapur andD.S.P.Further,asperthedepositionofthiswitness, damagewascausedtothereligiousplace.Hehadrecorded the statements of Javan and Homeguard and therefore, from their statements and Panchnama, it has come out thatdamagewascausedinthereligiousplaceofMuslims and in the graveyard and Section 295 was not added therefore,hehadsentoneReporttoJ.M.F.C.toaddsaid section which is produced vide Exh.905 and has also submitted Report to add Section 153K for creating tense atmosphere between the two communities. He has also written one letter to Government Secretary, seeking permission under Section 196(1) of Cr.P.C. which is producedvideExh.720.Allthepaperswereattachedwith thatapplication.Thereafter,hereceivedsanctionwhichis
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producedvideExh.721.Exh.722istheapplicationwritten by him to the Additional Secretary, Home Department, Gandhingar.Exh.722isthepapers,onthebasisofwhich officer can decide whether sanction should be granted or notandsanctionisproducedvideExh.723. In support of this fact, P.W.96 Purshottambhai Nathabhai, Additional Secretary (SCST Department), Gujarat Government, has deposed that he received an application from Investigating Officer Shri G.V. Barot, to add section 153A, of I.P.C. against Babubhai Vanabhai, Rameshbhai Kacharabhai, BabubhaiKanjibhai, Kanubhai Revabhai, Natubhai Kacharabhai, Ashwinbhai Baldevbhai andJoitaramRamabhai.Reportwassubmittedalongwith Feristof200pagesandaftergoingthroughthestatement ofwitnessesandafterapplyingmind,anotewasprepared byhimandsubsequentlysenttohigherauthority i.e.the Principal Secretary Shri Balwant Singh, which was sanctionedon31.08.2008,andaccordinglyhehaspassed an order on 05.09.2008. During his deposition he has producedtheLettersofrequestingtograntsanctiontofile chargesheet against the accused under section 196(1) at Exh.720to723andcopyofGazetteshowingthat,heisthe competentauthoritytograntsanction,toaddSection153
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AofI.P.C.isproducedonrecordatExh.724.
Inthecrossexaminationofthiswitness,defencehas triedtobringonrecordwhetherthepaperswerereceived byPostorbyhand,whethertheywereinwardedorwhohad inwardedbutallthesepointsareimmaterialasthefacts that,allthepapersalongwiththeapplicationwerereceived bythewitnesson29.08.2008.Inthecrossexaminationof thiswitness,ititselftranspiresthat,aftergoingthroughall thepapersandafterapplyinghismindhehassubmitted hisReporttoPrincipleSecretaryon29.08.2008.Whenwe gothroughthedocumentsproducedvideExh.720to724, allsupportsthesayofprosecution.Thus,prosecutionhas fullysatisfiedonthispointthat,afterapplyingmindand after going through the papers the sanction was granted andonthestrengthofthesanction,prosecutionhastried to satisfy the names of persons, mentioned in the application, and had tried to criminal harmony in the society.
Thus,withthesupportofaboveevidence,itisproved bytheprosecutionthat,damagetograveyardwascaused and sanction was accordingly sought and granted after adopting due procedure and applying mind fully and
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Section153AofI.P.C.hasbeenaddedasmentionedinthe application.Alldocumentsproducedsupportsthisfact. 27. So far as arrest of accused in the present case is concerned, prosecution has examined P.W.23 Patel Ishvarbhai Gopalbhai has been examined vide Exh.362, who has deposed that, he was called upon by the Police InspectorattheSardarpurGramPanchayat.Saidwitness wascalledat13.30hoursintheafternoon.Itisthesayof the witness that, there were other panch Maheshbhai Jivabhai.Itisthesayofthewitnessthat,hewascalledfor preparing panchanama of the physical condition of the accused.Hehas notaskedthenameof theaccusedand had marked his signature without asking for any information.
Itisthesayofthewitnessthathehasidentifiedthe accusedRameshKanajiandChaturbhaiVitthalbhai.Itis the say of the witness that, physical identification of the accusedwereperformedinthepresenceofthewitnessand hehasdescribedtheclotheswornbytheaccusedandthe panchnama was read over to him and thereby, he had markedhissignatureinthepanchnama.
The Panchnama of Ramesh Kanaji and Chaturbhai
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VitthalbhaiisproducedvideExh.363whichisasfollows:
AccusedRameshKanajiPatel,Residentofvillage: Sardarpur,hadwornwhiteshirtandbluecolourpant and no material has been found from the said accused.
Another accused Chaturbhai Vitthalbhai Patel, Residentofvillage:Sardarpur,hadwornwhiteand bluecolourprinterBushirtandPentofGreenColour. Nothingwasrecoveredfromtheaccused.
During the crossexamination conducted by the learned advocate Mr.B.C.Barot, it was admitted by the witnessthat,whatwasthepositionoftheaccused,hehad notseen.Further,hehasadmittedthat,hehasnotgone through the Panchnama, he has only signed the Panchnama, he has no knowledge about the cloths of accused. He has signed the panchnama, only at the instanceofpolice.P.W.110VaghelaKakusinhRanjitsinh hasdeposedonoaththat,hehasarrestedaboveaccused on03.03.2002andArrestPanchnamawaspreparedinthe presenceofPanchas.
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P.W.25ThakorJayantijiVarvajihasdeposedonoathvide Exh.365 that, in his presence, Arrest Panchnama of Ashwinbhai Baldevbhai was executed on 26.06.2002. In support of his say, he has produced Panchnama vide Exh.366. From his crossexamination nothing comes out fromwhichwecandiscardthisArrestpanchnama.P.W.111 PatelKantibhaiParshottamdashasdeposedonoaththat, hehasarrestedaboveaccusedon26.06.2002andArrest PanchnamawaspreparedinthepresenceofPanchas.
P.W.26 Goswami Chandrakantgiri Ramgiri and P.W.27 Kadia Shamalbhai Gopalbhai have deposed vide Exh.368 andExh.370respectively,onoaththat,intheirpresence, Arrest Panchnama of 13 persons was prepared on 03.09.2008, which is produced vide Exh.369. In their respectivecrossexaminationtheyhaveadmittedthat,they have no knowledge about 13 persons, simply they were sitting in Police Station and panchnama was prepared. P.W.107 Chauhan Ramtuji Kanaji has deposed on oath that, he has arrested above accused on 03.09.2008 and Arrest Panchnama was prepared in the presence of Panchasandnothingrecoveredfromsaidaccused. P.W.29 Patel Naranbhai Manilal and P.W.30 Patel
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BabubhaiMathurbhaihavedeposedvideExh.376and387, respectively, who are the panch of Arrest Panchnama of accused Rameshbhai Kantilal, Dashrathbhai Ambalal, Baldevbhai Ranchhodbhai, Madhabhai Vitthalbhai, Ramanbhai Jivanbhai, Vishnukumar Prahladbhai, Rajeshbhai Punjabhai, Chaturbhai Kanabhai, Sureshbhai Baldevbhai, Tulsibhai Girdharbhai, Sureshbhai
Ranchhodbhai and Rajeshbhai Karshanbhai, which is produced at Exh.822. But they have not supported the facts of Arrest Panchnama. P.W.110 Vaghela Kakusinh Ranjitsinhhasdeposedonoaththat,hehasarrestedabove accused on 08.03.2002 and Arrest Panchnama was preparedinthepresenceofPanchas.
P.W.31 Patel Arvindbhai Becharbhai and P.W.32 Patel Babubhai Varvabhai has deposed on oath vide Exh.389 and 391, who are the panch of Arrest Panchnama of Rameshbhai Ramabhai Govabhai, Ashwinbhai Jagabhai Vanabhai,PrahladbhaiJagabhaiPatelandParshottambhai MohandasPatel,whichisproducedonrecordatExh.829, But they have not supported the facts of Arrest Panchnama. P.W.110 Vaghela Kakusinh Ranjitsinh has deposed on oath that, he has arrested above accused on
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12.03.2002 and Arrest Panchnama was prepared in the presenceofPanchas.
P.W.33ThakorAmrajiKodarjihasdeposedonoathvide Exh.392that,on15.03.2002,hewascalledbythePolice and his signature was taken by the Police. He is hostile Panch. He has not supported the Arrest Panchnama of Ambalal Magandas Kapoor, Kanaiyalal Nathalal and RameshbhaiPrabhabhai.SaidPanchnamaisproducedon recordatExh.834.P.W.110VaghelaKakusinhRanjitsinh hasdeposedonoaththat,hehasarrestedaboveaccused on15.03.2002andArrestPanchnamawaspreparedinthe presenceofPanchas.
P.W.34 Oza Manishkumar Babubhai and P.W.35 ChauhanFulajiSomajihavedeposedonoathvideExh.396 andExh.399.TheyhavenotsupportedthefactsofArrest Panchnama of eight accused Jayantibhai Ambaram, Jivanbhai Dhwarkadas, Dahyabhai Kacharabhai, Aashutosh Murlidhar Marwadi, Rameshbhai Ganeshbhai Prajapati, Mathurbhai Trikambhai Patel, Kanubhai Joitaram Patel and Rameshbhai Baldevbhai Patel. Said Panchnama is produced on record at Exh.778. P.W.109
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BarandaRohitkumarDhuljibhaihasdeposedonoaththat, he has arrested above accused on 11.06.2002 and Arrest PanchnamawaspreparedinthepresenceofPanchas.And hehasnotrecoveredanythingfromsaidaccusedpersons. Particulars of the Arrest panchnama Exh.822 is as follows:
Exh.822 Complainant Shaikh Ibrahimmiya Rasulmiya haslodgedthecomplaintagainst12accused.
Saidpanchnamaisregardingthedeadlyweaponsrecovered from the accused. The first accused is Rameshbhai KantibhaiPatel,agedabout24years,Residentofvillage: Sardarpur,Taluka:Vijapurhavingwhitehair.Hehadworn redshirtandblackpant.Noanyinjurymarkshavebeen found over his body. He had deadly weapon such as Dhariya affixed to wooden sticks in length of 25 inches includingtheironpartmeasuring10.5incheswithwidth measuring2.5inchesalongwithsharpedgeonfrontside havingmonetaryvalueofRs.5/.
The second accused is Dashrathbhai Ambalal Patel Age
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about 26 Years, Resident of village : Sardarpur, Taluka : Vijapur.Hehadwornshirtintheshadeofwhiteandblue, andgraypant.Hehadwornleatherchappalsinhisfeet.No anyinjurymarkshavebeenfoundoverhisbody.Hehad deadly weapon such as Dhariya affixed to iron pipe in lengthof24inchesandtheironpartmeasuring9.5inches withwidthmeasuring2inchalongwithsharpedgeonfront sidehavingmonetaryvalueofRs.5/. ThethirdaccusedisBaldevbhaiRanchhodbhaiPatel,Age about 40 years, Resident of village : Sardarpur, Taluka : Vijapur.Hehadwornshirtintheshadeofbrownandblue colourpant.Noanyinjurymarkshavebeenfoundoverhis body.Hehaddeadlyweaponsuchasrustedswordwithits hilt comprising of iron which is in the broken form. The sword is sharp and pointed with length measuring 28 inchesandwidth1.25inches.Thelengthofthehiltis6 inch and there was no writing upon it, having monetary valueofRs.5/.
ThefourthaccusedisRajeshkumarKarsanbhaiPatel,Age about22,residentofvillage:Sardarpur,Taluka:Vijapur. Hehadwornwhitefullsleeveshirtandgraypant.Noany
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injurymarkshavebeenfoundoverhisbody.Hehaddeadly weaponsuchasironpipeinlengthmeasuring33 inches. There were no any blood stains on the iron pipe having monetaryvalueof0.50Paisa.
The fifth accused is Madhabhai Vitthalbhai Patel, Age about 33 Years, Resident of village : Sardarpur, Taluka : Vijapur.Hehadwornshirtintheshadeofred,whiteand black and shade of green (Mahendi) pant. No any injury marks have been found over his body. He had deadly weaponsuchaspipeinlengthof26inches.Therewereno bloodstainsonthepipehavingmonetaryvalueofRs.1/. The sixth accused is Ramanbhai Jeevanlal Patel, Age about 29 Years, Resident of village : Sardarpur, Taluka : Vijapur. He had worn shirt of cream colour shade and brown pant.Noanyinjurymarkshavebeenfoundover his body. He had deadly weapon such as Dhariya at the timeofoffencebutthesamewasaffixedtoanironpipein lengthmeasuring35inchesandtheironpartmeasuring8 inches with width measuring 1.5 inches alongwith sharp edgeonfrontside.Nobloodstainswerefoundonthesaid ironpipeanditsmonetaryvalueisRs.5/.
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TheseventhaccusedisVishnukumarPrahaladbhaiPatel, Age about 23 Years, Resident of village : Sardarpur, Taluka:Vijapur.Hehadwornshirtintheshadeofbrow and blue colour and slate colour pant. He had worn chappalsinhisfeet.Noanyinjurymarkshavebeenfound over his body. He had deadly weapon such as Dhariya affixedtoironpipeinlengthof29inchesandtheironpart measuring 6.5 inches with width measuring 1.5 inches alongwithsharpedgeonfrontsidehavingmonetaryvalue ofRs.2/. Theeighthaccusedis RajeshkumarPunjabhaiPatel, Age 28Years,residentofvillage:Sardarpur,Taluka:Vijapur.He hadwornshirtintheshadeofbrownandwhitecolour,and bluejeans.Therewereslippersinhisfeet.Noanyinjury marks have been found over his body. He had deadly weaponsuchasstickinlengthmeasuring59inches.There werenobloodstainsonthestickanditsmonetaryvalueis Rs.1/. The Nineth accused is Chaturbhai Kanabhai Patel, Age about 31 Years, resident of village: Sardarpur, Taluka :
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Vijapur.Hehadwornwhiteblueshirtandbluepant.He hadwornchappalsinhisfeet.Noanyinjurymarkshave beenfoundoverhisbody.Hehaddeadlyweaponsuchas ironpipeinlengthof38inches.Therewerenobloodstains ontheironpipeanditsmonetaryvalueisRs.50Paisa.
The tenth accused is Sureshbhai Baldevbhai Patel, Age about 20 years, resident of village : Sardarpur, Taluka : Vijapur.Hehadwornshirtintheshadeofwhiteandshade ofbrownpant.Noanyinjurymarkshavebeenfoundover hisbody.Hehaddeadlyweaponsuchasstickinlengthof 59inches.Therewerenobloodstainsonthestickandits monetaryvalueisRs.1/.
TheeleventhaccusedisTulsibhaiGirdharbhai,Ageabout 34years,Residentofvillage:Sardarpur,Taluka:Vijapur. Hehadwornshirtinshadeofashcolourwithhalfsleeves and slate colour pant. No any injury marks have been foundoverhisbody.
TheTwelfth accusedis SureshbhaiRanchhodbhaiPatel, Ageabout22years,residentofvillage:Sardarpur,Taluka: Vijapur.Hehadwornwhiteshirtandbrownshadepant.
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Noanyinjurymarkshavebeenfoundoverhisbody.
The panch witnesses have signed the panchnama after verifying and understanding the contents written in the panchnama. Said panchnama is signed by Patel Narayanbhai Manilal and Babubhai Mathurdas Patel on 08.03.2002between11.15to13.15hours.
Particulars of the Arrest panchnama Exh.829 are as follows: Exh.829 Complainant Shaikh Ibrahimmiya Rasulmiya haslodgedthecomplaintagainst4accused.
The said panchnama is regarding the deadly weapons recovered from the accused. The first accused is Rameshbhai Ramabhai Govabhai Patel, Age about 36 years,Residentofvillage:Sardarpur,Taluka:Vijapur.He hadwornfullsleeveblackliningshirtandshadeofbrown pant.Noanyinjurymarkshavebeenfoundoverhisbody. HehaddeadlyweaponsuchasDhariyaaffixedtoironpipe in length of 2 Ft. and one inch including the iron part measuring9.25inches.Therewerenoanybloodstainson
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thesaidDhariyahavingmonetaryvalueofRs.5/.
ThesecondaccusedisAshwinkumarJagabhaiVanabhai, Ageabout21Years,Residentofvillage:Sardarpur,Taluka: Vijapur. He had worn light yellow colour shirt and black pant.Noanyinjurymarkshavebeenfoundoverhisbody.
ThethirdaccusedisPrahaladbhaiJagabhai,Ageabout23 Years,Residentofvillage:Sardarpur,Taluka:Vijapur.He hadwornMaruncolourfullsleeveshirtandblackpant.No anyinjurymarkshavebeenfoundoverhisbody. The fourth accused is Parshottambhai Mohandas Patel, Age about 45 Years, Resident of village : Sardarpur, Taluka:Vijapur.Hehadwornwhiteblackshirtandlight greenpant.Noanyinjurymarkshavebeenfoundoverhis body. Noanyarticleswererecoveredfromtheaccused.Thepanch witnesses have signed the panchnama after verifying and understanding the contents written in the panchnama. SaidpanchnamaissignedbyPatelArvindbhaiBecharbhai and Patel Babubhai Varvabhai on 12.03.2002 between 13.00to14.30 hours.
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Particulars of the Arrest panchnama Exh.834 are as follows: Exh.834 The said panchnama is regarding the deadly weaponsrecoveredfromthe3accused.
The first accused is Ambalal Maganbhai Patel (Kapoor), Resident of village : Sardarpur, Taluka : Vijapur. He had wornblackandwhiteshirtwithbrownpant.Noanyinjury marks have been found over his body. He had deadly weaponsuchasDhariyaaffixedtoironpipeinlengthof2 feet and 1.5 inches including the iron part measuring 9 incheswithwidth5.2inches.Therewerenoidentification marksonthedhariyahavingmonetaryvalueofRs.5/. ThesecondaccusedisKalabhai@KanaiyabhaiNathalal, Residentofvillage:Sardarpur,Taluka:Vijapurpresently residingatGhatlodiya,Ahmedabad.Hehadwornskyblue colourshirtwithvioletcolourpant.Noanyinjurymarks havebeenfoundoverhisbodyandclothes.Hehaddeadly weaponsuchasstickinlengthof11.5inches.Therewere noidentificationmarksonthestickhavingmonetaryvalue ofRs.1/.
Thethirdaccusedis RameshbhaiPrabhabhaiGopalbhai,
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Resident of village : Sardarpur, Taluka : Vijapur. He had wornwhiteandgraycolourshirtwithblackpant.Noany injury and identification marks have been found over his bodyandclothes.TheaccusedhasproducedtheDhariya athisownwillwhichwasaffixedtoironpipeinlengthof2 feetandoneinchincludingironpartmeasuring10inches andwidth2inches.Therewerenoidentificationmarkson thestickhavingmonetaryvalueofRs.5/.
The panch witnesses have signed the panchnama after verifying and understanding the contents written in the panchnama. Said panchnama is signed by Babubhai Sankalchand Panchal and Thakor Amraji Kodarji on 15.03.2002between17.00to18.15hours. ParticularsofPanchnamaproducedvideExh.814are asunder: Present panchnama is in respect of arrest of 25 accused namely Patel Karshanbhai Tribhovanbhai, Lakhvara Narayanlal Shitalmal,PatelJayantibhaiMangalbhai,Patel Amratbhai Somabhai, Prajapati Babubhai Lavjibhai, Prajapati Rajeshkumar Amrutbhai, Patel Bhaveshkumar Kanubhai, Patel Jayantibhai Jivanbhai, Patel Jagabhai Davabhai, Patel Prahladbhai Somabhai, Prajapati
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BharatbhaiRameshbhai,PatelKacharabhaiTribhovandas, Patel Jayantibhai Baldevbhai, Patel Mangalbhai Mathurbhai, Prajapati Gordhanbhai Revabhai, Patel Bhikhabhai Joitabhai, Prajapati Rohitkumar Ramanbhai, PrajapatiRavikumarAmratbhai,PatelBabubhaiKantibhai, Patel Dineshkumar Baldevbhai, Patel Vishnubhai Gopalbhai, Patel Kanubhai Karshanbhai, Prajapati DahyabhaiVarvabhai,PatelRaghubhaiRevabhaiandPatel MathurbhaiRamabhai.Nobloodstainsontheclothsand no any injury mark are found on the body and nothing recoveredfromanyoftheaccusedduringthePanchnama. Panchnama was prepared on 04.03.2002 during 15.15 hoursto17.15hours.
ParticularsofPanchnamaproducedvideExh.778are asunder: Present panchnama is in respect of arrest of 8 accused namely Patel Jivanbhai Dhwarkadas, Patel Jayantibhai Ambalal, Patel Kanubhai Joitaram, Prajapati Ramanbhai Ganeshbhai, Marvadi Aashutosh alias Pavankumar Murlidhar, Patel Dahyabhai Kacharabhai, Patel RameshbhaiBaldevbhaiandPatelMathurbhaiTrikamdas. PatelJayantibhaiAmbalalhasproducedoneLathiof5Ft.
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having7knottypartsandtherewasnoinjurymarkonhis body and there was no blood stains on his cloths. Patel JivanbhaiDhwarkadashasproducedoneironpipeof2Ft. 12Cms.andtherewasnoinjuryorburnsmarkonhis body and there was no blood stains on his cloths. Patel Dahyabhai Kacharabhai has not produced anything and therewasnoinjuryorburnsmarkonhisbodyandthere was no blood stains on his cloths. Marvadi Aashutosh alias Pavankumar Murlidhar has also not produced anything and there was no injury or burns mark on his bodyandtherewasnobloodstainsonhiscloths.Nothing recoveredfromPrajapatiRamanbhaiGaneshbhaiandthere wasnoinjuryorburnsmarkonhisbodyandtherewasno blood stains on his cloths. Nothing recovered from Patel MathurbhaiTrikambhaiandtherewasnoinjuryorburns mark on his body and there was no blood stains on his cloths. Nothing recovered from Patel Kanubhai Joitaram andtherewasnoinjuryorburnsmarkonhisbodyand therewasnobloodstainsonhiscloths.Nothingrecovered fromPatelRameshbhaiBaldevbhaiandtherewasnoinjury orburnsmarkonhisbodyandtherewasnobloodstains onhiscloths.ThePanchnamawaspreparedduring17.00 to18.30hourson11.06.2002.
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ParticularsofPanchnamaproducedvideExh.971are asunder: Present panchnama is in respect of arrest of 8 accused namely Patel Babubhai Vanabhai, Patel Rameshbhai Kacharabhai, Patel Babubhai Kanjibhai, Patel Kanubhai Revabhai, Patel Natvarbhai Kacharabhai, Patel (Nagar) Ashvinbhai Baldevbhai, Patel Dahyabhai Vanabhai and Patel Joitaram Ramabhai. Nothing recovered from any of the accused and there was no injury or burns mark on theirbodyandtherewasnobloodstainsontheircloths. Panchnama was drawn during 15.00 to 16.00 hours on 26.05.2008.
ParticularsofPanchnamaproducedvideExh.369are asunder:
Present panchnama is in respect of arrest of 13 accused namely Patel Kantibhai Prabhudas, Patel Laxmanbhai Dhulabhai, Patel Mahesh Jivanbhai, Patel Mathurdas Dhwarkadas (Davabhai) (Doctor), Prajapati Prahladbhai Varvabhai, Patel Jagabhai Jivanbhai, Patel Upendra Manilal,PatelSanjayAmbalal,PatelKalabhaiBhikhabhai,
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Patel Govindbhai Mohanbhai, Patel Babubhai Gokaldas, Patel Ramesh Tribhovandas and Patel Arvindbhai Kashiram.Nothingrecoveredfromanyoftheaccusedand therewasnoinjuryorburnsmarkontheirbodyandthere wasnobloodstainsontheircloths.Panchnamawasdrawn during16.00to17.00hourson03.09.2008.
ParticularsofPanchnamaproducedvideExh.366are asunder:
Present panchnama is in respect of arrest of 1 accused namely Patel Ashvinbhai Baldevbhai Joitabhai. Nothing recovered from the accused and there was no injury or burnsmarkontheirbodyandtherewasnobloodstainson their cloths and no smell of kerosene from his cloths. Panchnama was drawn during 10.30 to 11.15 hours on 26.06.2002.
P.W.112 Gautamkumar Vishnubhai Barot has deposed that on 22.08.2008, 8 accused were sent to Judicial Custody and they were Chargesheeted and on 03.09.2008, 13accused were arrested byP.S.I. Chauhan.
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Theywerehandedovertothiswitnesson04.09.2008.He received a fax message in this regard which is produced videExh.907and13accusedhandedovertothiswitness which is produced vide Exh.908. They were remanded to policecustodyfortheperiodof7daysandthereafter,they were sent to judicial custody. He has deposed that on 24.08.2008,12accusedwereChargesheetedafterreceiving sanction.
28.
Beforeappreciatingtheevidence oftheprosecution,itis desirable to look into the citations as well as arguments advancedbylearnedSpl.ProsecutorShriShahaswellas written arguments furnished on behalf of the original complainant.InsupportofcaseofprosecutionShriShah hasrelieduponfollowingcitations: In the case of AIR 2009 SUPREME COURT 2163, SATBIR SINGH & ORS. v. STATE OF U.P., the Hon'ble SupremeCourtofIndiahasheldthat,presenceofinjured eyewitnessesatplaceofoccurrencecannotbedoubted.
Inthecaseof2004(2)G.L.H.651
MANI PAL
AND ANOTHER v. STATE OF HARYANA & ORS. The
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Hon'ble Supreme Court of India has observed that, in a case of related witness courts are required to critically analysishisevidencewithcautionbecauseheisrelatedor hisconductsomewhatunnatural,doesnotaffectcredibility. Itisfurtherheldthat,Everypersoncannotactorreactina particularorverysamewayanditwoulddependuponthe mentalsetupofthepersonconcernedandtheextentand natureoffeargeneratedandconsequentlyonthespothis reactioninaparticularwayhastobeviewedonthetotality of all such circumstances. It is further held that, Eye witnessisrelatedifhisevidencefoundtobetruthfuland credible opinion of doctor regarding fire arm injury opinion contradictory with the eye witnesses' account opinion of doctor cannot have binding force doctor's evidence cannot wipe out evidence of eye witness. It is furtherheldthat,theparamountconsiderationofthecourt istoensurethatmiscarriageofjusticeisprevented.
In the case of 2002(1) G.L.H. PAGE 684, ALLARAKHANK.MANSURIv.STATEOFGUJARAT the Hon'ble Supreme Court of India has observed that, Contractions in the evidence of witness pointed out by
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Trial Court being minor did not undermine prosecution case. Inthecaseof2003(1)G.L.H.PAGE699, STATEOF GUJARATv.RAGHU@RAGHAVBHAIVASHRAMBHAI& OTHERS, the Hon'ble Supreme Court of India has held that,pasthistoryofthewitnessesnogroundtodiscardhis evidence evidence of friends or relatives cannot be discardedonthegroundthattheyareinterestedwitnesses minor contradictions and insignificant discrepancy in evidence, sometime gives guarantee of the truth. It is further held that, principle of falsus in no falsus in omnibus (falseinonethingfalseineverything),donot apply.Itisfurtherheldthat, Appreciationofevidences Evidenceofhostilewitnesscannotbediscardedipsofacto canbeusedforcorroborationiffoundreliableandtruthful. Itisfurtherheldthat,interestofvictimofcrimeoughtnot be ignored compensation should be given suggestions madetoimprovecriminaljusticesystem. In the case of AIR 1997 SUPREME COURT 1654, STATEOFU.P.v.DANSINGHANDOTHERS,theHon'ble Supreme Court of India has held that, the villagers assaulted the marriage party with sticks and stones. Six
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membersofmarriagepartywereburntfiveofthemhaving beenlockedinsidehouseofonlyScheduleCasteresidentof village whose house was also burnt. Eight others were pursued and then mercilessly beaten and were killed. Evidenceof injuredeyewitness,aScheduled Castewhose housewasburntbyvillagers,cannotberejectedonground thathehadnotnamedassailantstoInvestigationOfficer. Testimonyofothereyewitness,ateacherinschoolcannot also be rejected merely because he had not mentioned names of persons who had set on fire the house in FIR. Theirtestimonyfullycorroboratedbyothereyewitness.It isfurtherheldthat,testimonyofeyewitnessescannotbe rejected only because of some inconsequential contradictionorexaggeration.Itisfurtherheldthat,when peoplekilledduringariot,theremaybeapossibilityatthe incidentbeingexaggeratedorsomeinnocentpersonsbeing namedasbeingpartofassailantparty. Thismayhappen wittingly or unwittingly. But just because there may be some inconsequential contradictions as exaggeration in testimonyoftheeyewitnessesthatshouldnotbeaground torejecttheirevidenceinitsentirelyinthecasesofrioting wheretherearealargenumberassailantsandnumberof witnesses,itisbutnaturalthatthetestimonyofwitnesses
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maynotbeidentical.Whathastobeseeniswhetherbasic featuresoftheoccurrencehavebeensimilarlyviewedand/ or described by the witnesses in a manner which tallies withtheoutcomeoftheriot. In the case of AIR 1956 SUPREME COURT PAGE 181, BALADIN AND OTHERS v. STATE OF U.P., the Hon'ble Supreme Court of India has held that, the statementsmadebeforePoliceduringinvestigationarenot substantive evidence. It can be viewed only for contradiction and corroboration purpose and those statements can be viewed with the fact that, earlier statementofwitnessesasrecordedbythepoliceistainted recordandhasnotasgreatvalueasotherwisewouldhave in weighing all the material on record as against each individualaccused. In the case of AIR 1981 SUPREMECOURT PAGE 697, STATEOFPUNJABv.WASSANSINGH ,theHon'ble SupremeCourtofIndiahasheldthat,merefactthatthe witnessessucceededinescapingunhurtorthatthereare discrepanciesinstatementsisnogroundforholdingthat theywerenoteyewitnesses. Further it is observed in it
that, where the witnesses were examined at the trial 17
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monthsaftertheincidentsuchdiscrepanciesinregardto collateralorsubsidiaryfactsormattersofdetailoccureven inthestatementsoftruthfulwitnesses,particularlywhen they are examined to depose to events which happened long before their examination. Such discrepancies are hardlyagroundtorejecttheevidenceofthewitnesses.
Further it is observed in the cited ruling that,
Relative or interested witnesses There antecedents or mere interestedness is not a valid ground to reject their evidence. In the case of AIR 1986 SUPREME COURT 1769, STATE OF U.P. v. BRAHMA DAS, the Hon'ble Supreme CourtofIndiahasheldthat,evidenceofeyewitnessand otherwitnessesiffoundtobetrustworthy.Convictioncan bebasedonit. In the case of AIR 1993 SUPREME COURT PAGE 1544, PARESH KALYANDAS BHAVSAR v. SADIQ YAKUBBHAI JAMADAR AND OTHERS, the Hon'ble Supreme Court of India has held that, when eyewitness injuredintheoccurrencehispresenceatscenecannotbe
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doubted. Furtheritis observed inthe cited ruling that, delayinexaminingtheinjuredwitnesswhohavesuffered serious injuries would not effect their evidence if the evidenceisfoundcogent,convincingandtruthful.Further it is observed in the cited ruling that, statement of eye witnesses that kerosene was poured over deceased and theywereburntalivebutthepanchwitnessesormedical witness not saying that dead bodies smelled of kerosene. However,medicalevidencestatingthat,deathofdeceased wasbecauseofburns.Complaintlodgedoftheoccurrence also speaking burning by kerosene. It was held that, it couldnotbesaidthatthereisaninfirmityintheevidence of eyewitnesses. It is further held that, Examination of witnesses delay witnesses, victims who have suffered seriousinjuriestheirevidencefoundtobeclear,cogent convicting and truthful delay in their examination by policewouldnotaffecttheirevidence. In the case of AIR 2002 SUPREME COURT 1051, ALLARAKHAK.MANSURIv.STATE OFGUJARAT, the Hon'ble Supreme Court of India has held that, defective investigation by itself cannot be a ground for acquitting accused.
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Inthecaseof 2002(1)G.L.H.PAGE176, VINUGIRI MOTIGIRI v. STATE OF GUJARAT, the Hon'ble High Court of Gujarat has observed in the cited ruling that, everypersonwhowitnessesamurderreactsinhisownway different than others. Further it is held that, minor in consistencywithreferencetopossibilitiessuggestedtothe medical expert where the evidence and trustworthy, medicalopinionpointingtoalternativepossibilitiescannot beacceptedasconclusivetheopinionofdoctorastohow an injury was caused cannot overrule unimpeachable testimonyofeyewitnessesonfacts,heldthattheaccount given by eye witnesses is inherently consistent and probable. Further it is observed in the cited ruling that, though witnesses have turned hostile, even without the discovery panchnamas, the evidence found on record is reliabletoconnectalltheaccusedwiththecrime. Inthecaseof2004(1)G.L.R.PAGE592, KOLIBOPA PREMJIv.STATEOFGUJARAT,theHon'bleHighCourt of Gujarat has observed in the cited ruling that, facts touching motive of crime not dispute. It was held that, omissionsandcontradictionspertainingtomotivewouldbe oflittlesignificanceinsuchacase.Furtheritisobserved
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in the ruling that, unreal assumptions about human conduct and sophisticated approaches cannot be applied when appreciating evidence of witness from rustic backgroundSimilarly,thereisnohardandfastrulewith regardtoreactionofpersonswhenconfrontedwithacrime scene. It is further held by the Hon'ble High Court of Gujarat that, a witness cannot be expected to possess photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mentalscreen.Itsohappensthatawitnessisovertakenby events. The witness could not have anticipated the occurrencewhichsooftenhasanelementofsurprise.The mental facilities, therefore, cannot be expected to be attunedtoabsorbthedetails. Therecannotbeanysuch patternoruniformruleofhumanreactionsandtodiscard apeaceofevidenceonthegroundofhisreactionnotfalling within a set pattern, is unproductive and a pendantic exercise. In the case of 2007(1) G.L.H. 325, DHIRUBHAI BABUBHAI CHAUHAN v. STATE OF GUJARAT, the Hon'ble High Court of Gujarat has observed in the cited ruling that, Evidence of injured eye witnesses who are
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relativessupportsprosecutioncasetestimonyofawitness inspiringconfidencecannotbediscardedonthegroundof hebeingrelatedorinterestedwitnessonfactsheldthatit was a preplanned incident and intention was to kill the deceased.Furtheritisobservedthat,delayof4/5hoursin lodgingtheF.I.R.wasnotfoundfatalinviewofthenature oftheincident. In the case of 1994 CRI.L.J. PAGE 1103, NAVGANBHAI SOMABHAI AND OTHERS v. STATE OF GUJARAT, the Hon'ble Supreme Court of India has observedinthecitedrulingthat,accusedumberingabout 13, 14 and variously armed Deceased and injured witnessestakingshelterinahouseAccusedmakingbig holeinroofofhouseandattackingvictimsWitnessesnot inpositionbecauseofinjuriesonthemtogiveconsistent and detailed account They making improvements No groundtoacquitaccused.Itisfurtherheldthat,wherea large number of accused as many as 13 or 14 variously armed went to the house where the deceased as well as eyewitnesseshadtakenshelterandclimbedtheroofofthe houseandmadeabigholeintheroofandthenattacked thedeceasedandtheeyewitness,eveniftheeyewitnesses
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had improved and had not given consistent version regardingthepartplayedbyeachoftheaccused,thatby itself will not be a ground to acquit the accused when, havingregardtothenumberofinjuriesonthem,itwould have been impossible for the witnesses to give a detailed accountandalltheaccusedcontinuedtobemembersof theunlawfulassembly.Inacaseoftheaforesaidnature, section149,I.P.C.wasapplicableandwhattheCourthas to see is whether the assailants formed into unlawful assembly and shared the common object either by participationorbybeingpresentasmembersofunlawful assembly knowing that such common object would be to causegrievoushurt. In the case of AIR 2002 SUPREME COURT PAGE 1965, KRISHNA MOCHI AND OTHERS v. STATE OF BIHAR,theHon'bleSupremeCourtofIndiahasobserved inthecitedrulingthat,participationofaccusedinincident provedbyunimpeachableocularevidenceRecoveryofno incriminating material from accused Cannot alone be ground for their acquittal. Further it is observed in the citedrulingthat,occurrencetookplaceinthenightbutthe nightofoccurrencewasnotdark,therewassufficientlight
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comingduetofiresetbyaccusedinhousesofvillagersand heaps of straw Identification of accused by witnesses Cannot be doubted. Further it is observed in the cited ruling that, evidence showing that accused persons arrivingatvillageofoccurrence,thenenteringhousesby breaking open doors, forcibly taking inmates of houses aftertyingtheirhandstoparticularplaceandmassacring thembyslittingtheirthroatsAllsuchactsdonepursuant toconspiracyhatchedupbythemtoeliminatemembersof particular community in village Merely because some accused are not said to have assaulted either any of the deceasedorinjuredpersons,itcannotbeinferredthatthey hadnocomplicitywiththecrimeMoreso,whenaccording totheevidencethoseaccusedwerealsoarmedwithdeadly weapons, like firearms, bombs, etc., but did not use the same. Further it is observed in the cited ruling that, appreciationof evidence Evidence ofwitnessDeficient regarding some accused But sufficient to prove guilt of otherConvictioncanbebasedonitFalsusinunofalsus in omnibus Has no application in India. Even if major portionofevidenceisfoundtobedeficient,incaseresidue issufficienttoproveguiltofanaccused,notwithstanding acquittal of number of other coaccused persons, his
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conviction can be maintained. It is the duty of Court to separate grain from chaff. Where chaff can be separated from grain, it would be open to the Court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove guilt of other accused persons.Falsityofparticularmaterialwitnessormaterial particularwouldnotruinitfromthebeginningtoend.The maxim"falsusinunofalsusinomnibus"hasnoapplication inIndiaandthewitnessescannotbebrandedasliar.All thatthemaximamountsto,isthatinsuchcasestestimony maybedisregarded,andnotthatitmust bedisregarded. The doctrine merely involves the question of weight of evidence which a Court may apply in a given set of circumstances, but it is not what may be called 'a mandatoryruleofevidence'.Thedoctrineisadangerous onespeciallyinIndiaforifawholebodyofthetestimony weretoberejected,becausewitnesswasevidentlyspeaking an untruth in some aspect, it is to be feared that administration of criminal justice would come to a dead shop.Furtheritisobservedinthecitedrulingthat,normal discrepancies in evidence are those which are due to normalerrorsofobservation,normalerrorsofmemorydue tolapseoftime,duetomentaldispositionsuchasshock
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andhorroratthetimeofoccurrenceandthosearealways there however honest and truthful a witness may be. Materialdiscrepanciesarethosewhicharenotnormal,and notexpectedofanormalperson.Courtshavetolabelthe categorytowhichadiscrepancymaybecategorized.While normal discrepancies do not corrode the credibility of a party'scase,materialdiscrepanciesdoso.
29.
Learned advocate Mr.Y.B.Shaikh, appearing on behalf of originalcomplainanthassubmittedwrittenargumentsvide Exh.1042. I have gone through the whole arguments and thoseargumentsareinrespectofappreciationofwitnesses againsttheaccusedpersons,whichrequirestobedecided atthetimeofappreciationofevidenceofwitnesses.Further learnedadvocateShriShaikhhasadoptedthearguments oflearnedPublicProsecutorShriShahinrespectofscene of offence, recovery panchnama, medical evidence, F.S.L. Reports,VideographyandPhotographyofsceneofoffence and PostMortem Reports and has sought compensation under section 357 of Cr.P.C. and has argued that, the accused side has tried to discredit the witnesses by attackingthenaturaldepositionofthewitnessesandthere is no reason todisbelieve the evidence of witnesses and
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relying upon the citations produced by him, he has submitted that, the evidence of the witnesses is trustworthy, reliable and the prosecution has proved the caseagainstaccused,witnessesareilliterate,poorpersons and considering the social, economical, geographical condition of the witnesses evidence is required to be appreciated accordingly and accused should be convicted for such a heinous crime. In support of their case, has relieduponthefollowingcitations:
In the case of (1995) 4 SUPREME COURT CASES 392, RANBIR YADAV v. STATE OF BIHAR, citation of ShivajiSahabraoBabadev.StateofMaharashtra,1972SCC PAGE801isreferred,inwhichithasbeenobservedbythe Hon'bleSupremeCourtofIndiathat,thesceneofmurder isrural,thewitnessestothecasearerusticsandsotheir behaviouralpatternandperceptivehabitshavetobejudged as such. The too sophisticated approaches familiar in courtsbasedonunrealassumptionsabouthumanconduct cannotobviouslybeappliedtothosegiventothelethargic ways of our villages. When scanning the evidence of the various witnesses we have to inform ourselves that variances on the fringes, discrepancies in details,
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contradictions in narrations and embellishments in inessentialpartscannotmilitateagainsttheveracityofthe coreofthetestimonyprovidedthereistheimpressoftruth and conformity to probability in the substantial fabric of testimonydelivered.
In the cited ruling Bajwa v. State of U.P., 1973 SCC PAGE725 isreferredinwhichithasbeenobservedthat, the evidence through which we have been taken by the learnedcounselatthebarhasbeenexaminedbyuswith careandanxietybecauseincaseslikethepresentwhere therearepartyfactions,asoftenobservedinauthoritative decisionsthereisatendencytoincludetheinnocentwith theguiltyanditisextremelydifficultforthecourttoguard againstsuchadanger.Theonlyrealsafeguardagainstthe risk of condemning the innocent with the guilty lies in insisting on acceptable evidence which in some measure implicatessuchaccusedandsatisfiestheconscienceofthe court(see KashmiraSingh Vs. State of M.P. and Bhaban Sahuv.King)Inthecaseinhand,nodoubttheprosecution witnessesclaimingtohaveseentheoccurrencehavenamed alltheappellantsandtheapproverhasevennamedthose acquittedbytheHighCourt,butinourviewitwouldbe
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safe only to convict those who are stated to have taken active part and about whose identity there can be no reasonabledoubt. In the case of AIR 1999 SUPREME COURT 382, KISHORIv.STATEOFDELHItheHon'bleSupremeCourt ofIndiathat,Accusedpersonsmembersofmoballegedto haveattackedandkilledthreepersonsNodiscrepancyin testimonyofeyewitnessaboutthedeathofthedeceased and in identifying presence of accused persons in mob. Detailsastoroleattributedtoseveralpersonsinmobor narration as to succession of events taking place not relevant Guilt of accused persons as members of mob establishedConvictionwasfoundproper. In the case of AIR 2004 SUPREME COURT 4570, DANI SINGH AND OTHERS v. STATE OF BIHAR, the Hon'bleSupremeCourtofIndiahasobservedinthecited ruling that, Witness related or friendly with deceased evidenceof,cannotbediscardedonthatground.Courtis required to carefully scrutinize evidence and find out if thereisscopefortakingviewaboutfalseimplication.
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In the case of (1994) 4 SUPREME COURT CASES 397, KAKI RAMESH AND OTHERS v. STATE OF A.P., the Hon'ble Supreme Court of Indiahas observed in the cited ruling that, it is well established rule that exaggeration, embellishments and inconsistencies on the fringedonotmakethewitnessesunreliable.Itisfurther held that, Criminal Trial Motive Parties belonging to different factions in the village Held, that might have providedmotiveforthecrimeinsteadoffalseimplications. 30. It is argued by Shri Shah and it is submitted by Shri Shaikh, appearing on behalf of the original complainant that,inthepresentsessionscase,Hon'bleSupremeCourt ofIndiahasdirectedinWritPetition(Cri.)No.109of2003, (NATIONALHUMANRIGHTSCOMMISSIONv.STATEOF GUJARAT AND OTHERS, REPORTED IN (2009) 3 SUPREME COURT CASES (CRI.) 44) for further investigation andinquirybyformingS.I.T.andasperthe directions of the Hon'ble Supreme Court of India, S.I.T. (Special Investigation Team) is formed and S.I.T. has investigated and inquired into the matter accordingly. In such circumstances, contradictions and omission in the depositionandstatementofwitnesses,havegotnovalue.In
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major portion of crossexamination of the witnesses, contradictionsandomissionsareasked.Theinvestigation whichwasdoneearlierisnotwashedout.Theinvestigation, whichisdone by S.I.T.isnot fresh investigation,itisan additional investigation. The statements which were recorded earlier are to be considered on record and additionalstatementsrecordedbyS.I.T.tobeconsideredas continuousstatements. ItisarguedbyShriShahthat,herethereisacaseof attack by unlawful assembly, in which witnesses have sustained injuries in the course of occurrence and therefore, there cannot be doubt about their presence at thespotofincident.Injuredwitnesseswouldnotsparereal assaults and falsely involved innocent persons. Further,itisarguedbyShriShahthat,herenodoubteye witnesses have improved and have not given consistent versionregarding part playedbyeachof the accusedbut that by itself will not be a ground to acquit the accused when having regard to the number of burns injuries on them. It would have been impossible for the witnesses to givedetailedaccountandalltheaccusedcontinuedtobe membersofunlawfulassembly.Insuchacircumstancethe court has to see whether assailants formed the unlawful
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assembly and shared the common object either by participationorbybeingpresentasmembersofunlawful assembly.Knowingthatsuchcommonobjectwouldcause grievoushurt.Further,itisarguedbyhimthathereitisa caseofmasskilling.Prosecutionhasprovedthat,accused were members of unlawful assembly which have caused commonobjectofmurder,lootandburningproperties.In that circumstances proof of specific overt act in such a situationisnotnecessary.Further,itissubmittedbyhim that,accusedwereamongwritershavingcommonobjectof killing persons of particular community and looting and burning of their properties. Minor discrepancies and contradictionsinthetestimoniesofthewitnesseswouldnot amountfataltothecaseofprosecution.Inacircumstances whenawitnessescomingbeforethecourtafteraspanof eightyears.Further,itissubmittedthat,prosecutionhas proved participation of accused in occurrence by oral evidenceofthewitnesses.Inthecircumstances,recoveryof noincriminatingmaterialfromaccusedcannotalonebea groundofacquittal.Further,itissubmittedbyShriShah that,thereisevidenceshowingthat,accusedcameinthe formofmobandburnedthehousesofShaikhMahollaand tried to break the door of Mahemudmiya's house and by
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pouringkeroseneandpetrol,mobburntthehouseandthe resultisburningofwitnessesaswellas33personsdied duetoburnsinjuries.Inthatcircumstances,ifwitnesses arenot saying about overt actof some ofthe accused,it cannot be inferred that, they had no complicity with the crime.Further,itissubmittedbyShriShahthat,ifmajor portion of evidence is found to be deficient in case of residueissufficienttoproveguiltofanaccused.Itisthe duty of the court to separate grain and chaff. In that circumstances, it is open for the court to convict the accusedconsideringthefactthat,evidencehasbeenfound tobedeficienttoproveguiltofotheraccusedpersons.The doctrine falsus in uno falsus in omnibus has no application in criminal trial. So far as the normal discrepancies and material discrepancies, normal discrepancies in evidence are those which are due to normalerrorsofobservationsduetolapseoftime,dueto mentaldispositionatthetimeofoccurrence,whilematerial discrepancies are those which are not normal and not expectedofanormalperson.Here,thediscrepancieswhich areinanormalnaturearerequiredtobeignored,thereis nomaterialdiscrepanciesintheevidenceofthewitnesses.
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Further,itissubmittedbyShriShahthat,hereinthis caseaccusedandwitnessesbelongtothesamevillageand witnessesareresidinginShaikhMahollaandareknownto eachotherverywell.Inthatcircumstancesifthewitnesses areidentifyingtheaccusedinthecourtforthefirsttime,it is admissible in evidence, failure to make identification paradedoesnotmaketheevidenceofidentificationinthe courtasfailure.Further,itissubmittedbyShriShahthat, everywitnessreactsinhisownwaydifferentfromothers. Further,ifthereisanyconflictbetweenoralversionofthe witness, evidence of eyewitness if found credible and trustworthy,opinionofMedicalOfficer,pointingtoalternate possibilities cannot be accepted as conclusive. Further, case of discovery of weapon, Panch witnesses turned hostile. In that circumstances if the Police Officer gives evidence in court that a certain article was recovered by himonthestrengthofthestatementmadebytheversion tobecorrectifitisnototherwiseshownunreliable.Even without the discovery panchnama the evidence on record foundreliabletoconnectalltheaccusedwiththecrime,a personcanbeconvicted. Further,itissubmittedbyShri Shah that, here the injured eyewitness are the real relatives of the deceased and they are supporting the
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prosecutioncase.Testimoniesofthewitnessesareinspiring confidence and therefore, their testimonies cannot be discardedonthegroundthat,theyarerelatedorinterested witnesses.Further,itissubmittedbyShriShahthat,the factthat,eyewitnesssucceededinescapingonhurtthere isnoreasontodiscardthetestimonyoftheeyewitnesson thatcount.Hereinthepresentcasewitnesseshavestated that, accused were the members of unlawful assembly, havingcommonobjectofcommittingriotsandwerearmed withstones,barrelsofkeroseneandpetroletc.therefore,it can be inferred that, they were having common object. Further,itissubmittedbyShriShahthat,nodoubtearlier there were some defects in investigation but defective investigation cannot be a ground for acquittal. Further, simply because of injured witnesses are the relative witnesses of the deceased, their version cannot be discarded on that count as their deposition are found reliable and trustworthy and well supported with the Medicalevidence.
Further, it is submitted by Shri Shah that, mere interestednessisnotagroundtorejecttheevidenceofeye witness, particularly those who were injured. Their
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presence during the occurrence cannot be doubted. Secondlyinjuredwitnesseswouldbethelastpersonstolive outtherealculpritsandimplicateotherfalsely.Further,it is submitted by Shri Shah that, in a case of communal riots if there is delay in examining the witnesses by the police,herethevictimshavesufferedseriousinjuriesand they werehavingnoshelter and under such a grave and tense atmosphere if there is delay in recording the statementbythepolice,itwouldnoteffecttheirevidenceas the evidence of the witnesses is clear, cogent and convincingandtruthful.Medicalevidenceissupportingthe versionofthewitnessesthat,deceaseddiedduetoburns. Further,itissubmittedbyShriShahthat,thereisnorule of evidence that, no conviction can be based unless a certain minimum number of witnesses have identified a particularaccusedasmemberofunlawfulassembly.Evena testimonyofsinglewitnessissufficienthowever,incaseof largesizeofunlawfulassemblycourtcaninsistatleasttwo reliablewitnessesforidentificationofaccused.Here,more thantwoeyewitnesseshaveidentifiedtheaccused.Here, themobwasinlargesize. Largenumberofaccusedhave participatedinincident.Herethepresenceofthewitnesses atthetimeofoccurrenceisreliableandthereisnoreason
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forthemtofalselyimplicatetheaccused.Further,ifthereis conflict between oral evidence and medical evidence and evidence of eyewitnesses is credible and trustworthy, opinion of medical evidence is required to be ignored. Further,evenwithoutdiscoverypanchnamaiftheevidence on record is reliable and trustworthy to connect the accused with the crime, it can be relied upon. Further, referring the deposition of P.W.70 Pathan Munsafkhan Yasinkhan many questions were asked in his cross examinationabouthispasthistoryforthat,ShriShahhas arguedthatpasthistoryofthewitnessisnotagroundto discard his evidence. So far as motive of crime is concerned,heretheprosecutionissamewithspecificcase of motive. Omissions and contradictions pertaining to motive would be of little significance. Further, it is submitted by Shri Shah that, here the people are killed during riots, there is possibilities of incident being exaggerated and some innocent persons being named as being part of the assailant party but just because there may be some inconsequational contradictions or exaggerations in the testimonies of the eyewitness, that cannotbeconsideredasgroundtorejecttheirtestimonies in its entirety. In the present case of rioting where there
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werealargenumberofassailantsandnumberofwitnesses, itisbutnaturalthat,testimoniesofthewitnessesmaynot beidentical.Courthastoseewhetherthebasicfeaturesof theoccurrencehadbeensimilarlyviewedanddescribedby thewitnessesinamannerwhichtallieswiththeoutcome of the riots. Testimonies of the eyewitnesses cannot be rejectedmerelybecauseinhisstatementhehasnotstated that,whosetonfirethehouse.Herethetestimoniesofthe witnesses are fully corroborated by the evidence of other witnesses as well as police witnesses etc. In respect of contradictionsandomissions,itissubmittedbyShriShah that, the contradictions which are pointed out by the accused being minor one did not undermine the prosecutioncase.Here,asdiscussedearlierF.I.R.wassent totheMagistrateon02.03.2002,at2345hourswouldnot amountthat,noincidenttookplaceatall.
Further,itissubmittedbyShriShahthat,herethe witnesses are belonging to labour class, uneducated personsandtherefore,theirevidenceshouldnotbejudged atthestandardasthatofurbanwitness.Relyinguponthe evidenceonrecordaswellascitedrulingsitisarguedby ShriShahthat,ifnodefiniteroleisscribedtotheaccused
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personsthoughtheyweremembersofunlawfulassembly.It wouldnotfatalthecaseofprosecution,courtisrequiredto carefullyscrutinizetheevidenceonrecord. 31. ItisarguedbyShriDhruvthat,inacriminaltrial,toprove the guilt of the accused beyond reasonable doubt, is the burdenoftheprosecution.Theaccusedneedtoleadany evidencebyenteringintothewitnessboxandhastoshow onlydoubtthatthereisfalseinvolvementoftheaccused. Thestandardofproofforshowingdoubtinthecaseisnot asheavyasmuchasitisontheprosecutiontoprovethe caseagainsttheaccusedbeyondreasonabledoubt.Ifthe accusedissuccessfulincreatingdoubtwithregardtothe involvementoftheaccusedwhichisfoundtobereasonable, the Court has to accept it. Even while convicting the accused also, if there are two views possible the one favouring the accused is to be accepted. The burden of proof never shift on the accused in criminal trial. The prosecution has to stand on its own legs. Prosecution cannot seek support for proving his case against the accusedfromtheinfirmityorevenbydefencingindefence ofaccused.Insupportofhissay,hehasrelieduponthe followingauthorities.
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Inthecaseof1973(SCC)(CRI.)1048,KALIRAMv. STATEOFHIMACHALPRADESH,itisheldbytheHon'ble Court that, General principles regarding Presumption of innocenceofaccusedBurdenofprovingguiltofaccused on whom Benefit of doubt Reasonability of doubt regarding the guilt of accused Rule of consistency of evidence In case of two alternative, court to accept the view favourable to accused Special relevance in case of circumstantialevidenceWhetherdifferentconsiderations apply in cases of statutory presumption against the accused are discussed. Further, one of the cardinal principles which has always to be kept in view in our systemofadministrationofjusticeforcriminalcasesisthat a person arraigned as an accused is presumed to be innocent unless that presumption is rebutted by the prosecutionbyproductionofevidenceasmayshowhimto be guilty of the offence with which he is charged. The burden of proving the guilt of the accused is upon the prosecutionandunlessitrelievesitselfofthatburden,the Courtscannotrecordafindingoftheguiltoftheaccused. There are certain cases in which statutory presumptions arise regarding the guilt of the accused, but the burden even in thosecasesisupontheprosecution toprovethe
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existence of facts which have to be present before the presumptioncanbedrawn.Oncethosefactsareshownby theprosecutiontoexist,theCourtcanraisethestatutory presumption and it would, in such an event, be for the accusedtorebutthepresumption.Theonuseveninsuch casesupontheaccusedisnotasheavyasisnormallyupon theprosecutiontoprovetheguiltoftheaccused. Ifsome material is brought on the record consistent with the innocence of the accused which may reasonably be true, even though it is not positively proved to be true, the accusedwouldbeentitledtoacquittal. In the case of 1991 CRIMINAL LAW JOURNAL 15 DILAVARHUSSAINS/O.MOHAMMADBHAILALIWALAv. STATE OF GUJARAT, it is observed in the cited ruling that, misgiving also prevailed about appreciation of evidence. Without adverting to submissions suffice it to mentionedthatcredibilityofwitnesseshastobemeasured withsameyardstick,whetheritisanordinarycrimeora crime emanating due tocommunalfrenzy. Lawdoes not makeanydistinctioneitherinleadingofevidenceorinits assessment. Rule is one and only one namely, if depositionsarehonestandtrue. Whetherthewitnesses,
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whoclaimtohaveseentheincidentinthiscase,withstand this test is the issue ? But before that some legal and general questions touching upon veracity of prosecution versionmaybedisposedof.Itisfurtherheldthat,tobring hometheguilttheprosecutionwasrequiredtoprovethe presenceofwitnesses,possibilityofseeingtheincidentby them and identification of the appellants. But mere presenceofwitnesseswasnotsufficient. Moreimportant wasiftheysawtheincident.
Inthecaseof 1998SCC(CRI.)PAGE1064,MOHD. IQBAL M. SHAIKH v. STATE OF MAHARASHTRA, it is observedinthecitedrulingthat,merelybecauseawitness wasexaminedafteraconsiderableperiodfromthedateof occurrence his evidence need not be discarded on that ground alone but at the same time while testing the credibility and assessing the intrinsic worth of such witnessesthedelayintheirexaminationbythepolicehas to be borne in mind and their evidence would require a stricterscrutinybeforebeingaccepted. Itisfurtherheld that,itisthedutyofCourttoseparatechafffromgrain Where evidence of all the eyewitnesses are wholly unreliable,questionofonewitnesscorroboratingtheother
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wouldnotarise,norwouldthequestionofseparatingchaff from grain arise Unless there is conclusive proof conviction cannot be recorded on conjectures and surmises.
ItissubmittedbyShriDhruvthatconsideringthefact that Hindus were attacked in SabarmatiExpress train at Godhra, communal riots in Gujarat erupted, there was Gujarat Bandh, Bharat Bandh and that the Kar Sevaks were set on fire in train by Muslims, majority were from MahesanaDistrict.Atmospherein MahesanaDistrictwas tensed but there were no riots reported in Sardarpur. Muslimscarriedoutontheirdailypursuitsveryeasilyon 27th,28th and1st, Marchof2002.Itisadmittedbythe witnessthattheyhadgonetotheirwork,theyhadoffered Namaz and even moved around the village. There was communalharmonyprevailinginSardarpurvillagethough in adjoining village, case of riots was reported. No communaldisharmonywasreportedinSardarpurbecause due to the communal disturbance in village Sundarpur, approximately 50 Muslims had shifted to Sardarpur and theyweretransportedindifferentvehicleswiththehelpof police of Sardarpur. Further, a meeting for peace was
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arranged by P.S.I. Valbhabhai Khemabhai Parmar at the request of Munsufkhan Pathan and thereafter Muslims from Sundarpur were shifted to Pathan Maholla. Thus, SardarpurwasmoresafeasMuslimsfromSundarpurwere broughttoPathanMahollaofVillageSardarpur.Thereisno gate or closed premises which can be easily targeted for attack but in spite of knowing all these things very well, MuslimsinPathanMahollawerenottargeted.Ifanyactof killingofMuslimsistobecarriedoutbythevillagepeople Pathan Maholla was very soft target than the house of Mahemudmiya.Itisoneoftheveryfirstreasonforthesaid allegedactandinthepresentcase,itisnotcommittedby the persons of Sardarpur. Secondly, house of Mahemudmiyawasattackedfrombacksidewherethemob from village Sundarpur can easily target it. Even the prosecutionwitnesseshavestatedabouttheattackbymob of village Sundarpur. Keeping in mind the flame pattern and damage to the burnt house of Mahemudmiya, it suggests that the act of setting on fire the house of Mahemudmiya,wasdonefrombacksidebythemobfrom Sundarpur and not by the mob of Sardarpur which supports the defence more probable that the house of Mahemudmiya wasattackedfrombacksidebythemobof
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Sundarpur.Further,itisarguedbyShriDhruvthatitis evidenceonrecordthattherewere100housesofMuslims inSardarpurhavingpopulationof400Muslimsindifferent Maholla like Shaikh Maholla, lla, Memonvas, Nagroivas, Pathanvas,including3housesjustoppositetoKapoorvas. Upto 11.30 P.M. on 01.03.2002, there was no case of communal disharmony reported in village : Sundarpur. The instance of cabins set on fire on 28.02.2002 were owned by the people of different caste including Patel, Muslimsandothercommunity.Ifthevillagepeoplehadto setonfirethecabinspursuanttotheGodhraincident,they wouldhavetargetedthecabinsofMuslimsonly.Here,the cabinsofothercastewerealsosetonfirewhichsuggests thattheactswasdonebyunknownpersonswhowerenot knowing about the ownership of cabins. Further, no witnesseshaveseenanyoftheaccusedwhilesettingonfire thecabinson28.02.2002.Further,itissubmittedbyShri DhruvthatoneKarSevakMukeshbhaiMadhabhaifrom Sundarpur had arranged some meeting and instigated villagepeopletoattackthehouseofMuslimsinthevillage. Therefore, the Muslims of Sundarpur migrated to Sardarpurasitwassafe.Thereisevidenceonrecordthat Muslims of Sundarpur had requested to shift them to
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Sardarpur.SomeoftheMuslimsfromSundarpurcameon footinspiteofthat,noMuslimsinSardarpurvillagewas attackedtill01.03.2002till11.30P.M.Further,itisargued byShriDhruvthatmobofvillageofSundarpurwaslathi charged and the tear gas was lobbed at 10.00 P.M. on 01.03.2002. Thus, mob of village Sundarpur was behind theMuslimstherefore,possibilitycannotberuledoutthat present alleged incident have been committed by mob of village : Sundarpur. Further, it is argued by Shri Dhruv that there is road on the backside of Shaikh Maholla leadingtovillage:KamalpurandmobfromSundarpurcan reachuptothebacksideofhouseof Mahemudmiya,Again thereisevidenceonrecordtotheeffectthatthehouseof Mahemudmiyawasattackedonbackside.Onthebackside of the house of Mahemudmiya, there was burnt bushes andflamepatternwhichsuggestthattherewasanattack from the backside of the house. However, photographs of frontsideofhouseofMahemudmiyadoesnotsuggestthat anyattackorflameincidenttookplaceonthefrontsideof the house whichsuggests that the house was set onfire from the backside. Even this fact gets support from the F.S.L. Report. It is further argued by him that Raiskhan wasinstrumentalinpreparingaffidavitsofvictimswiththe
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aidofTeestaSetalvadwhichclearlysuggeststhatevidence wascreatedintheshapeofaffidavitswhichwereproduced beforeHonbleSupremeCourtofIndia. Further, it is argued by Shri Dhruv that, out of 48 witnesses,38witnesseshaveinvolveddifferentaccused.10 accused have not been named by any of the witnesses. NarayanlalSheetalmalLakhvarahasnotbeenidentifiedby any of the witnesses though he was named by the witnesses. Accused Rajeshkumar Amratlal Prajapati is thoughnamedbyAashiqhusenBachumiyaShaikhbuthas notbeenidentifiedbythesaidwitness.Ifheisknownto thewitnessthenwitnesswouldhavecertainlyidentifiedthe accused in the Court. Ashiqhusen Bachumiya failed to identify Rajeshkumar Amratlal Prajapati which creates greatestdoubtaboutthereliabilityofthewitnesses.P.W.81 Shaikh Dilavarkhan Abbasmiya has not given names of anyoftheaccusedinhisstatementandstraightwayhehas identified Rajesh Amratlal Prajapati which also creates doubt about his reliability. Jivanbhai Dhwarkadas and RameshbhaiBaldevebhaihavenotbeenidentifiedbyanyof the witness. P.W.79 Shaikh Samimbanu Mahemudmiya andP.W.81ShaikhDilavarkhanAbbasmiyahasidentified JivanbhaiandP.W.73ShaikhFaridabibiAashikhusenhas
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not named in the mob before the Court but identified Rameshbhai Baldevbhai Patel for the first time in Court. Thus, above facts suggests that witnesses are threatened oneand have come beforethe Court to involvemoreand moreaccused.Thus,itisveryclearthatagainst14accused outof76accused,thereisnocaseatallfromanycorner and they deserve outright acquittal. Case against JayantibhaiJivanbhaiandPatelKantibhaiPrabhudashas been abated and Rohitkumar Ramanbhai Prajapati is referred to Juvenile Justice Board. Thus, there is case against73accusedonly.Thereisnoevidenceinrespectof whichaccusedkilledwhom,whichaccusedattackedwhom with deadly weapons, which accused had beaten whom, which accused set on fire the cabin, house etc., which accusedenteredinthehouseofwitnessesandcommitted robbery or loot, which accused had entered in graveyard and damaged the tomb, which accused committed in deliberateormaliciousacttooutragethereligiousfeelingor classbyintendinghisreligionandwhichaccusedpromoted enmitybetweendifferentgroups.Itisupontheprosecution to prove that any of the accused has committed any substantiveoffenceifthereisnoevidencethatanynamed accusedhascommittedoffenceofmurder,noonecanbe
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convictedwiththeaidofeithersection34orsection120B or Section 149 of the Indian Penal Code. In the present case, witnesses are naming and identifying accused with certainirrespectivemotivebuttheyhavemiserablyfailedto giveevidenceonaboverespect.FurtheritisarguedbyShri Dhruvthatabout19witnesseshavenotdeposedbeforethe Courtabouttheincidentdated28.02.2002withregardsto setting on fire the lari, galla, cabin near the Gram Panchayat and bazaar. Further, about 17 witnesses have statedbeforetheCourtthatLari,gallaandcabinswereset onfireon28.02.2002buttheyhavenotstatedthatitwas set on fire by the mob of Patels of village Sardarpur. Therefore, it is the say that certain witnesses have deliberately come out to prejudice the Honble Court to involvethepresentaccusedwhoarefromvillageSardarpur. Eventheirdepositionarefullofcontradictionandonthis vitalissue,theyarenotreliable.12witnessesi.e.P.W.46 Pathan Sabirmiya Akumiya, P.W.47 Shaikh Ibrahimbhai Rasulbhai,P.W.48ShaikhSabirhusenKadarmiya,P.W.56 ShaikhAyubmiyaRasulmiya,P.W.66ShaikhAkbarmiya Rasulmiya, P.W.69 Shaikh Mahemudmiya Husenmiya, P.W.70 Pathan Munsafkhan Yasinkhan, P.W.71 Rawal Mangabhai Ramabhai, P.W.72 Rawal Prahladbhai
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Nathabhai, P.W.77 Shaikh Badrunnisha Akbarmiya, P.W.82FakirSabirabibiSabirhusen andP.W.83Fakir Sharifabanu Sabirhusen have stated in their deposition abouttheincidentoccurredon28.02.2002.Itissubmitted byShriDhruvthatTalaticumMantrihasdeposedthatthe cabinsandgallawhichweresetonfireon28.02.2002were ofMuslims,Patels,Harijansandpeoplefromothercasteof theirvillage.Inspiteofthat,witnesseshavedeposedthat themobofPatelsetonfirethosecabins.IfthemobofPatel had to set on fire the cabins they could have easily identifiedthecabinsandgalasofMuslimsonly.
When we peruse the evidence of P.W.39 Memon Janmahmod Ismilbhai, P.W.49 Shaikh Iqbalmiya Rasulmiya, P.W.51 Shaikh Nazirmahmed Akbarmiya, P.W.55ShaikhAashiqhusenBachumiya,P.W.59Shaikh Mohmad Sattar Bachumiya, P.W.66 Shaikh Akbarmiya Rasulmiya, P.W.67 Shaikh Imtiyazbhai Mahmadhusen, P.W.69 Shaikh Mahemudmiya Husenmiya , P.W.73 Shaikh Faridabibi Aashikhusen, P.W.74 Shaikh Sikandarmiya Rasulmiya, P.W.78 Shaikh Basirabibi Bachumiya, P.W.79 Shaikh Samimbanu Mahemudmiya, P.W.80 Shaikh Ruksanabanu Ibrahimmiya, P.W.81
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ShaikhDilavarkhanAbbasmiya,P.W.84KureshiImtiyazali HusenmiyaandP.W.85ParmarPravinkumarKhemabhai, none of them have deposed about the incident on 28.02.2002 with regards to setting on fire the gallas and cabins near Gram Panchayat or Bazar while P.W.40 Memon Mahmod Aarif Janmahmod, P.W.41 Memon AbdulkadirIsmilbhai,P.W.42MemonAltafhusenValibhai, P.W.43 Memon Aarifbhai Valibhai, P.W.44 Mansuri MunirahmedNoormahmed,P.W.51ShaikhNazirmahmed Akbarmiya,P.W.52ShaikhHizbulmiyaHusenmiya,P.W.54 Shaikh Sharifmiya Bhikhumiya, P.W.57 Shaikh Mustufamiya Rasulmiya, P.W.60 Shaikh Bachumiya Imammiya,P.W.63ShaikhBhikhumiyaKalumiya,P.W.64 ShaikhRafikmiyaBabumiya,P.W.65ShaikhAkbarmiya Nathumiya,P.W.68ShaikhGulamaliAkbarmiya,P.W.75 Shaikh Firozabanu Bachumiya, P.W.76 Shaikh Hamidabibi Akbarmiya and P.W.87 Patel Jitubhai Chhaganbhaihavestatedintheirdepositionthatlari,galla andcabinsweresetonfireon28.02.2002buttheyhave notstatedthatitwassetonfirebythemobofPatelsof village Sardarpur while P.W.46 Pathan Sabirmiya Akumiyahasstatedonoaththatcabinsandgallaswereset onfireon28.02.2002byPatelsofvillageSardarpur.Inhis
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evidence, he has admitted that he has not witnessed the incident on 28.02.2002. In earlier investigation, his statementwasnotrecorded,hisstatementwasrecordedby S.I.T. on 20.05.2008. He has not stated this fact in that statement. P.W.47 Shaikh Ibrahimbhai Rasulbhai has deposedbeforetheCourtthaton28.02.2002,villagersof Patelcommunityweremovingaroundthevillageandthey set on fire the cabins. He has lodged complaint on 02.03.2002.Hisstatementwasrecordedon10.03.2002.An application dated 01.06.2002 and affidavit on 06.11.2003 was tendered before the Honble Supreme Court and his statementwasrecordedon11.06.2008bytheS.I.T.Heis silentaboutthisfacttherefore,itisarguedbyShriDhruv thatitisvitalimprovementanditisprovedascontradiction inthedepositionofInvestigatingOfficer. P.W.47 Shaikh Ibrahimbhai Rasulbhai has also admitted before the Court that on 28.02.2002, mob of villageofPatelcommunitysetonfirethecabins.Hehasnot statedthisfactinhisstatementdated06.03.2002.Asper the say of Shri Dhruv, it is vital improvement and this contradictionisprovedthroughInvestigatingOfficer P.W.56ShaikhAyubmiyaRasulmiyahasstatedthat
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cabinsweresetonfireon27.02.2002.Heisnotstatingthe incident on 28.02.2002. Here is not such case of prosecution. He has not stated this fact in his statement dated 10.03.2002 and 19.05.2008. P.W.66 Shaikh Akbarmiya Rasulmiya has stated that three cabins near ShaikhMahollawereset on fireon28.02.2002. Noother witnesseshavestatedaboutthesettingonfirenearthree cabinsofShaikhMahollaon28.02.2002.P.W.69Shaikh Mahemudmiya Husenmiya has deposed before the Court that on 28.02.2002, cabins were set on fire by mob of villageofPatelwhileinhisstatementdated06.03.2002this factisnotnarratedbeforetheInvestigatingOfficer.P.W.70 Pathan Munsafkhan Yasinkhan has deposed about the settingoffirethecabinsbyPatelvillagerson28.02.2002 but has not stated this fact in any of those statements. P.W.71RawalMangabhaiRamabhaiandP.W.72Rawal Prahladbhai Nathabhai have also deposed about the incident dated 28.02.2002 with regards to setting on fire thecabinsbythemobofvillagersPatel.In2008theyhave madeanapplicationtoS.I.T.refusingtheirstatementwas recordedon20.05.2008buttheyhavenotstatedthisfact beforetheS.I.T.P.W.77ShaikhBadrunnishaAkbarmiya hasstatedaboutsettingonfirethecabinson28.02.2002
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byPatelofvillageSardarpurbutsheherselfhasnotseen theincidentofcabinssettingonfireon28.02.2002.Sheis hearsaywitness.P.W.82FakirSabirabibiSabirhusenhas alsostatedthatmobofPatelbyvillagehadsetonfirethe cabins on 28.02.2002 and she has stated this fact on 28.02.2002 and 20.05.2008 before Investigating Officer. P.W.83 Fakir Sharifabanu Sabirhusen has stated about settingonfirethecabinsonnextdayofSabarmatiExpress trainincident. Though minor contradiction and omission had been thefactoftheprosecutioncasevitalandmaterialomission effectsthevarsityoftheprosecutioncase.Itisarguedby ShriDhruvthattherearemajorandvitalcontradictionson themainincident.Witnesseshavedeposeddiametricaland oppositestoryandcomeoutwiththeversionthanthatthe previousstatement.Accusedwhohavenotbeennamedin thepreviousstatementhavebeennamedandidentifiedin the court. Further major contradiction, omission, embellishment and improvements made in the oral evidences are such as it is unsafe to rely upon such evidenceandsuchevidenceisrequiredtobediscarded.For thispurposeShriDhruvhasrelieduponthecaseof(2002) SCC (CRI.) PAGE 1377, TORAN SINGH v. STATE OF
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MADHYA PRADESH, wherein it is held by the Hon'ble SupremeCourtofIndiathat,prosecution'scaseshouldrest on its own strength, not on absence of explanation or plausibledefencebytheaccused. Relying upon the above citation and on the settle prepositionoflaw,itisarguedbyShriDhruvthatinthe presentcasetherearemajorcontradictionandomissionin theevidenceofalmostalltheeyewitnessesandhencetheir evidenceisrequiredtobediscardeddirectly.
It is argued by Shri Dhruv that there is delay in recording the statement of witnesses which were in relief campaign, run and administrated by other community people as brought out in the evidence. Even after long delay, they have not furnished written material on which they have affirmed and signed and sent to the Honble SupremeCourtbyNGOs.Whohavepreparedtheaffidavits, where it was prepared, where it was typed and who translated the same in Gujarati or English, is still a mystery. Witnesses have come with their version of their caseafter6yearstotheallegedoffence.Somewitnessesare suchwhosestatementswererecordedforthefirsttimeafter theformationofS.I.T.Eventheyhaveadmittedthatduring
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intervening period of 6 years, they had number of opportunitiestoventilatetheirgrievancebuttheychooseto opt for said objection. No excuse or arguments for late recording of statements would be misconceived or misplaced. For delay in recording of statements, on the aspectoftacitsilenceandunusualconduct,alltheseare requiredtobeconsideredbykeepinginmindthefollowing authorities:
Sr. No. 1
CITATION (2003)10SCCPAGE670 MARUTIRAMANAIKv.STATEOF MAHARASHTRA
2 3
(2004)10SCCPAGE632 SHANKARLALv.STATEOFRAJASTHAN (2003)2SCC401 LALLUMANJHIANDOTHERSv.STATEOF JHARKHAND Relying upon the above authorities, it is argued by
Shri Dhruv that if the explanation given for delay, tacit silence and unusual conduct, is found implausible and improbable, then it is highly unsafe to rely upon such testimony.Hereinthepresentcase,itisundisputedthat witnesses have not been in a position to satisfactorily
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explainregardingthedelayinrecordingthestatementsand havealsofailedtoexplaintheirunusualconductandtacit silence and hence, no reliance can be placed upon their testimony.
32.
As per the case of the prosecution, accused are charged with allegations of conspiracy under Section 120B. Shri Dhruvappearedonbehalfoftheaccusedhasarguedthat, it is easy to allege conspiracy but difficult to prove conspiracy, as it has to be proved by the circumstantial evidence. Even if conspiracy is proved, the object of conspiracy is required to be proved. For that object and purpose,howtheconspiracywashatchedisalsoimportant ingredient. If any link is missing in the circumstances leadingtoconspiracyaccusedwouldnotbeconvictedunder Section120BofI.P.C.
Forthispurpose,hehasreliedupontheJudgementof Parliament Attack Case 2005 SCC (CRI) PAGE 1715, STATE (NCT OF DELHI) v. NAVJOT SANDHU ALIAS AFSAN GURU in which it has been observed that, those who committed offence pursuant to the conspiracy by indulginginvariousovertactswillbeindividuallyliablefor
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those offence in addition to being liable for criminal conspiracybutthenonparticipantconspiratorscannotbe found guilty of offence or offence committed by the other conspirators. There is hardly any scope for application of principal agency in order to find conspirators guilty of substantiveoffencenotcommittedbythem.Asperthecase oftheprosecution,thepresentincidentisactofpreplanned conspiracy.Forthispurpose,itisarguedbySpl.Prosecutor Shri Shah that there can never be direct evidence in supportofconspiracy.Itdependsuponthecircumstantial evidence.Itiswellsettledthatallthepersonsinvolvedin the conspiracy are liable for conviction even though only some persons have acted in this conspiracy. For this purpose,itisarguedbyShriDhruvthattherecanbeno conspiracybetweentheaccusedwithoutanyagreement.No doubt,fortheactofone,otherswillbevicariouslyliableif conspiracyproved,eachconspiratorisliableforconspiracy. LearnedadvocateShriDhruvhasalsorelieduponanother citationofKALIRAMv.STATEOFHIMACHALPRADESH, reportedin(2005)11SCCPAGE600. Here,consideringtheargumentsadvancedonbehalf ofboththesidesandonperusingtheevidenceonrecordas
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wellaschargeframedinrespectofconspiracyagainstthe accusedandkeepinginmindthesettledprepositionoflaw in respect of conspiracy alongwith the observation made andratiolaiddowninthecitedrulings,whenweperuse theevidence, oneoftheevidenceinrespectofconspiracy is Hareshbhais meeting and second Narayan Lallus meeting,thirdhalogenlight,fourthdirectillegalwire,fifth distribution of kerosene and sixth Basirabibi was told in theshopabouttheeatingofBhajia(ediblefood)whenshe tookgramfloorandsevenththekeyofthewaterworkswas taken before the incident. These are the incidents upon whichtheprosecutionplacerelianceandhastriedtoprove the conspiracy. For this purpose, when we peruse deposition of P.W.46 Pathan Sabirmiya Akumiya, it has come out that before 20 to 25 days of the incident Hareshbhai Bhatt, leader of Vishva Hindu Parishad had visited the village and meeting of Patel youths were organized and he addressed the people creating hatred towardstheMuslimsinthemandalsodistributedTrishuls. When we peruse the deposition of P.W.47 Shaikh Ibrahimbhai Rasulbhai, it is deposed by him that, Basirabibimethimandtoldthatshehadgonetopurchase gram floor in the shop of accused Dahyabhai Vanabhai.
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Dahyabhai Vanabhai told her that, eat bhajia today, tomorrow you would not be able for it. P.W.48 Shaikh SabirhusenKadarmiyahasdeposedabouttheconnection ofelectricalwiredirectlyovertheelectricpoleontubelight and making light available opposite to the house of the witness. The conversation took place between his father and accused Ambalal. P.W.49 Shaikh Iqbalmiya Rasulmiyahasdeposedthat,before3daystotheincident meeting was convened between Narayan Lallu, M.L.A. of Unjha and Patels, in Mahadev's temple. He spoke do whateveryoulikeGovernmentiswithus.P.W.54Shaikh SharifmiyaBhikhumiyahasdeposedthaton01.03.2002at about7.00P.M.,AmratbhaiSomabhaiplacedhalogenlight on the street pole. Amratbhai Somabhai told that in the evening they would enjoy beating Bandiyas. P.W.56 Shaikh Ayubmiya Rasulmiya has deposed that halogen light was placed over the street light focusing it towards ShaikhMaholla.HeinquiredwithKanubhaiSarpanchasto whetherelectricitybillforPanchayatispaidornotandthe replywasgivenaffirmatively.Further,hehasdeposedthat KanubhaiSarpanchstatedthatnow,theywillenjoybeating Muslims. He has further stated that Mathurbhai Trikambhai was connecting halogen light and Bachumiya
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ImtiyazmiyaShaikhstatedaboutthemeetingconvenedby Shri Haresh Bhatt. As per his deposition, Rajubhai DavabhaiPateltoldhimpriorto27.02.2002,toremovehis cabinasfodalpreservedinhishousewouldbeburnt.He has further deposed that Mathurbhai Trikambhai had connecteddirectlineon28.02.2002atabout5.00P.M.over thestreetlinepolesituatedattheentranceofhisMaholla. P.W.62 Shaikh Rafikmiya Mahmadhusen has deposed that on 28.02.2002 certain persons of Patel told to close downhiscabinsandtheythreatenedtosetthecabinson fire. P.W.63 Bhikhumiya Kalumiya Shaikh has deposed thaton28.02.2002atabout4.00P.M.Shankarbhaiwhois havingshopadjoiningtotheshopofHanifbhaiAbdulbhai, wasvacatinghisshopandonquery,hetoldthathewanted to get the rented shop at another place. P.W.65 Shaikh AkbarmiyaNathumiyahasdeposedthaton28.02.2002at about 4.00 to 5.00 P.M., Mathurbhai Trikambhai Wireman, Kanubhai Sarpanch and one Becharbhai Odhavbhai werethereandtheyhaveplacedfocuslights. P.W.68ShaikhGulamaliAkbarmiyahasdeposedthathe heard conversation between Ambalal Kapoor and Becharbhai,tokillMuslimsandon01.03.2002,someofthe accused were in room in village doing provocative
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conversation like cut the Muslims and kill the Muslims. Further, hehas deposed thatwhen hewassitting atthe entranceofhisMaholla,atabout5.00P.M.,Mustufamiya Rasulmiya, who had gone to the shop of Dahyabhai VanabhaiinformedthatMukeshbhaiDahyabhaiwastelling him to eat whatever he wants to eat. P.W.71 Rawal MangabhaiRamabhaihasdeposedthat,on01.03.2002at about 9.00 P.M., Rameshbhai Mohanbhai parked one tractorcontaining234barrelsofkeroseneandonebarrel of petrol on the road near his house and he has also deposed that certain accused were passing through the road near his house and going towards the house of KantibhaiPrabhudas.Hehasalsodeposedaboutthefocus lights. P.W.74 Shaikh Sikandarmiya Rasulmiya has deposedthatwhilehewasreturningfromfield,Kantibhai Joitabhai Patel was sitting at the cabin of Ishwarbhai JoitadaswhorefusedtogivehimKuber(nameofTobacco Pouch)astheircommunitypeoplehadsetonfirethetrain at Godhra. P.W.78 Shaikh Basirabibi Bachumiya has deposedthat,on28.02.2002,Jayantibhaihadtakenaway theaccountbookofborewellofvillagefromherhusband. Further,shehasdeposedthat,on1stMarch,2002,atabout 5.00P.M.,shewenttotheshopofDahyabhaiVanabhaifor
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purchasing gram floor. Dahyabhai asked her what she woulddowiththegramflooragainstwhichsherepliedthat shewouldmakeBhajiyas.Dahyabhaitoldherthat,today isherlastday,eatBhajiyatoday,tomorrowshewillnotbe able to eat. P.W.105 Gehlot Anupamsinh Shreejaysinh, D.S.P.hasadmittedthat,sinceitwasnighttime,withthe help of head lights of police vehicle and patrolling, the affectedroomswerelocated.S.I.T.interrogatedhimonthe issue of electric shock received by the persons in Shaikh Maholla.Hewasunabletostatethatwhetherthoseelectric wire found in Shaikh Maholla were illegally obtained by residentofShaikhMahollaornot.Hehasadmittedinhis statement dated 06.08.2008 that those scattered wires appeartohavebeenfallendownfromtheburnthousesin whichtheyhaveobtainedelectricityconnection.P.W.105 GehlotAnupamsinhShreejaysinh,D.S.P.hasdeposedthat itistruethat,S.I.T.hasaskedhimaboutelectricshockto the persons in Maholla. It is also admitted by him that, duringtherescueoperationhesawliveelectricwireslying ontheroadandsomeofpolicepersonshavealsoreceived electric shock from those wire which were kept aside by woodenstick.Heisunabletosay whetherthosewirewere taken by the persons residing there from one house to
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another house. He has admitted that, before S.I.T. on 06.08.2008hehasstatedthatitishisbeliefthat,thewires which were lying on the road were taken by the persons residing in that area and those connection were illegal connection. P.W.110VaghelaKakusinhRanjitsinhhasstatedon oaththat,SabirhusenKadarmiyaShaikhhasstatedinhis statement Dated 06.03.2002 that, when D.S.P was taken towards Mahemudmiya's house where the persons were burntoneironrodwithelectricconnectionwasputinside thewindowofthehouseasitwastouchedtoD.S.P.Healso feltelectricshock.Ithascomeoutduringhisinvestigation that, no information about distribution of Trishul in MahadevTemplebyV.H.P.leaderHareshBhattcameinhis knowledge. Further, no information about instigating speechbyNarayanLallu,M.L.A.,Unjhawasreceived. P.W.90 Parmar Galbabhai Khemabhai, has stated that Nazir Mohamed Akbarmiya had made representation contendingthereinthat3to4dayspriortotheincident, Narayan Lallu convened a meeting of Patel at Sardarpur villageandbecauseofthat,therewasatmosphereoffearin Muslim community. Nazir Mohamed informed the said
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witness and sought for protection. In the deposition of Investigating Officer it has not come out during the investigationthat,Mr.HareshBhattofV.H.P.hasdistributed Trishuls in the village in the meeting held at Mahadev TempleandmeetingbyNarayanLallu,M.L.A.,Unjha. Itis argued by Shri Dhruv that all the evidence in respect of conspiracy are created and concocted one. All these incidents never existed prior to the filing of first Charge sheet.Everyevidencehasbeencreatedatthetimeoffiling ofaffidavitsaftertheGodhrariots.Further,therecannever be conspiracy and unlawful assembly at a time. Either therewillbeconspiracyorunlawfulassembly.Ontheissue ofconspiracy,hehasreliedupon(2005)11SCCCriminal page 1715. In this respect, when we appreciate the evidenceofP.W.46PathanSabirmiyaAkumiyainasitis positionthat,before20to22daysoftheincident,Haresh Bhatt came, convened the meeting and distributed the Trishuls. The concerned Godhra Train Carnage incident hadtakenplaceon27.02.2002.Ifameetingwasorganized before 20 to 25 days, prior to the incident, then in that case,thereisnoconnectionbetweenthemeetingbyHaresh Bhatt with the present incident. For the first time, this witnesshadsentanapplicationdated06.05.2008toS.I.T.
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and from this witness, we cannot infer that the present incidenthascomeoutofabovepreplannedmeeting.Sofar as conspiracy regarding taking of key of water pump by Becharbhai Odhavbhai is concerned this witness has deposedthaton01.03.2002,BecharOdhavcametohimto takekeyofwaterworksandherefusedandhence,hewent backandagain hecameat8.30P.M.seekingthekeyof waterworksfromthewitness.Hehadhandedoverthekey to the witness thereafter, attack in Shaikh Maholla took place at about 9.30 P.M. This witness suggested that accused had conspired the incident and therefore, Becharbhai Odhavbhai took the key from Bore Operator withtheintentionthatifMuslimsareburnttherewillnot beanyopportunitytoextinguishfireduetothesupplyof waterthatcarewastakenbytheaccused.But thisfactis stated after 6 years by way of an application dated 06.05.2008.Further,asperthiswitness,whenD.S.P.went towards window of Mahemudmiyas house, he received electrical shock and electric wire was separated with the helpofstickandthewirewascomingfromtheelectricpole situatednearthehouseofNatvarbhaiPrabhabhaiandan ironrodwastiedwiththeelectricwirewhichwasdrawn into the house of Mahemudmiya. D.S.P. has falsified this
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witness, Panchnama of scene of offence and panch witnesses of scene of offence also do not support this theory. So far as evidence in respect of gram floor for Bhajiyaisconcerned,itissubmittedintheaffidavitforthe firsttime.SofarasmeetingofNarayanLallubefore3to4 days of the incident is concerned, it is deposed by this witnesses.BeforeS.I.T.hehasstatedthathedoesnotknow NarayanLalluandwherethesaidmeetingwasorganized. Basirabibi is not his sister. On perusal of evidence of P.W.47 Shaikh Ibrahimbhai Rasulbhai it has come out that,intheaffidavitbeforetheHon'bleSupremeCourtof India name of the owner of the shop is stated as DahyabhaiHirabhaiwhereasinthedepositionbeforethe Court, name is referred as Dahyabhai Vanabhai and DahyabhaiHirabhaiisnotanaccusedbeforethiscourt.On perusal of evidence of P.W.48 Shaikh Sabirhusen Kadarmiya, it has come out that, Amratbhai Somabhai placed halogen light on street pole and Amratbhai Somabhai was there while as per evidence of P.W.56 ShaikhAyubmiyaRasulmiya,MathurbhaiTrikambhaihad connectedhalogenlightwhereasasperevidenceofP.W.65 ShaikhAkbarmiyaNathumiya, Mathurbhaiclimbedstreet light pole and Kanubhai Sarpanch was there and placed
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focuslight.Thus,infactwhohadconnectedthelivewire withthestreetpoleorwhohasconnectedthehalogenin thestreetpoleisnotprovedbytheprosecution.Witnesses are telling differently. As per one witness, meeting of Haresh Bhatt took before 20 to 25 days before, as per anotherwitnessmetingtookplaceon27.02.2002.Thereis muchdiscrepancies.Insupportofevidenceregardinggram floorBhajiyawhetheritwasshopofDahyabhaiVanabhai or Dahyabhai Hirabhai is also not established. Further, takingawayofkeyofBecharbhaiOdhavbhaiwhoisnotthe accused here, there is much difference between the evidenceofwitnesses.Further,thewitnessesweresilentfor long time on this point. After filing of first Chargesheet, history of halogen light and other incident is coming. Assuming that key of water works is taken it does not suggestevidenceofconspiracy.AsthePanchnamaofscene of offence does not show the live wire lying on road. ConsideringtheevidenceofShriGehlot,hehasnotstated that electric connection was taken from Natavarbhai Prabhabhaihouse.Further,thecomplainanthasnotstated this fact in his complaint. From the evidence of Investigating Officer, meeting of Hareshbhai and distributionofTrishulaswellasmeetingofNarayanLallu
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are disproved. From the deposition of P.W.63 Shaikh BhikhumiyaKalumiya,insupportofvacatinghisshopis concerned,itcannotbeconnectedwithconspiracy.Sofar as the evidence of P.W.71 Rawal Mangabhai Ramabhai, hehasseenRamabhaiMohanbhaiwithtractorcontaining 234barrelsofkeroseneand1barrelofpetrolontheroad nearhishousebuthehasstatedthisfactbeforeS.I.T.only. Inhisdeposition,hehasstatedthathehasseentheperson taking kerosene. Till the application before S.I.T. he has disclosed nothing. So far as evidence of P.W.74 Shaikh SikandarmiyaRasulmiyainrespectofdenialofKuberis concerned, in his statement dated 22.05.2008, he has mentionedthatIshwarbhaiGopalbhaihasrefusedtogive himKuberwhileintheCourtthiswitnesshasstatedthat KanubhaiJoitaramhasrefusedtogiveKuber.Assuming theKuberisdeniedbyanyoftheaccused,itcannotbe connectedwithconspiracy.SofarasevidenceofP.W.78 ShaikhBasirabibiBachumiyaisconcerned,herversionis not corroborating with the say of the complainant about takingofgramfloorforBhajiyafromtheshopofDahyabhai Vanabhai.Intheearlierstatementshehasnotstatedabout thisfact.Forthefirsttime,shehasstatedthefactbefore this Court. She has further stated that, on 28.02.2002
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JayantibhaiAmbarambhai hastakentheaccountbookof borewellofvillagefromherhusband.Assumingthisistrue thenalso,itcannotbeconnectedwithconspiracy.Further, she has not stated this fact in her statement dated 17.04.2002 or 25.02.2008. So far as story of live wire is concerned, from the evidence of Gehlot, it appears that those scattered wires appears to have been fallen down from the burnt houses in which they had obtained electricityconnection.AsperevidenceofP.S.I.ShriParmar, onerepresentationwasmadebyNazirmohmadAkbarmiya Shaikh3to4dayspriortotheincidentofNarayanLallus meeting, because there was an atmosphere of fear in Muslims. Inthecrossexamination,hehasadmittedthat, on28.02.2002,noMuslimofShaikhMahollahasevermet himandnosuchrepresentationwasmadetohimandhe does not know Nazirmohamed Akbarmiya. Further, Hizbulmiya filed affidavits contending allegations that JagabhaiJivanbhaiPatelwascarrying4bottlesofacidand oninquiring byHizbulmiyaShaikhreasonforcarrying4 bottles,hewastoldthat,itisforcleaningtoiletbutlooking totheatmosphereHizbulmiyatoldthisfacttothepresent witnessforprotection.Thus,P.S.I.hasstatedthathedoes notknowHizbulmiyaHusenmiyaShaikhandtherewasno
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conversation between them on this fact. Further, on the pointofKuber,hewasaskedthequestiontowhichhehas statedthatheisnottakingorsmokingorchewingtobacco therefore, there is no question of either asking for it or demandingforit.
Here,whenweperuse 2005(1)SCCpage600 inthe light of present evidence, evidence in respect of Haresh Bhatt, meeting withNararyanLallu, halogenlight, taking awaythekeyofwaterworks,takingofkeroseneandpetrol intractor,denialofKuberandgramfloorforBhajiya,all the above incidents cannot be considered as sufficient evidenceforconspiracy. 33. As per the case of the prosecution, in the incident, 24 personswereinjuredduringtheincident.Forthispurpose when we peruse the deposition of P.W.47 Shaikh IbrahimbhaiRasulbhai,whohasdeposedonoaththat,he sustainedstoneinjuriesonhisheadandonfingerofright handandonleftshoulderandonleftleg.Forthispurpose prosecution has examined Dr.D.J.Soni vide Exh.158, who has deposed on oath as well as has produced Medical Certificate vide Exh.161 and Case Papers at Exh.162 supporting his deposition, in whichfollowing details have
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beennotedbytheMedicalOfficer:
Patientagedabout42yearsresidentofSardarpur,Ta.Vijapur brought to the hospital on 02.03.2002 at 5.00 A.M. by PSI M.L.Rathodandotherrelativeswithoutpoliceyadi. Historyof:Riotingandpeltingofstonesaswellaspouringof keroseneinlockedroomon02.03.2002between00.30hours to2.30A.M. Injuries: DTSLeftShoulderregion DTSLefthand TendernessatPelvis Twosmallabrasionsof1.5cmX0.5cmatleftlapregion Abrasionsof2cmX1cmattheleftsideofforehead XRaybearingNo.9517showingfractureatmedicalborder ofScapula. XRaybearingNo.9518showingfractureatthebaseof1st Metacarpal XRaybearingNo.9519showingnofractureatPelvisand bothhips. Thepatientwasadmittedinmowon02.03.2002at5.00A.M. andD.A.M.Aon02.03.2002at6.030P.M.andwasseenand treatedbyFT.OS.
Opinion:TheaboveinjuriescanbepossiblebyHardand bluntsubstanceasbothfracturecanberecoveredwithin 04 to 06 weeks and other injuries can bee recovered within05to07days. Thus, the deposition of the injured witness is supported by the deposition of the Medical Officer alongwith details noted regarding injuries and history in
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theInjuryCertificateandCasesPapers. P.W.48 Shaikh Sabirhusen Kadarmiya, who has deposed onoath that, he sustained stone injuries on his neckbutthereisnomedicalevidencesupportinghissaid injuries.Ifhehassustainedinjurieswhetherhehastaken anytreatmentevidenceofthiswitnessissilentaboutit.
P.W.51 Shaikh Nazirmahmed Akbarmiya, who has deposedonoaththat, in the incident hesustained stone injuries on Lt. Elbow and on Rt. Eye. For this purpose prosecution has examined Dr.D.J.Soni vide Exh.158, who has deposed on oath as well as has produced Medical CertificatevideExh.174supportinghisdeposition,inwhich followingdetailshavebeennotedbytheMedicalOfficer:
Patientagedabout25yearsresidentofSardarpur,Ta.Vijapur broughttothehospitalon02.03.2002at5.00a,m.PSIVijapur andrelativeswithoutpoliceyadi. H/O.PatientConscious,A/Abystonesduringriots. Injuries: Anabrasiononleftsidechest1cmX1Cm An abrasion 1cm just above right eye brow on right forehead DTSonleftelbowregiononlateralaspect. PatientwastreatedinOPD:
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Opinion: The above injuries can be possible by Hard and Blunt Substanceandcanberecoveredwithinabout05to07days
Thus, the deposition of the injured witness is supported by the deposition of the Medical Officer alongwith details noted regarding injuries and history in theInjuryCertificate. P.W.52 Shaikh Hizbulmiya Husenmiya, who has deposedonoaththat, in the incident hesustained stone injuriesonhisRt.Wrist.Hehasalsosupportedtheinjuries sustained by Ibrahimmiya Rasulmiya Shaikh. For this purpose prosecution has examined Dr.D.J.Soni vide Exh.158,whohasdeposedonoathaswellashasproduced Medical Certificate vide Exh.172 and Case papers at Exh.173 supporting his deposition, in which following detailshavebeennotedbytheMedicalOfficer:
Patientagedabout32yearsresidentofSardarpur,Ta.Vijapur brought to the hospital on 02.03.2002 at 5.00 a,m. PSI Vijapurandrelativeswithoutpoliceyadi. H/oA/AstonesduringRiots. Pt.conscious. Injury: Abrasion 1cm X 0.5 cm. with swelling surrounding on
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upper/3rdofleftforearm. XRays: BearingNo.9511showingleftelbowNAD PatientadmittedinMOWon02.03.2002andwastreatedby FTOSandwasDAMAon02.03.2002at6.30P.M. Opinion: The above injuries can be possible by Hard and Blunt Substanceandcanberecoveredwithinabout05to07days.
Thus, the deposition of the injured witness is supported by the deposition of the Medical Officer alongwith details noted regarding injuries and history in theInjuryCertificateandCasesPapers. P.W.57 Shaikh Mustufamiya Rasulmiya, who has deposedonoaththat, in the incident hesustained stone injuries. For this purpose prosecution has examined Dr.D.J.SonivideExh.158,whohasdeposedonoathaswell ashasproducedMedicalCertificatevideExh.175andCase papers at Exh.176 supporting his deposition, in which followingdetailshavebeennotedbytheMedicalOfficer:
Patientagedabout30yearsresidentofSardarpur,Ta.Vijapur brought to the hospital on 02.03.2002 at 5.00 a,m. PSI Vijapurandrelativeswithoutpoliceyadi. Patientconscious. H/o.A/Abystonesduringriots.C/ochestpain.
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No any external injuries are found. Patient was treated symptomaticallyinOPD. Nodefiniteopinioncanbegiven
Thus, the deposition of the injured witness is supported by the deposition of the Medical Officer alongwith details noted regarding injuries and history in theInjuryCertificateandCasesPapers. P.W.61 Shaikh Safikmiya Babumiya, who has deposedonoaththat,intheincidenthesustainedinjury on his Right Leg while Barubibi Babumiya, Faridabanu Safikmiya,Suhanabanuhavesustainedburnsinjuriesbut thereisnomedicalevidencesupportinghissaidinjuries.If he has sustained injuries whether he has taken any treatmentevidenceofthiswitnessissilentaboutit. P.W.63 Shaikh Bhikhumiya Kalumiya, who has deposed on oath that, his wife Bismillabibi Bhikhumiya Kalumiya was administered poison while his soninlaw BhaimiyaAlahmiya,daughterJohrabibi,nephewandniece Arif,Rafik andAbedadied.Thewitnesshimselfhad also sustained head injury on right and left side both due to pelting of stones. For this purpose prosecution has examined Dr.P.P.Soni vide Exh.211, who has deposed on
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oath as well as has produced Medical Certificate vide Exh.219 and Case papers at Exh.218 supporting his deposition, in which following details have been noted by theMedicalOfficer:
PatientAdmittedon02.03.2002at11.15A.M. History of assaulted injury by pelting of at 1.00 A.M. on 02.03.2002. O/c: CLWofleftparietalregionfrontpart2x1/4cm.scalpdeep vertical. CLWoverrightpostparietalandoccipitalregion3x1/4 cmscalpdeep. DTSonleftshoulder. Patientconsciousandcooperative.Pulse88/min
Thus, the deposition of the injured witness is supported by the deposition of the Medical Officer alongwith details noted regarding injuries and history in theInjuryCertificateandCasesPapers.
P.W.66 Shaikh Akbarmiya Rasulmiya, who has deposed on oath that, he sustained injuries on Rt.Thigh lowerpart,Rt.lowerbackofChest,Rt.LowerLegandonRt. sideforehead.Forthispurposeprosecutionhasexamined Dr.D.J.SonivideExh.158,whohasdeposedonoathaswell
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as has produced Medical Certificate vide Exh.169, supporting his deposition, in whichfollowing details have beennotedbytheMedicalOfficer:
Patientagedabout45yearsresidentofSardarpur,Ta.Vijapur brought to the hospital on 02.03.2002 at 5.00 a,m. PSI Vijapurandrelativeswithoutpoliceyadi. HistoryofA/AbystonesduringRiots: Injury: CLWonrightlowerleg5cmsX1.5cms.Xskindeep. Abrasiononrightthighlowerpart1cmX1Cmonlateral aspect Abrasiononrightlowerbackofchest2cmX1cm CLWonrightsideofforehead1cmX1/4cmXscalp. XRays: T/FwithanklerightbearingNo.9527shownNAD SkullbearingNo.9525/26shownNAD. Opinion: The above injuries can be possible by Hard and Blunt Substanceandcanberecoveredwithinabout07to10days
Thus, the deposition of the injured witness is supported by the deposition of the Medical Officer alongwith details noted regarding injuries and history in theInjuryCertificate. P.W.67ShaikhImtiyazbhaiMahmadhusen, whohas deposed on oath that, he sustained injuries on Small contusionRt.Elbowregionandupperandpostpart.For
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this purpose prosecution has examined Dr.D.J.Soni vide Exh.158,whohasdeposedonoathaswellashasproduced Medical Certificate vide Exh.183 and case papers vide Exh.184, supporting his deposition, in which following detailshavebeennotedbytheMedicalOfficer:
Patientagedabout15yearsresidentofSardarpur,Ta.Vijapur brought to the hospital on 02.03.2002 at 5.00 a,m. PSI Vijapurandrelativeswithoutpoliceyadi. Patientconscious. H/o.A/Astonesduringriots. Injury Asmallcontusiononrightelbowregiononupperandpost part Opinion: The above injuries can be possible by Hard and Blunt Substanceandcanberecoveredwithinabout05to07days
Thus, the deposition of the injured witness is supported by the deposition of the Medical Officer alongwith details noted regarding injuries and history in theInjuryCertificateandCasesPapers. P.W.68 Shaikh Gulamali Akbarmiya, who has deposedonoaththat,hesustainedinjuriesonRt.Shoulder and on Lt. Leg Knee. For this purpose prosecution has examined Dr.D.J.Soni vide Exh.158, who has deposed on
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oath as well as has produced Medical Certificate vide Exh.182, supporting his deposition, in which following detailshavebeennotedbytheMedicalOfficer:
Patientagedabout24yearsresidentofSardarpur,Ta.Vijapur brought to the hospital on 02.03.2002 at 5.00 a,m. PSI Vijapurandrelativeswithoutpoliceyadi. Patientconscious. H/o.A/Astonesduringriots. Injury: AsmallCLWonsoleofleftmiddletoe. Asmallcontusiononrightshoulder. DTSleftankle. XRays: 1. BearingNo.9513ofrightshouldershowsnofracture. 2. Bearingno.9512ofleftankleshowingnofracture. PatientwasadmittedinMOWon02.03.2002andwasseen andtreatedbyFTSandwasabscondedon02.03.2002at6.30 P.M. Opinion: The above injuries can be possible by Hard and Blunt Substanceandcanberecoveredwithinabout07to10days,if nocomplicationoccurs
Thus, the deposition of the injured witness is supported by the deposition of the Medical Officer alongwith details noted regarding injuries and history in theInjuryCertificate.
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P.W.73 Shaikh Faridabibi Aashikhusen, who has deposedonoaththat,shesustainedinjurieson1st,2ndand 3rdDegreeburnsonbothlegs,kneesandfootandpartially overfaceabout15%burns. Forthis purposeprosecution hasexaminedDr.D.J.SonivideExh.158,whohasdeposed on oath as well as has produced Medical Certificate vide Exh.189 and Case Papers vide Exh.190, supporting his deposition, in which following details have been noted by theMedicalOfficer:
Patientagedabout25yearsresidentofSardarpur,Ta.Vijapur brought to the hospital on 02.03.2002 at 5.00 a,m. PSI Vijapurandrelativeswithoutpoliceyadi. H/oBurnsduringriots. Patientconscious. Injury: 1st,2ndand3rddegreeburnsoverbothlegsandkneesand foots. Partiallyoverfaceabout15%burns. PatientwasadmittedinFSWon02.03.2002at5.00A.M.and wasseenandtreatedbyFTSandwasDAMAon02.03.2002 at6.30P.M.
Thus, the deposition of the injured witness is supported by the deposition of the Medical Officer alongwith details noted regarding injuries and history in
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theInjuryCertificateandcasepapers. P.W.75 Shaikh Firozabanu Bachumiya, who has deposedonoaththat,hernephewAftabsheadandelbow was burnt. Ashiyanabanu was also burnt. Bashirabibi Bachumiyawasalso injured.Farzanasustained injury in herleg,Ruksanahadalsosustainedinjurybystoneinher head.Faridawasalsoburnt. P.W.76 Shaikh Hamidabibi Akbarmiya, who has deposed on oath that, she has sustained injuries on Rt. Ankle and Lower Lip. For this purpose prosecution has examined Dr.D.J.Soni vide Exh.158, who has deposed on oath as well as has produced Medical Certificate vide Exh.185 and Case Papers vide Exh.186, supporting his deposition, in which following details have been noted by theMedicalOfficer:
Patientagedabout40yearsresidentofSardarpur,Ta.Vijapur brought to the hospital on 02.03.2002 at 5.00 a,m. PSI Vijapurandrelativeswithoutpoliceyadi. Patientconscious. H/o.A/Astonesduringriots Injury Abrasiononrightankle Asmallabrasiononlowerlip. PatientwastreatedinOPD
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Opinion: The above injuries can be possible by Hard and Blunt Substanceandcanberecoveredwithinabout05to07days.
Thus, the deposition of the injured witness is supported by the deposition of the Medical Officer alongwith details noted regarding injuries and history in theInjuryCertificateandcasepapers. P.W.78 Shaikh Basirabibi Bachumiya, who has deposedonoaththat,shehassustained1st,2nd,3rdDegree burnsoverfaceonRt.Side,Rt.Knee,partiallyonLt.Leg,Lt. Hand,Rt.HandPosteriorand20%burnsinjuries.Forthis purpose prosecution has examined Dr.D.J.Soni vide Exh.158,whohasdeposedonoathaswellashasproduced Medical Certificate vide Exh.170 and Case Papers vide Exh.171, supporting his deposition, in which following detailshavebeennotedbytheMedicalOfficer:
Patientagedabout35yearsresidentofSardarpur,Ta.Vijapur brought to the hospital on 02.03.2002 at 5.00 a,m. PSI Vijapurandrelativeswithoutpoliceyadi. History:PatientConsciousburningduringRiots. Injury: 1st,2ndand3rdDegreeofburnsoverfaceonrightside,right knee,leftlegpartial,lefthand,righthandpostpal,lightpain
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inthroataround20%ofburns. PatientwasadmittedinFSWon02.03.2002at5.00A.M.and wasseenandtreatedbyFTSandwasDAMAon02.03.2002 at6.30P.M.
Thus, the deposition of the injured witness is supported by the deposition of the Medical Officer alongwith details noted regarding injuries and history in theInjuryCertificateandcasepapers. P.W.79ShaikhSamimbanuMahemudmiya,whohas deposed on oath that, she saw her mother, 2 brothers Irfran and Tipusultan and sister Faridabanu while burning. P.W.80ShaikhRuksanabanuIbrahimmiya,whohas deposed on oath that, she has sustained injuries on Rt. Elbow region and abrasion on middle frontal region, 1st degree burns on face. For this purpose prosecution has examined Dr.D.J.Soni vide Exh.158, who has deposed on oath as well as has produced Medical Certificate vide Exh.195, supporting his deposition, in which following detailshavebeennotedbytheMedicalOfficer:
Patientagedabout20yearsresidentofSardarpur,Ta.Vijapur brought to the hospital on 02.03.2002 at 5.00 a,m. PSI
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Vijapurandrelativeswithoutpoliceyadi. Patientconscious. H/oinjuriesbystoneandlathiandburnsduringriots. Injuries: CLW24X0.5Xskinonrighteyebrowregion Abrasiononmidfrontalregion24X1cms 1stdegreeburnsoverfaceabout8% PatientwasadmittedinFSWon02.03.2002andwastreated byFTSandwasDAMAon02.03.2002at6.30P.M. Opinion: The above injury no.1 and 2 can be possible by H & B substance andcanberecoveredwithinabout07to10days andinjuryno.3canberecoveredwithinabout10to15days
Thus, the deposition of the injured witness is supported by the deposition of the Medical Officer alongwith details noted regarding injuries and history in theInjuryCertificate. Over and above, above referred injured witnesses, P.W.1Dr.D.J.Sonihasalsoexaminedsomeotherinjured personsandthedetailsofthesaidinjuredpersonsareas under:
Medical Certificate of Rafik Manubhai Shaikh is
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produced on record at Exh.163 and Case papers are producedatExh.164.Thedetailsareasunder:
Certifyingthat RafikManubhaiShaikhagedabout11years resident of Sardarpur, Taluka: Vijapur was brought to the hospital on 02.03.2002 at 5.00 A.M. by P.S.I.Vijapur and relativesthehistoryasunder:
All of them were locked in a room and kerosene was pouredonthemon02.03.2002atabout00.30hoursto 2.30hours.Thepatientisunconscious.Therewere1st degree,2nddegreeand3rddegreeburnsonthebackof thechestandabdomenpartofface,righthandandright forearm, part of buttock and 60% of deep burning . Patient was seen and treated by the FTS and was transferredtoCivilHospital,Ahmedabadon02.03.2002 at8.00A.M. MedicalCertificateofFirozmiyaMaqbulmiyaShaikhis produced on record at Exh.165 and Case papers are producedatExh.166.Thedetailsareasunder:
Patientagedabout5monthsresidentofSardarpur,Ta.Vijapur admittedon02.03.2002at5.00A.M.byPSIVijapurandother relatives, HistoryofBurnsduringRiots.Patientconsciousbutdrowsy. 1st Degree burns on occipital region by flame during riots with5%burns. PatientadmittedinFirstSurgicalWardon02.03.2002at5.00 A.M.andwasseenandtreatedbyFullTimeSurgeonandwas
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transferred to Civil Hospital Ahmedabad on 02.03.2002 at 8.00A.M.
MedicalCertificateofSaidabibiHizbulmiyaShaikh is produced on record at Exh.177 and Case papers are producedatExh.178.Thedetailsareasunder:
Patientagedabout06yearsresidentofSardarpur,Ta.Vijapur brought to the hospital on 02.03.2002 at 5.00 a,m. PSI Vijapurandrelativeswithoutpoliceyadi. H/O.A/Abystonesduringriots. Pt.conscious. Nomarkofanyexternalinjury NoanyC/o. Noopinionrequired.
MedicalCertificateofSuhanabanuSafikmiyaShaikh is produced on record at Exh.179 and Case papers are producedatExh.180.Thedetailsareasunder:
Patient aged about 08 months resident of Sardarpur, Ta.Vijapurbroughttothehospitalon02.03.2002at5.00a,m. PSIVijapurandrelativeswithoutpoliceyadi. H/o.Patientconscious.C/o.cry. H/o.A/Abystonesduringriots. Injury: Abrasion2.5cmX0.5cmoveroccipitalregion. H/o.:COpoisons
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PatientwasadmittedinFSWon02.03.02andwastreatedby FTSand F.T.Pediatrician and wasDAMAon 02.03.2002at 6.30P.M.. Opinion: The above injuries can be possible by Hard and Blunt Substanceandcanberecoveredwithinabout05to07days,if nocomplicationoccurs.
MedicalCertificateofShainbanuAyubmiyaShaikh is produced on record at Exh.187 and Case papers are producedatExh.188.Thedetailsareasunder:
Patientagedabout25yearsresidentofSardarpur,Ta.Vijapur brought to the hospital on 02.03.2002 at 5.00 a,m. PSI Vijapurandrelativeswithoutpoliceyadi. Patientconscious. H/o.A/Astonesduringriots Injury: C/o.backache Noanyexternalinjuryfound treatedinOPDsympathetically. Nodefiniteopinioncanbegiven.
MedicalCertificateofMaqbulmiyaKesarmiyaShaikh is produced on record at Exh.191 and Case papers are producedatExh.192.Thedetailsareasunder:
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Patientagedabout30yearsresidentofSardarpur,Ta.Vijapur
brought to the hospital on 02.03.2002 at 5.00 a,m. PSI Vijapurandrelativeswithoutpoliceyadi. H/OA/AbyBricksduringRiots. Patientconscious. Injury: Contusion10Cms.X5Cms.obliqueoverrightiliacregion. XRay: bearingNo.9515ofpelvissowingnofracturewithbothhips bearingNo.9514ofabdomenshowingNAD. Patient was admitted in MSW on 02.03.2002 and was abscondedon02.03.2002at10.15A.M. Opinion: The above injuries can be possible by Hard and Blunt Substanceandcanberecoveredwithinabout05to07days.
Medical Certificate of Shayanabanu Aashiqhusen ShaikhisproducedonrecordatExh.193andCasepapers areproducedatExh.194.Thedetailsareasunder:
Patientagedabout05yearsresidentofSardarpur,Ta.Vijapur
brought to the hospital on 02.03.2002 at 5.00 a,m. PSI Vijapurandrelativeswithoutpoliceyadi. Patientconscious. H/o.A/Abystonesduringriots. Injury: A CLW 2 Cms. x 0.5 Cms. X skin and blood clots surroundingonrightsideoffact PatientwastreatedinOPD
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Opinion:
The above injuries can be possible by Hard and Blunt Substanceand canberecoveredwithinabout07 to 10 days Medical Certificate of Shayanabanu Aashiqhusen ShaikhisproducedonrecordatExh.193andCasepapers areproducedatExh.194.Thedetailsareasunder: Over and above, above referred injured witnesses, P.W.2Dr.P.P.Sonihasalsoexaminedsomeotherinjured personsandthedetailsofthesaidinjuredpersonsareas under: MedicalCertificateofAbedabanuManubhaiShaikhis produced on record at Exh.213 and Case papers are producedatExh.212.Thedetailsareasunder:
Patientagedabout13yearsresidentofSardarpur,Ta.Vijapur broughttothehospitalon02.03.2002at9.30A.M.. History of Electric Current giving yesterday evening. Convulsion on every body before 5 minutes with vomiting once. Outer condition G.C.Poor. Patient unconscious. Pulse 110/min.Blackeningskin.LeftforearmandAntAspect. Patient admitted and transfer to Civil Hospital, Ahmedabad on 02.03.2002 at 9.50 A.M. for further investigation and
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treatmentbyorderofFullTimePediatrician.
Medical Certificate of Aminabibi Abumiya Shaikh is produced on record at Exh.215 and Case papers are producedatExh.214.Thedetailsareasunder:
Patient aged about 50years resident of Sardarpur Taluka: Vijapur,broughttothehospitalon02.03.2002at11.00A.M. Historyof: A/Aofassaultedinjurybypeltingofstonesat1.00A.M.on 02.03.2002. Injury: .O/CCLWRightfrontalregion3cminlength.Obliquein directionmildbleeding. Contusionleftsideonback2x2cm. Aboveinjuries may be caused by hard and blunt object for admitted and discharged against medical advice on 02.03.2002at6.30P.M.
Medical Certificate of Khatimabibi Dosmohmad ShaikhisproducedonrecordatExh.217andCasepapers areproducedatExh.216.Thedetailsareasunder:
Patient aged about 55 years resident of Sardarpur Taluka: Vijapur,broughttothehospitalon02.03.2002at11.00A.M. byrelatives Historyof: A/Aofassaultedinjurybypeltingofstonesat1.00A.M.on 01.03.2002. O/C:ContusionatrightkneejointandlowerAnt.Tissue8
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X4cmReddishblueincolour.Updownindirection.
Aboveinjurymaybecausedbyhardandbluntobjectand mayhealwithin7to10daysifnocomplicationoccurs.
Thus, above injuries are well established by the prosecutionbyproducingcogentandreliableevidence.
Sofarasnoinjurymarksonclothsareconcernedor no explanation by the witnesses in which cloths pelting stones marks were there, it is not such a grave irregularities on the part of the prosecution from which burninginjuriesorstoneinjuriescanbediscarded.There may or may not be marks of injuries of pelting stone on clothstherefore,theargumentsofShriDhruvinthisregard isnotacceptable. SofarasargumentsbyShriDhruvthat,asperthe evidenceofdoctor,injuryispossiblebystoneandhardand blunt substance is concerned, there are four certificates, whichareproducedonrecordvideExh.163,175,177and 187,theyspeakaboutnoexternalinjuries.Fourcertificates produced vide Exh.172, 167, 174 and 185 speak about abrasion and two certificates produced vide Exh.183 and
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191speakaboutcontusion,fivecertificatesproducedvide Exh.169,182,195,193and 219speakaboutC.L.W.The certificate produced vide Exh.161 shows two fractures, injuries about stones are shown, there is no bleeding injuries,threecertificatesproducedvideExh.170,189and 195 shows burns injuries. Thus there are injuries in additiontoC.L.W.Someofthesewitnessesareexamined, someofthesewitnessesarenotexaminedthoughinjuries certificates are on record. None of the injured witnesses whoareexaminedsaysthattheywerebitten.Therefore,it isarguedbyShriDhruvthat,ononehanditisthesayof the doctor that, injuries are possible by hard and blunt substance and by stones, on other hand none of the witnesseshaveexplainedabouttheseinjuries. Further,it issubmittedbyShriDhruvthat,sofarasburnsinjuriesis concernedthecertificateisproducedvideExh.195,injuries are shown as C.L.W. while history is given stone, lathi, burns during riots. Said witness was inside the house of Mahemudmiya.Thereisspecificevidencethat,injuriesare possiblebyhardandbluntsubstanceandpeltingstones. Therefore,itisarguedbyShriDhruvthat,whenthemob cametheinjuredwitnessesmighthaverushedfromhither andthitherandtheymighthavereceivedinjuries.Thereis
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nocorroborationof injuries bystoneForthisarguments, when we consider the case of prosecution in the light of evidenceonrecord,insomeof the certificatesinjuriesin pelting stones and by hard and blunt substance are mentioned. There are abrasion, fractures and burns injuries. From the evidence of P.W.56 Ayubmiya RasulmiyaShaikhhasgotnoinjuries,P.W.73Faridabibi Aashikhusen Shaikh has sustained 15% burns injuries, P.W.75 Firozabanu Bachumiya Shaikh has sustained no injuries, P.W.78 Basirabibi Bachumiya Shaikh has sustained 20% burns injuries, P.W.80 Ruksanabanu IbrahimmiyaShaikhhassustained8%burnsinjuriesplus injuries by stones and sticks, P.W.81 Dilavarkhan Abbasmiya Shaikh has sustained no injuries. It is true that, deceased in the Mahemudmiya's house suffered suffocationandburnsandtherewasinhalehotsmoke.Itis supportedbyotherevidencesuchasF.S.L.,Panchnamaof Scene of offence, if some of the witnesses, who claiming that they were inside the house have not sustained any injuriesortheirclothswerenotblackened.Fromthatwe cannot infer that, those witnesses were not inside the house, if it is otherwise proved from other evidence assumingthat,thosewitnesseswerenotinsidethehouse
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of Mahemudmiya but presence of those witnesses in ShaikhMahollacannotbedoubtedandnopresumptionin favour of accused can be drawn on this count. It is also evidentthat,otherhousesinShaikhMahollawereseton fireandaspersayofInvestigatingOfficerandD.S.P.Shri Gehlottheysavemanyinjuredfromotherhouses.Further, if there was no effect to the cloths of witnesses, who sufferedsuffocationandcarbonparticlesintracheaorthe position of cloths not explained by the witness, it cannot discardthefactofcarbonparticlesintracheaorsuffocation as stated by the doctor and on that strength this fact cannotbedisbelievedandwecannotinferthat,theywere not inside the house even otherwise they were in Shaikh Mahollaitiswellestablisheditisquitepossiblethatthe personsmighthaverushedhitherandtithertosavethem and if there is discrepancies where the witness was at particularpointoftimethatisquitepossibleandonthat count the testimony of witness cannot be discarded. The importantfactisthat,witnesseswereverymuchpresentin ShaikhMaholla.Nowtheissuewhetherhesawtheaccused inthemobornot,willbedecidedattherelevantpointin thisJudgement.
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34.
Sofarastheevidenceregardingadministeringtheacidis concerned,itisarguedbyShriDhruvthat,whethersaid injuredwasinsidetheMahemudmiya'shouseornot,how shecameout,howshesustainedburnsinjuries,allthese points are not explained by the prosecution. For this purpose when we peruse the evidence of P.W.63 BhikhumiyaKalumiyaShaikh,itisthesayofthiswitness, aftertheincident,whenthepolicecame,healsocamein MahollaandSabirhusenRasulmiyainformedhimthathis wifeislyingnearthehouseofAbbasbhai.Hewentthere and saw his wife unconscious. She was vomiting. Thereafter, Sabirhusen Kadarmiya and Akbarmiya Nathumiyatook his wife outside theShaikhMahollaand placedherontheotallaofIshwarbhaiKarsanbhai.Hiswife was taken to Hospital but this fact is not stated by this witnessinhisstatementdated10.03.2002.Asperthesay ofthiswitness,hecametoknowabouttheconductofhis wifefromSabirhusenRasulmiyabutSabirhusenRasulmiya is not saying a single word about it. Sharifabnau Bhikumiya has stated that Bismillabanu was lying near Dung Hill but there is no Dung Hill near the Shaikh Maholla and it is admitted by Sharifabanu Bhikumiya Shaikh.AsperthedepositionofSharifabanu,hetoldabout
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the fact that Bismillabanu was lying near Dung Hill, to D.S.P.andD.S.P.alongwiththreepersonswentthereand tookherontheOtallaofPrahladbhaiVarvabhai.Whether Bismillabanu was taken to the Otalla of Prahladbhai VarvabhaiorIshwarbhaiKarsanbhai,thereiscontradictory version. Akbarmiya Nathumiya has stated that some one had administered acid to Bismillabanu. He alongwith Sabirhusen Kadarmiya, Bhikumiya and Mohamadmiya Latifmiya, took her to the Otalla of one Patel. P.W.77 Badrunnisha Akbarmiya Shaikh is not saying about the administering of acid to Bismillabanu and that the Bismillabanu was taken to the Otalla of Ishwarbhai. Baddrunnishaissayingthatherhousewasburnt,house hold items were burnt and that the ornaments and cash werelootedwhilethiswitnessisnotsayingaboutthisfact. Thus, interse witnesses are giving contrary version. Sabirhusen Kadarmiya is not stating about this incident. As per the say of Akbarmiya, Bismillabanu was lying in Shaikh Maholla itself. While Akbarmiya Nathumiya is sayingthatBismillabanuwaslyingintheMaholla.Thus, thereiscontradictoryversion.Anapplicationwaspreferred bythiswitnesstoSITstatingthathiswifehadbeenkilled by administering acid while in the cross examination, he
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hasadmittedthatthisfactisnotstatedinapplicationmade to S.I.T. Sabirhusen is not telling a single word about Bismillabanu. Thus, this witness is just trying to pose himselfaseyewitnessinthecourtwhichmaynotberelied upon.LookingtothePostMortemReportofBismillabanu, there is no sign of administering acid to Bismillabanu. Looking to the case papers, it shows that Bismillabanu diedduetoexfacieduetosuffocation.Therefore,thestory regarding administering acid to Bismillabanu is not supported.ItisnotcaseofanyonethatBismillabanuwas broughtoutfromthehouseofMahemudmiya.Thereare1st degreeburnsoverthebothextremityofBismillabanubut here death is not caused, due to administering of acid. Thus, no reliance can be placed on the evidence of administering the acid to Bismillabanu and that can be consideredasanimprovementandexaggerationonthepart ofwitnesses. 35. One of the main defence on which the case of the prosecutionisattackedbytheaccusedsideisthat,atthe timeofoccurrencetherewasdarkness,therewasnolight atall.Further,seconddefenceisthatthetheoryofHalogen lightissubsequently,justtomisguidetheCourtanditis an improvement. Further, it is submitted by Shri Dhruv
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that, street light of the Village is not working as it was disconnected due to non payment, therefore, it is very crucial that, in the dark night how the witnesses could haveknownanyoftheaccused. Relyingupontheevidenceaswellasrelyinguponthe factthatitwasadayofMahaVadBijmeanstwodaysafter Poonam,itsuggeststhattherewasfullmoonlightatthe timeofincident.Thus,itisthesayoftheSpl.Prosecutor ShriShahthatwitnesseshaveseentheaccusedinmoon lightandflamelightandtherewasHalogenlightandthat onthedayofincident,firsttimewhenpolicepersonshave taken patrolling there was light. Accused belongs to the same village and that there was sufficient light in which witnesseshaveidentifiedtheaccused.Asagainstthatitis argued by Shri Dhruv that street light of village was not working as it was disconnected. Therefore, it was crucial thatinthedarknighthowthewitnessescouldhaveknown any of the accused. Certain witnesses have claimed that theyhaveseencertainaccusedfromthelightofjeepwhich wassetonfirewhilecertainwitnesseshavecomeoutwith storythattheyhavewitnessedtwooftheaccusedfixingthe Halogenlightfromtheoverheadelectricwiresofthestreet. Certainwitnessesclaimthatlightwasfixedfromoverhead
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electric wires of the street. If the electric connection was disconnected it was impossible that even from the over headwires,electricconnectioncouldhavebeendrawn.The story of fixing halogen light over the street light is not statedinthefirstavailablestatementbeforethepolicenor inthefirstChargesheet,thereisnoanystoryofavailability oflightorhalogenlightatthetimeofincident.Availability oflightorhalogenlightatthetimeofincident,iscreated subsequently. Police officers have not stated about the halogen light but the police officers have improved their version about the availability of light or tube light at the timeofincidentastheyhavenotstatedthisfactintheir statements first time.Thereis no independentwitnessin this regard. As there was dark night how and in what manner, the witnesses could have recognized certain accused. These things are required to be proved by adducingevidence.Further,theallegedplaceofincidentis surrounded by graveyard. The top wall of the house of another Maholla to the road, where no street light is availableandmajorityofthehouseswerehavingnoelectric connection, in that circumstances, people from village wouldfinishtheirworkandgotosleepearlyinthenight.In that circumstances, there would be not chance of even
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electriclightsoninthehouses.ItisarguedbyShriDhruv thatevidencegivenbythepresentwitnesswithregardto connectingtubelighttoelectricpoledirectlyisunbelievable andcreatedwithaviewtoinvolvetheaccused.Furtherthe electric pole is situated at Kapoorvas opposite to which streehousesofShaikhMahollaaresituated.Thehouseof Sabbirkhan Kadarmiya is situated just front side of Kapoorvasand notat theShaikhMaholla. Therefore,the say of Sabbirhusen is against the topography. Thus, witnesseshavecreatedthestoryofconnectingtubelightto electricpoleandthattoojustneartoKapoorvas.Further,it is argued by him that there is contradiction as to who placedthehalogenlamp.Notonlythatbutthetheoryof tube light and halogen light are improved versions by prosecutionwitnesseswithregardtothelightatthetimeof incidentanditisacreatedonewithanintentiontoshow thattherewasopportunitytothewitnessestorecognizeor identifyanyoftheaccused. For this purpose when we peruse the evidence of P.W.86PatelDineshbhaiBhagvanbhai,whohasdeposed videExh.664that,VillageSardarpuriscoveredunderhis office and he received one letter from S.I.T., Gandhinagar seeking information about the position of electricity
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connectionandsaidinformationissubmittedvideExh.667. He has deposed on oath that electrical connection was disconnected on 24.12.2001 due to the non payment in street light connection. For industrial purpose separate three phase wires are required while for commercial purposeandhousepurposesinglephasewireisrequired. Whenstreetlightconnectionwasdisconnectedotherwires wereliveandpersoncanconnectthewirefromlivewire.In thecrossexamination,ithascomeoutthatpanchayathas not paid the amount of bill of electric consumption of streetlightconnectionandtherefore,streetlightconnection was disconnected on 06.06.2002. From 24.12.2001 to 06.06.2002 streetlight wires were disconnected. Cable, Meter etc. peripherals were withdrawn by the G.E.B. on 15.01.2002.WhenweperuseExh.667itshowsthatelectric supplywascontinuedduring22.30to8.30hoursandthat supply was live for agricultural and industrial purpose. From8.30to2.00P.M.lowseddingpowerclosed,isshown, means for house, agricultural and industrial purpose, supply of power was closed. On 27.02.2002, 28.02.2002, 01.03.2002 and 02.03.2002, streetlight connections was disconnected due to nonpayment of bill of electric consumption and disconnection notice were issued to
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SardarpurGramPanchayaton15.11.2001and29.11.2001 for payment within 24 hours to the Panchayat and on 06.12.2001, streetlight connection was disconnected and Report was submitted to theoffice andon 05.01.2002a letter was written to Sardarpur linemen to withdraw the peripherals from the line. In support of his say, he has producedthedocumentaryevidencevideExh.666to668, 696and697.Exh.697isinrespectofelectricconnectionin Shaikh Maholla of Village Sardarpur. There were 5 consumersinShaikhMahollaandonthestrengthofthis evidence, it is argued by Shri Shah that a person can illegallytakeconnectionfromthelivewirepassingforthe domestic and commercial use. As per Panchnama, there waselectricconnectioninthehouseofMahemudmiyaand the wires were lying in broken position. It is not the say that,onthedayofincidenttherewasnolightatallinthe village. P.W.90 P.S.I. Shri Galbabhai Khemabhaiparmar, P.W.99 Police Constable Krushnakumar Kantilal, P.W.100 Police Constable Rajakbhai Allahrakhabhai, P.W.102A.S.I.LaljibhaiArjanbhaiDesaiandP.W.103 HeadConstableGanpatbhaiNarsinhbhaihavedeposedin respectofpositionoflightthaton01.03.2002,whenthey were on patrolling there were lights from panchayat to
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housesinShaikhMaholla.Inhiscrossexamination,they haveadmittedthatwhentheyreachedatShaikhMaholla, aftertheincident,therewasdarknessandtheyhavedone whole rescue work with the help of Headlights of police vehicles.TherewerenolightsintheMaholla.Hesawthe persons rushing from Shaikh Maholla and at that time, streetlightswereoffatabout1.45A.M. P.W.105AnupamsinhShreejaysinhGehlot,D.S.P.has deposed that it is true that, S.I.T. has asked him about electricshocktothepersonsinMaholla.Itisalsoadmitted by him that, during the rescue operation he saw live electricwireslyingontheroadandsomeofpolicepersons have also received electric shock from those wires which were kept aside by wooden stick. He is unable to say whether those wires were taken by the persons residing therefromonehousetoanotherhouse.Hehasadmitted that,beforeS.I.T.on06.08.2008hehasstatedthatitishis belief that the wires which were lying on the road were taken by the persons residing in that area and those connectionwereillegalconnection. Thus, from the deposition of all these witnesses as wellasthewitnessfromGEB,ittranspiresthatnodoubt,
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streetlightconnectionwasdisconnectedbutlivewireswere passing over the street and in Shaikh Maholla, 5 houses werehavinglegalelectricalconnectionsandonthedayof the incident, when these police persons have visited the placeforthefirsttimeandwhentheywereonpatrolling, lightwason,whilewhentheyreachedatmidnightafterthe incident,therewasnoelectricallightandtheyhavedone their rescue work with the help of headlights of their vehicles and battery light. Considering the evidence on record,nodoubtstreetlightswerenotworkingbutelectric livewirefordomesticandcommercialpurposewaspassing over the Shaikh Maholla, any person can take illegal connection from that wires. Looking to the deposition of D.S.P.ShriGehlotandotherPoliceOfficers,livewireswere lying in Shaikh Maholla therefore, possibilities of taking illegal connection cannot be ruled out. No question has beenaskedincrossexaminationtoanywitnesswithregard tothelightinShaikhMaholla'shouses.Fromtherecordof GEB it transpires that, five houses were having electric connectionandinthatcircumstancessomelightisbound tocomeonthestreetfromthosehousesandatthathourat the time, one can hardly expect total darkness in a residentiallocality.Sincetheexpectofpositionoflightin
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thehousesinthelocalityisnoteventouchedinthecross examinationofanyeyewitness,wecannotinferthat,there was no light in the houses at all. Further, some of the witnesseshaveclaimedthat,theyhadseentheoccurrence in the light of flame of burning Jeep and Houses. Some lightfromtheflameofburningJeepandHousesisbound to be, in that circumstances if the witnesses are saying that, they had seen the incident in the light of flame of burningofJeepandHousesispossible.Further,thedayof occurrencewastheseconddayafterPoonam(Fullmoon). Keepinginmindthetimeofincidentandthatitwasthe endofmonthFebruary,fullmoonlightcanbeconsidered atthatpointoftime.Thus,theevidenceonrecorddoesnot indicateabsenceofanylightwhatsoever.Onthecontrary evidenceindicatetheexistenceoflightatanyratetobeable toseetheoccurrence. Magnitudeoffireasdescribedby someotherwitnesswassohighthatthewitnessescould seefromRawalvasthoselights.Inthatcircumstances,itis impossibletothinkthat,burningofJeep,Houses,Cabins wouldnotcreatesufficientlightsoastounableapersonto seeoccurrence.Thus,judgingall,itcanbeconsideredthat, therewasconsiderablelightduetofire.Thatwassetonby themobanditwasverymuchpossibleforthewitnessesto
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see the incident. When the mob came and when the fire tookplace,thelightthatwascreatedbythefireitselfvery muchmadeitclear.Forthispurpose,Spl.ProsecutorShri Shahhasreliedupon 2010(3)G.L.R.2617,DAHYABHAI AMBARAMSOLANKI(CHAMAR)v.STATEOFGUJARAT, inwhichithasbeenobservedthat,onfactsitwasfound that, itwas a full moonnight besides there wereelectric lightpolesneartheplaceofincident,inthatcircumstances itwasheldthat,witnesscouldhaveseentheoccurrence. Further, it is observed in the citation that, the village personwhoused tostay inthe agriculturalfields during nightsaretrainedtoworkinthedarknessandtherefore,no inference can be drawn that, the witness might not have seentheincidentasitwasnighttime.Hereinthepresent case,consideringthesituationsoflocalityandthepersons residinginthesaidlocalitybeinglabourclass,wecaninfer like villagers, they are trained to work in dim light being habitualonetherefore,ifthewitnessessaythat,theyhave seen the incident in the light of flame of burning Jeep, cabins and houses, it cannot be doubted. And the arguments advanced by Learned Advocate Shri Dhruv in thisregardisnotacceptablethat,therewastotaldarkness and it was highly impossible to see the occurrence
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therefore, the citation is applicable to the present set of factsalso. ProsecutionhasalsorelieduponAIR2009SUPREME COURT 1729, STATE OF U.P. v. SUKHPAL SINGH & ORS. It is observed in the citation that, there was full moonlightandinmoonlightandlanternlights,witnesses had identified the accused. Further the accused were otherwiseknowntowitnesses,theywerenotstrangersto them.Sofarasthisrulingisconcernedhereinthepresent case, from the evidence on record we can infer that, witnesses could see the occurrence and as per case of prosecution, persons in the mob were from the same village.Sofarasidentificationofaccusedinthepresentset of circumstances is concerned, it will be decided at the relevantstage.AtpresenttheratiolaiddownintheCitation istobeconsideredonlyforthepurposethat,inthemoon lightand inthelightofflameofburnings,thewitnesses haveseentheoccurrence. So far as fact regarding Halogen light is concerned, this fact is developed subsequently. In earlier statements noneofthewitnesseshadstatedabouthalogenlight.From theevidenceofInvestigatingOfficerShriG.V.Barotorfrom
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the evidence of other witnesses, it transpires that, InvestigatingOfficerofS.I.T.hasnotinvestigatedaboutthe halogenlight.AsperhisdepositionwhenthePolicereached attheplaceofincident,therewasdarknightandrescue operation was done with the help of headlights of their vehicles. From the deposition of Investigating Officer Shri K.R.Vaghela,ittranspiresthat,itisnotrevealedfromthe statements of any one that, at the time of incident there was halogen light in the Shaikh Maholla. P.W.71 MangabhaiRamabhaiRawalisnotstatingaboutplacingof anyhalogenlightorfocuslight. FurtherP.W.65Shaikh Akbarmiya Nathumiya has deposed about halogen light after six years of incident before Investigating Officer of S.I.T. Asperdepositionofthiswitnesson28.02.2002at about4.00P.M.to5.00P.M.onthestreetlightMathurbhai Trikambhai and Kanubhai Sarpanch have raised Focus lights. Munsafkhan Pathan has not stated about the availabilityoflightsatthetimeofincident.Heisadmitting that,atthetimeofincidentstreetlightsofShaikhMaholla was not working. P.W.60 Shaikh Bachumiya Imammiya has deposed that, on 28.02.2002 at about 5.00 P.M. MathurbhaiTrikamdashaddirectlyconnected thelineof street pole near Shaikh Maholla and focus light at the
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graveyard. P.W.56 Shaikh Ayubmiya Rasulmiya has deposedthat,whenhereachedtowardshishouse,hesaw halogen light towards streetlight focused towards his Maholla.HeaskedKanubhaiSarpanchwhetherthestreet light bill has been paid or not and he replied that street light bill has been paid and stated that he would enjoy beatingMuslims.MathurbhaiTrikambhaihadclimbedand startedthelight.P.W.54ShaikhSharifmiyaBhikhumiya hasdeposedthat,AmratbhaiSomabhaihasplacedhalogen lightonstreeton01.03.2002atabout7.00P.M.Asperthe sayofP.W.48ShaikhSabirhusenKadarmiya,adayearlier to the incident i.e. on 28.02.2002 at about 7.30 P.M. Ambalal Maganlal Patel and Amratbhai Somabhai Patel, came near the electric pole and Amratbhai Somabhai climbedtheelectricpoleandjoinedthedirectelectricwire tothetubelight.P.W.53KulsumbibiKadarmiyaShaikh, who happens to be the mother of P.W.48 Shaikh Sabirhusen Kadarmiya is not saying anything about this incident. P.W.87 Patel Jitubhai Chhaganbhai, who happenstobetheComplementarinessofVillageSardarpur, has statedthat on thestreet lightpole,therewerebulbs andtubelightsbutthepanchayathasnotpaidthebillof electricconsumptionandtherefore,theelectricconnection
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wasdisconnectedbytheG.E.B.Inhiscrossexamination, TalaticumMantri has admitted that, before the day of incident, on the day of incident and after the day of incident, streetlight of village Sardarpur was off. He has statedinhisdepositionthaton01.03.2002,atabout7.30 P.M.,hetraveledfromvillageSardarpurtoFirozpurafrom graveyardofSardarpur.Itwaswintertimeandtherewas darkness.Therewasnostreetlightatthattime.Hehadnot seenhalogenlampsorlightsatthestreetlightpoleorany otherplace.P.W.91MahendrasinhLalsinhRathod,P.S.I., has stated that at about 10.30 pm when he reached Sardarpurvillage,streetlightswereon.Thusconsidering the evidence of halogen light and the fact that, it is not inquiredbyInvestigatingOfficerShriG.V.Barotthat,there were halogen lights at the time of incident, whether tube lightswereonthepole,itwasnotinvestigatedbyhim,no panchnama was drawn by him in this regard, no map is preparedoftheplacewherethetubelightorhalogenlight werefound.AspersayofInvestigatingOfficerwhenpolice reachedattheplaceofoffenceaftertheincident,therewas darkness.Consideringaboveallthetheoryoftubelightor halogenlightisnotwellestablishedbytheprosecutionand muchreliancecannotbeplacedontheevidenceregarding
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halogenlightandtubelightsasdeposedbythewitnesses andthosecanbeconsideredasimprovement.Butthefact that,therewassufficientlightsandwitnessescouldseethe occurrencecannotbediscarded.
36.
Forappreciationofevidenceincriminaltrialtoarriveata correct conclusion there are certain golden thread in the administrationofjusticeinrespectofcriminaltrialforthat for appreciation of evidence defence side has drawn the attention of this court towards the cardinal principles which are to be kept in the mind while appreciating the evidence of the witnesses. For that accused side have drawn the attention of the principles laid down in the followingcitations.
In the case of (2011) 2 SUPREME COURT CASES (Cri) 375, SUNIL KUMAR SAMBHUDAYAL GUPTA (DR.) AND OTHERS v. STATE OF MAHARASHTRA, it is observed in the cited ruling that, while appreciating the evidence,thecourthastotakeintoconsiderationwhether thecontradictions/omissionshadbeenofsuchmagnitude that they may materially affect the trial. Minor contradictions, inconsistencies, embellishments or
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improvementsontrivialmatterswithouteffectingthecore of the prosecution case should not be made a ground to reject the evidence in its entirety. The trial court, after going through the entire evidence, must form an opinion about the credibility of the witnesses and the appellate courtinnormalcoursewouldnotbejustifiedinreviewing thesameagainstwithoutjustifiablereasons. Itisfurther heldthat,wheretheomission(s)amounttoacontradiction, creating a serious doubt about the truthfulness of a witness and the other witness also makes material improvements before the Court in order to make the evidence acceptable, it cannot be safe to rely upon such evidence. It is further held that, the discrepancies in the evidenceofeyewitnesses,iffoundtobenotminorinnature, may be a ground for disbelieving and discrediting their evidence. In such circumstances, witnesses may not inspire confidence and if their evidence is found to be in conflictandcontradictionwithotherevidenceorwiththe statement already recorded, in such a case it cannot be heldthattheprosecutionproveditscasebeyondreasonable doubt. Itisfurtherheldthat,incase,thecomplainantin theFIRorthewitnessinhisstatementu/s.161Cr.P.C.,has notdisclosedcertainfacts bemeets the prosecutioncase
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firsttimebeforethecourt,suchversionlackscredenceand isliabletobediscarded.InthecaseofStateofRajasthan v. Kalki, while dealing with this issues, Hon'ble Supreme Court of India has observed that, in the depositions of witnesses there are always normal discrepancies however honestandtruthfultheymaybe.Thesediscrepanciesare due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition suchasshock and horror at the time of the occurrence, andthelike.Material discrepanciesarethosewhichare
not normal, and not expected of a normal person. It is furtherheldthat,thecourtshavetolabelthecategoryto which a discrepancy belongs. While normal discrepancies do not corrode the credibility of a party's case, material discrepanciesdoso.InthecaseofBiharnarthGoswamiv. Shiv Kumar Singh, Hon'ble Supreme Court of India has examinedtheissuesandheldthat,Exaggerationspersedo notrendertheevidencebrittle. Butitcanbeoneofthe factors to test the credibility of the prosecution version, when the entire evidence is put in a crucible for being testedonthetouchstone ofcredibility.
Itisfurtherheldthat,whiledecidingsuchacase,thecourt
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hastoapplytheaforesaidtests.Meremarginalvariations inthe statements cannotbe dubbed as improvements as thesamemaybeelaborationsofthestatementmadebythe witness earlier. The omissions which amount to contradictionsinmaterialparticularsi.e.gototherootof the case/materially affect the trial or core of the prosecutioncase,renderthetestimonyofthewitnessliable tobediscredited.
Everyaccusedispresumedtobeinnocentunlesshisguilt is proved. The presumption of innocence is a human right. Subject to the statutory exceptions, the said principles forms the basis of criminal jurisprudence of India. The nature of the offence, its seriousness and gravityhastobetakenintoconsideration. Theappellate courtshouldbearinmindthepresumptionofinnocenceof the accused, and further, that the trial Court's acquittal bolsters the presumption of his innocence. Interference withthedecisionofthetrialcourtinacasualorcavalier mannerwheretheotherviewispossibleshouldbeavoided, unlesstherearegood reasons for such interference.Itis further held that, in exceptional cases where there are compellingcircumstances,andthejudgmentunderappeal
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isfound tobe perverse, theappellatecourtcan interfere withtheorderofacquittal.Thefindingsoffactrecordedby aCourtcanbeheldtobeperverseifthefindingshavebeen arrivedatbyignoringorexcludingrelevantmaterialorby takingintoconsiderationirrelevant/inadmissiblematerial. Afindingmayalsobesaidtobeperverseifitisagainstthe weightofevidence,orifthefindingsooutrageouslydefies logicastosufferfromtheviceofirrationality.Theruleof appreciationofevidencerequirethatcourtshouldnotdraw conclusionsbypickingupanisolatedsentenceofawitness withoutadvertingtothestatementasawhole.Insucha factsituation,itisnotsafetorelyonhistestimonyforthe simple reasons that he had made a lot of improvements/embellishmentswhiledeposingincourtand vital contradictions exist with his earlier recorded statement. Thus, no reliance can be placed on his depositions to hold that the appellant had illtreated the deceased or that appellant 3 had taken away/worn her ornamentsorthatshehadbeendeprivedoftheirloveand affectionorthatshewasnotsufferingfromepilepsy,etc. The cumulative effect of the medical evidence given by threedoctorsleadsustotheconclusionthatthedeceased had been suffering from manic depression and certainly
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hadsomemental/epileptic/psychoticproblem.
Inthecaseof1982CRI.L.J.PAGE630(2),MOHANLAL GANAGARAMGEHANIv.STATEOFMAHARASHTRA,it isheldbytheHon'bleSupremeCourtofIndiathat,S.145 appliesonlytothosecaseswherethesamepersonmakes twocontradictorystatementseitherindifferentproceedings orintodifferentstagesofaproceedings.Ifthemakerofa statementissoughttobecontradictedhisattentionshould bedrawntowardshispreviousstatementunderSec.145of IndianEvidenceAct.Meaningtherebywherethestatement madebyapersonorwitnessiscontradictednotbyhisown statements but by the statement of another prosecution witness the question of application of Sec.145 does not survive. In the case of 2005 SUPREME COURT CASES (CRI.) PAGE 870, SHINGARA SINGH v. STATE OF HARYANA ANDANOTHER,itisheldbytheHon'bleSupremeCourtof Indiathat,thechangeinversionofprosecutionduringthe trial was deliberate and not merely accidental or on account of lapse of memory. It cannot be disputed that thiswasaverysignificantchange.
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Thecaseof 2000SUPREMECOURTCASES(CRI.)764 SURESH RAI AND OTHERS v. STATE OF BIHAR, was a case of Murder and group rivalry and false implicationandeyewitnesseswerecloselyrelatedtoeach other as also to the deceased and inimical to accused appellants Having received the information about the murder, when investigating officer reached the place of occurrence Names of the accused=appellants were mentionedonlyinthestatementofawitnessrecordedby investigating officer after preparing inquest report Statement of the eyewitnesses that in compliance with accused'sordertomoveawayastheywantedtodoaway with the deceased, they had meekly moved away leaving deceased there alone was unbelievable On facts held, entireinvestigationwaswhollytaintedandtheappellants havebeenimplicatedinthecaseonthecollectivemischief oftheinformant,andtheinvestigatingofficer. The case of 1977 SUPREME COURT CASES (CRI.) PAGE 374 RAM ASREY PANDEY v. STATE OF BIHAR, wasacaseofeyewitnessanditwasobservedinitbythe Hon'ble Supreme Court of India that, Criminal Trial
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Witness Eyewitness When the eyewitnesses have unscrupulously spoken the untruth on all vital points, theirtestimonycannotbeacceptedandconvictionbasedon suchevidencehastobesetaside.
Inthecaseof1965(1)CRI.L.J.PAGE226(VOL.70, C.N. 73) MASALTI (IN CR.A.NO 30 OF 1964) MUNGA RAM AND OTHERS (IN CR.A.NO. 31 OF 1964) BHAGWATI AND OTHERS (IN CR.A.NO.32 OF 1964) CHANDAN SINGH AND OTHERS (IN CR.A.NO.33 OF 1964)LAXMIPRASAD(INCR.A.NO.34OF1964)v.THE STATE OF UTTAR PRADESH, it is held by the Hon'ble SupremeCourtofIndiathat,itisundoubtedlythedutyof theprosecutiontolaybeforetheCourtallmaterialevidence availabletoitwhichisnecessaryforunfoldingitscase;but it would be unsound to lay down as a general rule that everywitnessmustbeexaminedeventhoughhisevidence maynotbeverymaterialorevenifitisknownthathehas been won over or terrorized. In such a case, it is always open to the defence to examine such witnesses as their witnessesandtheCourtcanalsocallsuchwitnessesinthe boxintheinterestofjustice.Itisfurtherobservedinthe citedrulingthat,whenacriminalCourthastoappreciate
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evidencegivenbywitnesseswhoarepartisanorinterested, ithastobeverycarefulinweighingsuchevidence.But,it wouldbeunreasonabletocontendthatevidencegivenby witnessesshouldbediscardedonlyonthegroundthatitis evidence of partisan or interested witnesses. The mechanicalrejectionofsuchevidenceonthesoleground thatitispartisanwouldinvariablyleadtofailureofjustice. Itisfurtherheldinthecitedrulingthat,underthe Evidence Act, trustworthy evidence given by a single witness would be enough to convict an accused person, whereasevidencegivenbyhalfadozenwitnesseswhichis not trustworthy would not be enough to sustain the conviction, But where a criminal court has to deal with evidence pertaining to the commission of an offence involvingalargenumberofoffendersandalargenumberof victims, it is usual to adopt the test that the conviction couldbesustainedonlyifitissupportedbytwoorthreeor more witnesses who give a consistent account of the incident. In the case of (2010) 1 SUPREMECOURT CASES (CRI.)PAGE413=(2009)10SUPREMECOURTCASES
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(CRI.) PAGE 773, PANDURANG CHANDRAKANT MHATREANDOTHERSv.STATEOFMAHARASHTRA,it isobservedbytheHon'bleSupremeCourtofIndiathat,in MuthuNaickerV.StateofT.N.Hon'bleSupremeCourtof India has held that, where an occurrence takes place involvingrivalfactions,itisbutinevitablethattheevidence would be of a partisan nature and rejection of such evidenceonthatgroundmaynotbeproper. Further it is held that, the dominant question to be considered in the instant case is whether the witnesses, despite being interested, have spoken the truth and are creditworthy.Onceitisfoundbythecourt,onananalysis of the evidence of an interested witness that there is no reason to disbelieve him then the mere fact that the witness is interested cannot persuade the court to reject the prosecution case on that ground alone. It is further heldthat,incasesinvolvingrivalpoliticalfactionsorgroup enmities,itisnotunusualtoropeinpersonsotherthan those who were actually involved. In such a case, court should guard against the danger of convicting innocent persons and scrutinize evidence carefully and, if doubt arises,benefitshouldbegiventotheaccused.
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Inthecaseof1988CRI.L.J.1812=AIR1988SUPREME COURTPAGE1785,SMT.LICHHAMADEVIv.STATEOF RAJASHTHAN, it is observed by the Hon'ble Supreme CourtofIndiathat,thestatementofdisinterestedpersons the Medical Officer that, deceased told him that her motherinlawhadburntheracceptedthoughhehasnot recorded the same in medical register. It was a communicationbyapatienttothedoctorwhotreatedher. DoctorwasaGovernmentServant,ondutyintheHospital and nothing was elicitedfrom his crossexamination that hewasinterestedinorinimicaltowardstheaccused.
Inthecaseof1976CRI.L.J.1985=AIR1976SUPREME COURT2468,STATEOFORISSAv.MR.BRAHMANANDA NANADA,itisobservedbytheHon'bleSupremeCourtof Indiathat,whereinamurdercasetheentireprosecution casedependedontheevidenceofapersonclaimingtobe eyewitnessandthiswitnessdisnotdisclosethenameofa assailant for a day and a half after the incident and the explanationofferedfornondisclosurewasnotbelievable.It was held that such non disclosure was serious infirmity whichdestroythecredibilityofevidenceofthewitness.
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37.
Consideringtheargumentsadvancedonbehalfofboththe sides and on perusing the oral as well as documentary evidenceproducedbytheprosecutionaswellasongoing through the Further Statements of the accused and the documents attached with Further Statements alongwith the cited Rulings on behalf of both the sides, when we appreciatetheevidenceonrecordbykeepinginmindthe citations and submissions of both the sides, when we peruse the deposition of P.W.47 Shaikh Ibrahimbhai Rasulbhai,hehasdeposedonoaththat,therewasGujarat Bandhon28.02.2002.Hehadgonetothevillageforlabour workandintheafternoonhehadcomebacktohishouse forlunchatthattime,hesawmobmovingaroundinthe village.Afterlunch,againhewenttohisfieldandreturned backatabout7.00P.M.tohishouseandatthattimealso, he saw mob moving around in the village. He has also stated that in the market 2 to 3 cabins of Muslims and other castes were set on fire in the presence of P.S.I. MahendrasinhLalsinhRathodandGalbabhaiKhemabhai Parmar. Again, he has deposed that 4 to 5 Patels came near to his Maholla and Rajendrakumar Punjabhai Tribhovanbhai put one burning rag of petrol below the cabin of this witness. The complainant removed that
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burning rag. In the crossexamination, he has admitted thathehadnotseenthemobsettingonfirethecabins. Further,itisadmittedbyhimthathehasnotseensetting onfirethecabinsofMuslimandothercommunityinthe presence of P.S.I. Rahtod and Parmar. Thus, from his evidenceitbecomesclearthathehasnotseentheincident of setting on fire the cabins of Muslims and other communityon28.02.2002.If,thisfactisnotstatedinthe complaintoranyofhisstatementitisnotgoingtoeffect theprosecutionsfactswhichareproved.Nowthequestion is whether the said mob was of Patels and cabins were burnt in the presence of both the Police SubInspectors. For this purpose when we go through the deposition of P.W.90ParmarGalbabhaiKhemabhai,itcomesoutthat on receiving information about burning of cabins near panchayattheywenttoSardarpurandtriedtoextinguish thefireofcabinsandfirefighterswerecalledbythem.It suggeststhatthesayofthiswitnessthatcabinswereset onfireinthepresenceofthesetwoPoliceInspectorsisnot supported by this witness. They reached subsequently at theplaceofburningofcabinsandatthattimetherewas no mob. Further from the cross examination it itself appears that he himself has not seen setting on fire the
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cabins.Oncethewitnesshimselfisadmittingthathehas notseenthemobsettingonfirethecabinsinthemarket. Therefore,thesayofthiswitnessthatthesaidmobwasof Patelscannotbeaccepted.Nodoubtwitnesshasnotseen theincidentofburninginthemarketbut,thereafter,mob came towards their Maholla, at that time putting of burning rag by Rajeshbhai Punjabhai under his cabin which was thrown by him is concerned, this incident occurred near to Maholla and his cabin. Therefore, his presence near Maholla or his cabin cannot be doubted Simply,becausethisfactisnotnarratedinthecomplaint orinhisstatementevenotherwisethisfactisnotgoingto disprove the main incident. However, three cabins were burntnearShaikhMaholla,supportedbyPanchnamaand otherevidence.Nothingcomesoutfromcrossexamination from which we can discard this fact. Therefore, the argumentsadvancedbyShriDhruvinthisregardarenot sustainable. Thefactthatmobwasmovingaroundthevillageas statedbythewitnesspersonallyseencannotbediscarded simplybecausethisfactisnotstatedinthecomplaintor statements. Therefore, the arguments advanced by Shri Dhruvinthisregardbecomesinsignificant.Evenotherwise
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if,thesefactsarenotstatedincomplaintorstatementitis notgoingtoeffecttheothermaterialfactsasitisinrespect of incident dated 28.02.2002. We are mainly concerned withtheincidentdated01.03.2002.Forthat,firstofallI wouldliketoappreciatetheevidenceofwitnessesofShaikh Maholla.
38.
Further P.W.47 Shaikh Ibrahimbhai Rasulbhai has deposedthaton01.03.2002,therewasBharatBandhcall. Atabout10.00P.M.,amobofPatelscamefromMahadev templesideandtheywereshoutingsloganstocut,beatthe bandiyas, no one should be left alive and they came towardsShaikhMahollaandtheyburnt3cabinsofRafik Mohamed,Iqbalmiyaandonecabinofthecomplainantand startedpeltingstones.Policecameanddisbursedthemob. Thereafter,policewentaway.Afterpatrolling,againmobof Patels gathered and shouted slogan to beat and cut the Bandiyas.Theywerehavingdhariya,sword,trishul,spear, petrolgallonsandkerosenegallonsintheirhandandthey have started burning houses. They burnt the house of Mahemudmiya, Akbarmiya, Rasulmiya, Jamalmiya Dosumiya, Dilsajmiya Darji and Kesarmiya. He saw the mob.
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They came towards Maholla by burning the houses leading and causing damage to the house and then they burnt the jeep of Bachumiya Imammiya. This part of deposition of this witness is supported by Panchnama whichshowsdamagetothehouseanddoorofhouseofthe witness and his family members were inside Mahemudmiyashousefromwheredeadbodiesweretaken orthosewhoarealivebutinjuredwerebroughtandtaken toCivilHospital,Mahesana.Thisfactissupportedbypolice witnesses and other witnesses and also by injury certificates,P.MReportsetc.Further,thiswitnesswasvery muchpresentintheShaikhMaholla.Hewasinjuredinthe incident which is supported by medical evidence. Hence, hispresenceintheMahollacannotbedoubted.Therefore, thesayofwitnessinthisregardcannotbediscarded.Patels werethrowingstonesfromtheirhouseandfromgraveyard also,theywerepeltingstones.Duetothepeltingofstones, door of his house had broken. He asked his wife and childrentogotothehouseofMahemudmiyatosavetheir lives and therefore, his family members and other members of his Maholla went to the house of Mahemudmiya. Mob had poured kerosene and petrol
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around the house of Mahemudmiya with the pelting of stones.Hesustainedinjuryonheadandotherpartsofhis body.Hefelldowninhishouseandduetotheinjuryhe couldnotgotothehouseofMahemudmiya.Asthepolice came and went towards the house of Mahemudmiya, the housewasburnt.Policetooktheinjuredpersonsanddead bodiestotheCivilHospital.
Accused side has opposed the version of the complainantandhasarguedthatthiswitnesshastriedto makechangeintimingbuttheversionofthewitnesswith regardtotimingoffirstmobincomplaintitismentionedas 11.30 P.M. while in his deposition he is stating time as 10.00 P.M. No doubt there is such difference in timing becausewitnessisalabouranduneducatedperson.Asper prosecutioncasemobcametwice,firstatabout9.30P.M. and second time mob came at about 11.30 P.M. The incident occurred during night if, there is variation in respectoftimingindepositionaswellasinstatementitis notso,tocompelareasonableprudentpersontodiscard whole incident. It is not going to effect adversely or no prejudiceisgoingtobecausedtotheaccusedduetosuch variation in timing. Considering above all, variation in
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timing is to be considered as natural one and not intentional nor tutored one and under the circumstances andgravityandnatureofoffence,theincidentoccurredif thereissuchdifferenceinstatingthetimeofoccurrence,it does not effect the fact that, the mob had come on 01.03.2002atabout9.30P.M.to10.00P.M.andsetonfire three cabins just at the entrance of Shaikh Maholla and alsosetonfirehousesinShaikhMaholla.Thus,thefactof thisincidentremainsasitis.Further,thisfactissupported by Panchnama, deposition of panchas, Videography etc. Further setting on fire of cabins as well as burning of houses are not much more opposed by the defence. Panchnama shows the damage to the house and door of house of witness. Sofar as the factregardingburning of jeepofBachumiyaImmamiyaisconcerned,thisfactisalso supported from the Panchnama and other evidence. Therefore,thesayofthiswitnessregardingburningofjeep andburningofhousesandcabinsaresupportedbyother witnessesalso.Sofarasevidenceregardingdamagetothe house of Mahemudmiyais concerned and thathis family members were inside the Mahemudmiyas house is concerned, fromPostMortem Reports,Injury Certificates, Inquest Panchnamas and from the evidence of police
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witnessesitissupportedthatfamilymembersasstatedby this witness in his deposition were in side the Mahemudmiyas house and they were burnt and brought outeitheraliveortheirdeadbodiesweretakenoutfrom thehouse.
He has further admitted in his affidavit dated 06.11.2002that33liveswerelostinthisbrutalpreplanned electrocutionandburningaliveincident.Attackcontinued till 2.30 A.M. His brotherinlaw who had escaped by jumpinguponthegraveinthenearbygraveyard,helpedto pull out the survivors after police arrived at 3.30 A.M. Whenhepulledhimoutamongthecorpusesbytheirnear anddearones,theskinofthedeadbodieswasstruckto theirbodies.Inthisregard,thiswitnesshasadmittedinhis crossexaminationthathewasnotinthehouseinwhich the incident took place and persons were burnt. He has alsoadmittedthathouseofMahemudmiyaisthehousein which the incident took place and also admitted that duringthewholeincident,hewasinhisownhouse.Hehas denied the fact that when the incident took place in the Mahemudmiyashouseatthattime,hewasinthehouse.It suggeststhathewasnotinthehouseinwhichthemain
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incidenttookplace.Hehasalsodeposedthathewaspulled outfromtheheapofdeadbodiesandskinofthosedead persons struck to his body. Thus, on this strength, it is arguedbyShriDhruvthateitherthiswitnesshasstated falsefactsbeforetheHonbleSupremeCourtorhasgiven false account on that point before this Honble Court. Further,itisarguedbyShriDhruvthatitisdeposedthat hewasnotabletomovetothehouseofMahemudmiyain which the incident took place. He was asked in cross examinationastowhichofthesetwofactsiscorrectfacts against which he has deposed that, what is stated in affidavitiscorrectone.Keepinginmindboththesituations whetherthewitnesswasinhishouseorinMahemudmiyas house.Whenweconsiderthefacts,assumingitistruethat complainant fell down in his house or he went to Mahemudmiyas house prior to that there was sufficient opportunityforhimtoseethemobasincidentwasgoing onintheMaholla.Itisonlyafterdoorwasbroken,persons from his house went to Mahemudmiyas house and from entrance of Shaikh Maholla mob came by burning the houses.Therefore,underabovecircumstancesitisnotof muchimportanceandnomuchweightagecanbegivento this fact. So far as history given by the complainant is
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concerned,whenweperusethecertificateofcomplainant, whichisproducedonrecordvideExh.161,inthecertificate historyofpeltingstonesandburningbypouringpetroland keroseneintheroomon02.03.2002atbetween00.30to 2.30 A.M. patient was conscious is mentioned. Whether thishistoryisgivenbythecomplainant,thiscertificateis silentaboutit. However,theargumentsadvancedbythe learnedadvocateShriDhruvthat,thisfactisnotnarrated in the complaint and as per evidence, he was not in the houseofMahemudmiyawhileasperhisaffidavithewasin the room and thus contradictory statements are there in this regard and history given by the complainant is not reliable is concerned, from the history it transpires that, thishistoryisgivenbythecomplainantandhewasfully conscious at the time of narrating the history. From the wordsnarratedinthehistory,itappearsthat,historyisin generalmanner.Itisnotmadeclearinthehistorywhether thecomplainantwasinsidethehouseofMahemudmiyaor inhisownhousethoughthishistorycanbeconsideredas corroborative piece of evidence. There is discrepancies in theevidenceofthecomplainantwhetherhewasinsidethe Mahemudmiya's house or in his own house but the fact that,beforereceivinginjurieshewasinhishouseandhe
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washavingsufficientopportunitiestoseethemobiswell establishedbytheprosecution.
Thiswitnesshasstatedincrossexaminationthat,in Shaikh Maholla, his house is situated near the house of Bachumiya Imammiya whose jeep was burnt by the mob whichwasseenbyhim.Hehasalsoadmittedthatwhen jeepwassetonfire,mobwasspreadoversurroundingto the house of Mahemudmiya. He has also admitted that whenjeepwassetonfire,atthattime,therewerenearly20 personsinhishouse.Hehasfurtherstatedthatwhenthe doorofhishousewasbroken,all20personshadcomeout from his house and went inside the house of Mahemudmiya.Hesleptbythesideofhishouse.Forthis evidence,itisarguedbyShriDhruvthatifatall,themob whichwasspreadoverbythehouseofMahemudmiya,the personwhohadcomeoutfromthehouseofthewitnesses canbeassaultedbythemobitself.Mobhadallowednearly 20personstocomeoutfromthehouseofthiswitnessand togointothehouseofMahemudmiya.Itisfurtherargued by him that this fact suggests that witness has not seen actual incident and has projected himself as eyewitness and complainant of the case. The manner in which real
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incidentoccurredhasnotbeenstatedbythewitness.The main geneses and occurrence is suppressed by the prosecutionfromthisCourt.Itisadmittedbythiswitness that,doorofhishouseopensinMahollaandthereisno other route from where these 20 persons can go to the house of Mahemudmiya. Thus, this say of the witness is highlyimprobable.Thiswitnesshascommittedmistakein givingnameofhiswifeandhadgivennameofhisdaughter. Thereispossibilitythatatthetimewhenthecomplaintwas given,hewasnotknowingwhohasdiedasheisnotthe witness of the incident and the complainant is not narratingthetrueversionoftheincidentinhiswordsand attheinstanceofsomeone,complaintiscreated.
To decide the fact whether complainant was in his houseorMahemudmiyashouseasarguedbyShriDhruvis concerned,whenweperusemap,Panchnamaofthehouse of Ibrahimmiya Rasulmiya there is two rows in Shaikh Maholla and in between the two there is a passage for ingress and egress and the house of Mahemudmiya is at theendoftherowanditisatthecenter.Whilehouseof Ibrahimmiya Rasulmiya is between the row. Mob was attacking the houses in Shaikh Maholla and door of the
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houseofthecomplainantwasbrokeninthatcircumstances ifbytryingthemselvestosavetheirlives20personswent from the house of the complainant to house of Mahemudmiya. That is the natural conduct of the witnesses.Therecannotbeamathematicalcalculationon suchasituation.Everypersonwouldtrytosavehimselfby avoiding mob and if, the victims went to the house of Mahemudmiya safely that is possible. Looking to the distance between two houses on seeing mob in attacking mood,apersoncangotoMahemudmiyashousewithout beinginjured.Therefore,argumentsofaccusedsideonthis pointisnotsustainable.Thereforetheargumentsonbehalf of accused that this witness is coming with his fanciful version which has never occurred and if at all, it has occurred, it is not being stated for 8 years as to the occurrenceisnotacceptable.
As per the case of prosecution P.W.48 Shaikh Sabirhusen Kadarmiya, he was inside the house of Mahemudmiya.Whenwegothroughthedepositionofthis witnesshehasdeposedthaton28.02.2002atabout7.30 P.M., Ambalal Maganbhai and Amratalal Somabhai came neartheelectricpolewhichisoppositetothehouseofthe
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witness.AmratbhaiSomabhaiclimbedtheelectricpoleand connectedthetubelightwiththeelectricline.Furtherhe has deposed that he and his father was sitting, at that time,AmbalalMaganlalonseeinghisfathertoldthatnow, they would enjoy beating Bandiyas. It is further deposed that,ontellingtheabovesentencetohisfatherandmother, theywentaway.Sofarasthisfactisconcerned,thisfactis not getting much support from other evidence. Even otherwise if, a person connects an electric wire with the electricpoleitcannotbesaidthatitwasapreplannedfora conspiracyassumingitistruethenalsoitisnotgoingto effectadverselytotheactualincidentbutatthesametime wecannotconcludethatheistellingwholeincidentfalsely, atthemostitcanbeconsideredasexaggeration.
Further,itisdeposedbyhimthatonthesameday,at night,thecabinsjustinfrontofShaikhMahollawereburnt and more cabins of Muslims and other community were also burnt. On 01.03.2002, he saw his cabin in burning condition which was situated in the Veranda of Gram Panchayat.Onthatday,therewasBharatBandh.Hecame backtohishouseandtoldhisfatherabouttheburningof cabins. Due to fear they went to Shaikh Maholla in the
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evening.Inthenightatabout10.00P.M.Patelsfromtheir village had attacked Shaikh Maholla alongwith Dhariya, stick,pipe,keroseneandpetrolgallonandotherchemicals. Houses in the Maholla were burnt. Three cabins at the entranceofMahollawereburntatthattimefocuslightwas thereandtheywereinstigatingthemobandpeltingstones. House of Patel Maholla were in height whereas house of ShaikhMahollawerelow.Theywerethrowingstonesfrom theirhouses.PatelswerethrowingstonesfromVerandaof Graveyard.Fromallsides,theywerepeltingstonesandthe people from Shaikh Maholla tried to save them and they hadalsopeltedstonejusttosavethem.Hesustainedinjury in his neck and he went to the house of Akbarmiya Rasulmiya.ThemobcametowardstheShaikhMahollaand byburninghouseofShaikhMahollatheyreacheduptothe house of Mahemudmiya Husenmiya. This version of this witnesssupportsthesayofthecomplainant.Further,itis deposedbythiswitnessthattheyhadbrokenwindowby pouringpetrolandkerosene.Theyhadburntthehouses. There was one iron rod, with that electric current was joined and put in the house of Mahemudmiya. For this purposeShriDhruvhasarguedreferringtothedeposition of this witness with regard to the evidence that one long
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iron rod was joined with the current and placed in the room.Personsinsidethehousewerescreamingforhelp.It is argued by Shri Dhruv that it is not stated before the policeinthestatementdated06.03.2002butforthefirst time, he is coming with this story before the court and witness is tutored one. Even this witness has gone to explainthattherodwithcurrentwasplacedinthewindow ofthehouse,touchedbyD.S.P.andD.S.P.receivedelectric shock whileinearlier deposition,he has stated thatsaid ironrodwasplacedintheroomwhileD.S.P.Gehlotisnot sayingabouttheelectricalshockhavingbeenreceivedby him.Hehasnotsostatedinanyofhisstatement.Thisfact is not getting support from Panchnama and from other evidence. No doubt there is electric burn injury to one injuredwitnessandelectriclivewirewaslyinginShaikh Maholla.Thereisanevidencetothatextentbutputtingof iron rod in Shaikh Mahemudmiyas house is an exaggeration. Persons from Mahemudmiyas house were screaming forhelpfrom10P.M.to12A.M.butnoonecametosave them.Atabout2.30A.M.D.S.P.andotherpolicepersons came and the mob ran away. As the police came, the
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personsfromShaikhMahollacameoutandwenttowards thehouseofMahemudmiyaHusenmiya.Inthathouse,iron rodwithelectriccurrentwaslyingandthelockofthedoor was broken by gun and current wire was also broken by gun. So far as this part of evidence is concerned Shri Dhruvhasarguedreferringtodepositionofthiswitnesses that, the door of the house of Mahemudmiya was locked anditwasbrokenuponwiththehelpofrifleofthepolice evenliveelectricalwirewasseparatedwiththehelpofrifle. Thus,doorofMahemudmiyashousehadlocked,isanew story put forth by this witness. Therefore, witness are saying different account on this point. Some of the witnesses are saying that they have locked the door and windowfromtheinsidethehousebutnoneofotherwitness haseverstatedthathouseoftheMahemudmiyawaslocked fromoutsidebyanyoneeitheratthetimeofincidentor even after the incident. Even the police officers who are examinedand whohave broughtout the dead body from thehousehaveneverstatedthatthedoorwasclosedfrom out side and it was locked from out side nor they have stated that it was broken with the help of rifle. Further, thisfactisnotstatedinthestatementdated06.03.2002. Thisfactisstatedbeforethiscourtforthefirsttimeafter
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six years. So far as this point is concerned every person used to describe the incident as per his own understanding.Therewasabigmob.Itisevidentthatthe doorwasclosedanditwasopened,whetheritwasclosed frominsideorfromoutsidethefactremainsthatitwas closed.Witnessmighthaveunderstoodthatitisbrokenby rifle. Assuming it is an exaggeration then also it is not goingtotherootofthecaseandonthispointonecannot concludethatwitnessistellingalie.
Furtheritisdeposedbythiswitnessthat28persons weredeadandsomepersonswereburntandhadsustained injuries, who were sent to Mahesana Civil Hospital. This factis supported by other eyewitnesses, police witnesses andmedicalevidence.Heissoninlawofcomplainant.He sustained injury by brick but he had not taken any treatment.HehadsubmittedoneapplicationbeforeS.I.T., his statements were recorded on 06.03.2002 and 10.05.2008, respectively. His house is just 30 Ft. away from Kapoorvas and Kapoorvas belongs to Patel community.HecametoShaikhMaholla.Duetofear,thatis natural conduct. There is no question of identification paradeasheisresidinginShaikhMahollasincehisbirth
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therefore,thereisnoquestionofidentificationofaccused by the witness. Further, it is argued by Shri Shah that, houseofAkbarmiyaRasulmiyaistowardstherightsidein Shaikh Maholla means adjacent to the back of Patels Maholla. His house is 2nd in line from the entrance. On perusingmap,ifapersonstandsneartohishouse,hecan seethepersonsgoingandcominginthemob. Further, it is argued by Shri Dhruv referring the evidence that, mob had come for the first time near the ShaikhMahollaandtheyhadsetonfirethethreecabins nearShaikhMahollaandstartedpeltingstones.Onarrival ofpolice,mobdisbursed.Afterpolicewentawayandagain the same mob came. This story is not stated before the policeandcontradictionsareprovedinthisregard.Asper sayofthiswitnessincidenttookplaceatabout10.00P.M. There is no theory or story of mob disbursed and again assemble. This witness is telling different story from others.Thisevidence supportsthesayoftheprosecution thatmobhadsetonfirethreecabinsjustattheentranceof ShaikhMaholla,peltingstonesetc.,whichsupportsthesay ofotherwitnessessimplybecausethiswitnesshasstated thatonarrivalofpolicemobdisbursedandagainassemble theversionaboutsettingonfirecabinspeltingstonesetc.,
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cannot be discarded. As per the case of the prosecution firstmobcameandonarrivalpolicelobbedshellsandmob disbursedandsecondtimemobcameatthemostitgoesin minor discrepancy and minor contradiction. Simply becausethereissomeminordiscrepanciesinnarratingthe factitcannotbeconcludedthattheversionofthiswitness inrespectofsettingonfireofcabins,housesrequirestobe discarded.Sofarasevidenceregardingclosing/breakingof doorofMahemudmiyashouseisconcerned,itisafacton recordthatdoorwasclosedeitherfrominsideorfromout sideanditwasbrokenoropenedafterthepolicecame,in suchcircumstanceswhetherthedoorwasbrokenwiththe help of rifle or in other way. It is not evident that the witness was too near to the house. There were police persons alongwith other persons were present in the Maholla and they were trying to open the door and thereafter,theytookthedeadbodiesoutoftheroomand injured were brought out from the room in that circumstances, it becomes immaterial whether the door wasopenedwiththehelpofrifle.Whileopeningthedoor helpofriflemighthavebeentaken,ifnot,thenalsofact remainsthatdoorwasopenedbythepolice.Therefore,the arguments advanced by L.A. Shri Dhruv in this regard
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cannot be considered. At the most this evidence is to be coveredunderminordiscrepancy,notaffectingtherootof thecase.Therefore,onthisbasisitcannotbesaidthatthis witnessisnotbelievableonthispoint.
P.W.50ShaikhJakirhusenKadarmiyahasdeposed that at the time of incident, he alongwith his family members was residing just in front of Patel Maholla and thereisRawalvasalso.On01.03.2002atabout9.30P.M.,a mobofthevillagefromMahadevtemplesidecametothe ShaikhMahollaand had burntthreecabinsnear Shaikh Maholla.Asthepolicecame,themobdisbursed.Soonas thepolicewentback,againtheycametoShaikhMaholla andtheycauseddamagetothehouses,burntthehouses and pelted stones. At that time, Kantibhai Prabhudas, UpendraManilalandJagabhaiJivanbhai,wereinstigating themobandtellingthemobtocut,beatthebandiyas.As themobcameintheMaholla,theywenttowardsthefield just to save their lives, his brother Sabbirhusen Shaikh remained in the Maholla. He, his mother and his father, wenttowardsthefieldandfromthefieldtheysawthatthe persons werescreaming for helpand theyalsoheardthe voicesofmobshoutingtocutBandiyasandaftertwoand
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half hours, there was silence therefore, they came back fromthefieldandthereafter,theysawpolicevaninShaikh Mahollatherefore,theywenttoShaikhMahollawherehe cametoknowabouttheinjuriessustainedbythepersons of Shaikh Maholla and about the death due to burns in ShaikhMaholla.AspersayofShriS.C.Shahtheevidence of this witness supports the say of complainant and prosecutioncase. Referringtothedepositionofthiswitness,onseeing the mob entering in Shaikh Maholla, to save their lives, theywenttothefieldwhichwasfarawayfromthesceneof incident. He has stated that Kantibhai Prabhudas Patel, Jagabhai Jivanbhai Patel and Upendra Manilal were instigating the mob. This witness has deposed that JagabhaiJivanbhaiPatelandUpendraManilalPatelwere not present in the mob. He has identified Kantibhai Prabhudas.BothJagabhaiJivanbhaiandUpendraManilal were present in the Court. Placing reliance upon this evidence,itisarguedbyShriDhruvthatthiswitnesshas triedtofalselyropetheaccusedintheincident.Ifinthe evening,outoffearthiswitnessmovedtoShaikhMaholla andwhentherewasnothinginopen,itisquiteunnatural that he would wait in Shaikh Maholla and entered in
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ShaikhMahollaandgivinghimopportunitytodeposethat thesethreeaccusedwereinstigating.Suchafearfulperson would ever hear commotion of mob would certainly ran away from the place which he had done. Further, in his statementdated06.03.2002,thiswitnesshasnotreferred the names of any person on the contrary, he has stated that he is not knowing anything with regards to the presence of mob and this contradiction is proved in the depositionofInvestigatingOfficerFurther,inhisstatement dated 06.03.2002, he has not even claimed that he can identify the accused before the court. Further, in his statementdated11.06.2008beforeS.I.T.,hehasstatedthat whilerunningawaytowardsthefieldhesawthepersonsof mob while this fact is denied in the Court and in the statement made before police, he has not stated that he witnessed the incident and in his deposition, he has admitted thatfrom the fieldthe cabins situatednear the ShaikhMahollacannotbeseen.Thisomissionisprovedby contradiction. It is argued by Shri Dhruv that there is material improvement. This witness has stated different factsondifferenttimes.Inhisstatementdated06.03.2002, hehasgiventimeofincidentas12.30A.M.andreferringto thedepositionofZakirhusen,Kulsumbibiand Sabirmiya,
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it is argued by him that they have not witnessed the incidentandhaveposedthemselvestobetheeyewitnesses of mainoccurrencethoughtheywere inthefiled atthe timeofincident. Fortheseargumentswhenweappreciatetheevidence of this witness it is not say of this witness that prior to comingofmobtheywenttofield.Fromtheevidenceofthis witnessittranspiresthatfirstmobcame,hesawthemob, mobenteredinShaikh Maholla.Thereafter,theywentto the field. Meaning thereby that he had sufficient opportunity to see the mob. Considering the situation of the house of this witness which is just in front of Patel Maholla,entranceofShaikhMahollacaneasilybeseenas it is very near to the entrance of Shaikh Maholla and a personcaneasilyseewhatishappeningintheentranceof Shaikh Maholla. Considering the time of incident the presence of this witness nearby to his house cannot be doubtedeitherhemaybeinShaikhMahollaorneartohis house. But considering his whole evidence, it can be gatheredthathecouldhaveseentheincidenttillhewentto the field and he was having sufficient opportunity to see the mob. After that he might have heard the voices from ShaikhMaholla.Sofarasthedepositionofthiswitnesson
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thispointisconcerned,asperhissaymobwasshoutingto cut, beat the bandiyas and victims from Shaikh Maholla werescreamingforhelp.Forthiswehavetoappreciatethe evidenceastowhatthewitnesswantedtosayi.e.senseof hissayistobeconsiderednotthewordswhichheused. Here,thewitnesshasstatedthathehasseenthepersons screaming.From,thewholeevidenceittranspiresthathe had heard the voices of the persons screaming for help. Thus,weshouldnotacceptitaswordbut,byacceptingit assenseofhissayingwecanconcludethatheintendedto tellwhathehadheard.Simplybecausethiswitnesswentto ShaikhMahollaintheeveningbecausehishouseisjustin frontofPatelMaholla.Undertheatmosphereoftenseifa personlivingoutsidetheMuslimMahollawillnaturallyfeel unsafe and will try to go toMuslim Mahollafor safety. If this witness is stating so, there is nothing unnatural conduct on the part of their family and if he is stating aboutseeingofmobatabout9.30P.M.on01.03.2002first andburningofthreecabinsandsecondtimeagainthemob came.Thereisnothingunnatural.Secondasperthesayof this witness when the mob came they went towards the fieldjusttosavetheirlives.Thereisnothingunnaturalin their conduct. Therefore, the arguments of Shri Dhruv is
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notacceptableonthispoint. SofarasinstigationofmobbyKantibhaiPrabhudas, Jagabhai Jivanbhai and Upendrabhai Manilal and about their false involvement is concerned, it is true that this witness has not identified Jagabhai Jivanbhai and UpendrabhaiManilalinthecourtthoughbothwerepresent in the court. In his statement dated 06.03.2002 this witnesshasnotreferredthenameofanypersonandinhis statementdated11.06.2008beforeS.I.Thehasstatedthat hehadseenthepersonsofmobwhilerunningtowardsthe field. No doubt this witness has not specifically stated before the police that he had witnessed the incident. Furtheritistruethatfromthefieldapersoncannotsee whatishappeningintheShaikhMahollabut,atthetimeof goingtofieldwitnesshasseenthemob.Meaningthereby before he went to field he saw the mob and there was possibility and opportunity to see the mob. Witness is deposing before the court after 10 years approximately therefore,thepositionofcontradictionsandimprovements are required to be considered accordingly by keeping in mind the situation under which incident occurred and statements were made and the period after which the depositions are recorded. Further, tendency of witness to
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exaggerate also required to be kept in mind. Keeping all aboveinmindwhenweconsiderthisfact,thiswitnesshas notidentifiedJagabhaiJivanbhaiandUpendraManilalin the court and their names are not mentioned in any statements. Therefore, we can consider this fact as exaggerated one. So far as presence of Kantibhai Prabhudas is concerned, witness has identified him and has stated that he was instigating the mob. Simply, this witnessisdenyingthatwhilerunningtowardsthefieldhe sawthepersonsofmobappearedtobesomeconfusionin themindofwitness.Consideringthedepositionofwitness asawholeonthispoint,ittranspiresthesayofthewitness isthathesawthemobbeforegoingtothefield.Therefore, thecontradictionsinthisregardarerequiredtobeignored. And the fact that the witness saw Kantibhai Prabhudas instigatingthemobisfullysatisfiedbythewitness.Sofar asargumentsofShriDhruvregardingtimingofincidentis concernedifthewitnessistellingthetimeas12.30A.M.it was a night time, witness is an illiterate person and the circumstancesunderwhichtheincidentwasgoingon,no onewillgotoseethewatch,hewilltrytosavehimfirstand under such tense atmosphere the mental position of the witnessistobeconsideredandinthatcircumstanceifthe
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witnessisstatingsomechangeintime,itisrequiredtobe ignoredasthefactremainsasitisthatmobhadcomein thenight.
Therefore,theargumentsadvancedbyShriShahthat this witness is not injured eyewitness. He has identified eightaccusedandstatedthattheywereinthatmobhaving weaponsinthehand.Hehasfurtherdeposedthatheisthe brother of P.W.48 Shaikh Sabirhusen Kadarmiya. He is only the eyewitness and he went to Savala after the incident.Hehasnotstatedthenamesoftheaccusedinthe statementdated06.03.2002.He hasstatedthenames in the statement dated 11.06.2008 before the S.I.T. He has identifiedKantibhaiPrabhudasintheCourtandhasstated that Jagabhai and Upendrabhai are not present in the Court. As per the deposition of this witness, agricultural fieldiskmawayfromMaholla.Hehadseenthepersons screamingforhelp.Wehavetoappreciatetheevidenceasto whatthewitnesswantedtosayi.e.senseofhissayistobe considered and not the words which he used. Here, the witnesshasstatedthathehasseenthepersonsscreaming. Fromthewholedeposition,ittranspiresthathehadheard thevoicesofthepersonsshoutingandscreamingforhelpis
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acceptable. P.W.53 Shaikh Kulsumbibi Kadarmiya has deposedthat,therewasnohousesurroundingherhouse andonthedayofBharatBandhduetofear,shealongwith her family members went to Shaikh Maholla. This is a naturalconduct.HerhouseissituatedjustinfrontofPatel Maholla, there was no Muslim house surrounding to her house.Insuchatenseatmosphereanyonewouldtrytogo to saferplace.Therefore,forherandherfamilymembers ShaikhMahollabeingMuslimMahollawasmuchsafer.If, due to fear, she alongwith her family members went to Shaikh Maholla that is a natural conduct. Further, it is deposedbyherthatatabout9.30P.M.,amobofPatelsof their village came from Mahadev Temple side to Shaikh Maholla shouting slogans to cut the Bandiyas and burn themandthemobhadburntthreecabinsattheentrance of Shaikh Maholla. As the police came, they went away. Thereafter, soon, as the police went away, the mob again cameinShaikhMahollaandtheycauseddamageandalso burntthehouses.Fromthisevidenceittranspiresthatfor the first time mob came she was in Shaikh Maholla and hadanopportunitytoseethemob.HerpresenceinShaikh Maholla at the time of first mob cannot be doubted.
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Further, when secondtimemobcamehavingweapons in their hands she was in Shaikh Maholla, it is only after seeingmobburninghouses,threecabinsattheentrance etc.,shealongwithfamilymemberswenttothefield,inthat circumstancesifsheisstatingthatshehadseenthemob is believable as she had sufficient opportunity to see the mobasshehasstatedthatthemobburntthehousesand startedpeltingstones.Peoplefrommobwerehavingsticks, Dhariya,pipes,keroseneandpetrolgallonsandtherefore, tosavetheirlives,theywenttothefiledfromthebackside of the Mahemudmiyas house and her younger son Sabirhusen Shaikh remained in the Maholla. From the aboveevidenceittranspiresthatitisonlyafterseeingthe mobhavingweaponsintheirhandandstartedransacking, burningthehousesetc.,theywenttothefield.Further,it isdeposedbyherthatinthefield,theyheardthevoices fromShaikhMahollascreamingforhelptosavethem.From theburningflameofhousesinShaikhMaholla,lightoffire wasseenbyherfromthefield.Lookingtothesituationof Shaikh Maholla and the field where the witness was, a personcanseetheflameoflightofShaikhMahollafrom the field but cannot see what is happening in side the Shaikh Maholla. It is argued by Shri Dhruv that, it is
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deniedbyherthatshealongwithherhusbandandfamily membersatabout12.00midnightbeforetheincident,went to the filed and they saw mob coming towards their Maholla.However,thiswitnesshasstated thisfactinher statementdated06.03.2002.Acceptingitasitistruethen alsoalongwithherfamilymembersshewenttothefieldat about12.00midnightatthattimemobhadalreadyentered theShaikhMaholla.Therefore,sheissayingthatonseeing mob with weapon, ransacking, burning cabins at the entranceofShaikhMahollaandhousesinShaikhMaholla etc., that is believable and in that circumstances this contradiction becomes insignificant. Therefore, the say of ShriDhruvthatshealongwithherfamilymemberswentto thefieldbeforethemobcameandshehasnotwitnessed theincidentisnotacceptableonthispoint.Further,itis deposed by her that soon as the police came, there was silence. They came to the Shaikh Maholla. Her son SabirhusenShaikhhadtoldabouttheburningofpersons intheShaikhMahollathatisanaturalconductandfrom otherevidenceandfrompoliceevidenceittranspiresthatit isonlyafterpolicecamethepersonswhowerehidinghere andtherecameout.Therefore,thissayofthiswitnessis reliable.
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ItisarguedbyShriDhruvthatthiswitnessisgiving differentstorythanwhichisstatedbyherbeforethepolice. Shehasnotgiventhenameofanyoftheaccusedinher availablestatements.Shehasimprovedherversionabout Sabirhusen having remained in Shaikh Maholla just to corroboratethesayofSabirhusenthathewasinShaikh Maholla. This fact is not stated by her in her statement dated06.03.2002.Tojudgethisversion,Ihavetoconsider other evidence on record which will be discussed and decided atthe relevanttime in judgment. Further,it is deposedthatKantibhaiPrabhudaswasinstigatingthemob tocuttheBandiyasandburntheirhouses.Andthemob burntthehousesandstartedpeltingthestone.Peoplefrom mobwerehavingsticks,dhariya,pipes,keroseneandpetrol gallonswiththem.ForthisdepositionitisarguedbyShri Dhruvthat,thiswitnesshasdeposedinherdepositionthat when the mob entered in Shaikh Maholla for the second timeandstartedransackingthehouseandsetonfirethe house,shesawKantibhaiPrabhudasinstigatingthemob. Thisisanimprovementinherdeposition.Inherstatement beforethepolice,shehasnotgiventhenamesofanyofthe accused. She has named Kantibhai Prabhudas who has
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died prior to her deposition so that she may not have to identifytheaccused.Asdiscussedaboveshewashavingan opportunity to see the mob. Therefore, if she is saying instigationbyKantibhaiPrabhudaswhohasdied,remains of no use. Assuming it is an improvement then also it becomes insignificant. She has sustained no injury. She wassittingjustinfrontofKapoorvas.ShesawKantibhai Prabhudasinstigatingthemobtocut,beatandburnthe Muslims. HouseofthiswitnesswasneartoPatelMaholla duetotenseatmosphereandduetofearifshealongwith her family members went to Shaikh Maholla, there is nothingunnaturalastheirhousewasaloneanditwasnot surrounded by Muslim community and they felt unsafe there.Inthatcircumstanceswhenthemobatabout9.30 P.M. came in Shaikh Maholla her presence cannot be doubted. When they went to field from the back side of Mahemudmiyas house prior to that she was in Shaikh Mahollaandonseeingthemobshoutingslogans,burning cabins and houses in Shaikh Maholla, she went towards thefieldfrombacksideofMahemudmiyashouses.Inthat circumstancesherpresenceinShaikhMaholladuringthat periodcannotbedoubtedandtheargumentsadvancedon this point by Shri Dhruv cannot be accepted. So far as
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instigationofmobbyKantibhaiPrabhudasisconcerned,it willbedecidedattherelevanttimeandrelevantstage. P.W.54 Shaikh Sharifmiya Bhikhumiya has deposedthat,duetofearhealongwithhisfamilymembers wenttothehouseofBachumiyaImammiya.Atabout9.00 P.M.amobofHindusfromtheMahadevTemplesidecame. They were having pipes, swords, dhariya in their hands. TheyburntthreecabinsattheentranceofShaikhMaholla. Aftersometime,policecameandmobdisbursed.Afterthe police went, the mob again came shouting to burn the Muslims and they were pelting stones. They burnt the housesofManubhaipainter,AkbarbhaiandNathubhai,he went towards the field from the backside way of Mahemudmiyashouse.Inthefield,heheardthevoicesof personsscreamingforhelpandhealsosawflameoffire. Inthisregard,itisarguedbyShriDhruvthat,this witnesshasalsoimprovedhisevidencemateriallyashehas deposedthatmobagaincameandsetonfirethehouseof ManubhaiPainter,BachumiyaImammiyaandransackedit andatthattime,hesawthepersonsandatthattimedue to fear, he went to the field with all his family members. While in his statement dated 06.03.2002, he has stated
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thatafterhearingcommotionofmobandpeltingofstones, healongwithhisfamilymembersranawaytowardsthefield and from the field he witnessed the incident. Thus, this witness has materially changed his deposition to believe himaswitnesstothemainincidentsuchassettingonfire the house of Mahemudmiya. As per his statement, it is clearthatafterhearingthecommotion,heranawaythere was no possibility of the presence of this witness at the timeofincidentandidentifyinganyofthepersonsinthe mob. This improvementis provedbywayof contradiction with his earlier statement. From where he saw and identifiedthepersonsinmob,isalsoanimprovedversion whichisalsoprovedbycontradictionsincefromthefield thereisnopossibilityofwitnessingeventofsettingonfire thehouseofShaikhMaholla. It is a natural conduct of a witness which is supportedbyotherwitnessesalso.AtthetimeoffirstMob hispresenceinShaikhMahollacannotbedoubted.Sofar ascomingofmob,secondtimeisconcerned,ittranspires fromtheversionofthewitnessthatonseeingthemobwith weapons ransacking/burning/pelting stone, he alongwith hisfamilymemberswenttofieldfromthebacksidewayof Mahemudmiyashouse.Thus,hewashavingopportunityto
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seethemobandonseeingthemobhewenttothefieldand there he heard the voices from Shaikh Maholla in that circumstances if the witness is saying that he saw the flameoflightfromthefield,lookingtosituationoffieldand Shaikh Maholla a person can see the flame of light of ShaikhMahollafromthefield. Therefore,histhissayis reliable. Therefore under above circumstances if, the witnessissayingthathewitnessedtheincidentfromthe fieldmeans,hewantstosaythatheheardthevoicesfrom theShaikhMahollaandhesawtheflameoflightfromthe field. Therefore, in his statement dated 06.03.2002. It is mentionedthathewitnessedtheincidentfromthefield.It cannot be considered as material improvement or contradiction,wehavetoconsidersenseofthesayofthe witness,notthewords.Consideringwholeevidenceofthis witness we can conclude that this witness has seen the mobtillhewenttothefieldandbeforethatwhenhesaw the mob he was having sufficient opportunity to see the personsinthemob.ThustheargumentsadvancedbyShri Dhruvinthisregardisnotacceptable.
Further,itisarguedbyShriDhruvthatthiswitness has admitted that he has filed an affidavit before the
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HonbleSupremeCourtofIndiaon06.11.2003inwhichitis stated that he got safe as he was quietly hiding in the house.EvenbeforeS.I.T.,hehasstatedthatinthenightat thetimeofattack,sincetheywerequietlyhiding,theywere safe. This omission is proved. Further, in the affidavit beforetheHonbleSupremeCourtofIndiaandstatement beforeS.I.T.,hehasstatedthattheywerehidingintheir houses therefore, there is no question of witnessing the incident.Hehasgivendifferentstoryandoppositeversion about his presence at the time of incident and place of hiding.Further,inhisaffidavit,hehasnotnarratedthat while houses were set on fire, he can see the named persons.Itisalsonotstatedintheaffidavitthatapartfrom that,hewenttothefieldandcouldseethepersons.
Sofarastheseargumentsareconcernedwhetherthe witnesswashidinginhishouseforthewholetime,during nightatthetimeofattackandhehadnotatallgoneto Shaikh Maholla is not narrated. Simply, omission of this factbeforeS.I.T.orInvestigatingOfficerorinaffidavitwould not discard the whole version of this witness. Much importance under such a tense atmosphere and circumstancescannotbegiventothisomission.Possibility
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cannotberuledoutthathemighthavehiddenhimselfin hishouseandonfeelingthetenseatmospherehealongwith hisfamilymemberswenttotheShaikhMahollathatwould be the natural conduct of a person. Therefore, on the strength ofthiscontradictionoromissionthesayofShri Dhruvisnotacceptable.
Further,itissubmittedbyShriDhruvthathouseof witnessissituatedjustoppositetoKapoorvaswherethree houses i.e. his house, his fathers house and his uncles house,aresituatedandthosehouseswerenotsetonfire. There is a straight leading road towards the field while going to Shaikh Maholla. Witness has not stated in the statementsdated06.03.2002and22.05.2008thathewent tothefieldfromShaikhMaholla.Thereispossibilitythat hemighthavestraightwaygonetothefield.Intheaffidavit beforetheHonbleSupremeCourtofIndia,hehasclaimed thathewashidinginhishousetherefore,hewassafewhile in the deposition, he has stated that in the evening, he alongwith his family members, went to the house of BachumiyaImammiyainShaikhMaholla.Thesaidfactis not stated in the statement dated 06.03.2002. Neither Bachumiya Imammiya nor any of the witnesses from his
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familyhasstatedthatthiswitnessorhisparentscameto their house. Further, there were ample opportunities but this witness has not informed anyone including police about the incident. Thus, his deposition is contrary on material issues. While going to Savala also, he has not statedanythingabouttheincident.
Sofarastheseargumentsareconcerned,itistrue thatwitnessalongwithhisfather arehavingthreehouses justinfrontofPatelMahollaandthereisastraightpassage forpassingtofieldjustinfrontoftheirhouse.But,thesaid passage is passing from Patel Maholla and under sucha tenseatmospherenoonewilldaretogofromthatpassage and he will try togo tofield toShaikhMahollawhich is more safer. Therefore, on this strength also deposition of thiswitnesscannotbediscarded.Further,omissionofthis fact before the Hon'ble Supreme Court of India or by Bachumiya Imammiya or by other witness, under such situation cannot be given much importance. So far as silenceonthepartofthiswitnessasarguedbyShriDhruv isconcerned,consideringthecircumstancesunderwhich the incident occurred, no one can expect such a prompt information by a person who was passing from such a
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mentalstress.Therefore,thesayofShriDhruvthatthere wassufficientopportunityforthewitnessandwitnesshas not stated this fact earlier in time becomes of no importance.
Further, it is deposed by the witness that at about 2.30 P.M., there was silence. When he came towards his housefromthefield,BismillabibiBhikhumiyawaslyingin theheapwhichisatthebacksideoftheMaholla.Hecame backtoKapoorvasthentoShaikhMahollaandheinformed aboutthesametoD.S.P.andD.S.P.sentthreepersonsand broughtBismillabibiattheentranceofShaikhMaholla.At that time, he is not stating the incident to the D.S.P. especially when there were several opportunities to this witness but he has not narrated the incident before the policeoranyone.
Fact regarding Bismillabibi Bachumiya lying on the heapofgarbagebehindtheShaikhMahollaisnotstatedby thiswitnesseitherbeforeShriVaghela,InvestigatingOfficer or before Shri G.V.Barot. D.S.P. and other police officials are silent about it. Further, looking to medical evidence therewasnosignofconsumptionofacidbyBismillabibi. Onthecontraryburnsinjurieswerefoundonthebodyof
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Bismillabibi.AssumingBismillabibiwaslyingontheheap of garbage behind Shaikh Maholla and this witness approachedtoD.S.P.orotherpoliceofficialsforhelptotake her, in that circumstances also if the witness has not narratedtheincidentbeforethepoliceatthattimeandhe wassilentaboutthewitnessingtheincidentatthattimeis requiredtobeconsideredwiththecircumstancesand an atmosphereinwhichincidentoccurred.Therefore,atthat time,thesilenceofthiswitnessbecomesofnoimportance.
P.W.49ShaikhIqbalmiyaRasulmiya hasdeposed that, at the time of incident, he was residing in Shaikh Maholla alongwith his family members. On 01.03.2002, there was Bharat Bandh. At about 9.00 P.M. a mob of Hinduscameshoutingsloganstobeat,cutandburnthe Bandiyas and at the entrance of Shaikh Maholla, there were three cabins which were burnt by the mob. Out of threecabins,onewasofRaifkmiyaMahemudmiya,second one was of Ibrahimmiya Rasulmiya and third one was of this witness. As police came, the mob disbursed and thereafter, at about 11.30 P.M. again, the mob came shoutingthesloganstocut,beatandburntheBandiyas andmobstartedpeltingthestonesandmobcameforward
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by pelting stones and mob started ransacking and the houses were burnt by mob. Babubhai Kanabhai and Rameshbhai Kacharabhai, were instigating the mob and wereshoutingthatnooneshouldbeleftaliveandatthat time,onestonepeltedonhishead,rightlegandonestone ontheheadofIbrahimmiyaRasulmiya.Therewasbleeding inhisheadandtosavehislife,hewenttowardsthehouse of Ibrahimmiya Rasulmiya. The mob came forward by burningthehouseandthewitnesswentintothehouseof IbrahimmiyaRasulmiyawhilemobproceededtowardsthe houseofMahemudmiyaandbysurroundingthehouseof Mahemudmiya,thewindowofMahemudmiyashousewas brokenbypouring petrol andkerosene. Thechildrenand ladieswereburnt.Thepersonswhowereinsidethehouse were screaming for help. He heard the voices of those personsandthereafter,policecameandatthesayofthe police,thewitnesscameoutandwenttowardsthehouseof Mahemudmiya Husenmiya. He took Ayubmiya Rasulmiya from the house of Mahemudmiya Husenmiya and Samimbanu his wife was also burnt. He took her also fromthehouseofMahemudmiya.Therewereotherpersons also burnt. He saw Zaved aged about 4 years was dead. Samimbanuwasalsodead.Total28personsweredead.
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ItisarguedbyShriDhruvthatthiswitnesshasnot disclosed the incident from 01.03.2002 to 09.03.2002 to anyone.Hehasnotgivenanyapplicationnorhisstatement was recorded. As per his deposition, if police would not havecome,hewouldhavewaitedforthepoliceforgiving hisstatement.On02.03.2002,atabout2.30A.M.,police came.Hehasnotstatedanythingabouttheincident.He wenttothehospital,stayedinthehospitalupto6.00P.M. of02.03.2002andthereafter,inthecompanyofpolice,he wenttoIlol.Stillhowever,hehasnotnarratedtheincident to the police. There is a case of late disclosure of the incidentbythewitnessthoughhavingfullopportunityto discloseit.Thiswitnesswassilentforabout9days. This witness is the injured witness. Injuries are supportedbymedicalevidencevideExh.167.Further,heis residentofSardarpurbybirthandatthetimeofincident, he was in ShaikhMaholla.As perhis deposition, hehas seentheincident.Hehasseentheaccusedhavingweapons intheirhands.Underabovecircumstanceshispresencein ShaikhMahollacannotbedoubted.Ifapersonundersuch a traumatized condition and under terrible experience is not disclosing the incident up to 09.03.2002, late disclosureofincidentcannotbegivenmuchimportance.
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Inhiscrossexamination,ithascomeoutthatheis handicapped and his brother is also handicapped. From 28.02.2002 to 01.03.2002, he was in his house and therefore, he is unable to say, whoburntthe cabins and whathappenedinthevillage.Asperthedepositionofthis witness,excepthisbrotherAbdulmiya,restofhisbrothers weresittinginShaikhMaholla.Further,ithascomeoutin his crossexamination that he can walk in normal speed buthecannotrun.Itisdeniedbyhimthatitwassaferto rushtowardsthegraveyard.Asperthissay,whenthejeep was burnt, first he went to the house of Ibrahimmiya Rasulmiya. There was no mob towards the graveyard. Person can go to graveyard by jumping the wall. He had hidden himself behind the jeep at that time he had not thoughttogooutofShaikhMahollaalongwithhisfamily members. He had not felt that as so many houses are burnt,thehouseofIbrahimmiyaRasulmiyashallalsobe burnttherefore,heshouldgotowardsthegraveyard.Door ofthehouseofIbrahimmiyaRasulmiyawasbrokenandit was burnt. It is admitted by him that during the whole incident,nokeroseneorpetrolwaspouredonhimanditis admittedbyhimthathewasnotburnt.Thiswitnesswas
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notinsidethehouseofMahemudmiyatherefore,thereisno question of smell of kerosene and petrol and there is no question of sustaining burn injury to him. So far as the incidentdated28.02.2002isconcerned,asperhissay,he hasseentheincidentandhesustainedstoneinjury.Thus, impliedly admits about the burning of cabins on 28.02.2002.
Further,itisarguedbyShriDhruvthatthiswitness does not remember the names of the deceased who have diedintheincident.However,hegivesthedetailednames of certain accused which suggests that this witness is tutored one to gave names of the accused. As per the depositionofthiswitness,hesawthemobransackingand leadingtowardstheShaikhMaholla.Atthattime,hesaw the accused and gives names of certain accused. This improvement is not stated in the statement dated 10.03.2002. Simply because witness could not remember the names of deceased and he is stating about the mob ransackingandleadingtowardstheShaikhMahollaandhe hadseentheaccusedandisgivingnamesofsomeofthe accusedcannotbeconsideredastutoredone,ifatallthis witnessistutoredonethenhewouldhavenotcommitted
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naturalmistakesinhisdeposition.Thereforeonthiscount thesayofShriDhruvisnotacceptable. Referringtodepositionofthiswitness,itisarguedby ShriDhruvthatthiswitnessisnotdeposingthatoutofall the accusedwhoransacked and who looted theproperty. Noovertactisassignedtoanyoftheaccusedthoughhe hasassignedmuddamalarticlewithdifferentaccusedbut whatovertactisplayedbywhichaccused,isnotdeposed bythiswitness.Ifamobcomeswithpredeterminedmindto attack or kill persons of particular community and they carry such muddamal article for not using the same, cannotbebelieved.
Further,asperthedepositionofthiswitness,whenhe went inside the house of Ibrahimmiya Rasulmiya, mob proceeded towards the house of Mahemudmiya. Mob had surroundedthehouseofMahemudmiyafromallthefour sidesandafterbreakingthewindow,petrolandkerosene waspouredandwomenandchildrenweresetonfire.When thiswitnesswasinsidethehouseofIbrahimmiya,howhe canseewherethemobhadgoneandinwhatmanner,they have committed the act. Ibrahimmiya Rasulmiya has not
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statedthatthepresentwitnesswasinhishouse.Further, thiswitnesshasnotstatedaboutthestoryof1st moband 2ndmob.1stMobhadsetonfirethreecabins,atabout9.30 P.M.,situatednearShaikhMaholla.Thisfactisnotstated inthestatementdated10.03.2002. Thereisomissionin thestatementdated10.03.2002withregardtothesetting onfirethecabinsinthevillage.Policefiredfordisbursingis proved by contradiction. As per his statement dated 10.03.2002, 2nd mob set on fire the cabins of Shaikh Maholla at about 12.00 A.M. The say of this witness is contraryonthepointoftimeandeventofsettingonfirethe cabins near Shaikh Maholla while he has deposed before the Court that mob had come at 11.30 P.M. Thus, it is submitted by Shri Dhruv that this witness is not sure about the time and place of setting on fire the cabins. Further, it is argued that as per the deposition of this witness, mob proceeded towards the house of Mahemudmiya and surrounded the house from all sides andbrokethewindowtopourkeroseneandpetrolandthat the women and children of their community were burnt alive.Atthattime,thepeoplefromtheircommunitywere screamingandseekingforhelp.Thereafter,policecameand shouted that those who are alive may come out then he
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cameout.Thisfactisnotstatedbythiswitnessinanyof hisstatementbeforethepolice.Thus,itisarguedbyShri Dhruv that this witness has not witnessed the incident thoughheisposinghimselfaseyewitness.
From this deposition presence of the witness in Shaikh Maholla cannot be discarded. He had seen the incident till he went inside the house of Ibrahimmiya Rasulmiya therefore, the say of Shri Dhruv that this witness has not seen who had broken the window and petrol, kerosene was poured, is acceptable. So far as incidentregarding9.30P.M.isconcerned,itissupported byotherevidencethatthreecabinswereburnttherefore, omission in the statement, in this regard becomes insignificant. P.W.51ShaikhNazirmahmedAkbarmiya deposed beforethisCourtthatatthetimeofincident,hewassitting inShaikhMahollaandon01.03.2002,duetotheBharat Bandh, all family members were present in Maholla. At about9.10P.M.Patelsfromthevillagecameshoutingand theycametowardstheMahollaandattheentranceofthe Maholla, there were three cabins which were burnt by
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them.Aspolicecame,mobdisbursedandthenaftersome time,whenthepolicewentback,againthemobcameby shoutingsloganstocut,beatandburntheBandiyasand had started pelting stones. Mob of 1000 to 1500 persons wasthere.TheycauseddamagetothehousesofMuslims and burntthe houses.Then, mob proceeded towardsthe house of Mahemudmiya Husenmiya where in that house, children and ladies were feeling it safe. In the pelting of stones,hesustainedinjuriesonlefthandelbowandright eye.Duetotheinjury,hehidehimselfinhisoldhouseand mob went towards Mahemudmiyas house and mob had broken the window and poured kerosene and petrol from thewindowandburntthehouse.Atabout2.30A.M.,when thepolicecamethenhecameoutofhishouseandthere was silence in the atmosphere and the Maholla was burning. Voices from Mahemudmiya's house was coming. Police opened the door and there were dead bodies and injured persons. Police took them to the Civil Hospital, Mahesana.
It is argued by Shri Dhruv that location of his old house is not stated by him in chiefexamination but in crossexaminationhehasadmittedthatontheleftsideof
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his house there is house of Abbasmiya Kesarmiya and BachumiyaKesarmiya.Itisstatedbyhimthatthehousein whichhewasatthetimeofincident,behindthat,thereis graveyard.Hehasnoknowledgehowmanypersonsofmob entered the house on the left side of his house. He is unable to state as to whether the mob had entered the house.Hehasadmittedthathewasinhishouseandhis housewasnotransacked.LookingtothePanchnamaand map,whileenteringintotheShaikhMaholla,houseofthis witnessis2nd ontherightsideandhisanothersideis3rd lastontheleftsideofroadsincemobhadenteredShaikh Mahollaandstartedransacking,itwasnotpossibleforthe witness to move from one house to another house in a circumstanceswhenonehouseisrightattheentranceand 2nd house is interior in the Maholla. If mob had come to attack any particular community they would not have sparedthevictimwitness. It is true that the witness has not stated in chief examination about the location of his old house but on perusingmap,PanchnamaandinspectionvisitReportand other evidence, location of the house is very much clear. Simply becausewitnesshas notexplainedthelocationof
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hishouseitcannotbesaidthatwitnessistellinglieandif, heisunabletosayhowmanypersonsenteredthehouseon theleftsideofhishouseitdoesnotmeanthatwitnesswas notpresentintheMahollaandinhishouse.Considering hisevidence,asawhole,ittranspiresthat,duringwhole incidenthewasnotinaparticularplace,sometimehewas standingjustinfrontofhouseofMustufamiya,sometime hewasinhishouseandforsometimehewasinNaveli. Meaningtherebythathewasnotatoneplacebutmoving in the Maholla to get him safe and if, the witness was movinginMahollahereandtheretosavehimselfthatcan beconsideredasnaturalconduct.Byhidinghimselffrom themob,hewasmoving.Inthatcircumstancesifhewas safeandnotattackedbythemobitdoesnotmeanthathe was not present in the Maholla. He is the resident of ShaikhMaholla.Consideringthetimeofincident,presence ofthiswitnessinShaikhMohallacannotbedoubted,every onewouldliketostayinhishouseMaholladuringnight and that too in such a tense atmosphere. Therefore, the argumentofShriDhruvinthisregardisnotacceptable.
Further, it is argued by Shri Dhruv that as per the depositionofHizbulmiya,hehadalsotakenshelterinthe
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samehousebuthehasnotreferredaboutthepresenceof anyoneinthehouse.AsperthePanchnama,witnesswas stayingintherightsiderowoftheShaikhMaholla.There wasexcessivedamagetothehouseasitwassetonfireand asperthesayofthiswitnessthereisdamagetothehouse tothetuneofRs.2,00,000/.Thus,thereisnopossibility thatthiswitnesswouldhavehiddenhimselfinhisanother house. His presence in Shaikh Maholla is doubtful. Further, when first time, mob came and started pelting stones,theresidentofShaikhMaholladuringthattime,he mighthavereceivedinjury.Merely,hesustainedinjury,it cannot be said that he was in Shaikh Maholla and has witnessedtheincident.Thiswitnesshasnotstatedabout theincidentnorhasgivennamesoftheaccusedbeforethe Doctorinhospital. Simply, Hizbulmiya who claims to be
insidethesamehouse,isnotsayingaboutthepresenceof this witness in the house, omission of this fact by Hizbulmiya, in the circumstances becomes insignificant because presence of this witness in Shaikh Maholla is satisfactorilyprovedbytheprosecution.
Further,itisarguedbyShriDhruvthatasperthis witness, after police came, they were shifted to hospital.
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Eventhough,heisnotdisclosinganythingtopolice.Even inhospital,heisnotstatinganythingbeforepolice.Upto Ilol,policewaswiththemeventhoughhehasnotnarrated anything about the incident before the police up to 10.03.2002. He has also not stated anything about the incident to police or anyone. It is argued by Shri Dhruv that, there wereother injuredwitnesseswithhimbut he doesnotrememberthenamesofpersonswhowerethere withhimintheHospital.Ontheotherhand,heisgiving full name of the accused. Relying upon this version Shri Dhruvhasarguedthathowthewitnessistakingnamesof accusedthus,thewitnessistutoredone.Admittedlythere were other injured witnesses with him and he could not state the names of persons who were with him in the hospital.Ifawitnessistellingnamesofwhomhehadseen inthemobbut,notgivingthenamesofinjuredpersons,it cannotbeconsideredasabnormalconductnorappearsto betutoredone.Ifthewitnessistutoredonethenhewould have certainly named the injured witnesses also. Non stating names of injured witness would not amount that thewitnessistellingalieinwhole.Further,itissubmitted byShriDhruvthatatthetimeofpeltingstonesbymob,he went towards hinder wall of Patels. There was ample
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opportunity for this witness who entered in the house of Shaikh Maholla. He went towards the hinder wall of the house of Patels. If, a person feels safe and goes towards hinder wall of Patel's just to save himself it cannot be expectedfromthewitnesswhyhewenttowardsthehinder wallofPatel'sinsteadofgoingtoShaikhMaholla.Witness might have felt it much safer. He has not deposed about setting on fire of jeep car in Shaikh Maholla. Simply, omissionofthisfactwouldnotcompelaprudentpersonto disbelievethepresenceofthiswitnessinShaikhMahollain the circumstances where the presence of this witness is proved by the prosecution by satisfactory evidence. Furthermore, silence in narration of incident before Doctor/police/anyoneupto10.03.2002insuchaterrible experienceinsuchatraumatizedconditionandthattoso many persons sustained severe injuries and so many persons have died, much importance cannot be given to thatomissionandsilenceonthepartofwitness.
Further,hehasdeposedthathehasseenthepersons ofthemobwhenthemobhadstartedalsopeltingstones and named the accused but it is not stated by him that they were pelting stones. He has not stated which of the
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accused proceeded towards the house of Mahemudmiya, whichaccusedbrokeopenedthewindowofMahemudmiya and which accused poured kerosene and set on fire the house and who ransacked the house of Shaikh Maholla. Fromwherehesawthosepersonsisalsonotspecifiedby him.ItisthesayofShriDhruvthatthiswitnessistutored oneandhehasnotwitnessedtheincident.
It is true that this witness has not stated about specificroleofparticularaccused.Ifheistutoredonethen inthatcasehewouldhavecertainlyaddedovertactand specificroleaboutpeltingstonesorwhichoftheaccused proceededtowardsMahemudmiya'shouse,whichaccused brokenthedoor,whopouredkerosene/petrol,setonfire thehouse,whoransackedthehousesetc.Nonstatingall these specific suggests the witness more natural rather thantutoredone.
ItissubmittedbyShriDhruvthatthiswitnessinhis statementdated10.03.2002hasstatedthatfromthehouse of Mahemudmiya alongwith other injured alive persons IbrahimmiyaRasulmiyawasalsorescued.Thiswitnessis nephew of Ibrahimmiya. Ibrahimmiya is not saying this
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fact. Ibrahimmiya has posed himself in Shaikh Maholla itself. Thus, it is say of Shri Dhruv that this witness is tutoredandgotupwitnessandnoteyewitness.Thereis someconfusionaboutthisfactasinthestatement,before 'Ibrahimmiya' 'Ruksanabanu' is written, thus there is confusion whether it is Ruksana Ibrahimmiya or it is Ibrahimmiya Rasulmiya. But, for this, when we consider theevidenceofthepresentwitness,hehasnotstatedthat they took Ibrahimmiya Rasulmiya from Mahemudmiya's house. Further Ibrahimmiya Rasulmiya is not stating so therefore, this fact as stated in the statement dated 10.03.2002 cannot be given much importance. So far as argumentsadvancedbyShriDhruvregardingfromwhich distancethewitnesshadseenthemob, notstatedbythe witnessisconcerned,itistruethatwitnesshasnotstated fromwhichdistancehesawthemobbuthehasstatedthat atthetimeofcomingofmobandincidentwherehewas. LookingtothesituationofShaikhMahollaanddeposition ofthiswitness,whereeverhehadgoneduringtheincident asstatedbyhimitcaneasilybeinferredthathecouldsee the mob and the incident. Simply distance is not mentioned,doesnotamounttodiscardthewholeveracity ofthiswitness. Therefore,theargumentsadvancedby
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Shri Shah that he is injured eye witness, his statements were recorded on 10.03.2002 and 06.11.2003. As per the deposition, on receiving injury on his elbow and eye by stones,hehadhiddenhimselfinhisoldhouseandthemob proceededtowardsthehouseofMahemudmiyaandseton fireandhehadseentheincidentisacceptable. P.W.52ShaikhHizbulmiyaHusenmiya hasstated on oath that he was residing in Sardarpur since last 16 years.HewasresidinginhouseofPrahladbhaiVarvabhai whichisjustinfrontofShaikhMaholla.Justadjacentto thehouse,thereisVerandaofIshwarbhaiConductor.Heis working in brickkiln of Prahladbhai Varvabhai. On 01.03.2002, shops and cabins were closed. He alongwith hisfamilymemberswereinhishouse.Atabout9.30P.M., amobofPatelsfromtheirvillagecameshoutingslogansto cut, beat and burn the Muslims. Then they burnt the cabins.Policecame,mobdisbursed.Againthemobcame shouting sloganstocut,beat and burn theMuslims and they came towards Shaikh Maholla. First, they pelted stones towards Shaikh Maholla. To save themselves and their family members, all went to the house of Mahemudmiya, If in such a tense atmosphere to save themselves and their family they went to the house of
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Mahemudmiya which is only pakkaconstructed house in theMahollathatisnaturalone.Further,itisdeposedby the witness that mob had started pelting stones, Ibrahimmiyawasinjuredandfelldownthisfactsupports the say of the complainant that he sustained injuries in peltingstoneandhefelldown.Injuriesofcomplainantis supported by medical evidence. Further, it is deposed by thiswitnessthattohidehimselfhewentbehindtheShaikh Akbarmiyashouse.Hesustainedinjuriesonhisrighthand wrist. His injuries are supported by medical evidence. Further, it is deposed by him that mob had burnt the houses of Shaikh Maholla and cabins then went towards theMahemudmiya'shouse.Heheardthevoiceofchildren, ladies from the house of Mahemudmiya. As the police came,alltheMuslimswenttowardsMahemudmiyashouse wherehiswifeHusenabibiSonRifakatalongwithothers wereburningalive.HisdaughterSaiyedawasinjured.All weretakentoMahesanaCivilHospital.Heincurredlossof Rs.27,000/byvirtueofcausingdamage. Thiswitnesshasnotstatedaboutthemobthatcame for the second time. As per this witness, mob started settingonfire,thecabinsandhouseandthenproceeded towards the house of Mahemudmiya. He has not stated
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fromhowfarhehadseenthepersonsinthemob.Further, itisarguedbyShriDhruvthatlookingtotheconstruction ofthehouseinShaikhMaholla,thereiscommonwallin eachhouseincontinuousroom.Therefore,itisimpossible to hide oneself by the side of any house. As per the deposition of this witness, Ibrahimmiya fell down after receiving stone injury. He hid himself in the side of Akbarmiya's house. Out of fear, he hid himself butthese facts are not stated in statement dated 19.05.2008, 11.06.2008 and 05.08.2008 and in affidavit dated 06.11.2003. In the deposition of this witness, it is stated thatfromthecourtyardofthehouse,hehasnotseenthe incident.Lookingtothecrossexamination,mapofShaikh Maholla,thereisnoCourtyardinthesaidhouse.Boththe housesofAkbarmiyawasalsoburnt.Itwasimpossiblefor anyonetotakeshelterorhidehimselfinanyburninghome. Asperthedepositionofthiswitness,hehadseenthemob from2to5Ft.andinthatcircumstances,itisimpossible thatamobwouldsparethiswitness.Itistruethatlooking to construction of houses in Shaikh Maholla there is commonwallineachhouseincontinuousroombutthere isspacebetweenhinderwallofPatelMahollaandoneside rowofShaikhMaholla.Furtherthereisapassageknown
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asNaveli.Further,thereissomespacebetweengraveyard wallandrowofShaikhMaholla.Further,ithascomeout fromhisdepositionthattowardsthegraveyardalso,there wasmob.Asperhissay,someofthepersonsinthemob werebehindthehouseofMahemudmiyaandthiswitness was towards the adverse side of jeep. On one sideof the Akbarmiyas house, there is Chopal and he was there. Chopal is in between the doors and otlla of Akbarmiyas house. As per his say, mob was wandering near to graveyard. Even in such a tense atmosphere every one wouldtrytohidehimselfwhereeverhegetsthespacesafer. Underabovecircumstancesifthewitnessissayingthathe wenttohidebehindtheAkbarmiya'shouseandlookingto positionofAkbarmiya'shousethatispossible.Nospecific roleisassignedbythiswitnesstoanyspecificaccusedfor settingonfirethecabinsorhouseorpeltingofstones.Who attackedthehouseofMahemudmiyaisalsonotspecifically stated.InhistoryofDoctor,hehasnotgivennamesofthe accused. As per the deposition of this witness, he had accompaniedthepoliceuptothehouseofMahemudmiya. After the incident, he had not stated anything about the incident to the police not even in the Civil Hospital. Thereafter,hewasshiftedtoIlolandreliefcampatKanpur
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upto10.03.2002.Thiswitnessissilent. Itistruethatthiswitnesshasnotdeposedaboutthe second time mob. So far as distance from where he had seenthemobisconcerned,whenweperusehisevidence,it was a time about 9.30 P.M. his house is just in front of ShaikhMaholla,whenthemobcamehewasinhishouse, this witness has not specifically mentioned the distance from where he had seen the mob but we can infer from wholedeposition,whenthemobcamehewouldhaveseen themobfromhishouse.Hehadseenthesettingonfirethe cabins/houseandmobproceededtowardsMahemudmiya's house.Heissilentaboutsecondtimemobbutwhenwego throughexaminationinchiefofthiswitnessasawholehe is saying first mob came, burnt the cabins, police came mobdisbursed,againmobcameandproceededtowardsthe Shaikh Maholla and first started pelting stones then proceeded towards the Mahemudmiya's house. This evidenceitselfsuggestsaboutcomingofmobsecondtime buttimeisnotstatedbythiswitnessandthiswitnesshas not narrated the incident in sequence. This witness is a labourclasspersonif,heistutoredonethenhewouldhave certainly spoken as per instruction. Therefore, such discrepancyisboundtobe.Thusheisanaturalwitness.
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Heistheinjuredpersonandintheincident,hehaslosthis wifeandson.HisdaughterSaiyedawasalsoinjured.His brotherinlaw, his wife and daughter have died in the incident.Asperhisdeposition,personsofmobwerealso going towards the graveyard side get support from the evidence of this witness. Further, the medical evidence, P.M.Report,injurycertificatesetc.supportthissayofthe witness. Therefore,theargumentsadvancedbyShriS.C.Shah thatheistheoriginalresidentofSatnagarbutstayingin Sardarpur after his marriage. At the time of incident, he waspresentandhehasnarratedtheincidentandnamed theaccusedpersonsandalsostatedthat4personswere having weapons and acid in their hands and in that circumstances,itisnaturalthathewasoutsidetheroom andtheargumentsadvancedbyShriDhruvthatpresence ofthiswitnessatthetimeofincidentinShaikhMahollais doubtfulandthiswitnesshastriedtoinvolvetheaccused in the crime falsely is not acceptable. Under above circumstances and that from other evidence it is established that this witness was very much present in ShaikhMahollatherefore,simplybecausethiswitnesshas notstatedinhisaffidavitdated06.11.2003thathehadever
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seentheincidentisofnoimportance. P.W.55 Shaikh Aashiqhusen Bachumiya has deposed that at the time of incident, he was in Shaikh Mahollaandhewasalongwithhisfamilymembersresiding inShaikhMaholla.On01.03.2002,hewasinhishouse.At about 9.30 P.M., mob of Hindus came from the side of Mahadev shouting slogans to cut, beat and burn the Muslims. They werehaving sticks, Dhariya, swords, pipe, keroseneandpetrolgallons,burningragandthreegallons at the entrance of Shaikh Maholla, they were causing damage by looting the property. As the police came, mob disbursed, thereafter again the mob came towards the Shaikh Maholla shouting and causing damage to the property and pelting stone. Then his father had told his wife, his children and other family members to go to the houseofMahemudmiyaasthehouseofMahemudmiyawas pakkaconstructedhouse.Hisallfamilymemberswentto the house of Mahemudmiya. One jeep was burnt by Kacharabhai Tribhovandas and Ambalal Ganeshbhai, as mobcametowardstheMahemudmiya'shouse,whenpolice came,healsocametowardsShaikhMahollaandsawthat alltheinjuredanddeceasedweretakentoMahesanaCivil Hospital.OnthewayAshiyanabanudied.
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ItisarguedbyShriDhruvthat,asperthedeposition of this witness, Inquest Panchnama of his daughter was executedon02.03.2002atabout7.30A.M.in Mahesana CivilHospital.Eventhoughhehasneithercomplainednor informed about the incident to the police. In this regard, when we consider the evidence, it transpires that in the Civil Hospital complaint was given by Ibrahimmiya Rasulmiyaon02.03.2002andthestatementofthiswitness was recorded on 02.03.2002 by P.I. Vaghela. Therefore, if thiswitnesshasneitherinformedthepolicenorcomplaint is given by this witness, under the tense and such a traumatized circumstances and that too his statement is recorded on the very same day, it becomes insignificant. Further,lookingtothePanchnamaanddepositionofpanch witness,rightsidehousesweremoreburntanddamaged. Houses of Mustufamiya Rasulmiya and Akbarmiya Rasulmiya are towards the right side row of Shaikh Maholla. It is the say of this witness that at the time of incidentwhenthemobransackedthehouses,hesawthem and at that time, he was standing near the wall of Akbarmiya'shouse.Itcannotbebelieved.Admittedlyhouse ofAkbarmiyaistowardsrightside.Asperthiswitness,he saw the mob from there as he was standing there, the
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house, of Akbarmiya is not at the beginning of Shaikh Maholla. If, this witness was standing near the wall and sawthemobransacking, burningasthemobcamefrom the entrance side of Shaikh Maholla he was having sufficientopportunitytoseethemob.Heistheresidentof Shaikh Maholla and at the time of incident he was very muchpresentintheShaikhMaholla.Consideringthetime andcircumstanceshispresenceinShaikhMahollacannot bedoubted.AsthemobproceededtowardsMahemudmiya's housethenhewenttoPathanMahollatillthenhehadan opportunitytoseethemob.Therefore,theargumentofShri Dhruvonthispointisnotacceptable.Further,itisargued byShriDhruvthatinhisstatementdated02.03.2002,he hasstatedthatfromtheHarijanvas,hesawtheburningof housesandinthecrossexamination,hehasadmittedthat fromHarijanvas,entranceofShaikhMahollaandhouseof Mahemudmiya could not been seen. There is material improvementinthestatementbeforetheCourt.Hehasnot witnessedtheincidentbutposinghimselfaseyewitness. Admittedly, from Harijanvas a person cannot see what is happeninginShaikhMahollabutthewitnessissayinghe saw the burning of houses. The flame and burning light caneasilybeseenfromHarijanvas.Wehavetoconsideran
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evidenceasperwhatthewitnesswantstosayratherthan pressing on the word which is used by the witness. Intention of a witness for what he wants to say is important. Thus, here it cannot be considered material improvementbythewitnessbeforethecourt.Further,itis arguedbyShriDhruvthatthiswitnesshasclaimedthat hehasseentheincidentofransackingandsettingonfire thecabinsoutsidetheShaikhMahollabutheisnotgiving thenamesofanyaccused.Evenwhosetonfirethehouse orwhosetonfirethehouseofMahemudmiyaisnotstated bythiswitness.Further,Asperthesayofthiswitness,he went to Pathan Maholla when the mob went towards the houseofMahemudmiya.Itisimpossiblethatanyonecan seethemobinShaikhMahollaortowardsPathanMaholla asbothareinoppositedirection.Truethatthiswitnesshas not attributedovertact oftheaccused,it doesnotmean thathehasnotseenthemobsettingonfirecabins/houses inShaikhMahollabutitisacceptablethatwhenthemob wasproceedingtowardsMahemudmiya'shouseatthattime hewenttoPathanMaholla.Therefore,ittranspiresthathe had not seen that who set on fire the house of MahemudmiyaasPathanMahollaisinoppositedirectionof ShaikhMaholla.Therefore,thisargumentsofShriDhruvis
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acceptable.Further,itisarguedbyShriDhruvthatasper thesayofthiswitness,hehasdroppedhisfamilymembers at the house of Mahemudmiya. Thereafter, his jeep was burnt but it is not mentioned in his statement dated 02.03.2002, 19.05.2008 and 11.06.2008 and in affidavit dated06.11.2003.Fromtheevidenceonrecord,itisproved byprosecutionthatdaughterofthewitnessAshiyanabanu was burnt but she was alive, his wife and son were also burnt. They sustained injury of burns on their legs, his daughter Sainabanu sustained injury on right ear, other personswerealsoburnt.Intheincident,jeepofhisfather wasburnt.Thiswitnesshasnarratedtheincident.Inhis deposition,hisdaughterAshiyanabanuwasburnt,hiswife andsonwerealsoburnt.Ontheway,Ashiyanabanuhas died. It has also come out from the deposition that his father told him to send his wife, children and other membersofthefamilytothehouseofMahemudmiya,asit was pakka house and he went alongwith his family members to Mahemudmiyas house. Thereafter, jeep was burnt.Hisstatementwasrecodedontheverysamedayin theCivilHospitalbyP.I.ShriVaghela.Therefore,thesayof this witness is supported by above evidence. In that circumstancesifthewitnesshasnotstatedthisfactinhis
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statement dated 02.03.2002, 19.05.2006, 11.06.2008 and affidavit dated 06.11.2003 it becomes insignificant. Further, it is argued by Shri Dhruv that as per the depositionofmostofthewitnesses,mobwasfromallfour sidesmeansfrombacksideofMahemudmiyashousealso, there was mob. Therefore, it was not possible to go to PathanMahollaevenfromthebacksideofMahemudmiyas house therefore, the say of this witness that he went to Pathan Maholla and stayed there for whole night is not correct. In this regard when we peruse the cross examinationofthewitnessnoquestionhasbeenputtohim bytheaccusedsidehowhewenttoPathanMahollawhen the Shaikh Maholla was surrounded by all corners. Further,thereisopenspacebehindandinbetweenPatel Mahollas' hinder wall and Shaikh Maholla row. Unless witness questioned, grievance of accused side cannot be acceptedinthisregard.Further,itisarguedbyShriDhruv that as per the statement dated 02.03.2002, his younger brother had hidden himself in his house. As per the evidence of panch witness, houses were ransacked and were set on fire. Even Mohmad Sattar and his father BachumiyaImammiyahasdeposedthattherewasalootin theirhousesincethehousewasransackedandsetonfire.
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It was not possible that mob had entered the house and looted the house. The evidence regarding ransacking and settingonfiretheirhouseissupportedbyPanchnamaand otherevidence.Sofarastheevidenceofthiswitnessthat his brother was inside the house is concerned, there is possibility that the witness might have thought that his brotherisinside,infacthewasnotinside.Therefore,due to this evidence the testimony of this witness cannot be discardedonthispoint. P.W.57 Shaikh Mustufamiya Rasulmiya has deposedonoaththatatthetimeofincident,hewasstaying inShaikhMahollainSardarpur.On01.03.2002,therewas Bharat Bandh therefore, he was in home. At about 9.30 A.M.,hewenttothehouseofRameshbhaiDahyabhai.who toldhimtosupplywatertohisfieldandtoldthatnothing willhappenintheirvillage.Hewasnotwillingtogotothe fieldbyleavinghisfamilymembersintheShaikhMaholla. On the very same day, at about 9.30 P.M., Rameshbhai Dahyabhaiwasinthemob andmobof Patelscamewith shouting slogans with petrol and kerosene gallons and other weapons in their hands and they had broken and burntthecabins.Aspolicecame,theydisbursed.Againat about 11.30 P.M., they came by shouting slogans to cut,
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beatandburntheBandiyas.Nooneshouldbeleftalive. They were having weapons and kerosene gallons in their hands. His wife and son went towards the house of Mahemudmiya. The mob had burnt the house of Mahemudmiya by pouring petrol and kerosene inside the room and this witness went behind the house of Bachumiya Imammiya. He heard the voice of persons askingforhelp.Hewasinjuredbystones.Inthemorning, thepolicecameandhence,hewenttowardsthehouseof Mahemudmiya.28personshavedied.HiswifeSamimbanu andhissonJavedbothweredeadandtheyweretakento the MahesanaCivilHospital.Otherinjuredpersonswere alsotakentoMahesanaCivilHospital. ItisarguedbyShriDhruvthatasperthedeposition ofthiswitness,onthedayofincident,inthemorning,he wenttoRameshbhaiDahyabhaiandtoldhimtocarryon workinthefieldandhadtoldthatnothingwillhappenin theirvillage.Thisevidenceofthewitnessisnotdeniedby theaccused.Therefore,itisprovedthathewasworkingin thefieldofRameshbhaiDahyabhai,andonthedayofthe incidenthehadcarriedworkinthefield.
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ItisarguedbyShriDhruvthat,asperthedeposition ofthiswitness,hehadseenthepersonswhohaveseton firethehousebypouringpetrolandkerosene.Atthattime, he hide himself by the side of the house of Bachumiya Imammiya.Referringtothisdeposition,itisthesayofShri Dhruv that this fact is not stated in statement dated 10.03.2002, 19.05.2008, 05.08.2008 and affidavit dated 06.11.2003.Forthefirsttime,thisfactisnarratedbefore theCourt.Tosupportthisfact,mapswhichareproduced show that the house of Bachumiya Imammiya is having dooreasttowest.Justinfrontofhishouse,jeepwasburnt andplasticgallonwaslyingandfromthemapittranspires that,thereisgapjustadjacenttothehouseofBachumiya Imammiya. He is the injured witness and had taken treatment in the Mahesana Civil Hospital. As per his deposition,atthetimeofincident,hecouldseebutnow,he is unable to see due to Petrygium. Looking to the map, Panchnamaandotherevidenceonrecord,ittranspiresifa personhideshimselfbythesideofthehouseofBachumiya Imammiyahecanseewhatishappeninginthehouseof Mahemudmiyabut,thisfactisnotnarratedbythewitness inanyofhisstatementanditisanomission.But,thefact thathiswifeandsonhavediedintheincident.Hehimself
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was injured. Medical Certificate and case papers are produced vide Exh.175 and Exh.176, respectively which supportsthisfact.Therefore,thesayofthewitnessthatthe mob went towards the house of Mahemudmiya and they pouredkeroseneandpetrolinthehouseatthattime,he hadhiddenhimselfbythesideofBachumiyahousegets moreweightageashispresenceinShaikhMahollaatthe timeofincidentisnaturaloneasheisresidentofShaikh Maholla and the incident occurred during night. His presenceinShaikhMahollaatthetimeofincidentcannot bedoubted.Earlier,hecouldseebutnowheisunableto see due to petrygium. Further, it argued by Shri Dhruv thatasperdepositionofthiswitnessontheverysameday, accusedwasinthemob.Referringtothisdeposition,itis arguedbyShriDhruvthatthisfactisnotnarratedinthe statement dated 10.03.2002, affidavit dated 06.11.2003, statementsdated19.05.2008and05.08.2008.
Further,itisarguedbyShriDhruvthat asperthe say of this witness, cabins were set on fire near Shaikh Maholla by the mob while in the statement dated 10.03.2002, witness has stated that at about 10.00 P.M., mobgatheredinthevillageandsetonfirethecabinsinthe
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village and police resorted to firing. Thereafter, mob disbursed. This omission is proved by contradiction in affidavit.Alsothisfactisnotnarratedbythewitness.Sofar as this discrepancy is concerned, it is proved by the prosecution that three cabins at the entrance of Shaikh Maholla were set on fire by mob. It is also proved that cabinsinthevillagewerealsosetonfirebythemob.Butit isonrecordthatthecabinsinthevillageweresetonfireon 28.02.2002andthefactthatthreecabinsweresetonfire at the entrance of Shaikh Maholla. Panchnama supports this fact. This fact is supported by other evidence also. Thereforeifthewitnesshasnotstatedaboutthesettingon fire cabins at the entrance of Shaikh Maholla in his statement dated 10.03.2002 and now he is deposing so beforethecourtsuchanomissioninthestatementinthe presentsetofcircumstancesbecomesinsignificant.Witness isalabourclassifheistellingaboutsettingonfirecabins invillageatabout10.00P.M.whetherheistellingthisfact in respect of incident dated 28.02.2002 or 01.03.2002, is not clear but from this contradiction, it is not disproved that three cabins were not set on fire by the mob at the entranceofShaikhMaholla.Further,itisarguedbyShri Dhruvthatthiswitnesshasnoknowledgeaboutthehouse
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of Fakir Imamshah. As per the say of this witness, Sabirhusenwasstayingthere.Hehasnoknowledgeabout thenamesofchildrenofMuslimsinthevillage.However,he isgivingfullnamesoftheaccusedpersoninthemobwhich suggeststhatwitnessistutoredone.Inthisregardwhen weconsidertheevidenceofpresentwitness,ittranspires thatwitnessishavingnoknowledgeaboutFakirImamsha andaboutthenamesofMuslimschildrenandheistelling names of accused in the mob on this count we cannot conclude thatthiswitnessistutoredone.Ifinfactheis tutoredonehewouldhavestatedaboutFakirandchildren also.PossibilityofnotknowingfakirandnamesofMuslim childrencannotberuledout.Therefore,onthestrengthof thistestimonywhichisotherwiseprovedbytheprosecution cannotbedoubted. Further,itisarguedbyShriDhruvthat asperthe sayofthewitness,mobenteredintheShaikhMahollaand started ransacking it. He hide himself by the side of the houseofBachumiyaImammiyawhichisontherighthand sideofShaikhMaholla.HeisreferringCourtyardasside. FromCourtyard,roadofShaikhMahollais4to5Ft.away. As per the panch witness, right hand side of Shaikh Maholla was worstly affectedand houseswere seton fire
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and ransacked while Bachumiya Imammiya has deposed that his house was ransacked and there was loot in his housewhichsuggeststhatmobenteredevenCourtyardof hishousetherefore,thesayofShriDhruvthatanyonecan hidehimselfortakeshelterintheCourtyardofsaidhouse and presence of this witness in the Courtyard of Bachumiya Imammiya is doubtful. Referring to the statementof10.03.2002,itisarguedbyShriDhruvthat thiswitnesshasstatedthathehidehimselfinthehouseof Akbarmiyawhichiscontrarytohisowndeposition.Since therearetwohousesofAkbarmiya,inwhichhousehehide himselfisnotstated.Though,hehasdeposedthathouseof Akbarmiya Nathumiya is just opposite to his house even thathousewasalsosetonfire.SecondhouseofAkbarmiya Rasulmiya is on the right side of entrance of Shaikh Maholla. Even though house of Akbarmiya Rasulmiya Shaikh was set on fire and was destroyed completely therefore, presence of this witness in the house of Akbarmiya Rasulmiya as claimed in his statement dated 10.03.2002 is doubtful. The witness has improved his version.Truethatthereisdiscrepancyregardinghidingof thiswitnesswhetherhehidehimselfinBachumiya'shouse or Akbarmiya's house or second house of Akbarmiya
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Rasulmiya's.Lookingtoevidenceandpanchnamahouseof Akbarmiya Rasulmiya was destroyed completely. Thus, thereisdiscrepancyinwhichhousethiswitnesshashided himself. But from this fact presence of this witness in Shaikh Maholla cannot be doubted and that he hided himself is also not doubtful. Simply where he had hide himself is the discrepancy. Further considering the evidence of this witness as a whole he was very much present in the Shaikh Maholla and he had hide himself only after when the mob proceeded towards Mahemudmiya's house. Thus he was having sufficient opportunity to see the mob. Therefore, the say of this witnessthathehadseenthemobwithweapons,petroland kerosenegallons,shoutingslogans,tocut,beatandburnt Bandiyas,nooneshouldbeleftaliveisacceptable. Further it is argued by Shri Dhruv that, Ayubmiya Rasulmiyaisbrotherofthiswitnesswhohasdeposedthat he was brought alive from the house of Mahemudmiya alongwith his wife and daughter while this witness is claimingthataftertheincident,policecameandhewentto thehouseofMahemudmiyawherehiswifeandsonofthis witnesshavedied.ThiswitnessisnotsayingthatAyubmiya Rasulmiya alongwith his wife and daughter was brought
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alivefromthehouseofMahemudmiya.Aspersayofthis witness,nameofhismotherisBarubibi,whohasdiedin the riots. As per the deposition of Ayubmiya Rasulmiya, brotherofthiswitnesshasstatedthenameofhismother Sharifabibi Rasulmiya. In the affidavit before Honble Supreme Court of India, this witness has stated that his mother has died in the incident and just to justify the affidavitfiledbeforetheHonbleSupremeCourtofIndiahe is deposing that Barubibi had adopted him though Barubibihadtwosons.Thewitnesscouldnotgivenamesof hissons,wifeandgrandsonsofBarubibi.Ifthiswitnessis adoptedbyBarubibi,hemusthaveknowledgeofthenames offamilymembersofBarubibi.Further,inhisstatements dated10.03.2002,19.05.2008and05.08.2008,hehasnot stated that Barubibi is his mother. Even in the affidavit dated06.11.2003,hehasstatedthathismotherhasdied butnotgivingthenamesofhismotherasBarubibi.Asper thedepositionofthiswitness,hismotherhasdiedbefore5 to 6 years while two sons of Barubibi Sharifhusen BalumiyaandRafikmiyaBalumiya,arenotstatingthatthis witness was ever adopted by their mother. Further, in affidavitdated06.11.2003andonreadingthedepositionof thiswitness,itcomesoutthatthiswitnesshasstatedin
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hisaffidavitthefactswhichwerenotwithinhisknowledge though that affidavit is claimed to be filed by himself. Omission on this part that his brother and his wife and daughter were brought alive from Mahemudmiya's house would not discard the facts narrated and proved by the prosecution. Further, his brother is telling the name of motherasSharifabibiwhilethiswitnessistellingthename ofBarubibiandthathewasadoptedbyBarubibi.Thereis discrepancyonthispointbutthisfactisnotsuchwhich goestotherootofthecase.Thereforeonthisgroundwhole testimonyofthiswitnesswhichisotherwiseproved,cannot bediscarded.Further,itisarguedbyShriDhruvthatthis witnesshasnotgiventhenamesoftheaccused,beforethe doctor, who were in the mob at the time of incident. He wenttotheCivilHospitalalongwithpolicebuthehasnot narrated the incident to the police nor even lodged the F.I.R.Even,hewenttothereliefcampinthecompanyof thepolicestillhowever,heisnotsayinganythingaboutthe incident to the police. When we consider the evidence of this witness on this point, after the incident, his wife, daughter have died under such a tense atmosphere if he has not narrated the incident before Doctor/police nor lodgedcomplaint,itisnaturalone.Noonecanexpectfrom
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a person a prompt action in this regard under such a circumstances. No doubt he was silent up to relief camp thoughpolicewaswithhimthatisalsonaturalconduct.
ItisarguedbyShriDhruvthatthiswitnesshasnot assigned any specific role to any accused as to which accusedransackedorsetonfirewhichhouseandthatis also not deposed by this witness. Even at the house of Mahemudmiya,whichaccusedplayedwhatpart,isalsonot deposedbythiswitness,thiswillbedecidedattherelevant timeandstage.
P.W.59 Shaikh Mohmad Sattar Bachumiya has deposedonoaththatatthetimeofincident,hewassitting inShaikhMaholla.Hisfamilymemberswerealsowithhim. On28.02.2002therewasGujaratBandhtherefore,hewas inhishome.On01.03.2002,therewasBharatBandh.His fatheraskedhimnottogoout.Onthatday,atabout9.00 to10P.M.,amobofPatelscametowardsShaikhMaholla from Mahadev Temple side, shouting slogans to cut, beat andburntheMuslims,andhadburntthreecabinsatthe entrance of Shaikh Maholla. The cabins were looted and damagedbythemob.Aspolicecame,themobdisbursed.
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Atabout11.3012.00P.M.,againthemobcameshouting tocut,beatandburntheMuslimsnooneshouldbeleft alivebecausetheMuslimshaveburnttheHindupersonsin Godhra train and thereafter, they started pelting stones. Persons from Shaikh Maholla had also started pelting stonesjusttosavethemselves.Mobwassettingonfireand damagingthehousesofMuslimsandduetofearhisfather asked him to take his family members to the house of Mahemudmiya as it was pakka constructed house therefore, all the family members went to the house of Mahemudmiya.Asthemobcametoonear,hewentinside thehouseofAkbarmiyaRasulmiya.Fromthewindowofthe house,hesawthattherewasonejeepjustinfrontofhis house,whichwasburntbythemob. Mobhasburntthe housesofShaikhMahollaasmobwenttowardsthehouse ofMahemudmiya,thewitnesswenttohishouse.Thevoices ofpeoplewerecomingfromthehouseofMahemudmiyato save them but due to fear he was inside and when the Police came then only they went to the house of Mahemudmiyaandrescueoperationwasdonebythepolice with their help. In the incident, his house was damaged and ornaments of his sister and mother were looted and cash worth Rs.70,000/ were looted by the mob. He was
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causeddamageworthRs.10,000/. Atthetimeofincident, he wentinsidethehouseof AkbarmiyaRasulmiyaandinthelightofburningflamehe sawtheaccused.Whileinthesecondincident,whenthe mobwasinsidetheShaikhMahollaandwenttowardsthe houseofMahemudmiya,hehadhiddenhimselfinsidethe houseofAkbarmiyaRasulmiya.Forthispurpose,whenwe perusethemaps,houseofAkbarmiyaisshownadjacentto the house of Bachumiya. As per the deposition of this witness,lightwason.AsperthedepositionofDy.Engineer there was light in Shaikh Maholla. There were total 28 accusedwhomhehadseeninthemob.Hehadseenthe accusedintheflameofburningjeep.Hissisterinlawand niece have died due to burns in the house of Mahemudmiya.AsperthedepositionofDy.Engineer,and other evidences, there was light in the street. Assuming, therewasnolightinShaikhMaholla,thenalso,asperthe sayofthiswitness,hehadseentheaccusedwithweapons intheflameofburningjeep.Todiscardthisfact,thereis noreasonandthiswitnesshadseen20accused. While it is argued by Shri Dhruv that as per the statement of this witness, assoonas the mob came and
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started pelting stones, he alongwith his family members wentinsidethehousewhichsuggeststhathewashaving nooccasiontorecognizeanyoftheaccused.Assuminghe alonewentinsidethehouse,thenhowhehasnamedfour personsinhisdeposition.Howhehasseenthatthethree cabinswereransackedandsetonfire.Even,heisgiving differentversioninrespectoffirstmob.Further,whichof the accused ransacked or set on fire the cabins, is not statedbythiswitness.Hehasimprovedhisversionbefore theCourt.Further,itissubmittedbyShriDhruvthatthis witnesshasalsostatedinthestatementdated02.03.2002 thatsamemobhadcomeagainat11.30P.M.Thiswitness hasimprovedtheversionalsobeforetheCourt.Asperthe depositionofthiswitness,again,samemobcameshouting slogans like to kill the Muslims and had started pelting stonesandsettingonfirethem,noMuslimsistobespared today etc., still however which particular accused were shouting slogans or who started pelting stones or who ransacked the house or set on fire the jeep, is also not statedbythiswitnessinhisdeposition.
Inthisrespectwhenweconsidertheevidencegivenby this witness soon as mob had started pelting stone, his
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fatheraskedthemtoshifttheirfamilyinMahemudmiyas house and his elder brother had shifted their family in Mahemudmiyas house as mob came much near. Due to fear this witness went inside the house of Akbarmiya Rasulmiyaandfromthewindowhehadseenthattheirjeep wasburntandinthelightofflamehehadseenthemob. Therefore,firstlytillthemobcameneartohim,hehadan opportunitytoseethemobandonseeingthemobhewent insidethehouseofAkbarmiyaandfromthewindowofthat househewitnessedfurtherincident.Thus,hewashaving sufficientopportunitytoseethreecabins ransackedand set on fire. For this, when we peruse the map, house of Akbarmiya is shown adjacent to house of Bachumiya in that circumstances ifthe witness is saying that from the window of Akbarmiya Rasulmiyas house he has seen burningofjeepisreliable.Sofarashisversionregarding firstmobisconcerned,itisdeniedbythewitnessthatat thetimeoffirstincidentatabout9.30P.M.eitherheorhe alongwithhisfamilymemberswentinsidethehouse.But, thereiscontradictiononthispointasInvestigatingOfficer hasdeposedthatthiswitnesshasstatedbeforehimthatat thetimeoffirstincidenthe/hisfamilymemberswentinside thehousebut,thiscontradictionisinrespectoffirstmob
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not for second time mob. It is true that he has not specificallymentioned whichoftheaccusedransackedor setonfirethreecabins.Butthisomissioncannotdiscard the fact that mob had set on fire three cabins at the entrance of Shaikh Maholla. In his statement dated 02.03.2002,itisstatedbythewitnessthatsamemobcame secondtime.Inhisdepositionalso,hehasstatedthatsame mobcamesecondtime. Further, it is argued by Shri
Dhruv that as per the say of this witness, mob was proceedingfasttowardsShaikhMahollaanddueoffear,he tookshelterintheadjacenthouseofAkbarmiyaRasulmiya andlightwasputoffbyhim.Hehadseenthejeepfromthe window which was set on fire by the mob. As per the depositionofthiswitness,hehasseenthepersonsinthe mob in the flame of burning jeep. This witness has not stated this fact in the statement dated 19.05.2008 and affidavitdated06.11.2003thathetookshelterinthehouse of Akbarmiya Rasulmiya or he had seen persons in mob from the house of Akbarmiya Rasulmiya. As per the affidavit dated 06.11.2003, he was in front of his house when stone pelting took place. Attack was continued for several hours and atmosphere was tensed. When we appreciate evidence of this witness on this point, in his
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crossexamination witness has admitted that he has not stated this fact in affidavit dated 06.11.2003, statement dated19.05.2008butwhenhewasaskedquestionincross examination,hehasspecifiedwhenthemobwenttowards Mahemudmiyashouseatthattimehewentinsideinhis housefromthehouseofAkbarmiya.Itisalsomadeclearin crossexamination that, he had seen the mob from the window of the house of Akbarmiya not from his house. Oncethisevidencehascomeincrossexaminationinthat omission of this fact in affidavit and statement dated 19.05.2008becomesinsignificant.Furtheritissubmitted bytheaccusedsidethatpolicecameatabout3.30A.M.,he washidingaloneinhishouseashisfamilywasawayfrom himwhoweretrappedwithothers.Inthisregard,whenwe considertheevidenceofthiswitnessthisfactisstatedby the witness in his deposition as well as in his statement that their family members were sent to Mahemudmiyas house.Thereisnocontradictionoromissiononthispoint. Furtheritissubmittedbyaccusedsidethatwhenhewas askedbyS.I.T.hehadstatedthathealongwithhiscousin RafikmiyaBabumiyawasinhishousewhileRafikmiyahas deposed that at the time of incident, he was in Naveli of Bachumiya Imammiya. Thus, both are contradictory on
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this point. While Ashikhusen, in his statement dated 02.03.2002,statesthatpresentwitnesshadhiddenhimself inhisownhouse.Sofarasthiscontradictionisconcerned, fromthewholeevidenceittranspiresthatwitnesseswere hidingthemselveshereandtherewherevertheyfeltsafein suchatenseatmosphere.Itisnotsothateachandevery witnesswasonlyatoneplace.Thiswitnesswasalsoearlier infrontofhishouseasmobcamenearhewentinsidethe Akbarmiyas house as mob proceeded towards the Mahemudmiyashouse,hewentinsidetohishouse.There isNavelialso neartohishouse.In thatcircumstancesif thiswitnessissayingthatRafikmiyaBachumiyawasinhis house while Rafikmiya is saying he was in Naveli while Ashikhusenissayingthatthepresentwitnesswasinhis house.Thiscontradictionisquitenaturalconsideringthe map, Panchnama and position of Shaikh Maholla as personally visited by the court, Naveli, Akbarmiya house andBachumiyashousearetooclosetoeachotherandthey areverysmallhouseslikeoneortworoomsasRowhouses inthatcircumstancesthiscontradictioninthedepositions aswellasinthestatementsbythewitnessareboundtobe and those can be considered as natural one and no importancecanbegiventothatcontradictiononthevery
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factthatwitnesswasverymuchtherenearby.Andhewas havingsufficientopportunitytoseethemobandincidentof burningthejeep.Thusthethedepositionofthiswitnesson this point is natural one. There cannot be mathematical calculation in narrating the incident hence, on this contradiction we cannot discard the testimony of this witnesswhichisreliableone.
Further,itissubmittedbyShriDhruvthatasperthe sayofthiswitness,atthetimeofincidentofsettingonfire thejeep,hewasinsidethehouseofAkbarmiyaRasulmiya andfromthewindowofthehouseofRasulmiya,hesawthe house.Whenthejeepcarwassetonfire,themobwentup tothehouseofMahemudmiya.Further,heissayingthat mob started ransacking the houses and set on fire the house of Mahemudmiya and proceeded towards Mahemudmiya'shouse.Thiswitnesswasinsideinhisown house.Asperthiswitness,voicesseekinghelpwerecoming fromMahemudmiyashouseandwitnesshimselfhadhiden himselfinhisownhouse.Onthispoint,thiswitnessisself contradictory in his deposition. There is contradictory versioninthedepositionastofromwherehehasseenthe incident. Further,itishighlyimpossibleforanyone togo from one place to other place when mob was inside the
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Maholla.Further,asperthesayofthiswitness,mobwas very muchpresent inthe ShaikhMaholla whenhe came outfromthehouseofAkbarmiyaRasulmiyawhichishighly improbablethatpersonwouldcomeoutincircumstances whenmobhascometokillthem.
Further, when both the houses of Akbarmiya Rasulmiyaweresetonfire,thehouseofthiswitnesswas also set on fire. Even as per this witness, there was loot fromhishousewhichsuggeststhatmobhadenteredinthe house of Akbarmiya Rasulmiya and the house of present witness. If that is true, then this witness could not have taken shelter in it. This witness has not sustained any injury. Therefore, it is submitted by Shri Dhruv that evidenceofthiswitnessonthispointisalsonotreliable. Inthisregardwhenweappreciatetheevidenceofthis witnesshouseofAkbarmiyaRasulmiyaisjustadjacentto hishouse.HehadhidenhimselfinAkbarmiyaRasulmiya's housewhenmobproceededtowardsMahemudmiya'shouse hewenttohishousehewasverymuchpresentinShaikh Maholla.Fromwholeevidenceofthiswitness,ittranspires that he was not at one particular place. During whole incidenthewasatdifferentplacesnearbytohishouseand
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Akbarmiya Rasulmiya's house. When his house and AkbarmiyaRasulmiya'shousewerelootedwhetherhewas insideofhishouse.Thisquestionisnotaskedbyaccused in crossexamination. His house was set on fire. He was tryingtohidehimselfsafely.HousesofShaikhMahollaare soclosetoeachotherandthattheyarelikeRowhouses. Therefore, in that circumstances the discrepancy as narratedbyaccusedinthisregardisconcerned,thoseare of natural one and those are bound to be. Witness is a labourclasspersonunawareaboutthelegalprovisions. Further,asperthesayofthiswitness,hewasalone
inthehouseofAkbarmiyaRasulmiya.Inaffidavit,hehas statedthathewasaloneinhisownhousebutlookingto the evidence of Sabir Husen Rasulmiya, Hizbulmiya Rasulmiya and Mustufamiya Rasulmiya, they were inside thehouseofAkbarmiyaRasulmiya.Thus,depositionofthis witnessiscontradictorytotheversionofotherwitnesseson thispoint.
Whileappreciatingthisevidencewhenweconsiderthe evidenceofthiswitnessonrecordatthetimewhenhewas inAkbarmiya'shousehewasalone.Thereafter,hewentto his house. There also he was alone. Whenhe was inside
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Akbarmiya Rasulmiya's house whether at that time Sabbirhusen, Hizbulmiya, Mustufamiya were inside the houseofAkbarmiyaRasulmiyaorpriortothattheywere insideorafterthiswitnesswenttohishouseatthattime theywereinsidenoquestionsareaskedinthisregardby the accused in crossexamination. Further looking to the situationofhousesinShaikhMahollathesediscrepancies areboundtobe.Inabsenceofthesediscrepanciesevidence ofthewitnesscanbedoubtedorcanbetreatedastutored one. Thus, those contradictions, omissions, discrepancies arenaturalone.Andthefactremainsasitisthatwitness was very much present in Shaikh Maholla either in his houseorAkbarmiya'shouseornearbytothosehousesand wecannotcalculatetheevidenceinmathematicalmanner.
Further,itissubmittedbyShriDhruvthatasperthe sayofthiswitness,jeepcarwasparkedjustoppositetothe housefromwhichhehasseentheincident.Ifweconsider thisdepositionwithmapthenalsohouseofAkbarmiyais notjustoppositetosidewherejeepwas.
Thus,boththehousesaretocloselookingtocarpet areaofboththehousesandsituationofShaikhMahollaif
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thejeepwasstandingjustinfrontofBachumiya'shouse and house of Akbarmiya is just adjacent to Bachumiya's houseandboththehousesarehavingsamedirection.In thatcircumstanceifthewitnessissayingthathesawthe incidentinthelightofflameofjeepthatisquietpossible.A personcanseefromthewindowofAkbarmiyaRasulmiya's house the incident of burning jeep. Thus the attention towards these discrepancy as shown by accused in this regardisofnosignificance.
Further,itissubmittedonbehalfofaccusedthatas perthedepositionofthiswitness,incidentofsettingonfire thejeepandflamesofburningofjeepisconcerned,hehad seentheaccusedbutinhisstatementdated19.05.2008,he has stated that the names mentioned in the statement dated 02.03.2002 were not given by him to the police. Further,thiswitnesshasidentifiedfouraccusedwhohad ransackedandsetonfirethreecabinsoutsidetheShaikh Maholla. When we compare the deposition from other witnesses,theyhadseentheincidentofsettingonfireand ransackingthreecabinsandtheyhavegiventhenamesof above referred accused in the mob. They have not stated
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thatthesefouraccusedareresponsibleforsettingonfire thecabins.Thus,alonethiswitnessisclaimingtheroleof fouraccusedsettingonfirethreecabins.Further,asper thedepositionofthiswitness,settingonfirethreecabins situatedoutsidetheShaikhMaholla,atabout9.30P.M.
So far as these arguments are concerned from Panchnama and map and other evidence it is proved by prosecutionthatthreecabinsweresetonfireoutsidethe ShaikhMaholla.Sofarasspecificroleoftheaccusedwho wereinvolvedintheincidentandwhatrolehasbeenplayed by which accused will be discussed and decided at the relevanttimeatlaterstageandomissioncontradictionsin thestatementswillbedecidedatthattime.
Furtheritissubmittedonbehalfofaccusedsidethat referringtotheaffidavitbeforetheHonbleSupremeCourt ofIndiainrespectoftelephonictalkwithTeestaSetalvad andRaiskhanPathan,itisadmittedbythiswitnessthatit isfalse.ItissubmittedbyShriDhruvthatthiswitnesshas statedfalsefactonoathbeforetheHonbleSupremeCourt ofIndiaalso.ItisarguedbyShriDhruvthatthiswitnessis posing himself as eye witness but from his evidence, it
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becomes clear that he has dare to state false statements evenbeforetheHonbleSupremeCourtofIndiatherefore, hecannotbereliedupon.
Sofarasthisargumentsisconcernedwitnessisan illiteratepersonifhetakessomehelpfromanyagencylike citizenforjusticeandpeaceheadedbyTeestaSetalvadand RaiskhanPathanforgettingjusticethereisnothingwrong. Sofarasadmissionbythiswitnessinrespectoftelephonic talkwithTeestaSetalvadhehasstatedthatitisfalse.For this purpose when we consider the affidavit it was preparedinEnglish.Ifafactisnotmentionedinitorif, something contrary is mentioned possibility of that fact beingwrongcannotberuledoutduetoilliteratenessofthe witness or due to some misunderstanding between the agencyandthewitness.Onthatcountwecannotconclude that witness has intentionally stated false fact by way of affidavit before the Hon'ble Supreme Court of India. It is quietpossibleadditionandomissionalterationonthepart ofagencywehavetofindoutthetruthbyapplyinggrain and chaff policy. Thus, the considering above evidence of thewitnessitisreliable,trustworthyandthefactswhich areprovedinhisevidencecannotbediscarded.
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P.W.60ShaikhBachumiyaImammiyahasdeposed that on 28.02.2002 in the night, cabins of Muslims and othercommunitieswereburnt.On01.03.2002,therewas Bharat Bandh. All the members of Shaikh Maholla were present. At about 9.30 P.M., mob from Mahadev Temple sidealongwithweapons,petrolandkerosenecameandthey burntthreecabinswhichweresituatedintheentranceof theMaholla.Thecabinswereburntbypouringpetroland kerosene. At that time, police came and mob disbursed. Againatabout11.00P.M.,mobcameandstartedpelting stones and burning the house of Manumiya Alammiya. Thereafter, second house of Akbarmiya Nathumiya, third houseofBachumiyaNathumiyathenRasulmiyaNanumiya and then after, they burnt the house of Jamalmiya Dosabhai.Thereafter,theyburntthejeepbypouringpetrol andkerosene.AmbalalMaganbhaihadpouredthekerosene and petrol whereas Rajeshbhai Punjabhai had burnt the jeep.Thereafter,mobofthevillagewenttowardsthehouse ofMahemudmiyaandtheyhadbrokenthewindowandby pouringthekeroseneandpetrol,theyburntthehousein which 28 persons have died. Others sustained injuries. Whenpolicecame,policeaskedthepersonstocomeout. Thepolicethenmanagedavehicleandtookthedeceased
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and injured persons to Mahesana Civil Hospital. Thereafter, he went to Vijapur where the Constable Navalsinh asked him to come to Sardarpur for drawing Panchnama.Thenhecamewiththepolicepersonsinthe vehicleandhehadshownthehouseofMahemudmiyato thepolice.Healsotoldthepoliceastowhichofthehouses wereownedbywhom.
He is the resident of Shaikh Maholla and he is a retiredGovernmentservant.Thejeepwhichwasburntin the incident was of his ownership. On 28.02.2002, there was tense atmosphere in the village, burning rag was thrownonthevehicleandburnthisjeep.Thereafter,mob wenttowardsthehouseofMahemudmiya.Hehasshown theplaceofincidentatthetimeofdrawingthePanchnama of scene of offence. His statement was recorded on 03.03.2002asearlyaspossibleaftertheincident.Heisthe eyewitness. ItissubmittedbyShriDhruvthatasperthesayof thiswitness,thepolefallingtowardsthegraveyardwasalso havingfocuslightdirectingtowardstheMaholla.Thisfact isalsonotstatedinthestatementmadebeforepolice.For thisevidencefactoffocuslightisdevelopedsubsequently.
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Initially at the time of first investigation this fact is not coming out. Therefore, it is to be considered as improvementandnotstatedinhisearlierstatementandno importance can be given to this fact. Further, it is submittedbytheaccusedthatasperthedepositionofthis witness,atabout9.00to09.30P.M.,fromMahadevTemple side, a mob of village people with weapon, petrol and kerosenecameandinthelight,thiswitnesshadrecognized the accused and as per the say of this witness, those persons ransacked and set on fire three cabins near entranceofShaikhMahollatherefore,policecameandmob disbursed.Thisfactisalsonotstatedinpolicestatement.
So far as three cabins at the entrance of Shaikh Mahollasetonfireandransackedisconcerned,thefactof burningthreecabinsissupportedbyPanchnamaandother evidence.Itisalsosupportedbyotherevidencethatsoon as police came mob disbursed. Once, it is supported by otherevidenceinthatcircumstancesomissionofthisfact in police statement becomes insignificant. Whether this witnesshasidentifiedtheaccuseditwillbedecidedatthe relevant time at later stage. Further, it is submitted by accused that again, as per the say of witness, at about
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11.00 P.M., mob had come, pelted stones and first, the houseofManumiyaAlammiyawassetonfire.Thenafter, anotherhouseofthewitnesswassetonfire,bythemob. No other witness has stated about this fact. The witness hadgivenevidenceonlywithregardstosettingonfirethe house in Shaikh Maholla. This witness has improved his version about the setting on fire the houses in Shaikh Maholla. When we consider this evidence in the light of contradictions, omissions and with other evidence on record,thefactthatagainmobcameatabout11.00P.M. andhadstartedpeltingstones,settingonfirethehousesin ShaikhMaholla.Thiswitnesshasspecifiedsettingonfireof houses in ShaikhMaholla but the gistof the evidence is same that houses in Shaikh Maholla were set on fire. Therefore,theevidenceofthiswitnessinthisregardcannot beconsideredasimprovementorfalse. Asperthesayofthiswitness,mobhadsetonfirehis jeepbypouringkeroseneandpetrol.Thisfactisalsonot statedinhisstatementbeforethepolice.Further,noother witness is stating specifically attributing the role of any particularaccusedaboutsettingonfirethejeepcar.Thus,
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thereisimprovementbythiswitness.Asperthesayofthis witness, mob came at 9.00 9.30 P.M. from Mahadev Templesideandpersonsofvillagecameandsetonfirethe cabins outside the Shaikh Maholla and this witness has named the persons while in his statement dated 03.03.2002,hehasstatedthaton01.03.2002atabout9.00 to9.30P.M.,mobofHinduscameshoutingslogansdueto fear,theywentinsidetheirhouse.Ifthewitnesswasinside thehouse,howhecanseethesettingonfirecabinsbythe mob.
In this regard, when we consider the evidence on recordfromPanchnamaandmapandotherevidenceitis evident on record that three cabins were burnt at the entranceofShaikhMahollaanditwassetonfirebymobat 9.30P.M.InhisstatementmobofHindusiswrittenwhile indepositionpersonsofvillagecameismentioned.Whether themobwasofvillagepersonsorofoutofvillagepersonsit will be decided at the relevant stage. But the evidence adducedbythiswitnessinrespectofsettingonfirethree cabinsbymobatabout9.30P.M.remainsasitis.Sofaras evidence regarding, due to fear he went inside is concerned, mob came shouting slogans and burnt the
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cabinsandwitnesswentinside.Possibilitycannotberuled outthat after seeing burning of cabins by mob he might have gone inside his house. His house is not at the entrance of Shaikh Maholla, his house is situated after leavingfourtofivehousesinShaikhMaholla.Therefore,on seeingmobandsettingonfirecabinshewentinsideand that possibility cannot be ruled out. Even otherwise lookingtosituationofhishouseapersoncanseewhatis happeningattheentranceofShaikhMahollabystanding frontsideofhouse.Therefore,underabovecircumstances thiscontradictionbecomesinsignificant.
Further, it is argued by Shri Dhruv on behalf of accused that this witness has stated that, when police came, mob disbursed while in his statement dated 03.03.2002,hehasstatedthatwhensomeoneinformedthe police,policecameandresortedtofiretodisbursethemob.
While considering this evidence, sofar as coming of policeisconcerned,itissupportedbyotherevidenceand alsohisstatementpolicecameismentioned.Whetheron informationfromsomeonepolicecameorhowpolicecame that is not material on the point of appreciation on this
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evidenceofthiswitness.Butthefactremainsprovedthat police came. Further, this witness is not stating about resorting of fire by police to disburse the mob and mob disbursedaccordingly.Thisismentionedinhisstatement dated03.03.2002.Thus thereisomissionofthisfactin thedepositionofthiswitness.Effectofthisomissionwillbe discussedattherelevanttimeinjudgment.
ItisarguedbyShriDhruvonbehalfofaccusedthat asperthesayofthiswitness,policecameatabout2.30 A.M.andcalledforvehicleswhilehehasdeposedthatdead bodiesweretakeninhandcart.Thiswitnesshasnotstated thisfactinallhisstatements.Sofarasthisevidenceinthis regard is concerned, whether dead bodies were taken in thehandcartanditisnotstatedinanystatementitisnot goingtoeffectadverselytheevidencewhichisprovedbythe prosecution from other supporting evidence that dead bodiesweretakenfromMahemudmiyashouseandtakento CivilHospital,Mahesana.Thusomissionofthisfactinhis statementsbecomesofnoimportance.
Further, it is argued by Shri Dhruv on behalf of
accused that, in his cross examination this witness is
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askedastofromwhere,hehasseenthemobandwhere washeatthetimeofincident.ItisarguedbyShriDhruv thatthiswitnesswasnotinShaikhMahollaatthetimeof occurrence. In his statement dated 03.03.2002, he has statedthathehadhiddenhimselfnearthejeepcarwhilein his crossexamination, he has shown his ignorance & narrated this fact in his statement dated 10.05.2008, he hasstatedthatatthetimeofincident,hewasinsidehis house. In his statement dated 03.03.2002, he has stated thatonseeinghisjeepcarwhileburning,hetookshelterin another house and what happened thereafter, he did not know. Consideringtheaboveevidenceasawholeitsupports the say of prosecution that he was present in Shaikh Maholla.Wehavetoconsidertheevidenceofthiswitness withextracareandcaution.Consideringthestateofmind ofthewitnessandwithregardtohispowerofmemorizing, supposeinhisstatementdated03.03.2002hehasstated that he had hidden himself near jeep car and in cross examination hehasshownignorance,instatementdated 10.03.2008 he has stated that at the time of incident he wasinsidethehouseorhetookshelterinanotherhouse. Incident occurred at about 9.00 9.30 P.M. thereafter at
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about11.30P.M.,notforawhilebutforlongperioditis naturalthatwitnessmighthavehiddenhimselfnearjeepor went inside his house or another house that is quite natural.Itisnotsothatduring9.30P.M.tilltheincident overhewasatoneplaceonly.Inthatcircumstancesifin hisdepositionandstatementsthediscrepancieswhichare pointedoutbyShriDhruvisconcerned,thoseareboundto be and natural one. We cannot expect from one person standingatoneplaceduringthewholeincident,naturallya person will go here and there nearby where ever he feels safe. The fact that he was very much present in Shaikh Mahollaatthetimeofincidentandhewasinapositionto seetheincident.Wehavetoconsiderhisevidencewhathe intenttosayratherthantoconsiderthewordsusedbythe witness.
Further, it is argued by Shri Dhruv on behalf of accusedthatinhiscrossexamination,hehasdeposedthat atabout9.009.30P.M.,hewasjustnearthehouseof Akbarmiyaandforabouthalfanhour,hestayedthereand from9.30to11.30P.M.,hehadnotgoneinsidethehouse while in his statement dated 03.03.2002, he has stated that at about 9.00 9.30 P.M., when the mob came, he
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went inside his house. So far as this discrepancies is concerned,hewasnearAkbarmiyaRasulmiyashousefor halfanhour meaningtherebyhemustbethereforsome time then he went inside. He is labour class person narrating the incident in his own manner but over all consideringhisevidence,ittranspiresthathewasstanding outside and when the mob came he went inside that is naturalconduct.For,howfartimehewaswhereforthat discrepancies bound to be but that cannot discard the presence of this witness at the place and the time of incidentandthesediscrepanciesareofnovalue.
Further, it is argued by Shri Dhruv on behalf of accused that in his deposition, this witness has deposed aboutthepeltingofstonescontinuedforabouthalfanhour but who were pelting the stones, is not stated by this witness.Asperthesayofthiswitness,housesinrowwere setonfireonebyone.Whosetonfirethosehouses,isnot statedbythiswitness.Ifhehasseenthesettingonfirethe houses,hecancertainlysaywhosetonfirethosehouses. Asperthesayofthiswitness,hewas10Ft.awayfromthe jeepcar.Ifthatisso,thenmobwouldnothavesparedhim.
// 443 //
Thiswitnessisnarratingpeltingofstones,settingon firecabins,housesifhehasnotstatedspecificallywhohad pelted stones, burnt the Jeep/cabins/houses, it does not meanthathewasnotpresentatthetimeandplaceand hasnotseentheincident.Further,hewas10feetawaybut hehastriedtosavehimselfbyhidinghimselfwhereverhe founditsafeinthatcircumstancesifhewassafeandnot attackedbymobthatisprobable.
Further, it is argued by Shri Dhruv on behalf of accusedthatasperthesayofthiswitnessonseeingthe jeepcarburning,hewentinsidethehouseofSherumiya Rasulmiya. When the mob proceeded towards the Mahemudmiyashouse,itwasnotpossibleforthewitness togotoSherumiyaRasulmiyashouse.Itisfurtherargued by Shri Dhruv that house of Sherumiya Rasulmiya was burnt.
Looking to the map, Panchnama and situation of scene of offence after open space (Naveli) leaving three to fourhouses,houseofSherumiyaRasulmiyaissituatedand thereisapassagebetweenhinderwallofPatelsandrowof Shaikh Mahollas houses. Looking to the situation of
// 444 //
Mahemudmiyashouseitisquitepossibletogotohouseof Sherumiya Rasulmiya when the mob was proceeding towards Mahemudmiyas house. Probability of going of witnesstoSherumiyashousecannotberuledout.Sofar ashouseofSherumiyawasburntisconcerned,housesin ShaikhMahollawereburntandwitnesssaysthathewas trying to hide here and there to save himself. At what particularpointoftimehouseofSherumiyaRasulmiyawas burnt and what particular time witness was there. No question in this regard is asked in crossexamination to explain this point. Further, considering whole evidence probability of going of this witness to Sherumiya Rasulmiyas house cannot be ruled out. Further, the presenceofthiswitnessinShaikhMahollaconsideringthe timeandplaceofincidentandthefactthatheisresidentof ShaikhMaholla,hispresenceinShaikhMahollacannotbe doubtedand asdiscussed above probability ofseeingthe incidentbythewitnesscannotberuledout.Thereforethe argumentsofShriDhruvthattakingshelterinthehouseof Sherumiya is also contradictory version to his previous versionisofnotmuchforce. So far as statement before the S.I.T. that he was
hidinghimselfinhishouseandtherewaslootinhishouse.
// 445 //
He is not having any bills of ornaments as it was burnt while before the Court he has stated that his house was burntfromthefrontside.Itwillbedecidedattherelevant timeandstage. P.W.61ShaikhSafikmiyaBabumiyahasdeposedon oaththatatabout9.30P.M.,mobofPatelsoftheirvillage had come and ransacked and set on fire three cabins, outsidetheShaikhMahollaandtheywereshoutingslogans to cut and burn the Bandiyas. As the police came, mob disbursed.Again,thesamemob,cameatabout11.30P.M. shoutingtocut,beatandburntheBandiyasandstarted peltingstones.Hesustainedinjuryonhisleftleg.Themob wascomingbyburningthehousesintheShaikhMaholla. HehidehimselfintheNaveliofBachumiya.Themobcame towards the house of Mahemudmiya and surrounded the house by pouring the kerosene, petrol in the house and then they burnt the house. Persons who were inside the room were shouting to save them. At about 2.30 A.M., police vehicle came and asked the persons to come out therefore, the persons alongwith him who were hidden there, came out and went towards the house of Mahemudmiyaandsawthat28personswereburntalive, hismotherShaikhBarubibiBabumiyawasalsoinsidethe
// 446 //
house, his wife Faridabanu and his daughter Suhanabanu were also burnt. Other members of the Maholla were also burnt. They took the persons out and tookthemtotheCivilHospital, Mahesanafortreatment. Thereafter,healongwithhiswifeanddaughterwenttoIlol whereonthenextday,hisdaughterSuhanabanudied.No PostMortemwasdone. ItisarguedbyShriShahthat,Suhanabanuhasdied intheincident.HiswifeFaridabanuhasbeeninjured.He istheinjuredwitness.Hehasidentifiedsevenaccusedwith weapons in their hands. In the incident, his mother Barubibihasdiedandhehasidentifiedsixaccusedinthe Court.Asperthemap,thereisNavelijustadjacenttothe houseofBachumiyaImammiyaandasperthesayofthis witness,hehashiddenhimselfintheNaveliofBachumiya Imammiya.Mapssupportthisfact. ItisarguedbyLearnedAdvocateShriDhruvthat,this witnesshasnotstatedastowhoransackedorsetonfire thecabins.Further,hehasnotdeposedthatthepersons recognizedbyhiminthemob,werethesamepersonswho proceededtowardsthehouseofMahemudmiya.Hehasnot deposedthenameoftheaccusedwhopouredthepetrolor
// 447 //
keroseneorwhosetfireonhouses.Thus,itisthesayof Shri Dhruv that, enough role or overt act by any of the accused is not being stated by this witness. For this purpose whenwe consider the evidence onrecord simply becauseaccusedhasnotattributedspecificrolewhopelted stones,whosetfireonhouses,itdoesnotmeanthathe has not seen the incident at all. He is the resident of ShaikhMaholla,duringthetimeofincidenthispresencein the Shaikh Maholla is natural one and it cannot be doubted.Sofarasidentificationofweaponbythewitness inthecourtisconcernedwhetherhehasrightlyidentified inthecourtornotwillbedecidedattherelevanttimein theJudgement.Thiswitnesshasnottriedtoindulgeanyof the accusedbyattributing specific role.If he intended to indulge the accused wrongly, he could have specifically attributedtheroletotheaccused.Therefore,inthisregard theargumentsonbehalfoftheaccusedarenotacceptable. Further,itisarguedbyShriDhruvthat,thiswitnesshas stated about the injury sustained and treatment given to his wife and daughter but no injury certificates are produced. If his wife was burnt inside the house of Mahemudmiya,shewouldsurelyhavetakenthetreatment inthehospital.Thiswitnessisclaimingthathiswifeand
// 448 //
daughter were inside the house of Mahemudmiya but lookingtothedeposition,itisnotpossibleforpersonwho was inside the house, would survive. Even, complainant, given three different names of the persons who were rescued from the house and they died subsequently. His wifehadnottakenanytreatment.Itisnotthesayofthe prosecution that she had not taken any treatment. This witnessinhisstatementsdated10.03.2002and10.05.2008 has stated about the burninjuries sustained to his wife. This witness may not be telling truth about the injury sustained to him or to his wife. This witness has not deposed that his daughter was treated in Civil Hospital. Simply, as per his say, his daughter has died due to communalriots.Hisdaughterreceivedburninjuryinthe incidentisnotstatedinhisstatements.Inhisstatements dated10.03.2002and10.05.2008,hehasnotstatedthat his daughter Suhanabanu has died on account of the allegedincidentorshewasburiedatIlol.Inhisstatement dated10.03.2002and10.05.2008,hehasnotevenstated aboutburialritualsofhisdaughter.Notreatmentpapersof Suhanabanu is produced and looking to the injury certificate,hospitalwouldnotdischargethepatientwithout informing the police. As per the say of this witness, his
// 449 //
daughterhasdiedduetoburninjurysustainedtoherin the house of Mahemudmiya. His daughter has died. The reasonofdeathofhisdaughtermightbedifferentonebutit is not proved by this witness. As per the Certificate Exh.179, Suhanabanu had abrasion in occipital region. Thus, this is a case of simple injury and cannot be said thatSuhanabanudiedduetoinjurysustainedinsidethe house of Mahemudmiya. There is no burn injury to Suhanabanu which creates doubt about the presence of SuhanabanuinsidetheMahemudmiyashouse.Wifeofthis witnessisnotexamined.Therefore,thesayofthiswitness that his wife was inside the house and received burn injuriesisnotsustainable.
Inthisregardwhenweconsidertheevidenceofthis witness,itistruethatthefactofhiswifeanddaughteris not mentioned in his statement. But the fact that, his daughterdiedandwasburied,issupportedbydocuments producedvideExh.726and727andfromthedepositionof P.W.97 Lodha Hafijbhai Nasirbhai vide Exh.725 and panchnama is produced vide Exh.572 and Death RegistrationCertificate,issuedbytheIlolGramPanchayat isproducedonrecord,supportstheversionofthiswitness.
// 450 //
In this circumstances, if this fact is not narrated in his statement dated 10.03.2002 and 10.05.2008, it becomes insignificant. Medical Certificate and case papers of Suhanabanuareproducedonrecordat Exh.179and 180 respectively. So far as burns injuries sustained to Firozabanu is concerned, there is no medical evidence, supportingtheinjuriessustainedbyFirozabanu.Further, sheisnotexaminedasawitnessbytheprosecution.Itis admittedbytheInvestigatingOfficerthat,thiswitnesshas not stated about burns injuries to his wife. His brother Rafikmiya Bachumiya Shaikh is not telling about the injuries to Firozabanu. On perusing medical evidence, it transpiresthat,thereisnomedicalevidenceatalltosatisfy the burns injuries, sustained by Firozabanu. If she had burnsinjuriesthenshewouldhavecertainlytakensome treatmentsomewhere,butthereisnoevidencetosupport this fact. Hence, the burns injuries, sustained by Firozabanu,asdeposedbythiswitnessisnotestablished by the prosecution. Further she is not coming forward before the Court to say about injuries or any treatment takenbyherorotherfactsinrespectofincident.Therefore, thesayofthiswitnesswithregardtoinjurytoFirozabanu intheincidentcanbeconsideredasanimprovement,inhis
// 451 //
version. Further, as per deposition of this witness those who were burnt in the incident were treated in the Civil Hospital but he has not specifically stated about the treatmentofhiswife.Thisversionalsosuggeststhat,there isanimprovementinhisversioninthisregard.Butsofar as his version regarding injury to his daughter Suhanabanuisconcerned,fromtheMedicalCertificateand otherdocumentsanddepositionoftheMedicalOfficerthe fact that Suhanabanu was treated in the Civil Hospital, whether Police was informed about her discharge or not that is not of much importance because she sustained injuriesandshediedonthenextdayatIlolandthatfactis established by the prosecution. Therefore, the arguments advanced in this regard cannot be considered at all. No doubtlookingtotheMedicalevidence,injuriessustainedby Suhanabanuweresimpleinnaturebutnocauseofdeath ofSuhanabanuiscertifiedbytheDoctor.Therefore,cause ofdeathisnotestablishedbutshesustainedinjury,thatis provedbytheprosecution.Whetherhiswifeanddaughter were in side the house of Mahemudmiya or not, he is claimingthattheywereinsidetheroomwhileaspersayof accused no one could survive in such an atmosphere in Mahemudmiya'shouse.Butlookingtotheevidenceofother
// 452 //
witnesses,asdiscussedearlierthereareotherinjuredeye witnesses,whowerebroughtoutsidefromMahemudmiya's house by the Police and other persons and were sent to Civil Hospital, Mahesana for treatment. Therefore, the argumentsthat,noonecansurviveintheroominsucha situationisnotacceptable.Referringtothecomplainant's deposition,itisarguedbyShriDhruvthat,aspersayof complainant only three persons were brought out from Mahemudmiya's house, who subsequently died. In this regard when we peruse the evidence, it is true that, complainanthasdeposedthat,threepersonswerebrought outfrom the Mahemudmiya's house. But considering the evidenceofPoliceandotherwitnessessomeotherpersons were also there brought out from the Mahemudmiya's house.ButotherwitnessesarenotsayingthatFirozabanu wasbroughtoutfromMahemudmiya'shouseandtheyare notsayingaboutherpresencein Mahemudmiya'shouse. Insuchcircumstances,itisquitepossiblethat,shemayor maynotbeintheroom. Asperthesayof thiswitness, whensamemobcameinShaikhMahollaandsetonfirethe houses,hesawandrecognizedtheaccusedandduetofear, he had hidden himself in the Naveli of Bachumiya Imammiya. This fact is not mentioned in any of his
// 453 //
statements. Mohamed Sattar Bachumiya hide himself in the adjoining house of Akbarmiya, is not stated by this witnessanditisprovedascontradictioninhisstatement dated10.03.2002.Thus,itisarguedbyShriDhruvthatthe presence of this witness at the place of hiding is contradictory.Lookingtothepositionofthehouseinwhich healongwithMohamedSattarhadhidenthemselves,that housewasexclusivelydamagedduetoburns.Therewasno possibilityforapersontohidehimselfinthehouse.Inthis regard,whenweconsiderthetimeandplaceofoccurrence, thiswitnessistheresidentofShaikhMaholla,hispresence in the Shaikh Maholla at the time of occurrence in the ShaikhMahollaisnaturalone.Further,itisarguedbyShri Dhruv that, as per the deposition of this witness, three cabins outside the Shaikh Maholla were burnt on 01.03.2002atabout9.30P.M.Thisfactisnotstatedinhis statement dated 10.03.2002. In his statement dated 10.03.2002 he has stated that cabins situated near the entrance of Shaikh Maholla were set on fire. This is an improvement and omission in his deposition and statements. So far as this contradiction is concerned, burningofthreecabinsattheentranceofShaikhMaholla is established by the prosecution on the basis of
// 454 //
Panchnama, Map and other evidence on record. In that circumstances if this witness is stating this fact in his depositionitcannotbediscardedsimplyduetoomissionof thisfactinhisstatementdated10.03.2002.Furtheritis arguedbyShriDhruvthat, inallhisstatements,hehas notstatedaboutthesurroundingofMahemudmiya'shouse bythemob.Thisfactcreatesdoubtaboutthepresenceof thiswitnessinShaikhMaholla.Further,thiswitnesshas accompaniedpolicetoCivilHospital,thenIlolbut hehas notstatedanythingabouttheincidenttothepolice.Sofar asthiscontractionsisconcerned,itistruethatitisnot statedbyhiminhisstatementbutheistellingaboutmob proceededtowardsMahemudmiya'shouseandthisfactis supportedbyothercogentandreliableevidencethatmob wasproceededtowardsMahemudmiya'shouseandinthat circumstancesthiscontradictionbecomesinsignificantand omissionofthisfactwouldnotcreatethedoubtaboutthe presenceofthiswitness,intheShaikhMaholla,atthetime of occurrence. There is not much distance between the version of this witness with regard to incident, as per prosecution as revealed from the police report and accompanying documents. So far as the arguments regardingsilenceonthepartofwitnessisconcerned,itis
// 455 //
truethatpolicewaswithhimuptoIlolbuthewassilent, notnarratedaboutthisincidenttoPolice.Apersonwhose daughterwasinjured,subsequentlydied,havingnorooffor shelter, considering the mental agony of that person in suchagraveandtenseatmosphere,wecannotexpectsuch apromptactiononthepartofsuchwitness.Everyperson behaves in his own manner in the similar set of circumstancestherefore,ifthiswitnesswassilentthough Police was with him till Ilol, we cannot doubt about his trustworthinessandwecannotdiscardthosefacts,which are already proved by the prosecution beyond shadow of doubt. P.W.62 Shaikh Rafikmiya Mahmadhusen has deposedonoaththatheistheresidentofShaikhMaholla inSardarpur.On28.02.2002,hewassittinginhiscabin andatabout9.00to10.00P.M.,someofthePatelscame and were asking to close the cabins. They asked him to closethecabinsotherwisetheywillburnhim.Therefore,he hasclosedthecabin.Somescuffletookplacebetweenhim and Patels Rameshbhai Kantibhai, Sureshbhai BaldevbhaiandRajeshbhaiPunjabhai.Thereafter,hewent to his Maholla and the mob went towards the Mahadev Temple. Thereafter, in the evening, the mob of Patels
// 456 //
gatheredandtheyweretalkingwitheachothertodestroy shops and cabins of Muslims at during the night, they burnt the cabins of Muslims which were near the Panchayat.On01.03.2002,therewasBharatBandhandhe wasinhisMaholla.Atmospherewastensed,mobofPatels gatheredandtheyweretalkingthatnoMuslimsshouldbe leftalive.Toseethatifthereisanydamagetohishouseor cabin,hewentinsidetheMaholla.Atabout9.30P.M.mob ofPatelscamefromMahadevTemplesideshoutingslogans tocut,beatandburntheMuslims.Theyhadburntthree cabinsofMuslimsintheentranceoftheShaikhMaholla, out of which one cabin was of this witness, second of IqbalmiyaRasulmiyaandthirdofIbrahimmiyaRasulmiya andthereafter,policecameandmobdisbursed.Again,the same mob came at about 11.30 P.M. shouting slogans to cutandbeattheMuslimsandstartedpeltingstones.First theycauseddamagetothehouseofManumiyaAlammiya and then second house of Akbarmiya Nathumiya and thereafter, one by one, they had burnt, the houses in Shaikh Maholla and witness went towards house of Ibrahimmiya Rasulmiya to save himself. He saw the personscominginsidetherefore,hewentinsidethehouse ofIbrahimmiyaRasulmiyathenthepersonswenttowards
// 457 //
the house of Mahemudmiya in whichladies and children andotherpersonswerethereandtheywereburntbythe mob.Atabout2.30 A.M.policecameand asked to come out. This witness alongwith other persons had come out andwenttowardsthehouseofMahemudmiyawherethey broughtoutthedeadbodiesfromthehouseandtookthe injured persons to the Mahesana Civil Hospital in the police van. The witness himself had also gone to the MahesanaCivilHospitalashetoowasinjuredandhetook treatment.Thereafter,threepersonswereseriousandthey were sent to Ahmedabad Civil Hospital. The witness himself,hismother,hisuncleMakbulmiyaKesarmiyaand his brother Imtiaz Mahmadhusen went to the Civil Hospital alongwith these three persons. These three persons were Firozmiya Makbulmiya, Rafikmiya Bhaimiya andAbedabanuBhaimiya,whowereadmittedintheCivil Hospital, Ahmedabad wherein Firozmiya Makbulmiya, Rafikmiya Bhaimiya and Abedabanu Bhaimiya died after twodays.Doctoraskedthemtotakethedeadbodies.The witnesshasdeposedthatheaskedforAmbulancebutthe doctorrefusedtogivetheambulancetothembecauseas theatmospherewastense,itwasnotpossibletotakethree dead bodies to anywhere. Thereafter, the doctor had told
// 458 //
himtosendthedeadbodiesforPostMortemandthenafter three days, burial rituals of the three deceased were performed in Juhapura graveyard. Thereafter, they stayed inJuhapuraandcameaftersixdaystoHimmatnagar. Spl. Prosecutor Shri Shah has argued that, RafikmiyaMohmadhusenShaikh,istheresidentofShaikh Maholla, Sardarpur and doing business of pan bidi and whenat11.30P.M.againmobcameandburntthehouseof AkbarmiyaNathumiya.Shrishahhasfurtherarguedthat, thenameofhiswifeVahidabanuiswrittenbymistakein fact,herrealnameisArifabanu.
ItissubmittedbyShriDhruvthatthiswitnessisnot referringpresenceofanyotherwitnessinthecabinatthe timeofincidentwhileBachumiyaImammiyasaysthathe was present alongwith Rafikmiya. Bachumiya Imammiya furthersaysthatRameshbhaiKantibhaicaughtholdofthis witnessfromthecollarbutthiswitnessisnotsayingabout this fact. Either of the two is false. The incident dated 28.02.2002atabout9.00to10.00A.M.asnarratedbythis witnessisnotnarratedbyBachumiyaImammiya.Boththe witnesses are giving different facts. Further, this witness hasnotstatedaboutthoseeventsinhisstatementsdated
// 459 //
10.03.2002and10.05.2008.Forthefirsttimethisfactis narratedbeforetheCourtbythiswitness.Thiswitnesshas stated some scuffle took place between him and mob of Patels andhe was there inthatcircumstancesif,he has notspecifiedthathewascaughtholdfromcollaritdoesnot mean that he is telling lie. Every person describes the incident in his own manner and such discrepancy in narrating the incident is natural one and creates more trustworthiness. This witness has not stated about the presenceofBachumiyaImammiyabutitwillnotcreatethe doubt about the presence of this witness in the cabin BachumiyaImammiyaisalsotellingabouttheincidentof caughtholdingthecollarofthiswitness.Thus,bothhave narrated the incident in their manner meaning thereby somethinghappenedbetweenthewitnessandaccusedin mob. In that circumstances, presence of this witness at thattimecannotbedoubtedonaccountofomissioninhis statement about the presence of Bachumiya Imammiya. Further, Bachumiya Imammiya has not narrated the incidentdated28.02.2002atabout9.00to10.00A.M.is concerned itistruethathehasnotspecificallynarrated the incident of that time as he is narrating the incident aboutthiswitnesswascaughtholdfromcollar.Therefore,
// 460 //
the say of accused that Bachumiya Imamamiya has not narrated the incident dated 28.02.2002 at about 9.00 10.00 A.M. and the present witness and Bachumiya Imamamiya are telling different story is not acceptable. Difference in narrating the incident is natural one, not tutoredone.Sofarasomissionofthisfactinthestatement dated 10.03.2002 and 10.05.2002 is concerned, some incidenthappenedbetweenthiswitnessandmobofPatels thatissupportedbyBachumiyaImammiyaanditisalso provedfromtheevidenceofothercogentevidencethaton 28.02.2002mobwasaskingtoclosetheshops,cabinsdue to Gujarat Bandh that is not in dispute. In that circumstancesifthefactofholdingofcollarofthiswitness orscuffleisdeposedinthedepositionforthefirsttimein the court, the possibility of such an incident in such an atmospherecannotberuledout.Inthatcircumstancesnon stating of this fact in both the statements becomes insignificant.
Furtheritissubmittedonbehalfofaccusedasperthe depositionofthiswitness,on01.03.2002,intheevening, mob of Patels gathered and they were talking that not a single Muslims should be spared. This fact was not
// 461 //
informedbythiswitnesstoanywitness.Further,hehad runawayfromthatplaceorstayedthere.Thereismajor improvementinhisdepositionjusttoshowpreplanningon thispoint.
In this regard when we consider the evidence on record, gathering of person in response to Godhara train incidentandaggressivetalkbetweenthemagainstMuslim isalsonaturalconduct.Ifthiswitnessisnotstatingthis facttoanywitnessitisnotgoingtoeffecttheotherfactsof incident which are already proved. Assuming it is an improvementthenalsoitisnotofmuchimportance.
Further, it is submitted by Shri Dhruv that with regardtothefactthatmobofPatelscamefromMahadev Templesideatabout9.009.30P.M.andsetonfirethree cabins outside Shaikh Maholla, is not stated by this witnessinhisstatementdated10.03.2002and10.05.2008. Hehasstatedinhisstatementthattherewasamobwhich gatheredintheeveningandsetonfirethecabinsnearthe panchayatoffice.Hewasstandingnearhishousesothat hiscabinsmaynotbesetonfire.
// 462 //
On this point when we consider the evidence on record, from Panchnama and other evidence burning of threecabinsattheentranceofShaikhMahollaisprovedif thiswitnessisstatingthisfactindepositionandnotstated in statements dated 10.03.2002 and 10.05.2008, this contradictionsbecomesinsignificantandthisfactwhichis other wise proved cannot be discarded on the ground of this contradiction. So far as burning of cabins near panchayatintheeveningisconcerned,itisstatedinhis statements,isaboutevening,not about9.009.30P.M. wecannotclubboththefactsconsideringthetimingandif thiswitnesswasstandingnearhiscabinjusttoseethat hiscabinmaynotbesetonfirethatisalsonaturalone. Every prudent person would try his best to take all precautiontosavehisproperty.Thus,ittranspiresthathis cabinattheentranceofShaikhMahollawasnotburntin the evening but it was burnt at about 9.00 9.30 P.M. Therefore,thediscrepancyinhisstatementsanddeposition inthisregardisofnoimportance.
Further,itissubmittedbyShriDhruvthathehas notseentheincidentofsettingonfireonthosecabins.This witness has never stated that any persons from the mob
// 463 //
hadtriedtobeathim.Consideringhispresenceneartohis cabinandhouseifthiswitnessissayingthathesawthe mobfromthedistanceof10to15feetthatisquitepossible asPanchnama,mapandinspectionvisitnotesupportsthis distanceandhouses/cabinswereburnt.Flameoflightis bound to be if this witness has seen the mob from the distance from 10 to 15 feet that is more reliable and trustworthy. Presence of this witness as stated by him cannotbedoubted.Thiswitnessissayingthathehasnot seensettingonfirecabinsbymob.Hecouldhaveimproved hisversionbyaddingfactsbutheisnotaddinganythingto improve this fact and telling truth that he has not seen settingonfirethosecabinswhichgivesmoreforcetorely thetrustworthinessofthiswitness.Further,apersoncan see in flame of light from a distance of 10 to 15 feet no doubt can be created about it. So far as beating is concerned, it is true that he is not saying that he was beatenbuttalkingaboutscuffle.
Further,itissubmittedbyaccusedsidethatasper thesayofthiswitness,atabout11.30P.M.mobhadcome shoutingsloganscutMuslimsandkillMuslimsandthen set on fire the house of Bhaimiya Alammiya after
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ransackingit.Thereafter,mobproceededtowardsthehouse ofAkbarmiyaNathumiya.Atthattime,hesawthepersons inthemobandhehasgiventhenamesofcertainaccused withweapons.Tosavetheirlives,hewentinsidethehouse of Ibrahimmiya. This fact is not stated by him in his statement dated 10.03.2002 and 10.05.2008. In his statement dated 10.03.2002, he has stated that at about 12.00O'clockinthenight,personsstartedgatheringinthe villageandthereafter,duetofear,healongwithhisbrother Imtiyazhadhiddenthemselvesbythesideoftheirhouse whileImtiyazbhaiMahemudhusenShaikhhasdeposedthat hetookshelterinthehouseofSherumiyaRasulmiyawhile asperthesayofthiswitness,hetookshelterinthehouse ofIbrahimmiyaRasulmiya.IbrahimmiyaRasulmiyahasnot deposedthatthepresentwitnesstookshelterinhishouse. Ibrahimmiya has deposed that door of his house being broken,thepersonswhotookshelterinhishousewentto thehouseofMahemudmiya.
So far as this contradiction is concerned, it is not statedinthestatementdated10.03.2002and10.05.2008 he is an injured eyewitness, he sustained injury in the pelting of stone. He is the resident of Shaikh Maholla
// 465 //
havingpanbidicabinnearMahollaconsideringtimeand place of the incident his presence in Shaikh Maholla or nearbyShaikhMahollacannotbedoubted.Ifthereisany discrepancy about his hiding at one point of time, he is saying he went inside the house of Ibrahimmiya while in statementhehasstatedthathehadhiddenhimselfbythe sideoftheirhouse. LookingtothePanchnamaandmap there are only two small houses between Ibrahimmiya's houseandthehouseofthiswitness.Consideringdistance between the two, if this witness is saying he went inside Ibrahimmiya's house or he alongwith his brother Imtiyaz took shelter by the side of his house and house of Sherumiya Rasulmiya is in opposite row but these all housesarenearbytoeachother.Wehavetoconsiderthe natural conduct of a person in a circumstances when a mobcomingwhatapersonwilldo.Hewilltrytosavehim andforthathemaygoheatherandtheather,hewillnotbe atoneplace.Inthatcircumstancesapersonmaygoinside thehouseorhidehimselfbesidesthehouseormaygoto anyneighboringhouse.Wecannotexpectexplanationfrom thewitnessinamathematicalcalculationmoreparticularly in suchatense atmosphere. Ifthere is suchdiscrepancy thatisboundtobeandthefactthatwitnessisdeposing
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beforethecourtafteralongspanoftime.Theveryfactthat the witness was very much present in Shaikh Maholla cannotbediscarded.Asperthesayofthiswitnesshehad seenthemobwhenthemobproceededtowardsAkbarmiya Nathumiyashouse.Houseof AkbarmiyaNathumiyaisat No.3fromtheentranceofShaikhMahollawhilethereare four small houses in between his house and Akbarmiya Nathumiyas house. There was sufficient opportunity for thiswitnesstoseethemobirrespectiveofthefactwherehe hide himself. Assuming he alongwith his brother Imtiyaz hidethemselvesbythesideoftheirhouseorhewentinside thehouseofIbrahimmiyaRasulmiyaorinsideinhishouse orhisbrotherwentinsidehouseofSherumiyaRasulmiya thenalsohewashavingsufficientopportunitytoseethe mob as his house is at a reasonable distance from Akbarmiya Nathumiya's house. Witness was having opportunity to hide himself and also to see the mob. Therefore, under above circumstances this discrepancy becomes insignificant. Further, the arguments that Ibrahimmiya Rasulmiya is not saying about this witness insidehishouseisconcerned,omissionofthisfactonthe partofIbrahimmiyaRasulmiyaisnotgoingtoeffectthefact thatthiswitnesshas seenthemobandthatomissionis
// 467 //
notsomaterial.Further,IbrahimmiyaRasulmiyaissaying thatdoorof hishousewasbrokenandpersonswhowere inside his house took shelter in the house of Mahemudmiya. The present witness might have taken shelterinthehouseofIbrahimmiyaRasulmiyapriortothe door broken that possibility cannot be ruled out even otherwiseasdiscussedabovethiscontradictionisnotgoing to effect the fact that this witness was having sufficient opportunitytoseethemob.Thustheargumentsadvanced byShriDhruvinthisregardarehavingnoforce. Further,itisarguedbyShriDhruvthatthedeposition
ofthiswitnessisfullofcontradictionsandomissionsand hecannotbeconsideredaseyewitness.Asperthesayof thiswitness,hesawtheincident,fromtheslitofthedoor ofIbrahimmiyabutlookingtothehouseofShaikhMaholla, there is no such position. This witness has deliberately omitted who were there alongwith him in the house of IbrahimmiyaRasulmiya.AsperthePanchnama,housesof righthandsideofMahollaweresetonfireandtherefore, presence of this witness in Ibrahimmiyas house is not believable.Further,majorpartoftheincidentisnotstated by this witness in his statement dated 10.03.2002 and 10.05.2008. As per the say of this witness, Imtiyazbhai
// 468 //
received injury by stone while in his statement dated 10.03.2002,hehasstatedthathisbrotherImtiyazreceived injurywithstick.Thus,itisthesayofShriDhruvthatthis witnessischanginghisversion.
Sofarasthisargumentisconcerned,simplybecause thiswitnessisnotsayingwhoweretherewithhiminthe houseofIbrahimmiyaRasulmiyaonthatgrounditcannot be discarded that he has not seen the mob. Admittedly whenthehouseofIbrahimmiyaRasulmiyawassetonfire anddoorwasbroken,therewereotherpersonsintheroom whowenttowardstheMahemudmiyashouse.Possibilityof this witness inside the house prior to setting on fire the houseandseeingthemobfromslitofthedoorcannotbe ruledoutassumingthathehasnotseenthemobfromslit ordoorthenalsohewashavingopportunitytoseethemob asdiscussedabove.Thechangeswhicharepointedoutby accused side in the version of this witness are of such, which cannot compel a prudent person to disbelieve the factofseeingthemob.
Further,itissubmittedonbehalfofaccusedsidethat asperthesayofthiswitness,policecameat2.30A.M.In
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respectofthat,hehasnotinformedthepoliceaboutthe incident. He reached at 4.30 A.M. at Mahesana Civil Hospitalinpolicevehicle.Therewas5to6policepersons in the vehicle but this witness has not stated about the incident to them. Further, at Ahmedabad in one Panchnama,policehadtakenhissignatureeventhoughhe hadnotinformedthepoliceabouttheincident.Thereisno evidence showing that he has informed the police at AhmedabadCivilHospital.Hisstatementwasrecordedon 10.03.2003tillthenhewassilent.Consideringtheevidence onrecord,itisarguedbyShriDhruvthatpresenceofthis witness in Shaikh Maholla at the time of incident is doubtful.
In this regard while considering the evidence on recordnoninformingtheincidentisconcerned,insucha tense atmosphere and circumstances it is quite natural thataprudentpersonwilltrytotakemedicalhelpfirstor trytorescuethepersons,noonecanexpectfromaperson first to go to the police or other person to narrate the incidentlivinginjuredasidewithouttreatment.Inaddition to that we have to consider the mental and physical conditionofawitnessundersuchatenseatmosphere,we
// 470 //
cannotexpectfromawitnesstoseeanaturalconductina regularmanner.Inonecircumstancesdifferentpersonsact in different manners. His statement was recorded on 10.03.2002till thenhe wassilent,it doesnotmean that nothinghappened andhehasnotwitnessedtheincident. He was busy in treatment of other injured persons who wereseriousandsubsequentlydiedinthatcircumstances his silence up to 10.03.2002 will not compel a prudent person to discard the testimony of this witness and his presence.Sofarasdenialaboutfiringisconcerned,heis having cabin near Shaikh Maholla and also residing in Shaikh Maholla while incident of firing took place near Fakirvas,theentranceofSardarpur.ShaikhMahollaisat theendofSardarpur.Thereismuchdistancebetweenthe two. Witness may not be having knowledge about the incidentoffiring.Therefore,denialoffiringincidentcannot be given much importance. He is injured eye witness. Therefore, there is nothing in the evidence which would indicatethatitwasnotpossiblefortheeyewitnesstohave seentheincident.Onthecontrarytheevidenceindicates thattherewaseverypossibilityofthiswitnessbeingableto see the mob. As the mob was present in Maholla for considerabletime.
// 471 //
So far as the incident dated 28.02.2002 for closing downtheshopisconcerned,hehasgivennamesofthree accused but nothing has been stated by him in his statementisconcernedasdiscussedabove.Simplyitisnot statedinthestatementbutotherwiseitisestablishedthat theywerecompelledtoclosedowntheshopandtherewas Gujarat Bandh on that day. So far as names of three accusedasnarratedbythiswitnessisconcerneditwillbe discussedanddecidedwhileappreciatingtheevidenceon thatpoint.Thus,theevidenceofthiswitnessistrustworthy andreliableone. P.W.63ShaikhBhikhumiyaKalumiyahasdeposed that on 27.02.2002, he went to Kanubhai Varvabhai for colourwork.On28.02.2002,thecabinswereburntinthe marketandatabout4.00P.M.,againhewenttothemarket whereShankarbhaiwasvacatinghisshop.Hisshopisjust adjacenttotheshopofHanifbhaiAbdulbhai.Heaskedhim whyheisvacatingtheshopsuddenly.Heansweredthathe has kept the shop somewhere else and he had kept his materialintheMahakalistemple.Further,hehasdeposed that on 01.03.2002 at about 9.30 P.M., Patels of their village came in the Shaikh Maholla and set on fire, the cabinsoftheirMaholla.Thereafter,thepolicecameandthe
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mob was disbursed and again, they came at about 11.30 P.M.andstartedpeltingstonesandsetonfirethehouses. He sustained injury on his right head and left eye and thereafter,hehidehimselfbythesideofjeepofBachumiya. Themobcameshoutingsloganstocut,beatandburnthe Bandiyas. Thereafter, they burnt the jeep and thereafter, thiswitnesswentinsidethehouseofBachumiyaandfrom therehewentinthepassage.Again,mobcameandfamily members of Shaikh Maholla were in the house of Mahemudmiya who were screaming for help from that house to save them and this mob went away. Thereafter, thiswitnesscameout.SabirmiyaKadarmiyatoldhimthat his wife is lying in the Timba of the house of Abbasbhai therefore, he went there and saw that his wife was unconsciouswhitefrothwascomingoutfromhermouth. Thereafter, Sabirhusen Kadarmiya and Akbarmiya Nathumiya brought her to the ottla of Ishwarbhai Karsanbhai thereafter, he alongwith his wife went to the CivilHospital,Mahesanaandonthewayhiswifehasdied. The witness was also admitted in the Civil Hospital and thereafter,wenttoIlol.
ItisarguedbyShriShahthat,BhikumiyaKalumiya
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ShaikhistheresidentofShaikhMaholla.Heistheinjured eye witness. As per his deposition, in the incident, Bismillabibi, Soninlaw Bhaimiya Alammiya, daughter Zoharabibi, grand sons and daughter Arif, Rafik and Abeda died. he has identified the clothes of his wife i.e. ArticleNo.12.
ItisarguedbyShriDhruvthat,asperthesayofthis witness,Shankarbhaiwasremovinghisgoodsfromshop. On asking, he told that he will go to some other place. GoodswerelyingintheCourtyardofMahakalitemple.This factisnotstatedinstatementdated10.03.2002.Referring to this deposition Mr. Dhruv has argued that, it is an improvementintheversionofwitnesswhichispleadedby thewitnesstoprejudicetheCourtandtoshowthatitwas preplanned. True that this fact is not stated in his statement dated 10.03.2002 and it is an improvement in theversionofwitnessbutfromthisimprovementwecannot inferthat,thisimprovementiswiththeintentiontoshow thepreplan.FurtheritissubmittedbyMr.Dhruvthat,as per the say of this witness, at 9.30 P.M. Patels of their village came in Maholla and set on fire the cabins of Maholla. Police came and disbursed the mob. Again at
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11.30P.M.,mobhadstartedpeltingstonesandsetonfire the house which this witness has seen. This fact is not narratedinthestatementbeforeS.I.T.Further,thiswitness has not stated in his statement dated 10.12.2002, application made to S.I.T. and in statement recorded by S.I.T.Atabout11.00P.M.,mobhad comeandransacked andsetonfire.Itistruethatthisfactisnotstatedinhis statementbeforeS.I.T.Itisalsotruethatransackingand settingonfireisnotstatedbeforeS.I.T.Settingonfirethe cabins, houses are supported by Panchnama and other evidencesuchasdepositionsofPolicewitnessesandinthat circumstancesifitisnotstatedbeforeS.I.T.andstatement dated 10.03.2002 and in application it becomes insignificant. So far as version regarding ransacking of housesisconcerned,itisnotsupportedbyotherevidence. Thus,itisanimprovement.Fromthecrossexaminationof thiswitnessnowhereitcomesoutthat,settingonfirethe cabins, houses is not stated in his statement dated 10.03.2002. Therefore, if it is not stated before S.I.T. it makesnodifference.Witnessisnotsupposedtostateeach and every thing in second statement, the fact which he already has stated in his earlier statement. Further it is argued by Mr.Dhruv that, while in his statement, he has
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statedthat atthenighthours,on01.03.2002,cabinsof Muslimsweresetonfirenearthepanchayatofficeandon arrivalofpolice,policeresortedtofiretodisbursethemob. Thereisomissionofthisfactinhisstatement.Thiswitness hasstatedthatcabinsnearthepanchayatweresetonfire whilebeforetheCourt,heissayingthathewaspresentin Shaikh Maholla and witnessed the incident. So far as settingonfirecabinsnearPanchayatandresortingoffire incidentisconcerned,firingwasresortednearPanchayat at the entrance of Village Sardarpur while incident of Shaikh Maholla occurred subsequently. In that circumstances if this witness is telling his presence in ShaikhMahollai.e.reliable.Thereisfardistancebetween PanchayatandShaikhMaholla.Thiswitnessmaynothave knowledge about the incident of firing. Therefore, the presence of this witness in Shaikh Maholla cannot be doubted.FurtheritissubmittedbyShriDhruvthat,asper thedepositionofthiswitness,hetookshelterbesidesthe jeepofBachumiya.Mobhadcomebyshoutingslogansto killtheMuslimsandburningragwasthrownonthejeep and jeep started burning. Therefore, he went inside the house of Bachumiya. This fact is not stated in his statementdated10.03.2002.Further,asperthesayofthis
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witness,houseofMahemudmiyais20to25Ft.awayfrom theentranceofShaikhMaholla.Lookingtothesituation, therearenumberofhousessituatedinShaikhMahollaand asperthesayofthiswitness,hesawthemobfrom10to15 Ft.butnoonefromthemobhasattackedhim.Therewere 2to3personswithhim.Therewere10to15personsinthe ShaikhMaholla.Wheretheywereattackedbymobhehas noknowledgethoughheisclaimingthathehadseenthe incidentfromverynear.Itistruethat,hehasnotstatedin his statement dated 10.03.2002 that, he took shelter besidestheJeepofBachumiyaImammiyasoonasburning rag was thrown he went inside the house of Bachumiya Imammiya. It is evident that, Jeep was burnt in that circumstances if this witness is telling that, on burning Jeep he went inside the house of Bachumiya Imammiya thatisquitepossible.LookingtothePanchnama,Mapand otherevidenceonrecordJeepwasstandingjustinfrontof HouseofBachumiyaImammiya.Therefore,wecaninferin abovecircumstancesifwitnessissayinghewentinsidethe house of Bachumiya, that is quite natural conduct and thiscontradictionbecomesofnoimportance.Exceptpelting stonesnoincidentofattackingtheindividualsinopenis claimed by the prosecution. Claim of the prosecution is
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burningofcabins,housesand peltingstonesetc.Inthat circumstances if this witness or other persons were not publicly attacked it does not mean that this witness is tellinglie.FurtheritissubmittedbyShriDhruvonbehalf oftheaccusedthat,thoughhehasseentheincidentbut whosetonfirethecabins,whopeltedstones,whoseton fire the houses and who were there near the house of Mahemudmiya,isnotstatedbythewitness.Allthesefacts suggest that this witness is not an eyewitness. In this regardwhenweconsidertheevidenceofwitnessnodoubt no specific role is attributed by this witness but he is narratingtheincidentofsettingonfirethehouses.Inthat circumstanceshewouldhavetriedtosavehislifebyhiding himselfbutinabovecircumstanceshispresenceinShaikh Mahollaandclaimingthathehasseentheincidentcannot bediscarded.Hewashavingampleopportunitiestoseethe mobashehidehimselfbesidestheJeepwhichwaslying nearBachumiya'shouse.Bachumiya'sHouseissituatedin Mahollaleaving4to5housesfromtheentranceofShaikh Maholla,whichalsosuggeststhatthiswitnesswashaving sufficient opportunities to see the mob. Further it is submittedonbehalfofaccusedthat,this witnesshasno knowledgeabouttheapplicationpreferredbyhimtoS.I.T.
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Further, this witness took treatment in Mahesana Civil Hospital. At that time, he is not giving the names of the accused.ItisarguedbyShriDhruvthatthiswitnesshas givendifferentversionsondifferenttimesandchangedhis versionandtherefore,hecannotberelieduponatall.Itis supported by Medical evidence that, this witness took medical treatment in Mahesana Civil Hospital. It is also truethat,atthattimehehasnotnarratedtheincidentto the Police or any authority or he has not named any accusedbutconsideringthecircumstancesandbrevityof offencesimplyonthisstandwecannotinferthat,heisnot injured eye witness. In the facts and circumstances, his presenceinShaikhMahollaisotherwiseestablished.Heis theresidentofShaikhMaholla.Heisinjuredeyewitness. HehasidentifiedtheclothsofhiswifeMuddamalArticle No.12. Under above circumstances the say of Shri Dhruv that, this witness is giving different version at different times and changing his version is not acceptable. This witnessisgivingdepositionafter6to7yearsoftheincident andthechangesinhisversionarenaturalone,whichare notgoingtoeffectthemainincidentandthosechangesare natural one and if those changes are not found in the depositionthenitcanbeconsideredastutoredone.Thus,
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changesarenaturalandevidenceofthiswitnessisreliable. P.W.64ShaikhRafikmiyaBabumiya hasdeposed onoaththatheistheresidentofSardarpur.Onthenext dayofGodhraTrainincident,therewasGujaratBandhand onthirdday,therewasBharatBandhandonthesecond day,mobhadburntthecabinsjustinthefrontofGram Panchayat and on the third day, the mob of Hindus gathered. He was in his house alongwith his family membersandatabout9.30P.M.amobofHinduPatels camefromMahadevTemplesideshoutingsloganstocut, beatandburntheBandiyasandtheycametowardsShaikh MahollaandburntthreecabinsattheentranceofShaikh Maholla. As the police came, mob disbursed. Thereafter, again at 11.30 P.M., mob came shouting slogans to cut, beatandburntheMuslimsandstartedpeltingstonesin their Maholla and burnt the houses. The persons who whereinsidetheMahollahavealsopeltedthestonestosave themselves.Theladies,childrenandotherpersonswentto the house of Mahemudmiya to save their lives. He saw Kanubhai Joitaram instigating the mob. The mob went towardsthehouseofMahemudmiyaandsurroundedthat house. Due to fear, this witness went to Ravaliyavas. He
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heard the voices of persons from Maholla screaming for help. After some time, he came back and saw that the houseswereburntincludingthehouseofMahemudmiya. PersonswhowereinsidethehouseofMahemudmiyawere takenout.Therewere28personswhodiedandotherswere injured. They took them to Mahesana Civil Hospital, in policevehicle.
Itis submitted onbehalf of the accused, as per the deposition of this witness, he was not injured in the incident and his statement is recorded after 25 days. Though, he went to Civil Hospital, Mahesana in police vehicle, he is not saying that Ibrahimmiya Rasulmiya, Mohamad Sattar and Bachumiya were there with him in the hospital. It is stated by him that, he witnessed the incident, he does not remember whether the names of accusedinvolvedintheincidentwerenotedin Mahesana Civil Hospital or not, this witness was in Ilol camp alongwith brother Safikmiya Babumiya but does not remember who were with him in the Ilol camp and who were present in the burial ceremony of his brothers daughter.HehasstatedthatinIlolhestayedinthehouse ofsomeonewhoishisrelativebutheisnottellingthename
// 481 //
of that relative. Even at Ilol, he has not narrated the incidenttoanyone.Hestayed inPanpurpatia and there also,hehasnotstatedthenamesoftheaccused.Mohmad Sattar Bachumiya, Ibrahimmiya Rasulmiya, Faridabibi Aashikhusen Shaikh were in the Panpurpatia who came there but this witness has no knowledge about other personsinthecamp.Thesewitnessesaretheresidentof ShaikhMahollaandthepresentwitnessisalsoresidentof Shaikh Maholla. Further, Panpurpatia relief camp was located near Himmatnagar while as per the deposition of InvestigatingOfficerShriVaghela,campnearHimmatnagar was known as Nazira camp. Gulamali Akbarmiya and SafikmiyaBabumiyaarebrothersofthiswitnessandtheir statements were recorded on 10.03.2002 at Panpurpatia. WhileasperthesayofShriVaghela,statementofGulamali andSafikmiyawererecordedatNaziracampalongwiththe statements of other witnesses. Camp at Nazira at Himmatnagar and Panpurpatia is one and same. As per thesayofpresentwitness,statementofnearly18witnesses wererecordedon10.03.2002inNazirabadcamp.Thus,in spite of the fact that Investigating Officer had visited Panpurpatiacampwherethepresentwitnesswaspresent, no statement was given by this witness to the police
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officers.Hisstatementisrecordedonlyon27.03.2002.As perthesayofInvestigatingOfficerstatementofthiswitness was recorded on 25.03.2002 and that statement is suppressedbyprosecution.Thiswitnessisnotaninjured butheisresidentofVillageSardarpur.Itistruethat,from theevidenceonrecordittranspiresthat,statementofthis witnesswasrecordedafter25days.Tillthenthiswitness has not narrated this incident to anyone though having sufficientopportunities.Hehasnotdisclosedthenamesof the accused. Further, statement of other witnesses were recorded in Nazira Camp, Panpur Patiya Camp. Thus, admittedly here is the case of delay in recording of statement of witness and there is no reason assigned to recording of such delayed statement. Further, as per Investigating Officer his statement was recorded on 25.03.2002butnosuchstatementisonrecord.Wehaveto considertheevidenceofthiswitnessinthelightofabove situation.Further,itissubmittedonbehalfoftheaccused that,thiswitnesshasstatedthatatabout9.30P.M.,mob ofHinduPatelscameshoutingsloganstokilltheMuslims andhadproceededtowardsShaikhMaholla.Further,mob hadsetonfirethecabinsnearShaikhMaholla.Thisfactis not stated by this witness in his statement dated
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27.03.2002 and 22.05.2008. In his statement dated 27.03.2002and22.05.2008,itisstatedbythiswitnessthat infact,theincidenthavingtakenplaceat9.30P.M.hasnot beenmentionedinitandinsteadofthat,incidentoccurred at11.30P.M.12.00A.M.isstated,whichisnotcorrect. Thus, as per the say of this witness, incident having occurredat11.30P.M.isnotcorrectbutitoccurredat9.30 P.M.whilebeforetheCourtheissayingthatatabout11.30 P.M. incident occurred. Thus, witness is changing his versionandtimingabouttheoccurrenceofincident.Sofar as this arguments are concerned, it is true that there is somechangesaboutthetimingsofsuchincidentbutsofar asmobcameabout9.30P.M.shoutingsloganstokillthe Muslims and proceeded towards the Shaikh Maholla is concerned,itisevidentfromPanchnama,Policewitnesses andothereyewitnessesthat,firstmobcameatabout9.30 P.M. and second mob came at about 11.30 P.M. This witnessisgivingconfusingevidenceinthisregardwhether cabinsnearShaikhMahollawereburntatabout9.30P.M. orabout11.30P.M.Muchreliancecannotbeplacedonthis evidenceofthiswitnessbutthefactthat,mobcametwice, firstat9.30P.M.andsecondat11.30P.M.andthatistobe relied upon as it is much supported by other's evidence.
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Further it is submitted by Mr.Dhruv that, his niece Suhanabanuwasburntoverbacksideofherheadwhodied and was operated at Ilol, is a contrary version to his previous statement. Looking to the crossexamination about time of incident, is highly doubtful. When we consider the evidence of this witness in this regard, it transpires that, Suhanabanu was having burnt injuries overbacksideofherheadandshediedandburiedatIlolis provedfromtheevidenceofotherwitnessesandfromthe documents. Therefore, if this witness is stating this fact, which is not in his previous statement, no prejudice is going to be caused to the accused and it is not going to adversely effect the fact Suhanabanu died due to burn injuries and she was buried at Ilol. It is true that, this witnessisgivingconfusingversioninrespectoftimingsof thisincidentandmuchreliancecannotbeplaceduponthe version of this statement with regard to timings of this incident.Further,itissubmittedonbehalfoftheaccused that,asperthesayofthiswitnesswhentheincidentwas going on, persons in Shaikh Maholla were running here and there. He has not taken shelter in any bodys house whileheisdeposingthatonseeingmob,heranaway.No onefromthemobhadfollowedhimevenhisconductofnot
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taking his family members with him is doubtful. This witnessisgivingcertainnamesbeforetheCourtandhas deposedthathesawthehousewhichwassetonfire,the cabinswhichweresetonfireandthepeltingofstonesand mobproceededtowardsthehouseofMahemudmiyabuthe isnotsayingwhoplayedovertactincommissionofcrime. Over and above, inhis statement dated 27.03.2002, from where he witnessed, is not stated by this witness. Even beforethecourt,heisnotsayingfromwherehewitnessed the incident. As per his deposition, when the mob proceeded towards the Mahemudmiyas house, he slipped intotheRawalvas.Thus,thiswitnesshadalreadygoneout of Shaikh Maholla then how he can see jeep car in the ShaikhMahollabeingsetonfirebythemob.Inthisregard whenweconsidertheevidenceofthiswitnessonseeingthe mob, if this witness ran away without taking his family membersalongwithhim,thatcanbeconsideredasnatural conduct every person reacts in his own manner in a particular circumstances. There cannot be mathematical calculationswithregardtonaturalconduct.Ifonseeingthe mobinsuchatensecircumstancesthiswitnessranaway without taking his own family members we cannot infer about the fact that, he was not present in the Shaikh
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Maholla.Tillheranaway,onseeingthemobhewashaving ampleopportunitiestoseethemob.Itisonlythemobwas proceedingtowardsMahemudmiya'shouseatthattimehe wenttowardsRawalvas.Thus,wecannotconcludethat,he hasnotseenthemobatthetimeofincidentandthefact that,heistheresidentofShaikhMaholla,hispresencein the Shaikh Maholla cannot be doubted. True that, this witnesshasnotspecifiedfromwherehehasseenthemob but from overall deposition of this witness it transpires that,whenthemobcamehewasinShaikhMahollaandit was quite possible for him to see the mob. It is only on seeing the mob in Shaikh Maholla he went towards Rawalvas.Further,itissubmittedonbehalfoftheaccused that, thiswitnessisnotsayingaboutthejeepcarwhich wassetonfirebythemobwhichsuggeststhathewasnot present in the Shaikh Maholla otherwise, he would have certainlydeposedtheincidentofjeepcarwhichwasseton fire by the mob. As per the evidence of complainant and Rawalwitnesses,therewasalsomobonthebacksideofthe house of Mahemudmiya. When a person wants to go to Rawalvas, he has to pass from the backside of Mahemudmiyas house therefore, the say of this witness that he went towards Rawalvas when mob proceeded
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towards the house of Mahemudmiya, is not acceptable. ThereisnopossibilityforhimtogotoRawalvasfromthe backside of Mahemudmiyas house. So far as these argumentsareconcerned,whenweperusetheevidenceof thiswitness,incidentofJeepCarisnotnarratedbythis witness. As per his deposition on seeing the mob he ran away.Jeepcarmighthavebeenburntsubsequentlyinthat circumstancesifhehasnotseenburningofJeepcarand inthatcircumstancesheisnotstatingthat,hehasseen burning of Jeep Car. In the above circumstances, that possibilitycannotberuledout.Onthecontraryitsuggest morenaturalandtrustworthinessofthewitnessasheis not narrating the fact which he has not seen. Thus, the versionofthiswitnessregardingseeingthemobbyhimis reliable.HispresenceinShaikhMaholla,priorproceeding ofmobtowardsMahemudmiya'shousehasgotsomeforce inhisversion.SofarasargumentsadvancedbyShriDhruv on behalf of accused that, it was not possible for this witness to go to Rawalvas from the backside of Mahemudmiya'shouseandthiswitnesshasnotseenthe incidentisconcerned,fromtheevidenceofthiswitnessit transpires that, this witness went to Rawalvas when the mobproceededtowardsMahemudmiya'shouse.Itisquite
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possiblethat,priortoreachingofmobandsurroundingthe houseofMahemudmiyahewenttoRawalvastherefore,it cannotbeacceptedthat,therewasnopossibilitiesforthis witness to go to Rawalvas from the backside of Mahemudmiya's house. Considering whole evidence it transpires that, he has seen the mob and on seeing the mob he went to Rawalvas therefore, arguments advanced onbehalf of accused that, this witness is gotup witness andhehasnotseenthemobandincidentisnotaccepted. P.W.65ShaikhAkbarmiyaNathumiyahasdeposed that,on01.03.2002therewasBharatBandh,hewasinside the house alongwith his family members. At about 9.30 P.M., mob of Patels came from Mahadev Temple side shouting sloganstocut,beat and burn theMuslims and burnt three cabins at the entrance of Shaikh Maholla. Therefore,thewitnessalongwithhiswifeandchildrenwent tothehouseofBachumiya.Byleavingthemthere,hecame back to his house and when he was standing at the entranceofMaholla,againmobofHinduscameshouting the slogans to cut, beat and burn the Muslims and they damaged and burnt the house of Manubhai painter. Thereafter,hetookhiswifefromthehouseofBachumiya NathumiyaandwenttoRavaliyavasfromthebacksideof
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houseofMahemudmiyaandthen,hewenttoRavaliyavas then he went to the field and thereafter, he went to the house of Thakor Bhikhuji Somaji. He heard the voices of persons shouting for help who were inside the house of Mahemudmiya. After some time, there was silence. He camebacktotheentranceofShaikhMahollaviaKapoor Maholla. As police came, he alongwith his wife and son, cametotheentranceoftheShaikhMahollaandbyleaving his wife and son at the entrance of Shaikh Maholla, he wentinsidetheShaikhMahollawhereinsomeoneforcibly gave acid to Bismillabanu Bhikhumiya. He alongwith Sabbirmiya Kadarmiya, Bhikhumiya Kalumiya and Mahemudmiya Latifmiya Pathan, took her to the ottla of IshwarbhaiandagaincametoShaikhMaholla.28persons were burnt alive in the house of Mahemudmiya and thereafter, rescue operation took place. The dead bodies sent to the Civil Hospital. In the incident damage worth Rs.1,00,000/wascausedtohishouse. It is submitted on behalf of the accused that, evidence given by this witness naming certain accused beforetheCourtisforthefirsttime.Nameswerenotgiven inhisfirststatements.Asperhisstatement,on10.03.2002 atabout,9.009.30P.M.,nearbusstand,cabinswereset
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onfireandonarrivalofpolice,teargascellswerelobbed andfiringwasdonebythepolicetodisbursethemob.This isnotmentionedinhisstatement.Thisisanimprovement. Further,inhisdeposition,hehasstatedthatatabout9.00 9.30P.M.,3cabinsoutsidetheShaikhMahollawereset onfirewhileinhisstatement,cabinsnearpanchayatoffice ismentioned.Further,thestoryofmobcomingagainatthe entrance of Shaikh Maholla and started attacking is not statedinanyofthestatementnorinhisapplicationmade toS.I.T.Inhisstatementdated10.03.2002,itisstatedthat againatabout12.00to12.30P.M.fromallfoursidesmob startedgatheringinthevillageandonhearingvoices,the persons in the Maholla gathered. The mob had started pelting stones. So far as these arguments are concerned, when we go through the evidence of this witness in the Marketon28.02.2002cabinsnearBusstandwereburnt. From the evidence of this witness it transpires that, he intended to say incident of burning of cabins near Bus Station occurred on 28.02.2002 while incident at about 9.30P.M.,threecabinsoutsideShaikhMahollawereseton fireandsaidincidentwasoccurredon01.03.2002.Thus, the fact remains as it is that mob was gathered and incidentofpeltingstonesoccurredtherefore,ifthiswitness
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isnotstatingabouttheattackinanyofhisstatement,itis not of much importance. Further, it is submitted by Mr.Dhruvthat,thiswitnesshasgivencertainnamesofthe accusedhavingarticles,weaponsintheirhandsbutinthe statementdated10.03.2002,namesalongwithweaponsare notstated.Furtherasperthedepositionofthiswitness,on hearing shouting of mob, due to fear, this witness alongwith his wife from the house of Bachumiya Nathumiya, went to Rawalvas from the back side of the house of Mahemudmiya. Thereafter,again due to fear,he wenttothefieldandtookshelterinthehouseofThakor Bhikhabhai. This fact is also not stated in his statement dated 10.03.2002. For these Baddrunnisha Akbarmiya Shaikh,whoisthewifeofpresentwitnesshasnotstated aboutthefactthattheywenttoRawalvasandtookshelter in the house of Bhikumiya Somabhai. So far as this contradictionisconcerned,itisnotstatedinthestatement dated10.03.2002andhiswifeisnottellingthat,theywent toRawalvas.Underabovecircumstances,muchrelianceon the deposition of this witness on this point cannot be placed. Further, it is submitted by Mr.Dhruv that, the deposition of this witness, after the incident was over, police came and he came back to Shaikh Maholla after
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dropping his wife and son at the entrance of Shaikh Maholla while Baddrunnisha Akbarmiya Shaikh deposed that after atmosphere clamed down, they proceeded towards Maholla and saw dead bodies brought from the house of Mahemudmiya. This witness has also deposed thatfromthehouseofMahemudmiya,28deadbodieswere broughtoutwiththehelpofpolicebuthehasnotsaidthat Baddrunnishawaswithhimatthattime.Sofarasthese arguments are concerned this fact is much supported by othercogentandreliableevidenceandtherefore,ifthereis somediscrepancyinnarratingsaidfactsthatisnotgoing to prejudice the accused side. It is not much in dispute that, 28 bodies from the Mahemudmiya's house were broughtoutwiththehelpofPolice.Simply,thiswitnessis notsayingthat,hiswifewasnotwithhim,omissionofthis factonthepartofthiswitnesswillnoteffectthemainfact. Further,itissubmittedbyShriDhruvonbehalfofaccused referringtothecrossexaminationthat,eitherthiswitness wasnotpresentinShaikhMahollaorhehadnottakenhis wifefromShaikhMaholla.Presenceofthiswitnessandhis wifeatthetimeofincidentisdoubtful.Ononehandthis witnessissayingthattheyareinformedbythepolicetogo totheirrelativesatIlolwhileasperthesayofhiswifeand
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son,theywenttoSavala.Further,hehadnotnoticedthat his wife went to Savala for one week. He has not even inquiredhiswifeforaweek.Thiswitnessisdeposingabout thefactthatBismillabanuhadadministeredacidbutwho hadadministeredacidisnotstatedbythiswitnesswhile SarifmiyaBhikumiyaShaikh,BhikumiyaKalumiyaShaikh andSabbirhusenRasulmiyaShaikharenotsupportingthis fact. Further, doctor who performed the autopsy of dead body of Bismillabanu is also not stating the fact of administeringacidtoBismillabanu. So far as these arguments are concerned, when we perusetheevidenceofthiswitnessregardingadministering of acid to Bismillabanu, other witnesses are also stating about lying of Bismillabanu in the heap of dung behind Mahemudmiya'shouseanditisalsosupportedbysomeof thewitnessesthat,shewastakentotheOtlaofIshvarbhai butmedicalevidenceiscontrarytothisevidenceandasper medical evidence Bismillabanudied duetoburn injuries, howandwhereshesustainedburninjuriesisnotexplained by this witness or by other witnesses. Further, other witnesses are not supporting the fact regarding the administering the acid to Bismillabanu therefore, no reliancecanbeplacedontheversionofthiswitnessonthis
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point. Even this witness is deposing confusing version where he went after incident, either Ilol or Savala. Surprisingly,heisnottakingcareabouthiswifeforabout a week. Thus, this is somewhat unnatural. Further it is submittedonbehalfoftheaccusedthat,asperthesayof thiswitnesswhenthemobenteredinShaikhMahollaand startedransackingthehouses,duetofear,healongwithhis wifewenttothehouseofBachumiyaNathumiyaandbythe sideofMahemudmiyashouse,hewenttoRawalvas.When we consider the evidence in this regard, when the mob entered in the Shaikh Maholla this witness was having opportunities to see the mob as he was nearby to Akbarmiya Nathumiya's house, which is in the row of Graveyard side and leaving two to three houses from the entranceofShaikhMaholla.Ifonseeingmobthiswitness went inside the house of Akbarmiya Nathumiya and his family members were with him and thereafter, on seeing mobcomingnearandnearbycausingthedamagetothe propertiesinShaikhMahollaandbyburningthehousesin ShaikhMaholla,ifhealongwithhisfamilymemberswhen gone towards Rawalvas by the side of Mahemudmiya's house,thatconductcanbeconsideredasnaturalconduct. In above set of circumstances it cannot be inferred that,
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this witness has not at all seen the mob and he is a stranger. So far as arguments advanced on behalf of accusedthat,thiswitnessisnotsayinganythingaboutthe burning of jeep which has been set on fire in Shaikh Maholla. When mob entered in Shaikh Maholla, this witness ran away, he has not seen any event while Baddrunnisha is saying that he saw the jeep of Badrrunnishahavingbeensetonfireandinthatlight,she hadseentheaccusedtherefore,shewentuptoRawalvas with her husband. If Baddrunnisha is telling truth then thiswitnessisfalseandifthiswitnessistellingtruththen Baddrunnishaisfalse.Inthisregardwhenweappreciate theevidenceonrecord,omissionofanincidentofsetting onfireofJeepinShaikhMahollabythiswitnessdoesnot amountthat,witnesshasnotseentheincident.Itisquite possiblethat,hemighthavewitnessedtheincidenttillhe wentRawalvas.Ashewashavingopportunitiestoseethe mobwhenthemobenteredintheShaikhMahollatillhe went to Rawalvas. Further, his wife is telling about the incidentofsettingoffireofJeepandalsotellingthat,after that,theywenttoRawalvasandatthattime.herhusband waswithher.Everywitnessdescribesincidentinhis/her own manner, there cannot be straight jacket formula for
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narratingtheincident.Boththewitnessesaresayingthat, theywenttoRawalvas.Theonlyfactofsettingonfireon Jeepisnotnarratedbythiswitness,whichisnarratedby his wife and much supported by Panchnama and other evidencedoesnotmeanthat,heistotallyfalse.Omissionof this fact in his deposition is not going to prejudice the accusedandthisdiscrepancyisnotsuchwhicheffectsthe mainincident.Thus,fromhisevidentittranspiresthat,on seeing the mob setting on fire on houses, cabins and causing damaging theproperties,theywenttoRawalvas andtherefore,theyhadampleopportunitiestoseethemob and thereafter on seeing the mob, this witness alongwith hiswifewenttoRawalvasandtherefore,theargumentsin thisregardofShriDhruvisnotacceptedonthispointthat this witness has not seen the incident. So far as the arguments advanced by Shri Dhruv that, on this point, when Ibrahimmiya Rasulmiya states that when the jeep wasburnt,mobwasspreaduptoMahemudmiyashouse thentheremaynothavebeenanyopportunitytopersonsto go to Rawalvas by the side of Mahemudmiyas house withoutsustainingdamageorinjurytolife.Ifthewitness byavoidingthemobtosavehislifewenttoRawalvasfrom thebacksideofMahemudmiya'shouseandhewentsafely
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i.e.notimpossible.Simplynoinjurywascausedtohimit does not mean that, by avoiding the mob and a person cannot go to Rawalvas from the back side of Mahemudmiya's house. Further the arguments advanced byShriDhruvonbehalfofaccusedthat,Baddrunnishain herstatementhasstatedthatshe,herhusbandandson, afterhavinglockedtheirhouseandtosavetheirliveswent tothefieldandfromtheretheyhaveseentheincident.Itis submitted by the accused that from the field what is happeningintheShaikhMahollacannotbeseen.Referring tothestatementdated06.03.2002ofBaddrunnisha,itis submittedbythiswitnessthattheyarenotthewitnessof incidentofShaikhMaholla.Thewitnessinhisdeposition has not dropped his son and wife at the house of BachumiyaNathumiyaandwentattheentranceofShaikh MahollabeforethemobenteredintoShaikhMahollawhile Baddrunnishasaysthatherhusbanddroppedheratthe houseofBachumiyaNathumiyabutsheisnottellingabout taking her son with her. Further, she is nottelling when they ran away from the house of Bachumiya Nathumiya towards the field, their son was with them. When we considertheevidenceofthiswitnessinthisregardthefact that,theyafterlockingtheirhousewenttoShaikhMaholla.
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Thereafter,theywenttoRawalvasremainsasitis.Simply notmentioningofsontakingwiththemdoesnotamount the discarding the whole version of this witness on this point.Thediscrepanciesarenotsuchwhichcancreatethe doubtaboutthepresenceofwitnessinShaikhMahollaor nearbytoShaikhMahollaandthereaftergonetoRawalvas. Inabovesetofcircumstancesifthewitnessissayingthat hesawtheincidentofShaikhMahollafromRawalvas,he means to say that, he heard the voices from Shaikh Maholla and seen the flame of light of burning. While appreciatingtheevidenceofawitnesswehavetoconsider thesenseandintentionofthewitness,whathewantsto say.Intentionismaterial,notthewordswhichareusedby thewitness.Further,omissiononthepartofthewitness that,theyhadtakensonwiththemwhilegoingtoRawalvas isconcerned,thisomissionisnotgoingtoadverselyeffect orprejudicetheaccusedside.Therefore,thisomissionon thepartofwitnessisofnoimportance.ItisarguedbyShri Dhruvthat,thiswitnesshasmadefalseapplicationbefore S.I.T.Inapplicationhehasnotstatedcertainpoints.The witnessisnottellingwhethertheapplicationwasgivenby handorsentbyRegisteredPost,tohim.Heissayingthat beforetheapplicationwasmade,Himmatnagarpolicehas
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not recorded his statement. In the application, he has statedthatnostatementwasrecordedbythepolice.Sofar astheseargumentsareconcerned,thediscrepancieswhich are pointed out by the accused side are concerned, the statement of this witness was recorded on 10.03.2002. Witnessisalabourclassperson.Ifheissayingthat,his statementwasnotrecordedbythePolicebeforeapplication is made, it is contradictory but it does not effect the presenceofwitnessinShaikhMahollaandonseeingmob hewenttoRawalvas.Noprejudiceisgoingtobecausedto accused due to such contractions. Further, we cannot forgotthatwitnessisdeposingafterspanof7to8years and therefore, such omissions and contradictions are boundtobebutthatdoesnotleadtorejectthetestimonyof witness on the facts whichis reliable one. Further, itis submitted by Shri Dhruv that, as per the say of this witness,hehasseenthemsettingonfirethecabinsoutside theShaikhMahollafromadistanceof1012ft.Further,as per the deposition, house of Manubhai which is situated near his own house being ransacked and set on fire but whosetonfirethecabins,isnotdeposedbyhim.Ifhehad really witnessed the act of the accused, he would have certainly identified the persons who played what role in
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settingonfirethecabinsandhouseofManubhai.Inthis regardwhenweconsidertheevidenceofthiswitness,this witnessissayingthat,mobhadsetonfirethe houseof Manubhai.Nospecificroleisattributedbythiswitnessto anyaccused.Itdoesnotmeanthat,thewitnesshasnotat allseentheincident.
P.W.66ShaikhAkbarmiyaRasulmiyahasdeposed onoaththatmobcameatabout9.30P.M.settingonfire thecabinsattheentranceofShaikhMaholla.Asperthe sayofthiswitness,theincidentofsettingonfirethecabins attheentranceofShaikhMaholla,wasdonebythemobof Patelsoftheirvillage,camefromMahadevTemplesideand thesaidincidentoccurredon28.02.2002whileasperthe say of other witnesses this incident occurred on 01.03.2002.On01.03.2002therewasBharatBandh.Allof themwereinsidethehouse.Atabout9.30P.M.,Patelsof their village came from Mahadev Temple side shouting slogans.Aspolicecame,mobdisbursedandatabout11.30 P.M.,samemobagaincameshoutingsloganstocut,beat andburnthemiyasandhishousewasburnt.Thewitness alsopeltedstonestosavehimself.Hesustainedinjurieson lefthand.Hehadhidenhimselfbythesideofthevehicleof
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Bachumiya.Atthattime,Patelsoftheirvillagewerecoming afterburningthehousesofShaikhMahollaandtheywere proceeding towards the house of Mahemudmiya. As the mobcamenearertohimhewenttoVerandaofgraveyard. MobhadsurroundedthehouseofMahemudmiyaandwere hammering at the terrace. Then, they poured petrol and kerosene. At that time one of the Patel saw him and therefore, this witness went inside the cover of graveyard and covered him with thorns. Thereafter, the Patels had throwntheburningragsinthegraveyard.Thegrasswas burnt and thereafter, they went towards the Mahadev temple and after some time, police came and asked the personstocomeoutthosewhoarealive.Thiswitnesscame outandwenttowardsthehouseofMahemudmiyawherein he saw 28 dead bodies lying and other persons were injured. They took the dead bodies and other injured personstoMahesanaCivilHospital.
ItisarguedbyShriDhruvthat,asperthedeposition ofthiswitness,PatelsofSardarpursetonfirethreecabins outsidetheShaikhMahollabutthisfactisnotstatedin his statement dated 10.03.2002, application dated 09.05.2008 and statement before the S.I.T. dated
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09.05.2008. For the first time he is deposing said fact beforethiscourtaftereightyears.Sofarasthisargument is concerned it is supported from the deposition of Investigating Officer that, this fact is not stated in the statements dated 10.03.2002 and 09.05.2008 and application dated 09.05.2008 and it transpires from the evidenceonrecordthat,forthefirsttimeintheCourtthis factisstatedbutthefactthat,threecabinsoutsidethe Shaikh Maholla were burnt by the mob is proved by the prosecutionbyproducingandadducingcogent,reliableand trustworthyevidenceandinsuchcircumstancesifthisfact is not stated in any of his statement, by this witness it becomes insignificant. So far as fact regarding Patels of Sardarpursetonfirethecabinsisconcerned,thisfactwill bedecidedattherelevantstageintheJudgement.
Further,itisarguedbyShriDhruvthat,thiswitness has stated that it had not happened on 01.03.2002, at about9.30P.M.,mobhadcomeandsomeonemighthave informedthepoliceontheverynextmoment.Heissaying thathedoesnotrememberastowhetheron01.03.2002,at about 9.30 P.M., any mob had come or not while in his
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statement dated 10.03.2002, he has stated that at about 9.30P.M.,mobhadcomeandtheyhidethemselvesintothe house.Thus,presenceofthiswitnessinShaikhMahollaat thetimeofincident,isdoubtful.Fortheseargumentswhen we appreciate the deposition of this witness, in his deposition the witness has stated that mob came on 01.03.2002 at about 09.30 P.M. In his statement dated 10.03.2002hehasstatedthat,mobcameon01.03.2002at about09.30P.M.butinhisdepositionhehasshownhis ignorancewhethermobcameornot.Wehavetoconsider this evidence in the light of status of the witness. This witness is of labour class and illiterate person. In his statement and deposition, he has deposed, which is supported by other cogent and reliable evidence and therefore,simplyonthestrengthofthisstatementthefact which is getting support from other evidence cannot be discardedandthisversionisnotgettingsupportfromother evidenceandtherefore,itisrequiredtobeignoredandon thisbasiswecannotconcludethat,presenceofthiswitness atthetimeandplaceoftheincidentinShaikhMahollais doubtful. Further, it is submitted by the accused that whetherthiswitnesshashidenhimselfortookshelter,for this,thewitnesshasstatedthathehashidenhimselfby
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thesideofthejeepofBachumiyaandfromthere,hesaw theaccused.Thisfactisstatedaftereightyearsforthefirst timebeforetheCourt.Asperthedepositionofthiswitness, when the mob came, he was standing near the house of AkbarmiyaNathumiyanearelectricpoleinShaikhMaholla. Hesawthemobfromabout20Ft.indistancebuthehas shownhisignoranceaboutthefactthatwhenhesawthe mob, at that time, whether mob chased him or not or attacked him or not. If he was on the road of Shaikh Mahollaandhesawthemobfromthedistanceof20Ft. armedwithweapons,mobwouldnothavesparedhim.In thisregardwhenweevaluatetheevidenceofthiswitness alongwiththePanchnamaandMapwithotherevidenceon record, house of Akbarmiya Nathumiya is situated in ShaikhMahollainleftsideoftheroad,leavingtwotothree houses,fromtheentranceofShaikhMahollawhileJeepof Bachumiya Imammiya is standing near the house of Bachumiya Imammiya, which is just to opposite of Akbarmiya Nathumiya's house. As per Memorandum preparedduringtheInspectionVisitbytheCourt,electric polewasfoundnearBachumiyaNathumiya'shouse,near to whichScooter wasburnt, whichsupporting the sayof this witness that, electric pole is near to the house of
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Akbarmiya Nathumiya and the say of this witness that, when he saw the mob he was standing near the electric pole,situatedneartheAkbarmiyaNathumiya'shouseand the distance which is shown by this witness in his depositiongetssupportfromtheMapandPanchnamaand Memorandum of Inspection Visit and looking to the situationifwitnesswasstandingnearelectricpoleandon seeing mob he hide himself by the side of the Jeep of BachumiyaImammiya thatisquitepossibleandnatural. Every person will try to hide to save him in such circumstancesandhewillhidewhereverhefeltsafe.Here, in the present facts and circumstances Jeep was in the nearest situation to hide himself, witness might have thoughtitsaferandhencehehimselfhashidenbytheside oftheJeepandhisthissayisquitereliableandprobable. ConsideringthesituationsofJeep,ifapersonhideshimself bythesideoftheJeep,hecaneasilyseethemobwhich was proceeding towards Mahemudmiya's house. As this witnesshadhidenhimselfhewasnotchasedbythemob, norattackedandhewassafe,fromthisfactwecannotsay that in above circumstances mob would not have spared him. Further, here it is not so that this witness has not sustainedanyinjury.Thiswitnesshassustainedinjuryin
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pelting stones and in that circumstances the arguments advancedbyShriDhruvinthisregardarenotsustainable.
It is further argued by Shri Dhruv that, as per the depositionofthiswitness,hehadhidenhimselfbehindthe Jeep of Bachumiya. Mob proceeded towards the house of Mahemudmiya.AftersettingonfirethehousesinShaikh Maholla, mob surrounded the house of Mahemudmiya, climbing on the terrace of the house and picked the hammer to broketheterrace.Heisnot sayingabout the settingonfireofjeep.Ifhehadhiddenhimselfbehindthe jeep when the jeep was burnt, he would have run away fromthatplace.Hehasdeliberatelynotstatedthathehas witnessed the attack of house of Mahemudmiya. If the house of Mahemudmiya was surrounded and house in ShaikhMahollawereburntincludingthejeepthennoone wouldhavedaredtoremainpresentintheShaikhMaholla. Forthisargumentwhenweappreciatetheevidenceofthis witness, thiswitness hasnot statedabout settingon fire the Jeep but setting on fire Jeep is supported and established by the prosecution by cogent and convincing evidenceandtherefore,theomissionofthiswitnessonthis part is of no importance. Further, from the cross
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examinationofthiswitness,ithascomeoutthatwhenthe mobwassettingonfirethehousesinShaikhMaholla,he hide himself by the side of the Jeep but when the mob proceededtowardsMahemudmiya'shouse,hewasstanding neartheMahemudmiya'shouseandsoonasthemobcame andsurroundedtheMahemudmiya'shouse,hewenttothe Graveyard.Therefore,theargumentsadvancedbylearned advocateShriDhruvinthisregardisnotacceptable.Sofar as evidence regarding climbing on terrace of Mahemudmiya's house and pit the hammer to break the terrace is concerned, it has come out from the cross examination that, this witness has show the persons havinghammer intheirhands,he couldseethepersons but could not identify them who were those persons on terracewithhammer.Atthattimehewasneartoboundary ofGraveyard.LookingtoMap,InspectionVisitbytheCourt, Panchnama of Scene of Offence, boundary of Graveyard shownbehindMahemudmiya'shouseanddistanceof3Ft. between the two is stated by this witness, which gets support from documentary evidence as well as personal visitbytheCourt.Andonconsideringthesituationofthe houseandboundaryofGraveyard,thesayofthiswitness that, he saw the persons from the distance of 10 Ft. is
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corroboratedwiththePanchnamaofsceneofoffenceetc. Therefore, the arguments, in this regard advanced by learnedadvocateShriDhruvarenotsustainable.Further, itisarguedbyShriDhruvthat,itisdeposedbythewitness that, he was running towards the graveyard, mob going towards house of Mahemudmiya, mob surrounded the house of Mahemudmiya, breaking the terrace with iron hammer,climbingtheterraceofthehouseMahemudmiya, pouringpetrolandkerosene,throwingburningraginthe graveyardandgatheringofthemobatMahadevtemple,are theimprovementsinthedepositionofthiswitnesswhich suggeststhathehasnotseentheincidentandhewasnot present in the Shaikh Maholla. Simply because he sustained stone injuries, it cannot be presumed that he had witnessed the incident. Evidence with regard to the houseofMahemudmiyasurroundedbythemob/terrace of the house was hammered by big hammer, pouring of petrol or kerosene, are the vague evidence given by this witness. How it was poured and who poured, nothing is stated by this witness in his statement. So far as this arguments is concerned, climbing, breaking of terrace as statedbythiswitnessissupportedbyPanchnamaofscene of offence, which is produced vide Exh.424, wherein it is
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mentioned that, eastern side wall of the house of Mahemudmiyahasbeentriedtobreakbyclimbingonthe compound wall of the properties of Patel Dineshbhai Joitaram and Patel Amratbhai Shankarbhai and recent markshasbeennotedbythepanchasduringthecourseof panchnamaofplaceofincident.Asperdepositionofthis witness, this witness went to Graveyard. This witness is stating that, mob had caused damage to the graveyard. Grassinthegraveyardwasburntbythrowingburningrag. ForthispurposewhenweperusethePanchnamaofScene ofoffence,damagecausedtotheGraveyardisshowninthe Panchnamahowever,panchnamaissilentaboutburningof grassinGraveyard.Butthefactthat,damagewascaused tothegraveyardisdeposedbythiswitnessaswell asby otherwitnessandthisfactissupportedfromthedeposition ofInvestigatingOfficerShriG.V.Barot,whoonthestrength ofdamagecausedtoGraveyard,writtenlettertoSecretary, Government of Gujarat, for seeking permission under Section 196(1) of Cr.P.C. which is granted by the GovernmentofGujaratforprosecutionunderSection153A . Thus, the say of this witness regarding damage to graveyard is corroborated by the other evidence only burning of grass by throwing burning rag is not getting
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supportfromotherevidence.Butoncedamagetograveyard is proved, it suggest that the say of this witness that he wenttograveyardandhidehimselfinoneofthecoverof grave. Therefore, under above circumstances the discrepancies regarding burning of grass becomes insignificant though it can be considered as an improvement. So far as gathering of mob in Mahadev temple is concerned, it is supported by other evidence. Therefore,nonstatingofallthesefactsinhisstatements though may be considered as improvement in his deposition but in the circumstances as discussed above and in view of the other evidence on record, this improvementarerequiredtobeignoredandthepresenceof this witness cannot be doubted on this count. So far as arguments advanced with regard to how, who poured kerosene, petrol, not specified in any of his statement is concerned, if the witness is not specifically stating such facts in his statements under such a tense and grave atmosphere, we cannot discard the evidence as a whole, which is satisfactorily established by the prosecution. Further,itisarguedbyShriDhruvthat,forthedeposition withregardtoonePatelhadseenhimandPatelchasedhim and he had hidden himself, if that is true, in that
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circumstances,ifmobcamewithweaponstokillparticular community, the mob would not have spared this witness therefore,thisfactisdoubtful.Sofarasthisargumentis concerned, he was injured, it cannot be said that, this witnesswassparedbythemobbuthehidehimselfthereby hewassafe.Onthestrengthofthisfact,itcannotbesaid that,thiswitnesswasnotpresentifatallhewaspresent, mobwouldnothavesparedhim. Further,itisarguedby ShriDhruvthat,thiswitnesshadgivencomputerizedtype application dated 09.05.2008. Date was written by hand. Heisuneducated,unabletoreadthetime.Thatapplication was typed by typist as per his dictation. Date fixed on computerized type copy is hand written. As per his admission, he has not got it typed in computer. Incident occurredintheyear2002.Noonehadaskedhimtogive such application on 09.05.2008 but he himself got it prepared the application. His statement was recorded on 10.03.2002. This shows his ignorance about that statement.Thiswitnesshadnotgivenanyapplicationprior toapplicationdated09.05.2008.Copyofthatapplicationis notkeptbyhim.Onthispoint,itisthesayofdefencethat such application were prepared and tendered at the instance Citizen for Peace and Justice, NGO headed by
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Teesta Setalvad. Looking to the admission given by this witness,inhiscrossexamination,itisspecifiedthatexcept signingtheapplication,witnesshasdonenothing.Itisthe creationofTeestaSetalvadofCitizenforPeaceandJustice. ApplicationwaspreparedaftertheconstitutionofS.I.T.All theapplicationswerepreparedatonlyoneplaceandexcept familydetailsotherdetailsaresame.Therefore,thesefacts are also not believable. So far as these arguments are concerned,witnessisanilliterateperson,wecannotforget that, the NGOs have taken active part up to Hon'ble Supreme Court of India in the matter and witnesses are guidedbytheNGOs.Keepinginmindthefact,ifwitnessis guided by NGOs, we have to consider the evidence by followingthepolicyofgrainandchaff.Whenweconsider theapplicationpreferredbeforeS.I.T.muchhasbeenasked aboutthisapplicationinthecrossexamination.Fromthe crossexaminationitselfittranspiresthat,applicationwas preferred after constitution of S.I.T. and if witness has takensomehelpofNGOsandTeestaSetalvadofCitizenfor PeaceandJustice,whohavehelpedthewitnessforgetting justice, no prejudice is going to be caused to accused therefore,theirregularitieswhicharepointedoutincross examinationofthiswitnessarerequiredtobeignoredand
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muchweightagecannotbegiventothoseirregularitiesand the arguments advanced by Shri Dhruv that, this applicationiscreationofTistaSetalvad,CitizenforPeace andJusticewillnotbehelpfultotheaccusedundersucha circumstances.Further,itissubmittedbyShriDhruvthat, this witness was in Maholla, he went to Civil Hospital, Mahesanainthecompanyofpoliceeventhoughheisnot disclosing any fact nor giving any names of the accused eitherbeforetheDoctororbeforethepolice.Even,hewent tovillage:Ilolbuthehadnotdisclosedtheincidenttothe police.Forthefirsttime,heisdisclosingtheincidentbefore thepoliceaftersixyears.Sofarassilenceaboutsixyears asarguedonbehalfofaccusedisconcerned,thiswitnessis aninjuredwitness,ifhewassilentforaboutsixyearsand has not narrated the incident to Police or Doctor though Police was with him up to Ilol, true that, this witness is silentuptosixyearsbutapersonundersuchagraveand tenseatmosphere,whosenearestrelativeswereburntalive intheincident,furtherhavingnoroofforshelter,naturally he will try to choose a shelter for him or his family members rather than rushing for lodging complaint, in that circumstances if the witness was silent but the incidentisotherwiseprovedbytheprosecutionbycogent
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and reliable and convincing evidence, much importance cannot be given to such silence and on this count whole depositionofthiswitnesscannotbediscarded.Further,it is argued by Shri Dhruv that, there is no other driver havingnameAkbarmiya.Still,thiswitnessissayingthathe hidehimselfbythesideofhouseofAkbarmiyadriver.Itis nothissaythathehidedhimselfbythesideofthehouseof Akbarmiya.Sofarasthisversionisconcerned,thiswitness hasaddedAkbarmiyadriverinhisdeposition,itdoesnot meanthat,hissayabouthidingbythehouseofAkbarmiya is false. Akbarmiya may be a driver though not came on recordbutwhetherheisadriverornot,itisnotgoingto effect the case of prosecution nor going to prejudice the accusedsidehencenoimportancecanbegiventothisfact.
Consideringaboveall,thepresenceofthiswitnessin ShaikhMaholla,atthetimeofincident,isreliableasheis theresidentofShaikhMaholla.Heisinjuredeyewitness. Further,consideringthetimeandplaceofoccurrencehis presence in Shaikh Maholla cannot be doubted. Further, wherehewasstanding(nearelectricpole)fromwherehe sawthemobfirst,thereafterthemobstartedsettingonfire houses in Shaikh Maholla and proceeded towards
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Mahemudmiya'shouse,hehidehimselfbythesideofJeep, fromthoseplacesapersoncaneasilyseethemobandfrom the jeep side where he was hiden also a person can see what is happening in Mahemudmiya's house. During InspectionVisitbytheCourt,itisnoticedthat,aperson couldseefromtheplacewhereJeepwasstanding,inthat circumstances, if the witness is saying that, he saw the mob, he was having ample opportunities to see the mob. Thiswitnessisthebrotherofthecomplainant,hisnearest relatives died in the incident, this witness had hiden himselfinthevacantgraveinthegraveyard,themobwas searchinghimbutcouldnotfindhim,thereafter,themob of Patels had thrown burning rag, the grass were burnt. This facts supports the damage to the religious place of Muslims. Whether the mob of Patels was of Village Sardarpurornotwillbedecidedattherelevanttimeinthis Judgementbutthiswitnessincurreddamagestowardsloss ofhistwohouses,whichissupportedfromthePanchnama.
P.W.67 Shaikh Imtiyazbhai Mahmadhusen has deposed that his brother Rafikmiya was carrying the businessofpanbidiinthecabin.On01.03.2002,hewasin his house. At about 9.30 P.M. mob of Hindus alongwith
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weaponscamefromthesideofMahadevtempleandthey cametowardstheShaikhMahollaandburntthreecabins attheentranceofShaikhMaholla.Asthepolicecame,mob disbursed.Again,thesamemobcameandstartedpelting stones. Mob had burnt the house of Manubhai Bhaimiya andAkbarmiyaNathumiya.Atthattime,thiswitnesswas standingtowardsthehouseofAyubmiyaRasulmiyaandat that time, he saw the persons in the mob and he went insidethehouseofSherumiyaRasulmiyatosavehislife. ThemobofPatelsburntthehouseofMahemudmiyaand thenwent.Atabout2.30A.M.,policecameandtookthem to Civil Hospital, Mahesana. three persons were serious and they were shifted to Ahmedabad Civil Hospital. FirozmiyaMakbulmiyaandRafikmiyaManubhaihavedied while Abedabibi died after two days. PostMortem was performedatAhmedabadCivilHospitalandthereafter,they tookthedeadbodiestothegraveyard.Thereafter,theywent tothecampofJuhapurawheretheystayedfor4to5days andagaintheycametoHimmatnagar.
Onbehalfoftheaccused,itissubmittedthat,heis theresidentofSardarpur.HeisresidingwiththeRafikmiya Mahemudmiya.HisbrotherishavingPanBidicabinatthe
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entrance of the Shaikh Maholla. He is the injured eye witness. It is further submitted on behalf of the accused thathisstatementwasrecordedafter46days.Thiswitness wenttoCivilHospital,Mahesanainthecompanyofpolice andthenwenttoCivilHospital,Ahmedabad.Thereafter,he wenttoJuhapura campwherehestayedfor3to5days andthentoPanpurreliefcampbutinspiteofhavingample opportunities, he has not narrated the incident to the police.Hewassilentfor46days.ItisonlyatPanpurcamp, on 10.03.2002, his statement was recorded. As per the depositionofthiswitness,hetookshelterinthehouseof Sherumiya.Thewholepartofthisevidenceisnotnarrated inhisfirststatementdated17.04.2002evenafter6years, beforeS.I.T.on22.05.2008,hehasnotstatedhispartof evidence. Thus, his deposition of this part is improved version.Asperthedepositionofthiswitness,Patelshave setonfirethehouseofMahemudmiyaandaftershouting BharatMataKiJay,theywentaway.Whenhehadhiden himselfinthehouseofSherumiyaRasulmiya,howhadhe witnessed the incident of setting on fire the house of Mahemudmiya.Thus,thisisanimprovement. Fortheseargumentswhenweperusetheevidenceof this witness, it transpires that, he was silent about 46
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days. Considering the brevity of offence and tense atmosphere and the circumstances under which the incidentoccurredandalsothementalagonyofthewitness and that, witness was busy in the medical aid either at CivilHospital,MahesanaoratCivilHospital,Ahmedabad. Thereafter,hewenttoPanpurPatiya.Itisalsotobekeptin mindwhileappreciatingtheevidenceofthiswitness,thata personhavingnorooftostayandhewasincamp,inall these circumstances if the witness is silent for about 46 days and it is only on 17.04.2002 his statement was recoded,wecannotexpectfromapersontobesopromptin narrating the incident before Police or before any other authorityandnondisclosingofincidentfor46dayswould not be fatal of his evidence. Whether this witness took shelter in Sherumiya's house or not, it becomes insignificant. Thefactthat, he wasverymuchpresentin ShaikhMahollaandtosavehimselfapersonwilltrytohide himselfhitherand thitherandinthatatmosphereifthis witnesshidehimselfinSherumiya'shouseorforsometime hehidehimselfatotherplace,thatisquiteprobable.Itis not say of this witness that, he was in the house of Sherumiya during whole incident. Thus, his presence in ShaikhMaholladuringtheincidentcannotbedoubted.He
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is the resident of that Maholla. He is specifically stating whenthemobcameandburnttheHouseofManubhaiand AkbarmiyaNathumiya,hewasstandingtowardsthehouse ofAyubmiyaRasulmiya.LookingtothesituationofHouse ofAyubmiyaRasulmiya,itisinMahollatowardsrightside row,leavingsixhouses,witnesswasstandingneartothat house when the mob burnt the house of Manubhai and Akbarmiya Nathumiya. Thus, considering the distance of two houses and the fact that, house of Ayubmiya Rasulmiya is situated after leaving six houses from the house of Manubhai. Therefore, there was ample opportunitiesforthiswitnesstoseethemob.Considering thedistanceoftwohouses,apersoncaneasilyseethemob by standing near the house of Ayubmiya Rasulmiya. Therefore, the arguments advanced by Shri Dhruv on behalfofaccusedthat,witnesshasnotseentheincident and thereisanimprovementisnotacceptable.Sofaras omission of this incident in his first statement dated 17.04.2002 and then his statement before S.I.T. On 22.05.2008 becomes insignificant. Under the circumstances as stated above and considering the fact that, he is resident of Village Sardarpur, having his Pan BidicabinattheentranceofSardarpur,heistheinjured
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eyewitness.
P.W.68 Shaikh Gulamali Akbarmiya has stated that on the day of Godhra Train incident, he was doing colour work in Jain Derasar of Sardarpur. At about 4.00 P.M.,BecharbhaiOdhavbhaiandAmbalalMaganbhaiwere passinganddiscussingwitheachothertocuttheMuslims. Thereafter, on 28.02.2002, there was Gujarat Bandh and on01.03.2002,therewasBharatBandh.Theywereintheir home. The atmosphere in the village was tensed. Cabins wereburntinthevillageandwitnesswenttoseethesame. Atabout2.30P.M.Patelsoftheirvillagegatheredandwere instigating others to cut, beat and burn the Bandiyas. Thereafter,hecamebacktohishouse.On01.03.2002,at about 9.30 P.M., a mob of Patels came from Mahadev templesidetowardsShaikhMahollaandburntthecabins of Ibrahimmiya Rasulmiya, Rafikmiya Mahmadmiya and IqbalmiyaRasulmiya.Asthepolicecame,mobdisbursed. Policewentbackandagain,themobofPatelscamebackto their Maholla and burnt the house of Manubhai and started pelting stones. They also burnt the house of AkbarmiyaNathumiyaandagainstartedpeltingstones.As againstthat,thewitnessalsostartedpeltingstonestosave
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themselvesfromthemob.Asthemobwasbig,membersof ShaikhMahollacouldnotsavethemselvesfromthatmob and hence, they went inside and mob of Patels had continuedtoburnthehousesandpeltingofstones.Asthe mobcamemuchnear,witnesswentinNaveliofBachumiya Imammiya.HewentinsidetheNavelitohidehimself.Mob cametowardsthehouseofMahemudmiyaandsurrounded thehouseofMahemudmiya.Theytriedtobreakthedoorof the house of Mahemudmiya. Persons of Shaikh Maholla wereinsidethehouseofMahemudmiya.Mobhadbroken thewindowandhadtriedtobreakthedoorsofthehouseof Mahemudmiya and started pouring kerosene and petrol from the window. They had burnt the house and the personswhowereinsidetheroomwerescreamingforhelp. Thoughthewitnesswastherebuthecouldnotsavethem as mob of Patels were shouting to cut and burn them. Thereafter,someonetoldthatpolicecametherefore,mob wentandthepersonswhowerehidden,cameoutonthe sayofpolice.Initially,duetofeartheydidnotcomeoutbut afterhearinghisfathersvoice,hecameout.Thewitness alongwithpolicewenttothehouseofMahemudmiyaand after opening the door, they saw burnt dead bodies and some injured persons. Rescue operation took place and
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injuredpersonswereshiftedto MahesanaCivilHospital. Thereafter,theywenttoIlol.
It is argued by Shri Dhruv that, witness has deliberatelyomittedcertainfactswhichwerestatedinhis statements, with a view to deprive accused of their legitimatedefence.HiswholedepositionbeforetheHonble Court,oncoreissue,isaltogetheradifferentversionplaced beforetheHonblecourtandanewcasehasbeenmadeout by him in his deposition. Therefore, Honble court may kindly consider his deposition very cautiously for finding outtruthintothecase.Thiswitnessinhispara2ofhis depositionstatingthatcutthemisnotstatedanywherein his statements dated 10.03.2002, 10.05.2008 and any of his applications dated 11.04.2008 and 09.05.2008. Further,itisarguedbyLearnedadvocateShriDhruvthat, thiswitnesshasdeposedbeforetheHonbleCourtthat,on 27.02.2002GodhraTrainincidentoccurred,onthatdayhe wasdoingcolourworkinSardarpurJainDerasarandat thattimeatabout4.00P.M.AmbalalMaganlalKapoorand BecharbhaiOdhavbhaiwerepassingthroughthatDerasar andweretalkingtocut,beattheBandiyasandonthatnext day i.e. on 28.02.2002 cabins in the market were burnt.
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This fact is not stated in any of his statement. It is true that,fromtheevidenceofInvestigatingOfficerittranspires that, this fact is not stated by this witness in any of his statement and this fact is not stated or deposed by any otherwitness.Thus,thisfactisnotsupportedbyanyother evidence. Therefore, on this version of this witness, no reliancecanbeplaced.Further,itisarguedbyShriDhruv that, deposition regarding setting on fire cabins in the marketintheeveningon28.02.2002isalsonotstatedby him in his statement dated 10.03.2002 which is first in pointoftime.Sofarashisversionregardingsettingonfire ofcabinson28.02.2002intheeveningisconcerned,this fact is not stated in his first statement dated 10.03.2002 butinsubsequentstatements,hehasstatedthisfactand thisfactissupportedbyothercogentandreliableevidence suchasPolicewitnesses,othereyewitnessestherefore,this versionof this witness onthis pointcannot be discarded simplyonthestrengthofthefactthat,hehasnotstated thisfactinhisstatementdated10.03.2002.Further,itis submittedbyShriDhruvthat,depositionofthewitnesson aforesaid two issues is very vital improvement in his depositionandstatedbeforetheHonbleCourtforthevery firsttimeandnotstatedinhisearlierstatementsrecorded
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bypoliceaswellasbyS.I.T.,norelianceonthedeposition of this witness can be placed in determining guilt or otherwiseoftheaccused.Itisprovedthatthewitnesshas comebeforetheHonblecourttoropetheaccusedfalsely intothecase.Sofarashisversionregardingincidentdated 01.03.2002atabout5.00P.M.isconcernedaspersayof thiswitnessatabout5.00to5.30P.M.hewassittingatthe entranceofShaikhMaholla.MustufamiyaRasulmiyawent to the shop of Dahyabhai Vanabhai, thereafter he came back and told that, son of Dahyabhai Mukeshbhai Dahyabhaiwastellingwhateveryouwanttoeat,eattoday, onaskingMustufamiyaaboutthisfact,hehadshownhis ignorance. It is say of Shri Dhruv that, this fact is not statedinhisstatementdated10.03.2002and10.05.2008. Further no other witness is supporting this version. Therefore, this version can be considered as an improvementandnoreliancecanbeplacedonthisversion. Therefore,theargumentsadvancedbyShriDhruvinthis regardisacceptablethat,theversionofthiswitnessonthis issue is an improvement, in his deposition and stated before the court for the first time and has not stated in earlier statement. Further, it is submitted by Shri Dhruv that,overandabovethatwhatisdeposedtobythewitness
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inhisdepositionthat,on01.03.2002atabout09.30P.M.a mob of Patels came from Mahadev Temple side and went towards Shaikh Maholla and at the entrance of Shaikh Maholla, three cabins viz. Cabin of Ibrahimmiya Rasulmiya, Rafikmiya Mahemudmiya and Iqbalmiya Rasulmiyawereburnt,asthePolicecame,mobdisbursed, soon as police went back, mob of Patels again came and burnt the cabins and thereafter, they entered in the Maholla,burntthehouseofManubhaiPainterandpelted stonesandtheyproceededinsidetheMahollabyburning the houses. They burnt the houses of Akbarmiya Nathumiya,peltedthestones,mobwasconsistingof1000 to1500persons,therefore,itwasnotpossibleforthemto facethemob.MobofPatelscameinandburntthehouses andhesustainedinjuries.Thereafter,hewentintheNaveli ofBachumiyaImammiyawhenthemobofPatelscamein theMahollaandatthattimehesawthemob.Andasthe mob proceeded towards Mahemudmiya's house, this witness went inside the Naveli and he was standing just adjacent to wall of hose of Bachumiya. The mob had surroundedthehouseofMahemudmiya.Thiswitnesshas seenthemobbycomingoutfromNaveliandhesawthat, mobhadtriedtobreakthedoorofhouseofMahemudmiya
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is not stated in his statement. From the evidence of InvestigatingOfficerittranspiresthat,itistruethat,this factisnotstatedbythiswitnessinanyofhisstatements butthefactthat,on01.03.2002atabout09.30P.M.amob cametowardsShaikhMahollaandthreecabinswereburnt by the mob is supported by Panchnama, Map and other evidenceofPolicewitnessesandotherwitnesses.Thisfact issupportedandthatthiswitnessisnarratingthenames ofownersofcabins,whichwereburnt.Thus,theversionof thiswitnessonthispointisreliable,trustworthy.Further, hedeposedthat,soonaspolicecamemobwasdisbursed andsoonaspolicewentbackagainthemobcameandset onfirethehouseofManubhaiPainterandbypeltingstone and setting on fire the houses, mob proceeded. House of AkbarmiyaNathumiyawasalsoburnt.Peltingstoneswere continued, witness have also pelted stones, just to save thembutthemobwassobigtheycouldnotprotectthem andtheywentinside.Asthemobcameinnersidehehide himselfintheNaveliofBachumiyaImammiyaasthemob camemoreinside,hewentindeepinsideofNaveliandmob proceeded towards the house of Mahemudmiya and have triedtobreakthedoorofhouseofMahemudmiya.Thispart of the version of this witness is getting support from the
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evidence of the other witnesses and the documentary evidence, Panchnama and Map. Evidence of Police witnessesalsosupportstheburningofhousesinShaikh Maholla in that circumstances when we consider the evidenceofthiswitnessonthispoint,heistheresidentof Shaikh Maholla, he is injured in the incident, Injury Certificatesupportshisinjurythat,hesustainedinjuries in pelting stones, in the column of history also it is mentioned that, he sustained injury in pelting stones. Under above circumstances, his presence in Shaikh Maholla, cannot be doubted. Further, he had seen the incident when the mob entered and proceeded in the Maholla byburningthe houses.Hewashavingsufficient opportunitiestoseethemob,hehidehimselfintheNaveli. Looking to the map there are five houses between Naveli andentranceofShaikhMaholla.Thefactthat,thewitness waspresentinShaikhMahollaiswellestablishedbythe prosecution and cannot be discarded. Further it is submitted by Shri Dhruv that, more said part of his evidencetouchesthemaincoreofthecase,hasnotbeen mentioned by this witness in his applications dated 11.04.2008 and 09.05.2008. Therefore, it is clear that beforetheHonblecourthehascomeoutwithaverynew
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storywhichisnotstatedinhisanyofhisearlierversions,it may be in the form of statements or in the form of applications. Suchisthequalityofthewitnessandhis
depositionwhichwouldcertainlyleadoneandalltosafely concludethathisdepositionisrequiredtobekeptoutof considerationfor determining the case. Eventhis witness hasgonetoanextentthatmobofPatelswereinthefront andevenonthebacksideofthehouseofMahemudmiya. Thishasbeenprojectedwithaviewtorobthedefenceof the accused as earlier witnesses who have been cross examined extensively on the line that house of Mahemudmiya was attacked from the back side of his housebymobofvillageSundarpur.Stillhowever,sinceitis notstatedinhisanyoftheversions,noimportancecanbe attached to it. But his deposition is a glaring example of howwitnesscandecoratehisevidencebeforetheHonble courttotallydifferentfromwhathehadstatedearlier.Not onlythatthereisanimprovementinhisdeposition,hehas deliberatelyomittedvitalfactswhichhavebeenbroughtto the notice of the witness and confronted with it. In his statement dated 10.03.2002, he has stated that on 01.03.2002atabout9.3010.00P.M.mobofnearly1000 Patels of his village assembled shouting slogans near his
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Mahollaandatthattime,onarrivalandonresorting to firing by police, the mob disbursed. The said omission is also proved on record, whereas the witness has deposed thaton01.03.2002atabout9.30P.M.,themobhadseton firethreecabinsofnamedMuslimsoutsidetheentranceof their Maholla. Thus, it is not only the case of an improvement in the deposition but deliberate omission to state before the Honble Court, it had been stated in his earlierversions.
Evenlookingtohisstatementdated10.03.2002asper his claim, on mob entering Shaikh Maholla and started ransacking, the women folks and children, immediately taken shelter in the house of Nazirmohmad which is interior in the Maholla from the entrance. Even at that time, the witness had also took shelter in the house of Muslims which shared the hinder wall of the house of Patels so that mob may not set on fire those Muslims houses.Hehasalsogonetoanextentthathealsofeared the death and, therefore, he had not come out. The said material omission has been proved on record by the defence.IfitistobebelievedonenteringthemobinShaikh Maholla, he himself was hiding in a house and did not
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comeout,therefore,thereisnoquestionofheiswitnessing anyactofthemobapartfromseeingandrecognizinganyof theaccusedandnamingthembeforetheHonblecourt.
Though this witness claimed that he was standing nearthewatercourseofthehouseofBachumiyainspiteof thatheisnotdeposingbeforetheHonblecourtwithregard to setting on fire the jeep of Bachumiya in front of his house,evenhisclaimisprovedtobecontradictory.Evenhe hasnotdeposedwithregardtojeephavingbeensetonfire, even his presence as claimed byhim inhis deposition is unbelievable.Thus,itisprovedthathehasnotwitnessed the incident apart from being an eyewitness to the incident,thoughheclaimedtobeaneyewitness.
This witness claims to have received injuries while mob started pelting stones. He was also taken to Civil Hospital, Mahesana and there he took treatment also. Evenbeforethedoctor,thiswitnesshasnotstatedanything withregardtoinvolvementofanypersonintheincidentin which even he received injury because of the stone throwing, inspite of that he has not givennames of any accusedbuthehasnotstatedthatitwasbyPatelsofhis
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village.
Thiswitnessinhiscrossexaminationhasstatedthat Idonotknowwhenmystatementdated10.03.2002was recorded, at that time my uncle had already given first informationReport.Thiswitnesswasthenconfrontedwith hisstatementdated10.03.2002whereinhehasstatedthat pursuanttotheincident,myuncleIbrahimmiyahasgiven detailedFirstInformationReporttoyouwhichistrueand correct. Tenor of his statement proves that he was even showntheF.I.R.givenbyIbrahimmiyawasshowntohim. Asagainstthatthiswitnessbluntlydisownsthatbeforethe Honble Court in his crossexamination. Therefore, even conduct of the witness is also doubtful. Therefore, no reliancecanbeplacedonthetestimonyofthiswitness.
This witness in his deposition deposed that in2008 before S.I.T., he has made an application. Looking to his crossexamination, it is crystal clear that he is not the authorofthesaidapplicationbutithasbeengotupwith the help of some external agency with a view to create evidenceintothecase.Therefore,merelyaftersixyearsto theincidentsuchfrivolousapplicationhasbeenmade.He
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has admitted that the house of Nazirmohmad was ransackedandsetonfireafterpouringkerosene.Hehas furtherstatedinhisstatementthatscreamsforhelpwere imminent from the house of Nazirmohmad and house of Nazirmohmad was ransacked and set on fire by pouring kerosenebythemob.SincepersonsofhisMahollawerein side the house, they brought them out. This omission is proved on record. This fact is not deposed before the HonbleCourtbythiswitnessandtherebysuppressedtrue and correct facts from the Honble Court. Thus, witness whohavereceivedburninjuries,theymighthavereceivedit whiletheywereinsidethehouseofNazirmohmadorwhile running away from there when house was set on fire. ConsideringtheevidenceofP.W.105GehlotAnupamsinh Shreejaysinh,itisclearthathehadinquiredfromallthe houseswhichweresetonfireandbybreakingopendoors of those houses, set on fire, merely 40 persons were rescued. It assumes importance when certain witnesses have injuries of burns which might have been caused in different houses which were set on fire other than the houseofMahemudmiya.Moreparticularly,whenlookingto thepositionofhouseofMahemudmiyaandthesizeofhis house, presence of more than 53 persons inside it, is
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impossible.Thisissueisalsospecificallydealtwithinthis memorandum and, therefore, it needs no further discussion.
It has been brought out in evidence of this witness thatwhileS.I.T.recordedhisstatement,hewasreadovera statementdated10.03.2002.Inconnectionwithstatement dated 10.03.2002, he has clarified the statement dated 10.03.2002onthreeissueswhichhavebeennarratedinhis deposition.Stillhowever,thewitnesshimselfdisownsthat hehadnotexplainedorclarifiedanythinginhisstatement dated 10.03.2002 before the S.I.T. Thus, this witness is knownforgivingcontradictoryevidencebeforethisHonble Court and omitting very vital and important true and correctfacts.
Thiswitnessinhisdeposition,thoughitisprovedto beanimprovementinhisversionandcontradiction,stated thatthemobhadattemptedtobreakopenthedoorofthe houseofMahemudmiya;mobhadgonetowardsthehouse of Mahemudmiya and broke the window and poured kerosenepetrol and threw burning rags. Looking to the evidence brought on record of this case, it can safely be
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concludedthatthewitnesshasgivenfalseevidencebefore thisHonbleCourt.F.S.L.expertwhowascalledatthespot after due verification not stated that the window of the house of Mahemudmiya was broken. Even in the Panchnamadrawn,ofthehouseofMahemudmiya,andthe deposition of panch witness, it is mentioned that the window of the house of Mahemudmiya was not broken. Overandabovelookingtothemapalso,itisclearthatfrom the watercourse of the house of Bachumiya unless someonecomesoutintheMaholla,heisnotabletoseethe house of Mahemudmiya. Thus, it is clear that the claim madebythiswitnessbeforetheHonblecourtasifheis eyewitnessfallstotheground.Therefore,depositionofthis witnessisthoroughlyuseless,unbelievable,unreliableand requirestobethrownoverboard. ConsideringtheargumentsofShriDhruvinthelight of deposition of the witness, when we consider the deposition of this witness in respect of omission and contradictionregardingPolicefiringisconcerned,itistrue thatthiswitnesshasomittedthefactaboutPoliceresorted firing at about 09.30 P.M. to 10.00 P.M. when the mob came first time but soon as police came mob disbursed, this fact is stated by this witness therefore, omission of
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firingbythepolicewillnotcauseprejudicetotheaccused on other issues, which are otherwise proved by the prosecution and on this ground, whole deposition of the witness, which is otherwise trustworthy and reliable, cannotbediscarded.Further,thiswitnessisdeposingafter aspanofeightyears.Somecontradictionsareboundtobe but he has stated that, the persons from Maholla went inside the house of Mahemudmiya. If in his statement dated10.03.2002,hehasstatedthat,theytookshelterin Nazirmahmad's house but the fact that woman, children and other persons from Maholla, took shelter in Mahemudmiya's house is proved by the prosecution from othercogentandreliableevidence.Inthatcircumstancesif thiswitnessisalsostatingthesamefactinhisdeposition is tobe relied upon and the fact stated in the statement dated 10.03.2002 regarding hiding of children, woman, otherpersonsinNazirmohmadhouseisnotgettingsupport fromanyevidence.Further,argumentsofShriDhruvthat, this witness had hide himself and has not come out therefore,itcannotbesaidthat,hehadseentheincident butonperusingtheevidenceasawhole,ittranspiresfrom theevidenceofthiswitnessthat,onseeingthemobcoming in and in, in the Maholla and proceeding towards
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Mahemudmiya's house, he went in Naveli. From this evidence we cannot infer that he was not having opportunities to see the mob. We can infer that, his presenceintheMahollaatthetimeofincidentisnatural one.TillhewentinsidetheNaveliofBachumiyaImammiya he was having ample opportunities to see the mob. Therefore,theargumentsadvancedbyShriDhruvinthis regard is not acceptable. Further, it is true that, this witnessisnotstatingaboutsettingonfiretheJeepcarof Bachumiya Imammiya but omission of this fact by this witness does not amount the discarding of other facts, which are proved in the deposition of this witness, as discussedabove.Inthatcircumstancesomissionofsetting onfireJeepcarofBachumiyaImammiyainhisdeposition isrequiredtobeignored.Further,itistruethathehasnot stated before Medical Officer in the history about the involvementofanypersonintheincident.Nonameswere givenbythewitnessinthehistorybeforeDoctor.Further,it isnotmentionedinthehistorythat,PatelsofVillagewere involvedinthemob.Thequestionofinvolvementofaccused intheincidentwillbedecidedattherelevanttimeinthe Judgement. But the fact that, the witness sustained injuriesinpeltingstonesintheincidentinissueisproved
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by the prosecution and the testimony of this witness on thatpointcannotbediscarded. Sofarasversionofthis witness regarding no knowledge about F.I.R. given by his unclewhenhisstatementdated10.03.2002wasrecordedis concerned,thiswitnessisdeposingbeforetheCourtaftera span of eight years. If this discrepancies arises in his depositionthat,thatisnaturalonewhetheratthetimeof recording of his statement dated 10.03.2002, F.I.R. of IbrahimmiyaRasulmiyawasshowntohimornot.Ifthereis anydiscrepancyonthispoint,itisnototherwisegoingto prejudice the accused hence this discrepancies is of no importance. And on that ground conduct of the witness cannotbesaiddoubtfulandthesayofShriDhruvthat,no reliancecanbeplacedonthetestimonyofthiswitnessis not acceptable. So far as the arguments of Shri Dhruv regarding application before S.I.T. is concerned, in the crossexaminationofthiswitnessitistriedbytheaccused sidetobringonrecordthat,heisnottheauthorofthose applicationsforwhichthereistotaldenialonthepartof witnessbutfromhiscrossexaminationittranspiresthat, heisunabletounderstandtowhomitshouldbeaddressed orheisunabletoaddresstheheadingintheapplication. Fromoverallexaminationofthiswitnessonthispoint,it
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transpires that, he might have taken help from someone thoughheisdenyingthisfact.Herethewitnessiscoming fromlabourclass.Inthecircumstanceswheretheincident occurred in which 33 persons died and 28 injured, we cannot forget that NGOs. have taken active part up to Hon'bleSupremeCourtinthematterandthewitnessesare guidedbyNGOs.Simplybecausethewitnessesareguided by NGOs, we cannot discard the whole evidence of the witness. We have to find out the truth by adopting grain and chaff policy. In above circumstances due to some guidancebyNGOswecannotinferthat,applicationisfalse andfrivolous.
From the crossexamination of this witness it transpiresthat,duringhistenureinPanpurCampandIlol he was meeting with the persons of Shaikh Maholla and other relatives but there was no talk about the incident betweenthem.Casuallytheyweremeetingwitheachother. He was residing in Panpur Camp alongwith his father, mother and brother. Sometimes he was going to his relatives. He has no knowledge about the affidavit submitted by Nazirmahmad. He has also no knowledge, whether any other person from Shaikh Maholla has
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preferredaffidavitbeforetheHon'bleSupremeCourtornot. Atthetimeofincident,hewasnothavingMobilephone. Further, he has shown his ignorance about the firing resorted by the Police on 01.03.2002. He has also shown his ignorance about the firing resorted towards the mob comingfromSundarpurside.Nofiringwasresortedatthe entranceofShaikhMaholla.Hehasdeniedthat,Houseof Nazirmahmadwasburntbythemobandthepersonswho wereinsidethehouseofNazirMahmodwerebroughtout bythem.Andhehasnoknowledgewhetherhehasstated this factin thestatementdated 10.03.2002or not.From thiscrossexaminationittranspiresthat,inPanpurCamp sometimeshewasmeetingwithrelativesandpersonsfrom Shaikh Maholla. Munsufkhan Pathan is known to him, furtherhewasstayingwithhisfather,motherandbrother Nazirmahmad in Panpur camp and sometimes he was staying with some relatives. He has shown his ignorance aboutaffidavitfiledbytheHon'bleSupremeCourtofIndia. Relyinguponthisevidence,thesayofShriDhruvthat,the evidenceofthiswitnessis notreliableandtrustworthyis concerned, simply because this witness is showing his ignorance about the affidavit filed before the Hon'ble Supreme Court though he was meeting with persons of
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ShaikhMahollainPanpur campor hehas noknowledge about the firing in the Market in the Village Sardarpur. Fromtheevidenceofthiswitnessittranspiresthat,atthe timeoffiringincidenthewaspresentinShaikhMaholla, which is at the end of Village Sardarpur, while firing incidenttookplaceneartheHouseofFakirs,whichisat theentranceofVillageSardarpur.Fromthedepositionof Policewitnesses,ittranspiresthat,firingwasresortednear FakirsHuts,whichweresituatedattheentranceofVillage Sardarpur. Considering the distance between the two placesifwitnessisshowingignoranceabouttheknowledge offiring,possibilityofhavingnoknowledgeaboutfiringby the police cannot be ruled out. While this witness has specifically denied about the firing at the entrance of ShaikhMaholla,whichonthecontrarysuggestsaboutthe presenceofthiswitnessinShaikhMaholla.Further,inhis deposition, he has deposed about the persons of Shaikh Maholla took shelter in Mahemudmiya's house, which is well established by the prosecution by cogent and convincing evidence, in that circumstances if in his statement,itismentionedthatpersonswerebroughtour from Nazirmahmad's house, that contradiction loses its effect. Therefore,theargumentsadvancedbyShriDhruv
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inthisregardisnotacceptable.Further,itisadmittedby thiswitnessthat,Nazir'shousewasransackedandseton fireafterpouringkeroseneandvoicesforhelpwerecoming fromthehouseofNazirMohmad.Fromthedepositionof D.S.P. it transpires that, persons from otherhouses were alsorescued.Inthatcircumstancespossibilitiesofsaving personsfromotherhousescannotberuledout.Butitdoes not mean that, no incident occurred in Mahemudmiya's houseandmainincidentoccurredinNazirmiya'shouse.So farastheargumentsregardingpresenceofmorethan53 personsinMahemudmiya'shouseisconcerned,therewere children, ladies, old persons gents etc. In such a tens atmosphereeveryonewouldliketogotosaferplaceandif theroomisof16'x11'andiftherewasonecoat,utensils andsomeclothsanddailyusinghouseholdkits,notmore thanthatinsuchasituationitisnotimpossibletohave about 50 to 60 persons in the room and therefore, the argumentsadvancedbyShriDhruvinthisregardarealso notacceptable.
So far as contradictions and omissions in the statementdated10.03.2002andstatementbeforeS.I.T.is concernedandcontradictionsregardingattemptbythemob to break open the door of Mahemudmiya's house and
// 542 //
breakingthedoorandpouringthekeroseneandpetroland throwing burning rag are concerned, it is denied by the witness that, he has not stated so in his statement. As discussed above in earlier paras, the incident which occurred in the Mahemudmiya's house and not in Nazirmiya'shouseisprovedbytheprosecutionbycogent and convincing evidence. Documentary evidence also supportsthesame.Inthatcircumstancesifthewitnessis also stating the same in his deposition, and if there is contradictioninthestatementsinthisregard,whichisnot supportedbyanyevidencebecomesinsignificant.Itistrue that, in Map, Panchnama and F.S.L. Report nothing is mentionedaboutthebreakingofdoor,windowsetc.butthe fact that, Mahemudmiya's house were burnt by pouring inflammablearticlesandthepersonswhowereinsidethe roomsustainedburnsinjuriesand33personshavedied. In that circumstances whether there is mark of breaking thedoor,windowsetc.becameimmaterial.Thefactstands asitisthat,housewasburntbythemob.Inthisregard whenweperusetheF.S.L.Report,producedvideExh.675, itismentionedinitthat,itwasfoundthatforcewasused tobreakwindowsanddoorfromoutside.Thus,insucha circumstance if windows or door is not broken but force
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wasusedinsuchasituationifthewitnessissayingthat, mobhadattemptedtobreakopenthedoorortobreakthe window,hissayisgettingmuchsupportfromF.S.L.Report andPanchnamaofsceneofoffence,whichisproducedvide Exh.424.SofarastheargumentsadvancedbyShriDhruv regardingseeingofincidentfromNaveliisconcerned,itis notthesayofthewitnessthat,fromtheverybeginninghe wasinNaveli.Fromtheevidenceittranspiresthat,hewas in Shaikh Maholla, mob came, three cabins were burnt, police came, mob disbursed, again mob gathered and proceededinsidetheMaholla,houseofManubhaiPainter was burnt, incident of pelting stones occurred, persons fromShaikhMahollaalsopeltedstonesbuttheycouldnot protest as the mob was big and they went inside the Maholla.Inthestonepeltingincidenthesustainedinjuries thenonlyhewentinsidetheNaveli.Therefore,tillthenthis witnesswashavingampleopportunitiestoseethemoband theargumentsadvancedbyShriDhruvthat,thiswitness wasinNavelianditisnotpossibleforapersontoseethe incident from Naveli is not acceptable under above circumstances.
P.W.69 Shaikh Mahemudmiya Husenmiya has
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statedonoaththat,heistheresidentofSardarpurandat thetimeofincident,theywerestayinginShaikhMaholla. Due to the train incident in Godhra, there was Gujarat Bandh on 28.02.2002. On that day, at about 7.30 P.M., PatelsoftheirvillagehaveburntcabinsinfrontofGram Panchayat. Thereafter, on 01.03.2002, there was Bharat Bandhandonthatday,hewasinhishome.Noonefrom theirMahollawenttodotheirwork.Atabout9.30P.M.all ofsudden,mobofPatelsabout1000to1500personscame shoutingtheslogansburn,cutandbeattheMuslimsand came towards the Shaikh Maholla and they burnt two cabinsattheentranceofShaikhMaholla.Thereafter,police cameandthemobdisbursedandtherewassilenceinthe atmosphere. All were sitting in their house and all of sudden,atabout11.30P.M.,someofthepersonsfrommob startedpeltingstonestowardstheShaikhMahollaandhad burnt the houses. Police vehicle came at 11.30 P.M. and went away. Thereafter, the mob burnt the house of Manubhai and thereafter, other houses in the line were burnt.PersonsinShaikhMahollawererushinghereand theretosavethem.Hehadseenalltheseandthepersons of Shaikh Maholla came to his house to save them. Approximately 40 persons were inside his house. These
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personsfromthemobhadtriedtobreakthedoorandwere shouting to cut, beat and burn the Muslims and the personswhowereinsidetheroomwerescreamingforhelp tosavethemandthiswitnesseshadhiddenhimselfbelow theshadeofhouseofBabamiya.Hehasseentheincident from there and thereafter, the mob of Patels climbed the terraceandhadstartedhammeringtheterrace.Rajeshbhai Punjabhai was hammering the terrace and other persons fromthemobhadcontinuedtoburnthehousesandthen thepolicecameandmobdisbursed.Thereafter,policetook themtoSavala. ItisarguedbyShriShahthat,asperthedepositionof thiswitnessheishandicapped.Atthetimeofincident,he washavingonlyoneleg.Heisthepersoninwhosehouse the main incident occurred. His house is having North Southdirectiondoors.Asthiswitnessishandicappedhe cannotruntherefore,hewasinotherpersonshouseand nodoubtcanbecreatedabouthissay.
ItisarguedbyShriDhruvthat,asperthedeposition ofthiswitness,thatpersonsweresetonfirealongwiththe house.Althoughthiswitnesswasnotinsidethehouse.He ishandicappedanddisabledbyhisoneleg.Thiswitness
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claimstobeintheShaikhMahollaatthetimeofincident and has seen that incident. Looking to the evidence brought on record and the conduct of this witness his presence in the Shaikh Maholla is not believable. This witnesshasdeposedthaton01.03.2002atabout9.30P.M. amobofPatelsofabout1500personsassembledshouting sloganandsetonfiretwocabinsoutsidetheentranceof ShaikhMahollaandtheyenteredtheShaikhMaholla.As pertheadmissionofthiswitness,hewassittingoutsidehis houseintheShaikhMaholla.Hehasadmittedthatfrom the outside of his house, entrance of Shaikh Maholla cannotbeseen.Therefore,hecannotevenseemobsetting on fire the cabins which were outside the entrance of Shaikh Maholla. Still however, he is deposing before the Honble court that he had seen the mob set on fire, two cabins outside the entrance of Shaikh Maholla. Not only thathehasnotdeposedthatheheardthat,onthecontrary he states that mob set on fire two cabins which is unbelievable.
ThiswitnessdeposedthatpersonsofShaikhMaholla wereinsidehishouse.Nearlyabout40personswerethere inhishouse.Hishouseisapakkahousebuiltwithcement
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concreteandhavingironwindowanddoors.Thiswitness claimsthathewasundertheshadeofBabamiyaandfrom therehewitnessedtheincident. Withduerespecttothis witness, place from where he said to have witnessed the incident,isnotbelievableatall.Furthermore,thiswitness has not deposed that how and in what manner even his housewassetonfire.Atthesametime,apersonofmob climbed the terrace and started breaking it, more particularly, Burning rags were thrown in, setting on fire thehouseisalsonotdeposedbythiswitness.Notonlythat who threw that burning rag is also not stated by this witness. As per the claim of this witness, he was just oppositehishousebuthehidehimselfinthecourtyardof thehouseofBabamiya.Hehasalsoadmittedthatunless someonecomesnearthedoorofcourtyard,onecanseethe housebutifsomeoneisinthecourtyard,hishouseisnot visible.Thewitnessisalsochangingtheplacesuitablyto convincethisHonblecourtthathehasseentheincident. LookingtothephotographyofthehouseofBabamiya,itis clear that a handicapped man who is not having one leg cannot move around when unruly mob has started ransacking and setting on fire the houses in the Shaikh Maholla.Evenwhenmobisattackinghishouse,hecannot
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daretostaytherevisibletoanypersonofmob.Thus,his claimthathehadseentheincidentfromundertheshade ofBabamiyashouseishighlyunbelievable.
ThewitnesshasadmittedthatthehouseofBabamiya was locked from outside, the courtyard of the house of Babamiyaisopen.Theroofbelowwhichhewashiding,on theleftandrightside,thereisaconstructedwallandin thefrontthereisasmalllevelplinth.Eventhecourtyard has no door. If he could have witnessed the incident by coming near the courtyard which has no door, it is impossible,ashewouldnothavebeenevensparedbythe unruly mob. Even reaching to the courtyard of house of Babamiya,itistoodifficultforthishandicappedwitnessto gothereandstaytheretilltheincidentconcluded.Hehas deposed that after arrival of police vehicle, the mob had disbursed.Therefore,itisclearthatasperhisclaimupto 2.30 A.M., the mob had ransacked and set on fire the house of Shaikh Maholla. If mob was there for about 2 hours,notasinglealivepersonwouldhavebeensparedby themob.Atthesametime,noonewoulddaretostayinthe Maholla itself when unruly mob entered Shaikh Maholla. Assuch,handicappedpersonwouldmakehisescapegood
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beforeevennormalpersonwoulddothat.
Thiswitnesshadalltheopportunitiestoescapewhen mob entered Shaikh Maholla because there is a road leadingtowardstheopenfieldsbythesideofhishouse.No person would dare to take shelter in the direction from where mob is coming. Only this conduct is sufficient to establishthatthoughhehasnotwitnessedtheincidentin spiteofthatheistryingtomakebelievethiscourtthathe hadseentheincidentfromverynearbyplace.Lookingto thepositionofhousesintheShaikhMahollawhileentering itonrighthandsideandlefthandsidetherearehousesin rowonboththesides,houseofMahemudmiyaisnotinany row but last at the end of Maholla in the middle part. Therefore,hishouseisnotsituatedeitheronrightsideof the houses in Shaikh Maholla or in the left side in the Shaikh Maholla. Since the evidence brought on record established that when mob entered the Shaikh Maholla, witnessofShaikhMahollarantowardstheopenfieldsby thesideofthehouseofMahemudmiya.Theneitherwitness wouldremaininsidehisownhousewhoishandicappedor hewouldalsorunawaybythesideofhishousetowards thefield.Hemusthaveactuallydonesobutheisposing
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himselftobeaneyewitnessandgivingfalseaccountofthe incident.
It is respectfully submitted that the house of this witness is a pakka construction with cement concrete, whereas house of Babamiya which is kachcha hut and ceilingisof tinshades. It isnaturaland humanconduct that a person having pakka constructed house in which nearly40personstookshelterforsavingtheirlives,would notcomeoutofthatpakkahouseandwouldtakeshelterin a kachcha house which is also gone for the purpose of marriageofhisson.Asperthecaseofdefence,Babamiya withhisfamilywasnotpresentatthetimeofincidentand threedayspriortotheincident,hewentoutofthevillage forthepurposeofmarriageofhisson.Evenasperthecase ofdefence,thiswitnesshadalsogonetoattendmarriage function of son of Babamiya. Even on that line, a suggestion was put to the witness but he has denied. However,lookingtotheimprobabilityinhisdepositionwith regardtohispresenceatthesceneofoffence,thedefence putupbytheaccusedsoundsveryplausibleandprobable.
Thoughhouseofthiswitnesswasmostsafethanany
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other place either in the Maholla or outside, more particularly, when nearly 40 persons of Maholla took shelterinhisownhouse,hewouldnotventuretocomeout of his house or remain outside the house to witness the incident.Sincehisownhouseisonthegroundleveland thehouseofBabamiyahavingplinth,itismoredifficultto climbit,moreparticularly,whenheishandicappedbyone leg. In such a situation even person would not leave his family inside his own house to roam in the Maholla in betweenunrulymob.Eventotakeshelterundertinshed roofisalsomoredangerous.Therefore,hisevidenceisnot naturaltothecommonsense.
Thepolicestatementofthiswitnesswasrecordedon 06.03.2002thatisnearlyafter4daysoftheincident.When fourpersonsofhisownfamilyincludingwifeandchildren diedinsuchaghastlyincidentandhehasseenthatvery occurrence, it would not happen that he would not immediatelyinformthepoliceaboutthesame.Itisproved thatafterpolicecame,deadbodieswerebroughtoutofthe houseofMahemudmiya.Itishisowncasethatinapolice vehicle,theywereescortedtovillageSavala.Stillhowever he is not informing the police about the incident and he
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having witnessed the incident. Even as per his own evidencethoughpolicehadbroughtoutdeadbodiesfrom his house, he deposes that in his presence dead bodies werenottakentothehospital.Stillhowever,thiswitnessis notevenaskingthepolicewherehisdeadwifeandchildren weretaken.Onthecontrary,hedeposedthatafterabouta week,hecametoknowthathisdeadwifeandchildrenwere taken to Mahesana CivilHospital. It ishighly unnatural thathewouldnoteventrytoinquireabouthiskithand kin.Itishighlyunnaturalthatawitnessinwhosepresence theincidenthadoccurredandknowingthathiswifeand threechildrenhaddiedinhisownhouse,wouldnotknow where they were taken. As per his claim, he did not accompanythedeadbodiesofhiskithandkin.Atthesame time,thoughheispresentintheMahollaafterthearrival ofpoliceheisnotdeposinganythingaboutdeadbodiesof hiswifeandchildrenwerebroughtoutfromhisownhouse. Thus,theconductofthiswitnessishighlyunnaturaland notbelievable. Surprisingly,thiswitnesshasdeposedthat he is knowing Babamiya since his childhood, in whose courtyardofthehouse,hetookshelter.Stillhowever,even after8yearsoftheincident,hepleadsignoranceaboutthe names of the sons of Babamiya. Even he does not know
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namesofBabamiyassonswives.Thus,thewitnessisnot knowingnamesoffamilymembersofhisneighbourwhom heisknowingsincechildhood.Stillhowever,hehasgiven fullnamesofPatelsofhisvillage.Therefore,itisclearthat heisnotgivinghisnaturalversionbeforetheHonbleCourt andheisdeposingsometutoredversion.
Ithasbeenbroughtonrecordthatstatementofthis witnesswasrecordedbyS.I.T.on25.03.2002stillhowever, thiswitnesshasgonetoanextentofsayingthathehasnot givenanystatementbeforetheS.I.T.Eventhisomissionis provedtobefalseone.Therefore,thereisnoguaranteethat he would give true and correct deposition before this Honblecourt.
Thiswitnessinhisexaminationinchiefstatedabout mobhavingrushedtotheMaholla,startedpeltingstones andsettingonfireatabout11.30P.M.Inthenextline,he has deposed that at about 11.30 P.M. police vehicle had come and gone away, if claim of this witness is to be believedthatthepositioniswhenmobwasthereatthat verytime,policehadcome.Ifthatissoeventhisincident couldhavebeenaverted.Overandabovethatthereisno
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such claim by any of the witness. It may be possible witnessis tutored notto say anything withregard tothe policehavingdoneanything.Therefore,onthatline,heis trying to assert the said facts before the Honble court. Thus,itisprovedthatheisnotawitnesstotheincident andhascomebeforetheHonblecourt,asifhehasseen theincident.
The deposition of this witness with regard to 4 to 5 cabinshavingsetonfireat7.007.30P.M.on28.02.2002 has not been stated by him in his statement dated 06.03.2002whichisprovedcontradiction.Evensettingon fire two cabins outside entrance of Shaikh Maholla on 01.03.2002atabout9.30P.M.isalsonotstatedbyhimin his statement dated 06.03.2002. Therefore, even mob started pelting stone and setting on fire houses; police vehiclecomingat11:30P.M.andgoingback;personsofthe mob first set on fire house of Manubhai and, thereafter, settingonfireinrowandhewitnessedit.Thispartofhis evidenceisprovedtobecontradiction.
Considering the arguments advanced on behalf of both the sides in respect of evidence adduced by this witness,when weappreciatetheevidenceofthiswitness
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andthefactthat,heisthewitness,whoisunabletowalk atthetimeofincident,hewashavingonelegworking,now his both legs are not working. Further, it is also an important aspect that, the main incident occurred in his house.Asperhissayatthetimeofincident,hewassitting outsidehishouse,ifthatisso,hispresenceintheShaikh Mahollacannotbedoubtedconsideringthetimeandplace andthefactthat,heisunabletowalkbeinghandicapped. So far as his admission that from his house entrance of Shaikh Maholla cannot be seen is concerned, during the inspection visit by the Court, the Court has personally verified this fact. No doubt that the houses in Shaikh Maholla are in zigzag row but a person standing near Mahemudmiya'shouseorattheentranceofotherhandi.e. attheentranceofShaikhMahollacaneasilyseewhatis happening on the other hand therefore, the admission of this witness in this regard is of no importance. In that circumstances,ifthiswitnessissayingthat,hehasseen the setting on fire incident at the entrance of Shaikh Maholla i.e. reliable. Further, in his crossexamination, it has come out that, during the incident period, he could workinMahollabuthewasnotabletomoveinthevillage easily.Hewashavingdifficultiesinwalking.Inhiscross
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examinationmuchhasbeenaskedaboutthetopographyof ShaikhMahollaanditistriedtobringonrecordthat,it wasnotpossibleforhimtoseethemob.Inthisregardfrom thecrossexamination,ittranspiresthatthereisshadein thehousewherethiswitnesshidehimself.Hewassitting adjoining to wall under Shade. As there was lock in the house, it was not possible for mob to see him in Osary (Veranda)wherehehashidenhimselfbuthewasableto seethemobandhesawthemobfromthedistanceofabout 25 Ft. when the mob came, he was under the shade of Babamiya.ConsideringthetopographyofShaikhMaholla, there is 7 Ft. open space just in front of his house thereafter house of Sherumiya Rasulmiya is situated. Thereafter,thehouseofBhikhumiyaKalumiyaissituated, thenhouseofBabamiyaissituated.MapandPanchnama alsosupportthisfact.Hehasstatedthat,hecouldseehis housefromtheplacewherehehidehimself.Itisadmitted byhimthat,housesinShaikhMahollaareadjacenttoeach other.Itisstatedinhiscrossexaminationthat,mobwas notabletoseewherehehidehimself.Thedistancebetween hishouseandBabamiya'shouseisabout10Ft.Inabove circumstancesifthewitnessissayingthat,hehidehimself undertheShedofBabamiya'shousefromwherehecould
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see the mob, proceeding towards his house is quite possible. He was not inside the shade. From inside the shadenoonecanseewhatishappeningsattheentranceof Shaikh Maholla. But this witness is not saying from the very beginning that, he hide himself under shade of Babamiya's house,as the mob was proceedingin Shaikh Maholla, at that time he went under the shade of Babamiya. Therefore, the arguments of Shri Dhruv that, thiswitnesswasnotinapositiontoseethemobcannotbe accepted.Thiswitnesshasdeniedthat,heheardthevoice offiringcomingfromtheentranceofShaikhMaholla.So farastheincidentabout7.007.30P.M.regardingburning of cabins near Panchayat is concerned, it is say of this witnessthatheheardthatfact.Hehadnotpersonallyseen that incident. It is not stated in the statement dated 06.03.2002.Itistruethat,thereisacontradictioninhis statement in this regard but this contradiction itself suggestthegenuinenessofthewitness.Hehasnotsaying thathe hasseen theincident ofsettingonfire ofcabins nearPanchayat.Thereisnoimprovementintheversionof this witness on this point. On the contrary it goes to suggestsmoreaboutthetrustworthinessofthiswitness.So farasevidenceofthiswitnessregardingbreakingofterrace
// 558 //
with the big iron Hammer is concerned, for this purpose when we peruse the Panchnama of place of incident, produced at Exh.424, it is mentioned in the said panchnama that, eastern side wall of the house of Mahemudmiyahasbeentriedtobreakbyclimbingonthe compound wall of the properties of Patel Dineshbhai Joitaram and Patel Amratbhai Shankarbhai and recent markshasbeennotedbythepanchasduringthecourseof panchnamaofplaceofincident.Thisfactofthepanchnama supports the say of witness that, a persons from mob climbedonterraceandstartedbreakingitwiththebigiron Hammer,therefore,thesayofShriDhruvthat,itistotally contradictoryandanimprovementinhisdeposition,cannot be considered as much supported by Panchnama. Therefore,depositionofthiswitnesscannotbediscardedon this point. Therefore, the arguments that the place from where he said to have witnessed the incident is not believablearenotacceptable.Thiswitnessissayingthat, hishousewasburnt,howandinwhatmanneritwasburnt is not specified, it does not suggest that, he has not witnessedtheincident.
So far as on arrival of police, mob disbursed is
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concerned, police witnesses have also deposed that, on seeingthemmobwenttowardsotherside.Ifthiswitnessis safeandhidedhimselfundertheShadeofBabamiya's,that possibility cannot be ruled out and the arguments advancedinthisregardbylearnedadvocateShriDhruvare notacceptable.SofarastheargumentsadvancedbyShri Dhruvinrespectoffactthat,theconductofthiswitnessis unnatural,hehidehimselfundertheshadeofBabamiya's houseratherthangoingtohisownhouse,whichisapakka constructed house and other persons were inside house. When we appreciate the evidence of this witness in this regard, every person behaves in his own manner in a peculiarcircumstances.Ifthiswitnessbeinghandicapped wentto Babamiya's shade and had notgone towards the field or inside his house, his this conduct cannot be consideredasunnaturalandonthatstrengthitcannotbe saidthat,heisposinghimselfaswitnessofincident. So far as the arguments of Shri Dhruv regarding house of Babamiyaishavingplinthanditisdifficultforwitnessto climbareconcerned,ifthiswitnesswentundertheshade ofBabamiya'shousebyclimbingplinth,hemighthavefelt saferthere.Further,lookingtotheconditionofthewitness, aswaspersonallyseenbytheCourtandfromtheevidence
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ittranspiresthat,hecanmovefromoneplacetoanother place.Itisnotsothat,hecannotmoveatall.Ifthiswitness climbeduptoplinthlevel,thatwasquitepossibleforhim andinthatcircumstanceifthewitnessissayingthat,he went under the shade of Babamiya's house is quite probable. In his crossexaminationitwas notbrought on record that, he was not in a position to climb the plinth levelofBabamiya'shouse.Therefore,onthestrengthofthis point, the version of this witness that, he hide himself undertheshadeofBabamiya'shousecannotbediscarded. Further, in the incident his family members like wife, childrenwerekilled,whythiswitnesswilltrytoleavereal culpritandinvolvefalsepersonsinsuchaheinouscrime. Every such person will try to see that real culprit be punished.ComplaintwasfiledbyIbrahimmiyaRasulmiya Shaikh.HewasaccompaniedbyPoliceuptoVillageSavala. It is true that, he has not informed the Police about the incident, it does not amount that, he is telling lie. Complaint was already lodged. Police was doing his work andduetoexigencyifhisstatementisrecorded,afterfour daysthatdoesnotmeanheisagotupwitness.Everyfact wasbeforehim.Eventhoughhehasnotaskedaboutthe dead bodies of his wife and children and this is also
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somewhatunnatural.Itisalsounnaturalthat,hehadnot inquiredabouthiswifeandchildrenaboutaweek.Butthis doesnotamountthat,theotherfacts,whichareotherwise proved bytheprosecutionsupportinghisversioncannot bediscardedasnoprejudiceisgoingtobecausedtothe accused. Further, this witness has shown his ignorance abouttheknowledgeofnamesofsonsofBabamiya,itdoes notcompelapersontobelievethat,thesayofthiswitness thatheknowBabamiyasincechildhoodisfalse.Aperson mayormaynotbeknowingthenamesofaperson,thatis quite possible and therefore, on this count, it cannot be said that, his conduct is unnatural and he is a tutor witness. P.W.76ShaikhHamidabibiAkbarmiyahasdeposed thatsheistheresidentofSardarpur.Onthenextdayof incidentofGodhratrain,cabinswereburntinthevillage and onthe third day,mob of Patels of theirvillage came fromMahadevtemplesideatabout9.00P.M.andtheyhad burntthecabinsattheentranceofShaikhMaholla.Asthe policecame,mobdisbursed.Soonasthepolicewentaway, againthemobcameandhavestartedpeltingstones.Dueto fear, they went in the house of Ibrahimmiya Rasulmiya
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Shaikhandfromtheretheysawthemob.Thereafter,mob wenttowardsthehouseofMahemudmiyaandinthehouse ofMahemudmiyapersonswhowereinsidewereburnt.The mob of Patels were shouting to cut, beat and burn the Muslims.Thereafter,policecameandrescueoperationhad takenplaceandinjuredaswellasthedeceasedweresent totheMahesanaCivilHospital. Itisarguedonbehalfoftheaccusedthat,thiswitness hadgonetoCivilHospital,thentovillage:Ilolandalsoto Panpur relief camp inthe company of police buthas not narratedtheincidentbeforethepolice.Forthefirsttime, herstatementwasrecordedon21.06.2002butasperher say,nostatementwasrecorded.Whatevershehasstatedin chiefexamination, is not stated in her statement dated 21.06.2002and22.05.2008.Shehasadmittedinhercross examination that for the first time she has stated in examination in chief. She has further admitted that she hasnotinformedanyoneintimeexceptherdeposition.In herstatementdated21.06.2002,shehasstatedthatforthe incidentdated01.03.2002,withregardto9.30P.M.,inthe eveningmobcameandsomeoneinformedthepoliceandon arrivalofpolice,theyresortedfiringandmobdisbursed.In herstatement,shehasstatedthattheyhidethemselvesin
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thehouseofcomplainant.Shesawthemobfromthehouse of Ibrahimmiya and mob proceeded towards the house of Mahemudmiya. As per deposition of Ibrahimmiya RasulmiyaShaikh,doorofhishousewasbroken.Persons fromhishousecameout.Thiswitnessisdeposingthatdue tofear,shewenttoHarijanvas.
Whileappreciatingtheevidenceofthiswitnessinthe light ofargumentsadvancedonbehalf ofaccusedmainly considertheevidenceofthiswitness,ittranspiresthatno doubtshewashavinganampleopportunitytonarratethe incident before Police or other authorities but she was silent up to 21.06.2002. She has deposed contradictory versions in Chiefexamination as well as in cross examinations about recording her statement. She is an uneducated labour class lady,we cannotexpectfrom her promptactionofnarratingtheincidenttothePoliceorany otherauthorities.Thecontradictionswhicharebroughton record about her recording of statement are also such whicharerequiredtobeconsideredlookingtoherstatus, surroundingcircumstancesandkeepinginmindthetense atmosphereandthesituationandthementalagonyofthe witness.Thesecontradictionsonthecontrarycompelusto
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relyupontheversionofthiswitnessmoreintheabsenceof those contradictions, a person can feel it as tutored one. Thuscontradictions,whicharebroughtintheknowledgeof the Court by the accused are such, which can be consideredas naturaland no prejudicewill be caused to theaccusedsideduetothosecontradictions.Further,the incident as narrated by her in chiefexamination is supported by other evidence such as burnings of cabins, houses,comingofPolice,oncomingPolicemobdisbursed, soon as police went mob again came and started pelting stonesetc.Medicalevidence,Panchnamaofsceneofoffence andotherevidencesupportherthisevidencetherefore,the version on this fact as narrated by the witness in her examination is well supported and therefore, silence in recordingherstatementforabout20to21daysisnotgoing to effect the facts, which are already proved. So far as resortingoffiringbyPoliceintheeveningisconcerned,itis truethat,shehasnotnarratedthisfactinherdeposition. Itistruethat,witnessisnotdisclosingfiringincidentbut fromtheevidenceofpolicewitnesses,incidentoffiringis disclosedandprovedandtheyhavenoreasontotelllieand that too, when supported by documentary evidence but consideringthefactthat,incidentoffiringtookplacenear
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PanchayatandFakirvas,whichisattheentranceofVillage SardarpurwhileShaikhMahollaisattheendofSardarpur. Considering the distance between the two places there is possibilitiesthat,witnessmayhavenoknowledgeoffiring. Evenotherwisefromnondisclosingoffiringincident,the evidence, which is other wise proved and well supported cannot be discarded and on that strength we cannot conclude that, the version of this witness is not trustworthy, unreliable on this count. Therefore, the arguments, advanced by learned advocate Mr.Dhruv on behalf of accused, on this point has no force. She is an injuredeyewitness,sheisresidentofShaikhMaholla,her presenceinShaikhMahollaatthetimeofincidentcannot be discarded. Looking to her evidence, she was having ampleopportunitiestoseethemobandonseeingthemob shewentinsidethehouseofIbrahimmiyaRasulmiyaand thereafter, she went in to Harijanvas as per her say. She had seen the mob from the house of Ibrahimmiya Rasulmiya.Thus,shewashavingopportunitiestoseethe mobtillshewasinShaikhMaholla.
P.W.77 Shaikh Badrunnisha Akbarmiya has deposedthaton28.02.2002,mobofPatelshadburntthe
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cabinsinthemarketandon01.03.2002,therewastense atmosphere in the village. She was present in her house alongwithherfamilymembers.Atabout9.30P.M.,mobof Patels of their village came from Mahadev side shouting sloganstocut,beatandburntheMuslims.Theycameat theentranceofShaikhMahollaandburntthreecabins.As police came, mob disbursed. Thereafter again, after some time, same mob came from Mahadev temple, shouting sloganstocut,beatandburntheMuslimsandtheystarted pelting stones. Her husband took her to the house of Bachumiya Nathumiya. Thereafter, mob of Patels came towardsthehouseandburnttheirhouseandbyburning thehouse,theycametowardsthejeepofBachumiyaand theyburntthejeep.Thereafter,herhusbandtookheraway to the field, situated back side of the house of Mahemudmiya where she heard the voices of persons screamingforhelpandshealsosawtheflameoffire.After some time as the atmosphere turned silent, they came towardstheMahollawhereintheysaw29deadbodiesin thehouseofMahemudmiya.Itisalsodeposedbyherthat her house was also burnt. Whole materials of the house was burnt. Mob had looted the ornaments and damage worthRs.1,00,000/wascausedtoherhouse.Thereafter,
// 567 //
theywenttoSavala.
ItisarguedbyShriDhruvthat,asperthedeposition ofthiswitness,whenmobcameandstartedpeltingstones, her husband dropped her at the house of Bachumiya NathumiyawhichisinsideShaikhMaholla.Further,when jeep of Bachumiya was burnt, she saw the accused and thereafter, her husband took her from the house of BachumiyaandbythesideofMahemudmiyashouse,they wenttowardsthefieldofAkbarmiyaNathumiya.Thus,she hadnoopportunitytoseeanyoftheaccusedwhenthejeep wasburnt.AsperthedepositionofAkbarmiyaNathumiya, whenmobstartedpeltingstones,hetookhiswifefromthe houseofBachumiyaandwenttothefield.Akbarmiyaisnot sayingwithregardtosettingonfirethejeepandwhenthe stonepeltingstarted,hetookhiswifetothefield.Asper the deposition of this witness, she heard that on 28.02.2002,Patelsoftheirvillagesetonfirethecabinsin the market. Further, on the day of incident, i.e. on 01.03.2002atabout9.30P.M.,mobofPatelsfromMahadev sidecameandsetonfirethreecabinsoutsidetheShaikh Maholla,isnotstatedinherstatementdated06.03.2002. After, hearing the voices, her husband dropped her at
// 568 //
Bachumiyas house. There was no opportunity for her of evenseeingthesettingonfirethethreecabins.Thewitness inherdepositionhasomittedthatatabout9.30P.M.,mob cameandonarrivalofpolice,theyresortedtofiring.She hasstatedinherstatementdated06.03.2002that,allthe women were sent inside their respective houses and husband guarded their respective houses by standing outside. As soon as police, resorted to firing, mob disbursed. Further, as per her deposition, she saw the accusedsettingonfirethejeepofBachumiyabutthisfact is not stated in her statement dated 06.03.2002 and 22.05.2008.Forthefirsttime,sheisstatingthenamesof theaccusedbeforetheCourt.Fromthecrossexamination of this witness, itcomesoutthatthere is Dung Hilland fromthereonecanenterintoRawalvas,whichissituated 20to22Ft.awayfrombacksideofMahemudmiyashouse. Fromtheevidenceofthiswitness,itcomesoutthatthere was mob of 500 to 700 persons on the backside of the house of Mahemudmiya therefore, no one can dare to go fromthebacksideofMahemudmiyashouse.Therefore,her saythatshewenttowardsthefieldofRawalvasbytheside of Mahemudmiyas house is not true. In her statement dated06.03.2002,hehasstatedthatatabout1212.30
// 569 //
A.M.,whentheyheardthevoicesofmobshoutingtokill theMuslims,theyfeltunsafeandbylockingtheirhouses, they went towards the field and from there they saw the incident. This fact suggests that it is not possible for a persontoseetheincidentfromRawalvas.Sheaswellas herhusband,hasimprovedtheversion.Asperthesayof thiswitness,shesawthejeepburningatthedistanceof2 to3Ft.andherhusbandwasatthedistanceof2to3feet fromtheburningofjeep.Assoonasthemobspreadover uptothehouseofMahemudmiya,thewitnesscannotdare tostaythereorelsethemobwouldnothavesparedthem. Therefore,thedepositionofthiswitnessthatshesawthe jeepburningatthedistanceof2to3Ft.andrecognizedthe accused is not acceptable. Assuming that she saw the accusedatthedistanceof2to3Ft.,thenwhatrolehas been played by which accused is not narrated by this witness.Further,asperthesayofthiswitness,afterthe incidentwasover,shecametoShaikhMaholla.Herhouse includingthefurnitureandfixtureswereburnt.Inspiteof that,sheistellingthatornamentsworthRs.10,000/,gold earings(Jummar)andcashweretakenbythemob.
This witness is the resident of Shaikh Maholla, her
// 570 //
houseissituatedattheentranceofShaikhMaholla,inthe rowfallingtowardsgraveyard,thereisopenspaceabout2 Ft.inbetweenwallofgraveyardandherhouse,anyonecan gobacksideportionofherhouse,asthereisdoorinthe backsideofherhouse,houseofBachumiyaNathumiyais adjacenttoherhouse,asperhersaywhenthejeepwas burnt she saw the mob then after she went to field, meaning thereby that,she was very much present inthe ShaikhMaholla,itisonlyafterjeepburntshewenttofield, tillthenshewashavingopportunitytoseethemob.Simply becauseAkbarmiyaNathumiyaisnotstatingaboutsetting onfireJeep,itdoesnotmeanthat,thiswitnessisadding saidfact.Sofarasincidentregardingsettingonfirecabins in the market on 28.02.2002 is concerned, she has no personalknowledgeabouttheincident,shehasonlyheard aboutthesaidincident.On01.03.2002atabout09.30P.M. threecabinsoutsideShaikhMahollawereburnt.Thisfact is established by cogent and reliable evidence and if that factisnotstatedbythiswitnessinherstatement,itisnot goingtoprejudicetotheaccused.Hence,thiscontradiction becomesinsignificant.Simply,herhusbanddroppedherin Bachumiya Nathumiya's house, it does not amount that she had not seen the mob. Considering the situation of
// 571 //
houses,thehousesinShaikhMahollaarenotbighouses, theyarerowhousesofsmallrooms,apersoncaneasilysee whatishappeningoutside.DuringInspectionVisitbythe Court, it was found that it is possible to see what is happeningintheMaholla.Further,onecanseefromthe entranceorfromthefrontsideofallthehouses,whatis happeningintheMahemudmiya'shousethoughhousesare in zigzag position. It is not say of the witness that, they were booked inside the house of Bachumiya, if door or windows were open or person is in front portion of the house, he can easily see what is happening in Shaikh MahollaortowardsMahemudmiya'shouse.Thus,thesay ofShriDhruvthat,shewasnothavingopportunitiestosee the mob is not sustainable. Probabilities of seeing mob setting on fire three cabins at the entrance of Shaikh Mahollacannotberuledout.Sofarasomissionregarding incident of firing is concerned, in her statement dated 06.03.2002shehasstatedaboutfiringwhileindeposition she has notstated incidentregarding firing. Butshe has stated that, soon as police came, mob disbursed. The resortingoffiringisanomissioninthedeposition.Butthe omissionsuch,whichisnotgoingtoprejudicetoaccused or any person hence this contradiction is not of much
// 572 //
importance.SofarassettingonfiretheJeepisconcerned, in her deposition she is saying about setting on fire the Jeepbutshehasnotstatedthisfactinherstatementbut thefactthat,Jeepwassetonfirebythemobisestablished by the prosecution by cogent and reliable evidence and therefore,thiscontradictionbecameinsignificant.Sofaras DungHillbehindthehouseofMahemudmiyaisconcerned, looking to the evidence, one can enter from that side to Mahemudmiya's house and the house of Mahemudmiya's was surrounded by 500 to 600 persons and that is possible.Further,inherstatementdated06.03.2002,itis statedthat,atabout12.30P.M.shewenttofield,alongwith herhusbandandson,whilethisfactisdeniedbyherin crossexamination that it had not happened. That, after locking the door they went to Field while it is not stated beforeS.I.T.thattheywenttofieldafterlockingthedoor. Byacceptingthiscontradictionasitiswhenweconsider the evidence of this witness on this point while going towardsfieldshehasseenthemob.HerhouseinShaikh MahollaissituatedjustattheentranceofShaikhMaholla. If she went to the filed alongwith her husband from the backsideofMahemudmiya'shousewhilegoingtofieldshe was having an opportunity to see the mob. So far as
// 573 //
arguments regarding Mahemudmiya's house surrounded by500to600personsisconcerned,ifonseeingmobshe alongwithherhusbandandsonwenttofield,possibilities cannotberuledoutthat,mobhassurroundedthehouseof MahemudmiyaafterthiswitnesswenttotheField.Thefact that,whenthemobcameinShaikhMaholla,shewasin ShaikhMahollaandduetofearshealongwithherhusband andsonwenttofieldcannotbediscarded.Sofarashersay that,shesawtheincidentfromthefieldisconcerneditis notpossibletoseetheincidentofShaikhMahollafromthe field but the flames of burnings of Shaikh Maholla can easily be seen from the Field. There are possibilities, she mighthaveheardthevoicesfromShaikhMahollaandtoo thatsheissayingthat,shesawtheincidentfromthefield insteadofseeingfromthefieldshemighthaveheardthe voices. She is an uneducated lady, her intention is to be gathered from her deposition rather than accepting the words used by her. In her crossexamination, she was askedquestionandinthatresponse,shetoldthatshehas seenthemobfromtheentranceofShaikhMahollawhile theJeepofBachumiyaImammiyawasburnt,atthattime she alongwith other members of Shaikh Maholla was in ShaikhMahollawhenherhusbandcametotakeher,she
// 574 //
wasinthehouseofBachumiyaNathumiya.Asperhersay, shesawJeepburningfromthedistanceof2Ft. Wecan inferfromhersaythat,sheintendedtosaythat,shesaw jeepburningfromverynear.Thisfacthascomeoutfrom thecrossexaminationofthiswitnessandnodoubtcanbe created that she has not seen the incident of burning of jeep, it can be inferred that, she alongwith her husband andsonwenttofieldandthereafter,whentheycameback andsawherhouseburnt,damaged,looted.Panchnamaof scene of offence shows about burning of her house but there is no evidence about loot from her house. Her presenceofShaikhMahollaatthetimeofincidentcannot bedoubtedandbeforegoingtofieldshewashavingample opportunities to see the mob and she has seen the mob before going to field that is reliable, trustworthy, which cannotbediscarded.
39.
P.W.56ShaikhAyubmiyaRasulmiya hasdeposedthat healongwithhiswifeanddaughterwereinsidethehouse whentheallegedincidentoccurredandtheywererescued by the police. He has deposed on oath that he is the residentofSardarpur.Hewasinthehousealongwithhis family members. At about 5.00 P.M., he went towards
// 575 //
Munsufkhan's house where a meeting was organized by MunusfkhanandKanubhaiSarpanchwaspresentwhotold toforgettheincidentofburningofcabins.Now,nothingwill happen.Thereafter,aftersometime,hetoldthatnothingis in his hands, you save yourself. Thereafter, the witness came back to his house. At about 9.30 P.M., a mob of Hinduscameshouting,tocut,beatandburntheMuslims, towards Shaikh Maholla and had burnt three cabins. Thereafter,policecameandthemobdisbursed.Thereafter, again same mob came shouting slogans to cut and burn theMuslimsand theyhad startedpeltingstonestowards the Shaikh Maholla and started burning and looting the houses. By seeing the mob, he went inside the house of Ibrahimmiya Rasulmiya and thereafter, he went towards thehouseofMahemudmiya.Amobcame,theyrequested themobtoleavethembutthemobhadburntthemandthe persons who were inside the Mahemudmiya's house were screamingforhelp.Oneofthechemicalwassuchthatifit gets touched by water, then fire takes place. After some time,policecameandhaddrawnthemoutfromthehouse of Mahemudmiya. He was also burnt, his wife was also burntandtheywereshiftedtoMahesanaCivilHospital. It is submitted by Shri Dhruv that, the presence of
// 576 //
thiswitnessinthehouseofMahemudmiyaatthetimeof occurrenceisdoubtfulandnotbelievable.Asperdeposition of F.S.L. Officer, it becomes clear that in the house admeasuring16'x11',itishighlyimprobablethatinroom about176Sq.Ft.,33+3persons,14injuredpersonswere alive inside the house. Looking to the panchnama, there were furniture and fixtures and other normal household thingsintheroom,kitchen,coatetc.therefore,thesayof the witness that they were inside the house of Mahemudmiya, is not proper. The complainant who is residentofShaikhMahollawaspresentatthetimewhen thedeadbodieswerebroughtoutfromthehouse.Hehas statedthatthreepersonswererescuedalivefromthehouse but he has not referred the name of the present witness rescuedfromthehouseofMahemudmiya.Lookingtothe PostMortem note of the deceased, lungs of the deceased were congested and carbon particles were present in trachea.Dr.DineshkumarSonihasadmittedthatifaliving person is inside the burning house while respiration, he wouldhaveconsumedcarbonparticlesinhistrachea.Itis alsoadmittedbyhimthatinroomabout16'x11',ifthere aremorethan33personsandthereisanyflame,itwould affect all the persons and if any person inside the room
// 577 //
receivesflameinjury,itwouldnotgoawaywithintwoand halfhours.LookingtothePanchnama,aftertheincident, allthefurnitureandhouseholdwereburnt.Electricwires were also burnt over the ceiling and they were hanging. Electricfanwasalsocharred.Flooringandceilingwerealso darkblackincolourandfoursidesofwallsandceilingwere worseaffected.Insuchasituation,thereisnopossibilityof anyonetosurviveifheisinsidethehouse.Therewasno scopeforinsiderstocomeoutwhentheincidenttookplace. Even presuming that no one would survive, he can be rescuedbuthewouldnotremainwithoutanyflameburn injuries while here the witness is claiming that he was inside the house but he has not received flame burn injuries. As per the say of this witness, he alongwith his wifeanddaughterwasinsidethehouse.Asperthesayof thiswitness,hereceivedinjuriesonhisshoulderandon backwithburnsbutthereisnoevidenceonrecordtoshow thathetooktreatmentinthehospital.Noinjurycertificate isproducedbytheprosecution.Prosecutionhasproduced theinjurycertificateevenofthewitnesseswhosustained stone injury then why he cannot submit the injury certificateofthiswitness.Thereisnoexplanationaboutthe non production of certificate. Looking to the injury
// 578 //
certificateExh.187,itappearsthatshehadonlybackache. No injury certificate of Mehmudnisha daughter of this witnessisproduced.Thiswitnesssuggeststhatneitherthis witnessnorhiswifeanddaughterwereinsidethehouse. Ibrahimmiya Rasulmiya is saying that only three persons wererescuedfromthehouseofMahemudmiyaRafikmiya Manumiya Shaikh, Firozmiya Manumiya Shaikh and AshiyanabanuandtheirnamesarementionedintheF.I.R. andtheywereextensivelyburnt.Thus,allthosewhowere inside the house have died. There is no scope for any injured to survive. Police officers haveadmitted thatthey have not prepared any Yadi of persons who were rescued alive from the house of Mahemudmiya. In the affidavit beforetheHonbleSupremeCourt,itisnotstatedbythis witnessthathereceivedburnsoverhisshoulderoroverhis back. As per the deposition of police witnesses, they had broughtdifferentdeadbodiesfromthehouse.Theyarenot deposingthattheyhavebroughtthewitness,hiswifeand daughter from the house of Mahemudmiya. This witness hasnotstatedabouttheincidenttothepoliceatthattime whenhewastakentotheCivilHospitalbythepolicebut heisnotsayinganythingbeforetheDoctor.Thereafter,this witness was shifted to Ilol in the company of police and
// 579 //
thereafter, to Himmatnagar relief camp. Prior to 10.03.2002,thiswitnesshasnotstatedanywherethathe wasinsidethehouseofMahemudmiya.HisbrotherP.W.57 Shaikh Mustufamiya Rasulmiya has deposed that 28 persons have died inside the room and different dead bodieswerebroughtoutandhisownsonhasdiedbutheis notsayingthatthepresentwitnessalongwithhiswifeand daughter were inside the house of Mahemudmiya. In the affidavit before the Honble Supreme Court, this witness has stated that complainant is his father while in cross examination,itisadmittedthatfirstinformantisnothis father but his maternal uncle. In his statement dated 19.05.2008,recordedbytheS.I.T.,hehasstatedthatwho istheaccusedatSr.No.45statedtothepolice,towhich,he hasrepliedinnegativeandwithregardtoseparateoffence, hehasdeniedthenote.HehadnoknowledgeaboutDilip Trivedi.Thus,inthisaffidavit,hehasstatedfalsefacts.In his statement dated 19.05.2008, he has stated that they weretakentoCivilHospital,Mahesanainpolicevanaswell as Matador (407) alongwith the other dead bodies. They were not taken in bullock cart. He has no knowledge whetherCollectororD.S.P.camethere.Hehasadmittedin his statement that dead bodies of the deceased were not
// 580 //
taken in bullock cart as stated in the affidavit. Before recording his statement dated 19.05.2008, affidavit was read over to him which was filed in English and it was explainedtohiminGujaratiwhileatthetimeofrecording of statement dated 19.05.2008, the affidavit dated 06.11.2003 and signature was also shown to him. There wasthumbimpressionasthewitnesswasuneducatedand therefore,hemarkedthethumbimpression.Asperthesay of this witness, Sarpanch called meeting at the say of Muslims.Inthemeeting,KanubhaiSarpanchtoldtoforget whathappenedlastnightwhilecabinswerebeingburntof 28th Feb,2002.P.S.I.Parmarhadarrangedameetingand appealed to the Sarpanch for protection of witnesses but the leaders from the Bajrangdal went near the Mahadev Templefromwheretheattacktookplace.Inhisstatement dated19.05.2008beforeS.I.T.hehasshownhisignorance aboutthesaidmeeting.Hehasshownhisignoranceabout the presence of P.S.I. Parmar in that meeting. On 19.05.2008,thestatementbyS.I.T.wasrecordedinwhich hehasrepliedthatatthetimeofincident,hewasinside thehouseofMahemudmiyaandwhetherthereweresome chemical or not, he was unable to say. When water is touched to that chemical, it flamed and there was heavy
// 581 //
smoke and suffocation. Thereafter, they wenttowards the house of Mahemudmiya and he saw the mob in which Ramanbhai Ganeshbhai, Mathurbhai Trikambhai, Rajeshbhai Kanabhai, Prahaladbhai Mohanbhai, AshwinbhaiBaldevbhai,DahyabhaiKachrabhai,Kanubhai Sarpanch, Prahladbhai Jagabhai and Kacharabhai Tribhovandas were there. It is submitted by Shri Dhruv thatversionofthiswitnessisnothingbutimprovedversion asthesefactsarenotstatedinstatementdated10.03.2002 and10.05.2008andinaffidavitdated06.11.2003,forthe firsttime,hehasstatedthesefactsinthecourt.Headmits thathehasstatedbeforetheCourtthathehasseenknown persons in the mob but the same is not stated in the affidavit.Thiswitnesshasadmittedtoshowthepossibility of recognizing and identify the accused by improving his versions.Hehasfurtherimprovedthattheyhaverequested withfoldedhandstoletthemgobuttheywerenotleftout. Incidentoccurredindarkandtherewasnopossibilityof identifying any one. In the crossexamination, he has admittedthathehasnotstatedthesefactsinhisstatement dated 10.03.2002, 19.05.2008 and affidavit dated 06.11.2003.Theevidenceofthiswitnessregardingbegging theirliveswithfoldedhandsisconcerned,itisdeliberately
// 582 //
justtoprejudicetheCourt. Whenthiswitnesswasinside thehouseofMahemudmiya,atthetimeofincident,howhe canidentifiedtheaccusedandhowwithfoldedhandshe begged for his life, is doubtful. Presence of this witness insidethehouseofMahemudmiyaisdoubtful.Thiswitness hasassignedweaponinthehandsoftheaccused.Hecould have mentioned about the specific role played by the accused.Asperthesayofthiswitness,burningragswere throwninsidethehouseandchemicalwaspouredinside thehouse.Asperthesayofthiswitness,thiswitnesshas statedaboutthelightbutasincidentoccurredinnight,he issayingthestoryaboutthehalogenlight.Further,atthe time, when he was going towards the house, he saw halogen light being directed towards the Shaikh Maholla andhehadaskedKanubhaiSarpanchastowhetherthe billofthestreetlighthasbeenpaidornot.Againstwhich, herepliedthatthebillofstreetlighthasalreadybeenpaid andtheywouldenjoybeatingMuslims.Asperthesayof thiswitness,MathurbhaiTrikambhaiclimbedthepoleand the lights were on. It is material improvement in his depositionasatthefirstavailableopportunity,tothepolice oranyotherwitness,hehasnotstatedso.Thus,thesayof thiswitnessabouttheincidentisnotbelievable.
// 583 //
OnthestrengthofthisevidenceShriShahhasargued that, he is the resident of Village Sardarpur, his brother Iqbalmiya was having cabin at the entrance of Village Sardarpur and this witness was doing labour work. It is arguedbyShriShahthat,fromhisdepositionithascome out that, when the house towards graveyard side was burningandhousewasransacked,hesawtheburningof housesandatthattimehewasstandingjustinfrontof house of Ibrahimmiya. As per his say he was inside the houseofMahemudmiya.Hefeltsuffocationandremained in the house for about 45 minutes. He was conscious duringthatperiod. Considering the arguments advanced on behalf of both the sides, as well as on perusing the evidence on record, it transpires that, this witness was resident of VillageSardarpur,doinglabourwork,complainantofthis incidentisthematernaluncleofthiswitness.Atthetimeof first mob he was in Shaikh Maholla. As per his say on seeingmobhewenttowardscomplainant'shouse.Soonas complainant received stone injury, this witness went to Mahemudmiya's house. Looking to the position of the house of the complainant, it is inside the Maholla, approximately leaving ten houses from the entrance of
// 584 //
Shaikh Maholla. Thus, still this witness towards Mahemudmiya's house, hewashaving opportunity to see themob.Consideringthetimeofoccurrence,presenceof thiswitnessinShaikhMahollacannotbedoubtedandto thatextenthisdepositionisreliable.Hehasseenthemob priorgoingtowardsMahemudmiya'shouse.Thus,whether thiswitnesswasinsidetheMahemudmiya'shouseornot, thisfactisnotgoingtoeffectthefactthat,hehadseenthe mob. As per say of this witness that, they folded their handsandthemobhadaskedthemiftheypraybyfolded handstheywillletthemsurvive.Inspiteofthat,theydid notsparethemandsetonfire.Thisisanimprovedversion of this witness. It is not stated in his statement dated 10.03.2002 and 19.05.2008 and also in affidavit dated 06.11.2003, filed before the Hon'ble Supreme Court of India.Thus,thisfactisstatedbeforethisCourtforthefirst time.Inhisaffidavithehasstatedthat,hehadseenthe mob.ItisarguedbyShriDhruvinthisregardthat,this witness has tried to show the possibilities of recognizing andidentifyingtheaccusedbyimprovingthestoryifthey requestedwithfoldedhandstoletthemgo.Therewereno possibilities of anyone to be recognized. It is admitted by himinhiscrossexaminationthat,hehasnotsostatedin
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his statement dated 10.03.2002, 19.05.2008 and also in affidavit dated 06.11.2003. So far as the fact that, he requestedtheaccusedtoleavetheminsteadofthat,they wereburntisconcerned,itappearstobeanimprovement. Sofarasargumentsadvancedregardingimpossibilitiesof 56 persons inside the room admeasuring 16 x 11 Ft. is concerned, it is already discussed and decided in earlier paragraphandtherefore,thereisnonecessitytorepeatthe sameandtheclaimofprosecutionabout56personsinside the room is proved by prosecution. Now the question is whether this witness was inside the room or not. Complainant is not stating about this witness was inside the room or not. Looking to the deposition of Dr.DhirajkumarJivanlalSonihasadmittedthat,ifaliving person is inside the burning house while respiration he would consume carbon particles in Trachea. It is also admittedthat,ifinaroomof16x11Ft.ifmorethan33 person and if there is any flame, it would effect all the persons.Hehasalsoadmittedinhisdepositionthat,ifany personsinsidetheroom,receivesflameinjuries,hewould notgoawaywithintwoandhalf hours.Thiswitnesshas notsustainedanyburninjury,hewasnottreatedinCivil Hospital,noInjuryCertificateofthiswitnessisproduced
// 586 //
by the prosecution. As per say of this witness, his wife sustained injury, her Injury Certificate is produced vide Exh.187.TheCertificates,suggeststhatshehadbackache. Thiswitnessisnotsayingthathisdaughterwasinsidethe house of Mahemudmiya. As per say of witness, he sustainedburninjuryonhisShoulderandNeck.Hiswife wasburntbutthereisnoMedicalevidence,supportingthis injury.Further,hisbrotherMustufamiyaRasulmiyaShaikh is not saying that, this witness was inside the house of Mahemudmiya.Thus,thesayofthiswitnessthat,heand his wife were inside the house of Mahemudmiya is not supportedbyotherevidencebutasdiscussedabovehewas having opportunity to see the mob. So far as his silence aboutnarratingtheincidentisconcernedPolicewaswith himuptoIlolbuthehasnotnarratedtheincidenttothe Police, we cannot expect from a witness who was under suchgraveandtenseatmosphere,havingnoroofandthat tooinsuchacircumstancesifthewitnessissilentthatis natural.Firstapersonwilltrytofindoutasuitableshelter instead of rushing for narrating the incident to the competent authorities. His statement was recorded on 10.03.2002butinthatstatement,itisnotstatedbyhim that, hewasinside theMahemudmiya'shouse.Sofaras
// 587 //
the facts stated in the affidavit are concerned, there are discrepanciesregardingwhethercomplainantishisfather ormaternaluncle.Aspersayofthiswitness,complainant ishismaternalunclebutnotthefather.Butinaffidavitit is mentioned that, complainant is his father. This discrepanciescanbeconsideredasslipofmistake.Whether complainant is father or maternal uncle is not going to prejudicetheaccused.Sofarasthefactregardingthefact that,heisnotknowingD.R.Trivediisconcerned,thisfactis not much related with the present offence. Further, the discrepanciesindated19.05.2008that,theyweretakento CivilHospital,Mahesana,inMatador(TATA407)alongwith deadbodies,theyweretakeninBullockcartsisconcerned, it is not of muchimportance. Looking to the situation of ShaikhMaholla,deadbodiesmighthavebeenbroughtout in Bullockcarts from the Shaikh Maholla that is quite possiblebutthatdoesnotmeanthat,hemeanttosaythat deadbodieswerebroughttoCivilHospital,Mahesana,in bullockcarts.Eventhatisnotthecaseofprosecutionand therefore,thisdiscrepancieshasnoimportanceatall.So farassigninaffidavitdated06.11.2003isconcerned,said affidavit and signature was shown and explained to him beforestatementrecordedbyS.I.T.on19.05.2008.Thereis
// 588 //
contradiction regarding thumb impression and signature, thereissignatureinaffidavitwhilethiswitnessisilliterate person. So far as submission regarding meeting by Sarpanch was called at the say of Muslims and in that Meeting,Sarpanchtoldthemtoforgetwhathappenedlast time.Further,hehasalsosaidthat,itisnotbetweenhim and witness and witness should make his own arrangement. P.S.I.ShriParmarhasgiveninformationto Vijapur Police Station regarding this Meeting. In the meeting witnesses have appealed the Sarpanch for their protection.ButtheywenttoMahadevTemple,fromwhere theattackstarted.Sofarasthisfactisconcerned,thisfact of affidavit was read over to him before statement dated 19.05.2008 but he has shown his ignorance about such meeting.PresenceofP.S.I.ShriParmarisalsonotknownto himbutsuchdiscrepancyarenotgoingtoeffectthemain incident.Sofarasdiscrepanciesaboutputtingthewomen andchildreninMahemudmiya'shousethinkingthat,there theywillbesaferataboutmidnighttheattackwasdone onthe house withsingle minded precisionand planning. TheironrodsofthewindowswerebrokenandaChemical in Tins were thrown, liquid chemical that set everything intoaterriblefire,ifwatertoucheditinflamedfurther.On
// 589 //
thispoint,S.I.T.hadaskedquestiontothewitnessbefore recording statement dated 19.05.2008. He has shown his ignorance and had stated that, he cannot say if water touches,itinflamesfurtherandhadstatedsincetherewas heavy smoke, there was suffocation, the water was not insidetherefore,hecannotsayanything.Thereisomission ofthisfactinhisstatementbeforeS.I.T.Thisomissionin his statement before S.I.T. has been proved to be contradiction. Thus, considering above all whether this witness was inside the Mahemudmiya's house is not established beyond doubt. There are two possibilities, he mayormaynotbeinsidetheMahemudmiya'shousebut thefactthat,hewashavingopportunitiestoseethemob, prior to he went to Mahemudmiya's house cannot be doubted. Further, his presence in the Shaikh Maholla at thetimeofincidentcannotbedoubtedtherefore,wehaveto accept the evidence of this witness, which is trustworthy and reliable and we have to disregard the exaggeration madebythiswitnessinhisdeposition.Fromtheevidence ofthiswitness,itisprovedthatwhenthehousesinShaikh Mahollafallingtowardsgraveyardwereburnt,atthattime this witness was standing just in front of house of Ibrahimmiya.LookingtotheMapandPanchnamaofscene
// 590 //
ofoffencehouseofIbrahimmiyaRasulmiyaShaikhisinside the Shaikh Maholla, leaving 10 to 12 houses from the entranceofShaikhMahollaandthereafter,afterleaving3 to 4 houses there is some space and thereafter, Mahemudmiya's house is situated. Thus, he was having sufficientopportunitytoseethemobandtherefore,tothat extenthisevidenceisreliableandtrustworthy.
P.W.73 Shaikh Faridabibi Aashikhusen has deposed on oath that on the 3rd day of Godhra train incident, at about 9.30 P.M., Patels of their village came fromMahadevtemplesideshoutingsloganstoburntheir cabinsattheentranceofShaikhMaholla.Aspolicecame, mobdisbursed.Again,aftersometime,atabout11.30to 12.00P.M.,samemobcameshoutingtocut,beatandburn theBandiyas.Theyhadburnt3housesinShaikhMaholla and thereafter, by burning the houses, they proceeded further.Atthattime,hisfatherinlawtoldthemthattheir house is row house and hence, they should go to the Mahemudmiyashouseasitisapakkaconstructedhouse therefore, she alongwith her sisterinlaw Firozabanu Bachumiya Shaikh, Farzanabibi Bachumiya Shaikh and daughter Ashiyanabanu Shaikh and son Aftab went
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towards the house of Mahemudmiya. Other persons were there. She saw the pouring of kerosene and they sought help but no one had turned. They requested the Patel peopletoleavethembuttheytoldthattheywanttoburn them.Afterpolicecame,theyweretakenoutoftheroom andweresenttoMahesanaCivilHospital.
It is submitted by Shri Dhruv that, evidence of this witnessonthepointthatatabout9.30P.M.,mobofPatels ofvillagecamefromtheMahadevtempleandsetonfirethe three cabins of Shaikh Maholla and soon as the police came,mobdisbursed,isnotstatedinthestatementdated 02.03.2002and11.06.2008.Further,itisnotstatedinher statement dated 02.03.2002 that her fatherinlaw told themthattheirhouseiskachchahouseandtheyshould movetopakkahouseofMahemudmiya.Onthecontrary,in her statement dated 02.03.2002, she has stated that her fatherinlaw, husband, brotherinlaw, her motherinlaw alongwithotherfamilymemberswereintheirownhouse. Thus, there is material contradiction on this point as to whethershewasinsidethehouseofMahemudmiyaorin her own house. As per the deposition of this witness, at about11.30P.M. samemobagaincamebutshehasnot
// 592 //
statedthesefactsinherbothstatementsbeforethePolice and S.I.T. Further, this witness has not stated that she alongwith her sisterinlaw Firozabanu and Farzanabanu andherdaughterAshiyanabanuandsonAftabwentinto the house of Mahemudmiya. Her motherinlaw was not withherintheMahemudmiya'shouseandonthispoint, Ashikhusen,thehusbandofthiswitnesshasdeposedthat he dropped his family members to the house of Mahemudmiya. In her statement dated 02.03.2002. she hasstatedthathermotherinlawandthreesistersinlaw, tookshelterinthehouseofMahemudmiya.Thus,onthis point,shehaschangedherversion. Ashikhusenissaying that he dropped his wife, children and other family memberstothehouseofMahemudmiyawhileasperthe sayofthiswitness,shealongwithFirozaandAftab,wentto the house of Mahemudmiya. Thus, there is contradictory versionofboththesewitnessesonthispoint. Asperthe deposition of this witness, Ashiyana and Aftab, were alongwithherinthehouseofMahemudmiyabutsheisnot sayingaboutherdaughterSuhanabanuwhileAashikhusen is saying that he dropped his wife, children and other family members at the house of Mahemudmiya. Neither Aashikhusennorthiswitnessisclaimingspecificallyabout
// 593 //
their daughter Sainabanu. As per the deposition of this witness,she,hersonanddaughterreceivedburninjuries. NoinjurycertificateortreatmentcertificateofAashikhusen is produced by the prosecution. She is not saying that Sainabanu was in the house of Mahemudmiya but her injurycertificateisproducedvideExh.193whilelookingto theinjurycertificatethereisnoburninjurytoher.Thus, whetherdaughterSainabanuandsonAftab,werethere with this witness or both have no burn injuries, is not specificallystatedbythiswitness.Itisnotthepositionthat anyone would have survived in Mahemudmiyas house. Aashiyanabanuwhowasinsidethehousehasdied.Thus, this witness alongwith her daughter Sainabanu and son Aftab was inside the room but Aashiyanabanu was not there with them. Aashiyanabanu has died due to burn injury sustained inside the house of Mahemudmiya. This witnesswasnotpresentinthehouseofMahemudmiyaat thetimeofincident.Asperthedepositionofthiswitness, hersisterinlaw,FirozabanuandFarzanabanuwereinside the house of Mahemudmiya alongwith this witness. They havereceivednoburnsorotherinjuries.Thus,thesayof thiswitnessthathewasinsidethehouseofMahemudmiya isdoubtful.Inherdeposition,shehasstatedthatshesaw
// 594 //
personsmovingandpouringpetrol,keroseneandthrowing burning rags. She saw all the persons pouring petrol, kerosene and throwing burning rags, but no one had helped her. They had requested the Patels to let them go but they were burnt. Thus, she had seen the persons pouringKeroseneandpetrolbutthisfactisnotstatedin thestatementdated02.03.2002and11.06.2008andthus, thereisanimprovementinvitalpartoftheevidence.This witnesshasnotstatedinanyofherstatementthatshehad calledorseenanyone.Inherstatementdated02.03.2002, shehasnarratedthatthePatelsoftheirvillageandother HindupersonsshoutedloudlytokillMuslimsandseton fire and she had recognized their voices but it is just projected part, to show that she was inside the house of Mahemudmiya. Further, Ayubmiya Rasulmiya Shaikh, in hiscrossexamination,hasstatedthatdoorsandwindows of Mahemudmiyas house were closed from inside. Her presence in the house of Mahemudmiya is doubtful. Her identificationhasnovalue.Inhercrossexamination,she hasstatedthatshewasthereforabout2hours.Lookingto thepositionofthehouse,itwasnotpossibleforpersonto be inside the house for about two hours. As per Injury Certificate, no complaint about the suffocation was made
// 595 //
andthus,itcanbesaidthatshewasnotinsidethehouse ofMahemudmiya.
Onperusingthedepositionofthiswitnessaswellas consideringtheargumentsadvancedonbehalfofboththe sides it transpires that, this witness is the injured eye witness, her Medical Certificate is produced vide Exh.189 while case papers are produced vide Exh.190 and depositionoftheMedicalOfficerDr.DhirajJivanlalSoni hassupportedtheinjuriessustainedbythiswitness.She was having 15% burn injuries. As per her say, she has sustained burns injuries on hands and legs, she is an illiterate lady, her daughter had died on the way to Civil Hospital, Mahesana, her daughter died due to burns injuries.Itisnotthecaseofprosecutionthat,thiswitness was inside her house and there she sustained burns injuries. It is challenged by the accused side that, she sustained burns injuries in Mahemudmiya's house. Her husband P.W.55 Aashikhusen Bachumiya Shaikh has supported the say of this witness that, he dropped his family members to the house of Mahemudmiya. There is contradiction in the statement dated 02.03.2002 and deposition about who was with her in Mahemudmiya's
// 596 //
house. If she has narrated that, her motherinlaw and three sistersinlaw were with her and also about her Daughter Aashiyanabanu and son Aaftab were with her and she has not stated about Sainabanu her daughter with her. On that count, it cannot be inferred that, this witnesswasinMahemudmiya'shouse.Onthestrengthof thosecontradictionsandomissionshersaythat,shewasin side Mahemudmiya's house and she sustained burns injuriesintheMahemudmiya'shousecannotbediscarded. Her husband is telling about family members with her. Thus,thiscontradictionwillnotprejudicetotheaccused on this point. Further, Injury Certificate of Aaftab is not produced. There is no medical evidence to support the injuries sustained to Aaftab. Injury Certificate of Sainabanu is produced vide Exh.193, in which no burns injuries shown while Aashiyanabanu was with her, who diedduetoburnsinjuries,whichitselfsupportsthesayof thiswitnessaboutherpresenceinMahemudmiya'shouse. Thiswitnesswashaving15%burnsinjuries,ifshesurvived we cannot infer that, she was not inside the Mahemudmiya's house and her presence inside the Mahemudmiya's house at the time of incident cannot be discarded.Sofarashersaythat,shesawthemobpouring
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kerosene, petrol, burning rag etc. and screaming for help butnoonetriedtosavethemisconcerned,thisfactisnot statedbyherinherstatementdated02.03.2002,howand fromwhereshehasseenpouringkerosene,petrol,burning ragarenotspecifiedinherdeposition.Simply,sheissaying that, she saw the incident. Further, she is claiming that theyrequestedPatelsletthemgobuttheysaidthat,they weretobeburnt.Thisfactisnotstatedinherstatement andnotsupportedbycogentandreliableevidence.Itseems tobeanimprovementin herversionandthispartofher versionisrequiredtobediscardedbutsuchimprovementis not such which may disprove the other part of evidence, which is proved by prosecution from cogent and reliable evidence.Herversionregardingthefactthat,shehadseen the persons of her village, pouring kerosene, petrol is concerneditisanimprovementinherversiononthispoint. Thus,hersaythatshe alongwithfamilymemberswasin Mahemudmiya'shouseandhassustainedburnsinjuriesis much supported by cogent and reliable evidence. Aashiyanabanu who was with her, who also sustained burnsinjuries,subsequentlyonthewayofCivilHospital, Mahesanashedied.Alltheseevidencesupportsthesayof this witness that, she was inside Mahemudmiya's house
// 598 //
buttheevidenceregardingseeingthemobofPatelsoftheir village pouring kerosene, petrol, setting on fire is to be consideredasanimprovement.Noreliancecanbeplaced on this evidence but on the strength of this part of her versiontheothertestimonywhichisotherwiseprovedand establishedbytheprosecutioncannotbediscardedonthat count.Presenceofthiswitnessatthetimeofincidentin Shaikh Maholla is natural and considering the fact that, this witness is injured eyewitness, any person who was injuredintheincidentwillnottrytoimplicatefalsepersons insuchagraveincidentbygivinggobyetotherealculprit. P.W.75 Shaikh Firozabanu Bachumiya has deposedonoaththatsheisresidentofvillageSardarpur andatthetimeofincident,shewassittingwithherfather and mother. On the next day of Godhra train incident, cabinswereburntinthevillageandonthe3 rdday,atabout 9.30 P.M., cabins in the corner of Shaikh Maholla were burntbythePatelsoftheirvillage.Soonasthepolicecame, mobdisbursed and thereafter,atabout11.30P.M., again themobofHinduscame.Therewere1000to1500persons, firsttheyburntthehouses,thenstartedcausingdamages to the properties and then pelted stones. Her father had
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toldthemtogotothehouseofMahemudmiya.Therefore, all ladies went to that house. She alongwith Farzana, Farida, Ashiyana and Saina and son Aftab, went to the house of Mahemudmiya. They were inside the room and mob of Hindus broke the iron rod of the window and poured kerosene and petrol from that window and burnt them. They started burning in the room for which they shouted. Thereafter, at about 2.00 A.M., police came and took them out. 28 persons were dead and others were injured and rescue operation had taken place and they weresenttoMahesanaCivilHospital.
ItissubmittedbyShriDhruvthat, thiswitnesswas insidethehouseofMahemudmiyaforaboutoneandhalf hours.Shehasnottakenanytreatmentnorshesustained injuries.ConsideringthepositionofMahemudmiyashouse andallthecircumstancesonrecordandevidencebrought on record, presence of this witness in the house of Mahemudmiya is doubtful. Looking to the deposition of F.S.L. Officer, deposition of complainant and other witnesses and Panchnama, some witnesses who have receivedinjuries,alsoclaimthattheywereinsidethehouse which brings the total figure of 33 dead persons and 20
// 600 //
alive persons which is highly improbable in a situation where room is about 176 Sq. Ft. having kitchen articles, coat,furnitureandfixturesetc.Further,complainantisnot referringthenamesofpresentwitnessinsidethehouseof Mahemudmiya.Further,forthefirsttime,beforetheCourt, occurrenceisstatedtobe11P.M.or11.30P.M.butlooking toherstatementdated22.05.2008shehasnotdictatedthe time of incident as 11.30 P.M. Further, in her statement before police dated 02.03.2002, she has stated that mob entered in the Maholla and started pelting stones and to savetheirlives,theywentinsidethehouseand closedit from inside and other persons from Maholla also went insidetheirhouseandhadinformedthepolice.Policecame and then the atmosphere calmed down. Looking to the conduct of the witness, from her crossexamination, her deposition is doubtful in nature. Further, though this witnesswas10to15Ft.awayfromthejeepwhichwasset on fire and which was witnessed by, not a single person fromthemobhadtriedtoassaulther.Thehouseofthis witness is just adjacent to the jeep. On seeing the jeep being set on fire, in spite of going inside the house, she wenttowardsthehouseofMahemudmiya.Sheisclaiming thatshehadseencertainpersonswhenthejeepwasseton
// 601 //
firebutsheisnotsayingwhosetonfirethejeep.Asperthe sayofthecomplainant,whenthejeepwassetonfire,mob was spread over up to the house of Mahemudmiya and when the mob was spread over up to the house of Mahemudmiya, no one can dare to go to the house of Mahemudmiya thus, it is the say of Shri Dhruv that witnesshasnotseentheincidentandsayofthiswitness that she was inside the house of Mahemudmiya is also doubtful. Sheseenthepersonswhenthejeepwasseton firebutshehasnotgiventhenamesofthosepersonsin her statement dated 02.03.2002 and 22.05.2008. For the first time before the Court she is saying that when she cameoutfromthehouse,shesawthejeepwassetonfire and at that time, she saw the persons. Further, this witness is claiming that she had seen the cabins and houses were set on fire, houses were ransacked, stones were pelted and jeep was set on fire but which accused playedwhatroleinthoseincident,isnotstatedbyher.If shehadwitnessedtheincident,shewouldhavecertainly statedabouttheovertactcommittedbytheaccused.Thus, thesayofthiswitnesscreatesdoubt.Further,thesayof thiswitnessthatatthetimeofjeepbeingsetonfire,she sawthepersons,isnotstatedinanyofthestatement.She
// 602 //
isdeposingthisfactaftereightyearsofincidenttherefore, noreliableatall.
Fortheseargumentswhenweconsidertheevidenceof this witness on record it transpires that, at the time of incident,shewasstayinginSardarpur.Atthesayofher father,shealongwithhersisterinlawFaridabanuandher twodaughtersnamelyAashiyanabanuandSainabanu,Son AaftabwenttothehouseofMahemudmiya.Whenshewas going to the Mahemudmiya's house at that time she had saw the mob. Considering the situation of Ibrahimmiya Rasulmiya Shaikh and Mahemudmiya's house, it is quite possible for a person while going from Ibrahimmiya Rasulmiya's house to Mahemudmiya's house to see the personsinShaikhMaholla.Ifthiswitnessissayingthat, whilegoingtoMahemudmiya'shouseshesawthemobthat isquitepossible.Shehasspecificallystatedthat,whenshe cameoutfromherhouse,shesawsettingonfirethejeep. For this purpose when we peruse the situation of IbrahimmiyaRasulmiya'shouse,asshownintheMap,itis showninsidetheShaikhMaholla,leaving10to12houses and it is falling towards the row which is falling towards graveyard. While, the Jeep which is shown standing on
// 603 //
oppositesiderow,justinfrontofBachumiyaImammiya's house, if a person comes out from the house of IbrahimmiyaRasulmiya,hecaneasilyseetheJeep.Inthat circumstances, if this witness is saying that, when she cameoutfromherhouseshesawsettingonfirethejeep, that is quite probable and it is also supported by other cogent and reliable evidence that Jeep of Bachumiya Imammiya was set on fire. Simply this witness has sustainednoinjury,wecannotdiscardtheevidenceofthis witnessonthatcount. So faras contradictions regarding electric current is concerned, it is argued by Shri Dhruv that, as per deposition of P.W.46 Pathan Sabirmiya Akumiya, D.S.P. received electric shock when he went towards window of Mahemudmiya's house and that wire wasconnectedfromthepolenearthehouseofNatvarbhai Prabhabhai and rod was thrown from the window. While P.W.48SabirhusenKadarmiyaShaikhtherewasoneiron rodtowhichcurrentwasjoinedand placedintheroom. EvenD.S.P.alsoreceivedelectricshock,whilethiswitness is not stating about any current, received by anybody. D.S.P. Gehlot is not deposing that, he received electric shock.AsperD.S.P.intheMahollathewireswerescattered and the persons residing in the area, who have obtained
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electric connection and by burning of house, it might be scattered. While this witness is claiming that, she was insidetheroom,shedidnotreceiveanyelectricshock,at thesametimesheisclaimingthat,2to3personsreceived electric shock. As per scene of Panchnama there was electricfaninthehouse,whichwascharred.Evenelectric wiresinP.V.C.pipeswerealsoburntandhangingoverthe ceiling.NoPoliceOfficerissayingthat,hehadbrokenwire withRifle.InPanchnamaalsoitisnotstatedthat,wirewas comingfromthehouseofNatubhaiPavarorformanyother house. No police officer is saying about electric shock. While this witness has stated that, soon as the police touchedthedoor,therewaselectriccurrentonitandPolice hadbrokenwirewiththeRifleandwirewascomingfrom thehouseofNatubhaiPavarandthisfactisnotstatedby herinstatementdated22.05.2008.Thus,onthestrength ofthisevidence,itissubmittedbyShriDhruvthat,thereis an improvement by this witness in this regard when we perusetheevidenceofD.S.P.and otherwitnessesaswell as medical evidence on record it transpires that, electric wires were scattered in the Maholla but the say of the witnesses that, D.S.P. received electric shock is not supportedbytheD.S.P.Lookingtothepositionoftheroom,
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electricwiresinP.V.C.Pipeswereburntandhangingover theceiling.Buttherewaselectricconnectioneitheritmay belegalorillegalconnectionandmedicalevidencesuggests that,AbedabanuManubhaiShaikhhassustainedelectric current injury. Medical papers, Medical Certificate produced vide Exh.212 and 213 supports this fact. No doubt there are some discrepancies about electric connection or live wires in Shaikh Maholla but the fact that,therewaselectricconnectionintheroomandthewire wasliveandduetothatlivewiretheinjuredreceivedthe injury. Whether said live wire was taken from Natubhai Pavar'shouseorfromsomewhereelsebutthefactthat,the electric connection was taken is established by the prosecution. So far as breaking of door by Rifle is concerned,aspersayofthiswitnessPolicehadbrokenthe wire with the Rifle while the other witnesses telling that, doorwasbrokenfromoutside.Therearedifferentversions aboutbreakingofdoor.Fromthepoliceofficersdepositions, door was opened by using force from the outside. F.S.L. Reportalsosuggeststhat,forcewasusedforopeningthe doorofthehouse.Thus,thetheoryofelectricconnectionis not totally false. During Inspection Visit by the Court, it was found that it is quite possible to have electric
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connection from the house of Natubhai Pavar to the Mahemudmiya's house or from the pole, just adjacent to the house of Natubhai Prabhabhai and one can take electric connection from that pole to the house of Mahemudmiya and it is quite possible as there is open space,surroundedbytheCompoundwallandgate.There is no building in between the pole and Mahemudmiya's house.Thus,thepossibilitiesoftakingwirefromthatpole to Mahemudmiya's house cannotbe ruled out. Therefore, the say of this witness that when the police came and openedthedoortherewaselectricshockinthedoorand the wire was coming from the house of Natubhai Prabhabhaigetsupportfromtheevidenceandsimplythere is contradiction in her statement dated 02.03.2002 we cannotinferthat,thisisfalsestorycreatedbythewitness asthefactregardingelectriccurrentisprovedfromother reliablecogentevidencealsomuchsupportedtheversionof this witness on this point therefore, this version is trustworthyandreliable.Simplyomissioninherstatement doesnotamountdiscardhersayontheissue.Therefore, say of Shri Dhruv that, story of current is material improvementbythiswitnessforthefirsttimeintheyear 2008isnotsufficientcreatedoubtabouttheversionofthis
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witnessonthispoint.Sofarasthesayofthiswitnessthat, shesawtheJeepsettingonfireatthedistanceof10to15 Ft. is concerned, it is argued by Shri Dhruv that, not a singlepersonfromthemobhadtriedtoassaulther.House ofthiswitnessissituatedjustadjacenttoJeep,asperher sayonseeingJeepsetonfireinsteadofgoinginsideher house,shewenttowardsthehouseofMahemudmiya.She hasclaimedthat,whenthejeepwassetonfire,shesaw certainpersons.Stillhowever,sheisnotstatingwhohas set on fire the Jeep. Looking to the complainant's deposition when the Jeep was set on fire the mob was spreadoveruptothehouseofMahemudmiya,ifthatisso noonedaretogotothehouseofMahemudmiyatherefore, itissayofShriDhruvthatthiswitnesshasnotseenthe incident and claims to be an eyewitness and inside the house of Mahemudmiya. So far as this argument is concerned when we peruse the evidence of this witness whenshecameoutfromherhouseatthattimeshesaw the jeep set on fire by the mob. Jeep was set on fire by pouringthekerosene.Lookingtothesituationofthehouse ofthiswitness,ifapersoncomesoutfromherhousehe caneasilyseetheJeep.Therefore,thesayofthiswitness that, she saw the jeep set on fire is quite possible and
// 608 //
thereafter, she went to Mahemudmiya's house. No doubt complainanthasdeposedthatmobwasspreadovertothe Maholla but the house of Mahemudmiya was Pakka constructed house and it was safe therefore, if witness alongwith other persons went to the house of Mahemudmiya by avoiding the mob and no injuries were caused to her while going inside the Mahemudmiya's house, wecannotinfer thatthis fact is false and created one and she wasnothavingopportunity tosee the mob. Before going inside the Mahemudmiya's house, she was havingsufficientopportunitytoseethemobandtherefore, thesayofthiswitnessthat,shesawtheJeepsetonfireis trustworthyandreliable. P.W.78ShaikhBasirabibiBachumiyahasdeposed onoaththatatabout9.30P.M.,amobofPatelscamefrom Mahadev temple side shouting slogans to cut, beat and burn the Bandiyas, no one should be left alive. Three cabins at the entrance of Shaikh Maholla, were burnt. Thereafter,policecameandthemobdisbursed.Thereafter, aftersometime,againthesamemobcameandhadstarted peltingstonesburningthehouseandalsolootedthehouse. First house of Manubhai painter was burnt, then, the houseofAkbarmiyaBachubhaiwasburntandthirdhouse
// 609 //
was of Iqbalmiya Rasulmiya and by burning the houses, theycameinsideandpeltedstones.Inordertosavetheir lives, they went to the house of Mahemudmiya. Mob surrounded the house of Mahemudmiya. Window was broken and from that window, Kerosene and petrol was poured andthenthehousewassetonfire.Persons who were inside the house were requesting the mob to leave thembutmobhadnotleftthem. ItisarguedbyShriShahthat,hernearestrelatives have died in the incident, she is the resident of Shaikh Maholla, Sardarpur, she was very much present in the Mahollaatthetimeofincident.Sheisaninjuredwitness. In the history, she has stated that she sustained 20% burns injuries during the attack. Her statements were recordedlateon27.04.2002asshewasinIddatperioddue to the death of her husband. Thus, it is the say of Shri Shahthat,sheisnaturalwitness,thereisnoexaggeration inherdeposition,everythingstatedbyherisnaturalone. ItissubmittedbyShriDhruvthat,aspersayofthis witnessshealongwithherhusbandBachumiyaandthree sons were inside the house of Mahemudmiya. Looking to the situation of the house Mahemudmiya, it seems that
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anyonewhoclaimstobeinsidethehousewouldsurviveor survivewithouthavinganyburninjury.Houseisoccupied by53personsishighlyimprobable.Asperthesayofthis witness,herhusbandwhowasinsidethehousehasdied and survival of this witness alongwith three sons is doubtful.Further,theirhouseinShaikhMahollawereset onfire. As per the deposition of Shri Gehlot, D.S.P. after breaking open the doors of burnt houses rescued 40 personswhileP.W.76ShaikhHamidabibiAkbarmiyaand P.W.68 Shaikh Gulamali Akbarmiya have deposed that theirhouseswerealsoransackedandwerealsosetonfire. Aspertheirsay,personswhoweretrappedinsidetheburnt houseswerebroughtoutbythepersonswhowereoutside the houses. The statement dated 10.03.2002 of P.W.80 ShaikhRuksanabanuIbrahimmiyadisclosethatpersonin MahollawereinsidethehouseofNazirMohamed.Inspite ofNazirMohamed,nameofMahemudmiyaismentionedin twoplacesinherstatement.Thus,itissubmittedbyShri Dhruvthatitcanreasonablybepresumedthatthewitness might have seen the mob coming from the entrance of ShaikhMahollaandtheymighthavewitnessedthesetof firethehouseofNazirMohamed.Theywerenotknowing thatMahemudmiyashousewassetonfireasthishouse
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wassetonfirefromthebacksideofthehouseandthattoo bymobofSundarpur.Thus,itissubmittedbyShriDhruv thatprosecutionissuppressingtrueandcorrectfactsfrom the beginning. Further, the witness who claims injury inside the house of Mahemudmiya might have received injuryinNazirmohmadhouseoratanotherplacesbutnot inhouseofMahemudmiya.Further,asperthesayofthis witness,inthemidnight,policecameandhadcalledthat thosewhoarealivemaycomeout,theyarepolice.Soonas she came out she saw her elder brother Abbasmiya Kesarmiya and her sisterinlaw Ruksanabibi Abbasmiya andMumtajbibiMaqbulmiya,nieceSaherabibiAbbasmiya and her husband were found dead. If this witness was insidethehouse,thenthereisnoquestionofknowingit after coming out of the house. Further, looking to the evidence,notasinglepersoncameoutfromthehouseof Mahemudmiyaevenonthecallofpolice.Onthecontrary, witnesshavedeposedthatpolicehadtobreakthedoorand bring out dead bodies from the house and no one has claimed that anyone was inside the house and came out from the house of Mahemudmiyabyhis own. Eventhree personswhowerebroughtoutalivebythepolice,theyhad sustainedinjurytherefore,claimingofthiswitnessthaton
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arrival of police, she came out of the house is not believable. Further, looking to the deposition of Ibrahimmiya Rasulmiya, police had forcibly opened the door of the house of the Mahemudmiya, is directly in contradictionasclaimedbythiswitness.Thus,witnesses whowereclaimingtobeinsidethehouseofMahemudmiya arealsointersegivingdifferentversionabouttheopening ofthedoor.WhileasperthedepositionofP.W.90Parmar GalbabhaiKhemabhai,twoinjuredpersonsintheShaikh MahollahaveinformedthemthatMahemudmiyashouseis just ahead and said witness alongwith other person have openedthedoorofMahemudmiya'shouse.P.W.91Rathod MahendrasinhLalsinhalsodeposedthatafteropeningthe door through handle, persons were brought out from the houseofMahemudmiya.Notasinglewitnessissayingthat from the house of Mahemudmiya, they themselves have come out without intervention of anyone. Further, this witnessisgivingaccountaboutthepersonsastowhatthey have done outside the room but she is not giving any accountaboutthepositioninsidethehouse.Notonlysheis not stating in her deposition as to who were inside the housewhichcreatesdoubtaboutherclaimthatshewas insidethehouse.Further,aspertheclaimofthiswitness,
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heryoungersonIliyasreceivedburninjuriesonleftear andlegbutnoinjurycertificateisproducedonrecord.This witness herself took treatmentwhich is highly impossible thatthoughhersonwasinjuredandhewaswithher,he maynothavebeentreated.Eventhiswitnessisnottelling abouttheinjurytohisothertwosons.Sayofthiswitness that her two sons had not received injury is highly impossible.Herstatementwasrecorded on 17.04.2002.If she had received burn injury she might have taken treatmentandinjurycertificatemighthavebeenproduced but injury was not received inside the house of Mahemudmiya. She was silent for about one to one and halfmonths.Onthisgroundonly,thewholedepositionof this witness can be discarded. She was brought to the hospitalandthereafter,toIlolinthecompanyofpoliceand other persons from Shaikh Maholla but she was silent about the incident. Further, as per her say, she was observingIddatatIlol.Shecouldhavetoldtherealfactsto hernearrelativeswhereshewasresidingandtherefore,it issubmittedthateventheexplanationgivenbyherisnot genuine and this explanation is not given in any of her statement dated 17.04.2002, 22.05.2008 and 11.06.2008. Further, the story of setting on fire, three cabins at the
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outsideofShaikhMahollaandinsidetheShaikhMaholla andthatshehadseentheincident,arenotstatedbyherin any of her statements dated 17.04.2002, 22.05.2008 and 11.06.2008. Over and above, this witness has also not statedaboutherhusbandwhoreceivedinjurybystones.In any ofthis statement,she has notstated that windowof thehouseofMahemudmiyawasbroken.Indeposition,she hasstatedthatsherequestedthemobtoletthemgo.In spiteofthat,mobdidwhattheywantedtodoandthisfact is an improvement and the same is not stated in her statement. Looking to the deposition of Akbarmiya RasulmiyaShaikhandconsideringthenumberofomission ofthiswitness,itbecomesclearthatfromthedoorofthe house adjoining Shaikh Maholla, Mangalbhai Mathurbhai and Nathubhai Kachrabhai and other Patels have thrown bricks which hit Bachumiya Nathumiya on his head. It suggests she was with her husband even at the time of incident.Asperthesayofthiswitness,whilegoingtothe house of Mahemudmiya, she was with her own children and has seen the mob. This fact is not stated in her statement.Further,asperthesayofthiswitness,rearside windowofMahemudmiyashousewasbrokenbythemob. PhotographsandevidenceofF.S.L.makesitclear,thatno
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rearwindowofMahemudmiyashousewasbroken.Further, thiswitnessissayingthatfromthewindow,shesawthe mobpouringkeroseneandpetrolbutfromwhichwindow mobpouredthekeroseneisnotspecifiedbythiswitness. While Ayubmiya Rasulmiya in his crossexamination has admitted that doors and windows of house of Mahemudmiya were closed from inside while Firozabanu BachumiyaShaikhhadclosedthewindowanddoorsfrom inside. P.W.56 Ayubmiya Rasulmiya Shaikh and Firoz BachumiyawereinsidethehouseofMahemudmiya.When theyaresayingthatthedoorsandwindowswereclosedby them, then there is no possibility of either pouring or throwing of petrol and kerosene inside the house from window. Further, as per the say of this witness, she had seen the persons in the mob. She has also named the persons and also deposed that window of the house was broken.Itisthesayofthewitnessthatkeroseneandpetrol waspouredandburningragswerethrownstillsheisnot sayingwhoplayedwhatkindofrolewhichismostmaterial which suggest that she has not witnessed the incident. Further,sheisclaimingthatshewentinsidethehouseof Mahemudmiya and mob had surrounded the house of Mahemudmiyafromfoursides.Ifshewasinsidethehouse
// 616 //
thenhowshecansaymobhadcoveredthehousefromall thefoursides.Since,thedoorsandwindowswereclosed frominsideandonothertwosidesthereiswall,noonecan see what is happening outside the house. Therefore, her claim that house was cornered from all sides is not acceptable. Further, it is submitted that she does not remember what household goods were there in Mahemudmiya's house. She does not know about the electric wires insidethe house.As perher saythere was kerosenelampandelectricitywasnotthereinthehouse. Doorsandwindowsofthehousewereopen.Whatpartof window was broken she does not remember. Considering the crossexamination and chiefexamination of this witness,itcomesthatthewitnesswasnotinsidethehouse when the window was opened. There was no question of breakingit.Evenlookingtotheevidencebroughtonrecord, windowisnotdamaged.Therewaselectricityinthehouse, electricwireswerealsothereinthehouse.Thiswitnessis nottellingthecorrectpositiononthispointwhichsuggests thatshewasnotinsidethehouse. Consideringthesubmissionsofboththesidesandon perusingtheevidenceofthiswitnessittranspiresthat,she is the resident of Village Sardarpur. At the time of
// 617 //
occurrenceshewaspresentintheShaikhMaholla.Sheis aninjuredeyewitness.HerinjuryCertificateisproduced videExh.170.CasepapersareproducedvideExh.171.She sustained20%burnsinjuriesandinhistorybeforeDoctor shehasstatedthatshesustainedburnsduringriots.She wasconsciousattherelevanttime.Sofarassubmissions onbehalfoftheaccusedthat,lookingtothesituationofthe houseofMahemudmiyaifanyonewhoclaimstobeinside the house could not survive without any burns injury is concerned,herepresentwitnessisclaimingthatshewas inside the house of Mahemudmiya, she has sustained burnsinjuries.Sofarashersaythat,herthreesonswere withherandtwosonswerenotinjured,onlyonesonwas injured. Her husband was also inside the house of Mahemudmiya,whohasdiedduetoburnsinjuries.Post Mortem Report of her husband Bachumiya Nathumiya ShaikhisproducedonrecordatExh.323.HisPostMortem wasperformedbyDr.VijaykumarVitthalbhaiOza,whohas beenexaminedatExh.322,whichsupportsthesayofthis witness that, her husband died due to burns injuries. MedicalCertificateofthiswitnessisproducedduringthe deposition of Dr.Dhirajkumar Jivanlal Soni, which also supports the say of this witness that, she has sustained
// 618 //
burnsinjuries.Shesustainedinjuriesinbothlegsandon herfaceandshewastreatedinMahesanaCivilHospital. Simplybecausethiswitnesssurvives,wecannotconclude that, because she survives, it creates doubts about her claimtobeinsidethehouseofMahemudmiya.Ifhertwo sonshadnotsustainedinjuriesthatisalsoquitepossible andonthatcountalso,wecannotsaythat,shewasnot inside the house. So far as house of Mahemudmiya occupied by 53 persons highly improbable is concerned, thispointisalreadydiscussedearlierandtherefore,there is no necessity to discuss this point again. Further, submission that persons from other houses of Shaikh Maholla were also brought out from the burnt houses is concerned, no doubt D.S.P. Gehlot supports this fact. P.W.76 Shaikh Hamidabibi Akbarmiya and P.W.68 Shaikh Gulamali Akbarmiya supports the fact that, their houses were ransacked and set on fire and the persons were trapped inside the burnt houses were brought out during the rescue operation. Assuming other injured personswerebroughtoutfromtheotherburnthousesof Shaikh Maholla that does not mean that, there was no person inside the Mahemudmiya's house or this witness alongwithherfamilymemberswerenotinMahemudmiya's
// 619 //
house and her claim to be inside the Mahemudmiya's house is false and no doubt can be created about this witnessthat,shewasinsideMahemudmiya'shouse.Sofar as arguments regarding P.W.80 Shaikh Ruksanabanu Ibrahimmiya has stated that, instead of Mahemudmiya's house, persons were inside the house of Nazirmiya is concernedfromthecogent,reliableandconcreteevidenceit isprovedbytheprosecutionthat,mainincidentoccurred inMahemudmiya'shouse,fromwhere28deadbodieswere broughtandotherinjuredpersonswerealsobroughtout. Thus, simply because Ruksanabanu Ibrahimmiya has statedthat,theincidentwasoccurredinNazirmiya'shouse and persons were inside the Nazirmiya's house there is discrepancies in the statement of Ruksanabanu and her version but the fact which is already established, that cannot be discarded on the say of Ruksanabanu that, incident occurred in Nazirmiya's house instead of Mahemudmiya'shouseandpersonsofShaikhMahollawere inside the house of Nazirmiya. Therefore, the arguments advancedbyShriDhruvthat,thiswitnessmighthaveseen thesettingonfirethehouseofNazirmahmadandnotthe Mahemudmiya'shouse,whichwassettingonfirefromthe backsideofthehouseandthattoobythemobofpersonsof
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VillageSundarpurisnotacceptable.Inthedeposition,this witness has specifically stated that, they went inside the houseofMahemudmiya,priortothat,themobcamefrom theentranceofShaikhMahollabyburningthehousesof Shaikh Maholla. When the mob was coming inside the ShaikhMaholla,sheherselfhasseenthemobanddueto fearshealongwithfamilymemberswentinsidethehouseof Mahemudmiya. Therefore, the say of Shri Dhruv in this regardthat,shemighthaveseensettingonfirethehouseof Nazirmahmadisnotacceptable.Fromherdepositionand from other cogent and reliable evidence on record, it is establishedbytheprosecutionthat,thiswitnesswasinside the Mahemudmiya's house and she sustained burns injuriesandtherefore,sayof ShriDhruvthat, shemight havereceivedinjuriesinNazirmahmadhouseoratanother place but not in the house of Mahemudmiya is not acceptable.Further,wheninthemidnightpolicecameand this witness brought out, she came to know about the deathofherhusband, brother,sisterinlawsandniece.If thiswitnessalongwithherfamilymemberswasinsidethe Mahemudmiya'shouseandsheonlycametoknowabout thedeathofherrelativesaftercomingoutthehouse,that ispossible.Thereweremorethan50to55personsinside
// 621 //
the room and in that circumstances, she may not have knowledge of her relatives though they were inside the room.Onthatcount,itcannotbesaidthatshealongwith her family members were not inside the Mahemudmiya's house. So far as her say that, she came out from Mahemudmiya'shouseisconcerned,itistruethatthereis evidence that, door of Mahemudmiya's house was broken and dead bodies and injured persons were taken out. In thatcircumstancesifthiswitnessissayingthat,shecame out such discrepancies is not such from which we can gather that, she is suppressing something. She may be brought out by police or some other persons or she by herself came out, it makes no difference. As per say of complainant three persons were brought alive from Mahemudmiya's house, subsequently those three persons died.OnthestrengthofthisevidencethesayofShriDhruv that,complainantisnottellingaboutthiswitnessbrought out alive from the Mahemudmiya's house is of no importanceasthethefactthat,thiswitnesswasinsidethe house of Mahemudmiya, she sustained burns injuries cannotbediscarded.Simply because complainant isnot tellingabouther.Itistruethataspersayofcomplainant, doorofMahemudmiya'shousewasforciblyopened,inthat
// 622 //
circumstances if this witness is saying that, this witness cameout,wecaninferthat,afteropeningthedoorshemay comeoutbutonthatstrengthhertestimonyonthatcount cannotbedoubted. Sofarasintersedifferentversionsof the witnesses about the opening of the door of Mahemudmiya's house is concerned, witnesses have describedintheirownmannerhowthedoorwasopened butthedifferenceisnotsuchfromwhichwecaninferthat, door was not opened. Over all depositions of all the witnessessuggestthat,dooroftheMahemudmiya'shouse wasopenedfromtheoutside.Further,simplythiswitness issayingthat, shecameoutfromMahemudmiya'shouse and the evidence on record is that, all the injured were broughtoutfromMahemudmiya'shouseisconcerneditis notofmuchimportance.Shemighthavebroughtoutfrom the house and she is telling that, she came out. This discrepanciesisnotsuchwhichcancreatedoubtabouther having inside the room. As per her say, her younger son Iliyas has sustained burns injury on left ear and leg but thereisnoinjurycertificate.Thereisnoevidenceonrecord showing that, her son Iliyas was treated and therefore, muchreliancecannotbeplacedonthatfact. Butthefact that, this witness sustained burns injuries and she was
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treatedatCivilHospital,Mahesana,cannotbediscardedon that strength. So far as her silence about one and half months is concerned, this witness was observing Iddat period,priortothatshewasbroughttotheHospitaland thereafter,shewassenttoIlol.Consideringthefactthat, her relatives including her husband died in the incident and she was having no roof for shelter in that circumstances,ifshewassilentaboutoneandhalfmonths andafterIddatperiodherstatementwasrecordedandshe has narrated all the facts, we cannot infer her silence to discardhersay.Sofarastheincidentregardingsettingon fire three cabins at the entrance of Shaikh Maholla is concerned,nodoubtthisfactisnotstatedbyherinher statement dated 17.04.2002, 22.02.2008 and 11.04.2008. She had also not stated about her husband sustained injuriesbystonesandshehasnotstatedaboutwindowsof the house of Mahemudmiya's were broken is concerned, omissionofallthesefactsonthepartofthiswitnessdoes notamounttodiscardtheversionofthiswitnesswhichare otherwise established and proved by the prosecution and theomissionsinthisregardbecomesinsignificant.Sofar asherdepositionregardingrequestingthemobtoletthem go, in spite of that, mob did what they wanted to do is
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concerned,thisfactisanimprovementinherversion,this fact is not supported from any other cogent and reliable evidence.AtthetimeofincidentherhusbandBachumiya Nathumiyawashitbyabrick,shewaswithhim.Further, consideringthesituationofherhouseandMahemudmiya's housewhenshealongwithherhusbandandchildrenwent totheMahemudmiya'shouseshewashavingopportunity to see the mob. It is only when she went inside the Mahemudmiya'shouse,thereaftershecouldnotseewhatis happeningoutsidethehouse.Simplybecauseshehasnot stated in her statement that, while going to Mahemudmiya'shouse,shehasseenthemob,wecannot inferthat,shewasnothavingopportunitytoseethemob. ApersonwhilegoingfromBachumiyaNathumiya'shouse toMahemudmiya'shousecanseewhatishappeningatthe entranceofShaikhMahollauptotheplaceofhappenings. F.S.L. Report suggests that, no rear door or window of Mahemudmiya's house was broken. Photographs are also silentaboutitandinthatcircumstancesifthiswitnessis sayingthat,rearsidewindowoftheMahemudmiya'shouse was broken by the mob is not supported by the corroborative piece of evidence. In that circumstances, if thiswitnesswasinsidetheroomthenhowcansheseemob
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pouring kerosene and petrol. It is not specified by this witness from this evidence we can infer that, it was not possibleforthewitnesstosee from insidethehousethe pouringofkeroseneandpetrolbythemob.Therefore,this part of her deposition can be considered as exaggeration andimprovement.Further,FirozabanuBachumiyaShaikh andAyubmiyaRasulmiyaShaikhwereinsidethehouseof Mahemudmiya,aspertheirsaytheyhaveclosedthedoors andwindowsandinthatcircumstancesalso,therewereno possibilitiesforthiswitnesstoseefrominsidewhopoured keroseneandpetrolandtherefore,alsoherversiononthis part is not reliable. Further, as per say of this witness, houseofMahemudmiyawassurroundedbythemobwhen she was inside the house and doors and windows were closedandconsideringthesituationoftheroomwindows anddoorsitishighlyimpossibleforapersontoseefrom thatroomwhatishappeningoutside.Therefore,herclaim that, she had seen the mob surrounded the house of Mahemudmiyafromfoursidesisanexaggerationandwe cannotacceptitasanevidenceagainsttheaccused.Sofar as her ignorance about electricity in the house is concerned, it has come out on record that, there was electricityinthehouse,electricwireswerehanginginthe
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room,whilethiswitnessisshowingignorance aboutthis fact, possibility of this witness not knowing about the electric wires in the room cannot be ruled out as at the relevant time electric supply may not be on therefore, on thisstrengthofthisevidenceaccusedhavetriedtoargue that, this witness was not inside the house of Mahemudmiya,whichcannotbeacceptedasitisotherwise provedbytheprosecutionfromcogentandreliableevidence that, thiswitnesswasinsidethehouseofMahemudmiya but the fact that, before going to the house of Mahemudmiyathiswitnesshadseenthemobthatcannot bediscarded. P.W.79 Shaikh Samimbanu Mahemudmiya has deposedonoaththaton3rd dayafterGodhraincident,at about9.30P.M.,mobofPatelscameshoutingtheslogans tocut,beatandburntheMuslims.Theyhadburntthree cabins. The police came at the spot. Soon as the police came,mobdisbursedandaftertheywent,againthemob came and started pelting stones. The said mob came at 12.00O'Clock.TheyburntthehouseofManubhaiPainter, AkbarmiyaNathumiyaandotherpersons.Shewasinside thehouseofAbhumamawhocameandtoldthatmobis comingtowardstheirhousebyburningotherhouses.He
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opened the door and instructed the persons who were inside the house to make attempts to save themselves. Thereafter,hermaternaluncleopenedthedoorandallthe ladies went inside the pakka house. Mob of Patels had surrounded the house and after pouring kerosene and petrol,theyburntthehouseandthereafter,mobhadtried tohammertheterrace.Sheherselfhasseentheincident. Shesawthepouringofkeroseneandpetrolandalsosaw hermother,twobrothersandsisters,burning.Thereafter, 4.00A.M.,policecameandtookthemoutfromthehouses andrescueoperationtookplaceandthentheyweresentto MahesanaCivilHospital. It is submitted by Shri Dhruv that, she is the daughter of Mahemudmiya in whose house the main incident occurred. She claims that she was inside the house.AtthetimeofenteringShaikhMaholla,shewasnot inside her house but subsequently she went inside her house.LookingtotheF.S.L.ReportadministeredbyF.S.L. Officer, Panchnama and other evidence on record, it is highly improbable that one can remain inside the house without any burns, if he or she was inside the house of Mahemudmiya. No injury certificate of this witness is produced.Shehasnottakenanytreatmentanywhereand
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hence, the presence of this witness inside the house is highlydoubtful.Thiswitnesshasstatedthatpolicecameat about 4.00 A.M. but she is not telling anything to police eventhoughshewenttoSavalainthecompanyofpoliceat thattimealsosheisnottellinganythingabouttheincident to the police. Her statement was recorded on 06.03.2002 butshehasnotstatedabouttheincident.Thiswitnesshas improved the version and deliberately omitted certain materialfactsfromtheCourt.Further,itissubmittedby ShriDhruvthatasperhersay,PatelscamefromMahadev templesideatabout9.30P.M.on01.03.2002andseton firethreecabinsbutthisfactisnotstatedinthestatement dated 06.03.2002. There is material omission before the Court to the fact that when police came and resorted to firing, mob was disbursed which is done with definite purpose.Thestoryhasbeenputforthbyherforthefirst timebeforetheCourt.Evenshehasclaimedthatshehad seensomepersonswhosenamesshedoesnotknow.Thus, how can she name them which suggests that she might have been tutored one. Further, it is submitted that this witness has improved her version before the Court in respectofplaceandherhidingfirsttimeinthehouseof Abhumama. When almost all persons of Maholla took
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shelter in her own house which is a pakka constructed house then why she took shelter in the house of Abhumama. It is nothing but with a view to give her an opportunitytoimplicatecertainaccused.Nootherwitness is claiming that this witness was in the house of Abhumama and from there she went inside her house. Further, it is submitted by the accused that from which place she had seen the mob pouring kerosene, throwing burning rags etc. Door and windows of the house were closedthenhowshecanseeallthesehappenings.Incident occurredinthemidnight,therewasdarknessoutsideand hence,itishighlyimpossibletoseeanyoneevenifwindow isopened.FurtheritissubmittedbyShriDhruvthatas per this witness, terrace was broken but this fact is not supported from the deposition of panch witness of Panchnama and from police witnesses. Further, it is submitted on behalf of the accused that there were 50 personsinthemobwhichcameatabout12.00midnight while other witnesses are deposing about 1000 to 1500 personsinthemob.Therearemorethan50personswho are Chargesheeted therefore, the say of this witness is unbelievable.
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This witness is the daughter of Mahemudmiya, in whose house main incident occurred. On perusing her deposition,ittranspiresthatsheisnotstatingthatasto howandwhohadpouredkerosene,petrol,burningragsin thesaidhouseandwhosetonfirethecabins.Atthetime ofoccurrenceshewasstayinginShaikhMaholla.Fromher deposition case of prosecution that at about 09.30 P.M. mob came, shouting slogans to cut, beat and burn the Muslimsandthreecabinswereburnt.Soonaspolicecame, mobdisbursed.AfterthePolicewentawayagainmobcame and started pelting stones. At about 12.00 O' Clock mob again came and they burned the houses of Manumiya, Akbarmiya Nathumiya and other persons. This fact is supportedbytheversionofthiswitnessatthattimeshe wasinsidethehouseofAbhumamaandastheyweretold byAbhumamathatmobiscomingandheopenedthedoor and thereafter, they all went inside the house of Mahemudmiya.Thus,fromwhereshehasseentheburning ofcabinsandburningofhousesbythemobisnotspecified by her in her deposition. Simple general allegations are thereinherversion.Therefore,fromherdepositionburning of houses in Shaikh Maholla and burning of house of Mahemudmiya is supported but from her deposition we
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cannot conclude that, she has seen pouring of kerosene, petrolandburningthehouseofMahemudmiya.Ifshewas inside the house of Mahemudmiya, how she could see hammeringtheterraceandburningofhouseandtherefore, much reliance cannot be placed on this version of this witnessabouttheroleplayedbytheaccusedintheincident in this regard. Simply, incident occurred, houses were burntandthepersonsinthehouseofMahemudmiyawere also burnt and they were shifted to Civil Hospital Mahesana, is supported from her version. So far as the arguments advanced by Shri Dhruv that, it is highly improbablethatonecanremaininsidethehousewithout anyburnisconcernedthiswitnesshasnotsustainedany injury. If she was inside the house and she has not sustained any injury that is possible. Simply because on thestrengthofF.S.L.Report,itcannotbesaidimprobable thatonecannotremaininsidethehousewithoutanyburn injury. There are other witnesses also, who were brought outsidefromtheMahemudmiya'shouse,havingnoinjury. That was her own house, a pakka constructed house, whichwasmoresaferintheMahollaandifsheisclaiming that, she went into her house that is more probable. Therefore, her presence inside her house cannot be
// 632 //
doubted.Further,whenthePolicecameshehadnottold theincidentpolicewaswithheruptoSavalabutshewas silent.Undersuchatenseandgraveatmosphereifshewas silentonthatcount,itcannotbesaidthatsheistellinglie. Inherstatementdated06.03.2002,shehasnotnarrated the incident. Further, she has not narrated in her statement that, Patels from Mahadev side came at about 09.30P.M.on01.03.2002andsetonfirethreecabinsbut thisfactisnotstatedinherstatementdated06.03.2002. Further, she has omitted the resorting of fire by Police. Thus,thereisomissionandimprovementinherdeposition inthisregard.Acceptingomissionandimprovementsasit is, even then her version in deposition supports the burningoffireofthreecabinsaswellasburningofhouses in Shaikh Maholla. So far as breaking of terrace of her houseisconcerned,fromherdepositionittranspiresthat, shehasnotseenherself.Further,doorsandwindowsofher housewereclosed,therewasnopossibilityforhertosee whatishappeningoutsideandtherefore,hersaythatshe saw the pouring of kerosene and petrol and burning of housesisnotbelievable.Thus,theevidenceofthiswitness supportsonlyburningofhousesandcabinsandaboutthe personsburntinsidethehouseofMahemudmiya,whowere
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shifted to Civil Hospital, Mahesana. No specific role were attributedtoanyaccusedinherdeposition.Nothingmore comesoutfromherdeposition. P.W.80 Shaikh Ruksanabanu Ibrahimmiya has deposedthatatthetimeofincident,shewasinSardarpur. On01.03.2002moboftheirvillagecameattheentranceof their Maholla and had burnt the cabins of Ibrahimmiya Rasulmiya, Iqbalbhai and Rafikbhai. At that time, they were shouting to cut and burn the Muslims. Thereafter, policecameandmobdisbursed.Afteroneandhalfhour, samemobcameandenteredinShaikhMahollashoutingto cut,beatandburntheMuslimsandtheylootedthehouse. DuetofeartheywentintothehouseofMahemudmiyato save their lives. House of Mahemudmiya was surrounded bythemobandtheyhadpouredkerosene,petrolandthen burntthem.Thepeopleinsidetheroomwerescreamingfor helpbutnoonecametosavethem.Aftersometime,police cameandtookthemoutandrescueoperationtookplace and they were sent to Mahesana Civil Hospital for treatment. ItissubmittedbyShriDhruvthatsheisnotsayingat whatplaceshewaswhenshesawthemob.Shehasnot
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namedpersonswhowerebroughtoutalivefromthehouse of Mahemudmiya. If other persons alongwith her were brought out side the house of Mahemudmiya, she would have certainly deposed about it. Further, she gave false names of their family members. Thus, she can certainly givenamesofpersonswhowerebroughtaliveoutsidethe houseofMahemudmiyawhichsuggeststhatnooneisthere except three persons as mentioned in F.I.R. rescued alive fromthehouseofMahemudmiyaandthosethreepersons havedied.Notasinglewitnessisstatingaboutthereaction ofthepersonsinsidetheMahemudmiyashousenorthey are stating as to what attempt they have made to save themselves. In crossexamination, she has deposed that she received burns in her neck side since there was no waterinsidethereisnoquestionofanysteam.Ifhousewas setonfirealso,theremaybeflameorfireitself.Howshe receivedburnsbystream.Fromtheinjurycertificateitis crystal clear that she received burns injury only on her face.Onherfacetherewas1%burninjuryin8%areaof face.Itisnobodyscasethatnooneinsidethehousehave receivedanyinjuryexceptburns.Shehasintentionallynot statedaboutherinjury.Evenlookingtothehistorygivenby doctor,itismentionedabouttheinjurybystoneandlathi
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andburnsduringriotsandasperthedoctor,thehistory was given by the patient herself. She would have stated before the doctor that on her back, she received steam burnsonly.Abovestatedfactsmakeitclearthatshewas notinsidethehouseofMahemudmiyaasclaimedbyher. She mighthavereceived suchinjuriesat any otherplace outsidethehouseofMahemudmiya.
Further, it is submitted that the mob of village persons atabout9.00to9.30 P.M.on01.03.2002 seton firethreecabinsoutsidetheShaikhMaholla.Thosecabins were of Ibrahimmiya Rasulmiya and Iqbalmiya Rafikmiya and this fact is not stated in her statement dated 10.03.2002.Asperthesayofthiswitness,afteroneand half hour, again same mob came and entered in Shaikh Maholla.Thisfactisalsonotstatedinherstatementdated 10.03.2002.Further,itissubmittedthatthiswitnesshas not properly replied that as to how many persons have receivedinjury,whowereinsidethehouseetc.Inhercross examinationshehasadmittedthatasapartofherdaily routine,shewasmovingallaroundthevillageandshewas goingforlabourworkinthefieldsofPatelsstillhowever, afternamingthesepersons,notdeposingthenamesbefore theCourt,shehastriedtoidentifythepersonsintheCourt
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byfaceonly.
Thiswitnessisthedaughter ofthecomplainant,at the time, incident she was residing with complainant in ShaikhMaholla.HeroriginalmotherwasSharifabibi,who died before 13 years from the incident. At the time of incident,shewashavingsecondmotherJayedabanu,who died in the incident. She has narrated the incident, supporting the case of prosecution. Medical Officer has supported her injury. Injury Certificate is produced vide Exh.195.AsperMedicalCertificateshewasconscious.She herselfhasnarratedthehistorybeforetheDoctor.Asper hersay,shesustainedinjuriesduetopeltingstones.She sustained8%burnsinjuries.Asperhersay,mobcameat the entrance of Shaikh Maholla and burnt three cabins. Thereafter, Police came, mob disbursed and thereafter againmobcame.HousesinShaikhMahollawereburntand inpeltingstonesshehadsustainedinjuriesonherupper sideofrighteye.Tosaveherselfshewentinsidethehouse of Mahemudmiya and the said house was burnt by the mob,meaningtherebyshehasanopportunitytoseethe mob till she went inside the house of Mahemudmiya. In that circumstances if she is narrating about burning of
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housesandthreecabinsattheentranceofShaikhMaholla, pelting stones that is reliable. Her presence in Shaikh Maholla at the time of incident is natural one. In that circumstances,ifshehadnotgiventhenamesofpersons whobroughtheraliveoutsidethehouseofMahemudmiya, we cannot conclude that she is telling lie. So far as argumentsadvancedbyShriDhruvregardingreactionsof thepersonsinsidetheMahemudmiya'shouseisconcerned, itistruethatthepresentwitnessaswellasotherwitnesses whowereinsidethehouseofMahemudmiyaarenottelling whatattempttheyhavemadetosavethemselvesinsidethe Mahemudmiya's house. Omission on this part does not amount that she was not present in Mahemudmiya's house.Inhercrossexaminationithascomeoutthat,she receive burns injuries. Injury Certificate is produced on recordvideExh.195,whichsupportstheburnsaswellas otherinjuries,sustainedbyher. Nodoubtshehasstated aboutherinjuriesinhercrossexaminationbutomissionof herinjuryinherchiefexaminationdoesnotamountthat, her presence in Shaikh Maholla is doubtful. On the contrarytruthhascomeoutincrossexaminationthat,she has sustained injuries in occurrence of incident. This supports more version of this witness therefore, also her
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narrationabouttheincidentcannotbediscardedandthe say of Shri Dhruv that, she has not intentionally stated about her injuries cannot be accepted. So far as her narrationaboutincidentofburningofthreecabinsoutside the Shaikh Maholla is concerned, no doubt she has not stated this fact in her statement dated 10.03.2002 but burningofthreecabinsattheentranceofShaikhMaholla iswellsupportedbytheevidenceofprosecution.Therefore, omission of this fact in her statement dated 10.03.2002 becomesinsignificant.Further,omissioninherstatement aboutsecond time mob came is concerned it is also well establishedbytheprosecutionthat,secondtimemobcame therefore,heromissioninherstatementonthispartalso becomesinsignificant.Further,shehasnotproperlyreplied in her deposition that, how many persons have received injuries,whowereinsidethehouseofMahemudmiyaare concerned, this discrepancies are not such which can otherwise effect the case of prosecution or prejudice the rightsofaccusedandtherefore,noimportancecanbegiven tothisdiscrepancies.Further,sayoftheaccusedsidethat, therewasnormalcyinthevillage.Shewasdoingherdaily routine work. She was going to the field of Patel etc. for labour work, it is admitted by this witness but from this
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evidence it transpires that prior to incident there was normalcy but from this fact we cannot infer that, no incidentoccurredatthetimeofincident.Thus,evidenceof this witness is reliable, trustworthy and her evidence cannotbediscardedonanygrounds.
P.W.81ShaikhDilavarkhanAbbasmiya hasstated onoaththaton01.03.2002,atabout10.30P.M.,mobof Patels of their village attacked Shaikh Maholla. Approximately 50 persons of the Shaikh Maholla went insidethehouseofMahemudmiyatosavetheirlives.Mob of Patels came and closed the door of the house and by breaking the window, they poured kerosene, petrol and chemicals in the house of Mahemudmiya. House of Mahemudmiya was burnt. After three hours, police came andtookthemtotheCivilHospitalfortreatment.
It is submitted by Shri Dhruv that, at the time of incident,hewasagedabout12years.Thiswitnesswasnot interrogated at Civil Hospital. He does not remember whetherthepolice hasrecordedhis statement ornot.As per his say, his statement was recorded by S.I.T. on 22.05.2008in which itiswrittenas additionalstatement
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whichsuggeststhatbeforeS.I.T.hasrecorded,hisprevious statement was recorded by someone. Earlier statement of this witness is not supplied to the accused. Possibility cannotberuledoutthateventhatstatementwouldalsobe attheinstanceofsomeperson.Thiswitnessisnotstating whetherhewasinsidethehouseorwasinShaikhMaholla. Stillhowever,hehasgivenaccountoftheincidentasifhe has seen the incident. Thus, his evidence is nothing but hearsayevidence.ThiswitnesswastakentoCivilHospital but this witness has not told anything. As per his deposition,hisfather,motherandeldersisterhavedieddue to burns in the house of Mahemudmiya and he and his youngersisterhavesurvived.Theywerebroughtoutofthe house after three hours of the incident. Looking to the Panchnama,F.S.L.andotherevidence,itwasnotpossible for anyone who were inside the house to be survived. Lookingtohisconductitisclearthathewasnotinsidethe house and he has not seen the persons breaking the window. He is claiming that window was away and from sidewindowofthehouseofMahemudmiyawasattempted to be broken. No one has deposed that anyone has attemptedtobreakopenfrontsideofwindowofthehouse ofMahemudmiya.Basirabibiclaimedthatbacksidewindow
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of the house was attempted to be broken. Further, it is submitted that kerosene, petrol or inflammable chemical waspouredinsidethehouseandfoundfromtheclothesof thedeceased.Eventhenontheclothes,therearenostains eitherofthekerosene,petrolorevenchemicalarefound. ItissubmittedbyShriShahthat, thiswitnesswas minoratthetimeofincidentandwasstayingatSardarpur, inShaikhMaholla.Intheincident,hismother,fatherand sisterhavedied.Hisyoungersisterwasburntonboththe legs.Theyweretakenoutfromthehousesaftertwotothree hours, by the police. He was inside the house of Mahemudmiya just to save themselves. Persons from the mobhadclosedthedoorfromoutsideandafterbreaking thewindow,petrol,keroseneandchemicalswerepoured. Fromtheevidenceofthiswitness,ittranspiresthat, hewasminoratthetimeofincidentandhewasresidingin Shaikh Maholla. In the incident his father, mother, elder sister,youngersisterdied.Asperhisdepositionatthetime of incident, a mob of Hindu Patels attacked Shaikh Maholla, just to save their lives they went to house of Mahemudmiya. He alongwith his younger sister survived, hisyoungersistersustainedburnsinjuryonherbothlegs.
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Afterthreehoursofincident,theyweretakenoutfromthe house of Mahemudmiya and shifted to Civil Hospital, Mahesanafortreatment.Aminorboy,wholosthisparents, brother, sister, only one sister survived, who had also sustained burns injuries, why he will tell lie. In natural course he will narrate the true incident and they were taken out from the house of Mahemudmiya. Simply this witnesshasnotsustainedinjuryfromthatwecannotinfer that, he was not inside the Mahemudmiya's house. His presence at the time of incidentinthe Shaikh Maholla cannotbedoubted.Sofarashissaythat,hewentinside the house of Mahemudmiya is concerned when the mob hadattackedtheShaikhMaholla,inthatcircumstancesif he alongwith his family members and other members of ShaikhMahollawentintoMahemudmiya'shouse,whichis pakkaconstructedhouse,thatisnaturalconduct,anyone will try to save himself wherever he feels safe he will go thereandtherefore,hewenttothehouseofMahemudmiya, whichismuchsaferinShaikhMahollaandtherefore,itisa naturalconductandhissaythat,hewasinsidetheShaikh Mahollaisreliable.Hisevidencecannotbesaidahearsay evidence.Simplybecausehehasnotnarratedtheincident beforeanyoneintheCivilHospital,wecannotinferthathe
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istellinglie.Hisfather,mother,sister,brotherhavediedin that circumstances we cannot expect that a minor boy, agedabout12yearstobesoprompttonarrateadetailed incidentbeforethePoliceorotherauthorityandtherefore, silenceonhispartabouttheincidentcannotdiscardhis testimony. Asperhissay,hewasbroughtoutafterthree hours from the house of Mahemudmiya. Looking to the inside position of Mahemudmiya's house, it was highly impossible to survive in such a circumstances but if the witness is brought out survived we cannot infer that, he wasnotinsidethehouse.Sofarashissaythat,frontside windowofthehousewasattemptedtobeopened.Thisfact isnotsupportedbyanyothercogentandreliableevidence andtherefore,noreliancecanbeplacedonthispartofhis version.WhileBasirabibiissayingthatbacksidewindowof the house was attempted to be broken. Thus there is discrepancies about to break the window of the house of Mahemudmiyabutthediscrepanciesisnotsuchwhichis goingtoeffectthemainincidentofburning andinjuryto the injured and deceased. So far as pouring of kerosene and petrol and other inflammable chemicals inside the house of Mahemudmiya is concerned, from the cloths no stainseitherofkerosene,petroletc.werefoundbutthefact
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that,keroseneandpetrolwerepouredinsidethehouseof Mahemudmiya and thereafter it was burnt is supported from the cogent and reliable evidence and it is well establishedbytheprosecutionandtherefore,ifnostainsof kerosene,petrolorchemicalwerefoundasdefendedbythe accusedwecannotinferthat,thiswitnessisnottellingthe truth about pouring of kerosene and petrol inside the Mahemudmiua'shouse.Thus,fromaboveallthiswitness was inside the Mahemudmiya's house, in presence in Shaikh Maholla or inside the Mahemudmiya's house cannotbedoubtedashistestimonyistrustworthy,reliable andwellsupportedbycogentandreliableevidenceofthe prosecution.
40.
P.W.47 Shaikh Ibrahimbhai Rasulbhai, has deposed that, he is the resident of Sardarpur village. He was residing in Sardarpur which is just adjacent to Dharoi Colony.From01.03.2002therewasBharatBandh.Hewas inhishouseforwholeday.Atabout,8.30P.M.hewasin his house. He heard the voice of shouting and when he cameout,hesawthemobofPatelsoftheirvillageshouting slogans to cut, beat and burn the Muslims. They were having Dhariya, sticks, pipe, swords etc. in their hands.
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They came towards his house. Thereafter, he went to the fieldadjacenttohishouseandmobhadcauseddamageto hishouseandalsoburnthishouse.Thereafter,duetofear healongwithhisfamilymembersbywayofpassingthrough thefieldwenttoHarijanvasandtookshelterinthehouseof PravinbhaiKhemabhaiandonthenextday,atabout10.00 O'clock,alsotookthemtoSankhpur.Heincurreddamage worthRs.60,000/towardsdamagestohishouse.
It is argued by Shri Dhruv that, this witness has claimedthatincidentoccurredatabout8.30P.M.Hehad seen the mob but in his previous statement, he has not statedthetimeofincidentas8.30P.M.Thiswitnesshas not stated at any of the earlier statement that he can recognize the persons in the flame of burning houses. Therewaspitchdark.Noonecanberecognized,therefore, thiswitnessisimprovingstoryofrecognizingthepersonin theflameofburninghouses.Sofarasthisargumentsare concerned, the house of this witness is situated at the entrance of Village Sardarpur while Shaikh Maholla is situated at the end of Village Sardarpur and in that circumstances,ifthiswitnessisclaimingthatincidenthas occurred at about 08.30 P.M. while witnesses of Shaikh
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Mahollaarestatingabouttheincidentatabout09.30P.M. Considering the distance between Fakirvas and Shaikh Maholla, the discrepancies regarding timing is natural. If themobwasnearFakirMaholla,atabout08.30P.M.and atabout09.30P.M.mobwasneartoShaikhMaholla,that isquitepossible.Simplythiswitnesshasnotstatedinhis previousstatements thathehadseenthemob,itcannot discardthefactthat,themobcameandhesawthepersons inthemob.Nodoubtthiswitnesshasnotstatedthat,he couldseethemobinthelightofburninghouses.Fromthe Panchnama, it is supported that house of Fakirs were burnt. As discussed earlier there was sufficient light of burning flames as well as it was a second day after full moon day therefore, also there was light and in that circumstances if this witness is saying that, he saw the mobandhehadrecognizedthemobthatisquiteprobable andthesayofShriDhruvthat,itwaspichdark andno onecouldrecognize thepersonisnotacceptableand the say of Shri Dhruv that witness is improving the story of recognizingthepersonsintheflameofburninghousesis notacceptable.Further,itisarguedbyShriDhruvthat,as per say of this witness, he took shelter in the house of PravinbhaiinHarijanvas,butthisfactisnotstatedinhis
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statement dated 03.03.2002. In his statement dated 03.03.2002,hehasstatedthathereachedhishouseofhis brotheratSankhpur,throughfieldsbywalk.Atthesame timeheisclaimingtohavegonetothehouseofPravinbhai. Pravinbhai is also a witness in this case but he has not supportedthisfact. Further,thiswitnesshasnotstated anythingtoPravinbhaiwithregardstotheincident.P.W.90 ParmarGalbabhaiKhemabhaihasdeposedthathouseof FakirwassetonfirebymobwhichcamefromSundarpur side. There is overwriting in this statement dated 03.03.2002.EarlieritwaswrittenSundarpur,subsequently it is corrected as Sardarpur. During the course of depositionthiswitnesshasstatedaboutthemobofPatels fromtheirvillagecamewhereasinhisstatementbeforethe Policehehasstatedthat,mobfromvillageSundarpurside cameandthus,itissubmittedbyaccusedthatthiswitness isnotreliableatall.Sofarasdiscrepanciesregardinginhis statement dated 03.03.2002 and his deposition regarding hetookshelterinPravinbhai'shouseinHarijanvasorhe reachedatSankhpur,tothehouseofhisbrotherthrough field by walk is concerned, Pravinbhai has not supported thisfact.Thus,thereiscontradictionwhetherthiswitness wenttothePravinbhai'shouseornot.Sofarasarguments
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advancedonbehalfoftheaccusedthat,thiswitnesshas not narrated the incident to Pravinbhai is concerned, a personwhosehouseisburntandduetofearhewentto field,justtosavehislifeundersuchatenseatmosphereno one can expect from that person to narrate the incident before the Police or any other person immediately. If this witness under such a tense atmosphere not telling about theincidenttoPravinbhaiitdoesnotloseitscredibility.So far as arguments advanced in respect of mob from SundarpurVillageisconcerned,itistruethat,itisdeposed by P.S.I. Shri Galbabhai Khemabhai Parmar that, a mob whichcamefromSundarpursidehasburntthehousesof Fakir.OnperusingthedepositionofGalbabhaiKhemabhai Parmar,ittranspiresthatheintendedtosaythat,amobof about1000personscamefromthesideofSundarpurwhile mobofabout500personscamefromSardarpurside.He meanttosaythat,therewasamobfromSundarpurside,it doesnotmeanthatpersonsfromSundarpurvillagewerein the mob. So far as overwriting in his statement dated 03.03.2002 is concerned, earlier it was written as Sundarpur,subsequentlyitiscorrectedasSardarpur. ThiswitnessistheresidentofSardarpurDharoiColony.As pertheevidenceofthiswitness,atthetimeoffirstincident
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P.S.I.ParmarandRathodwereintheMarket,beforefiring hesawthemob,havingweaponsintheirhands,thereafter, hewenttofield,hishousewasransackedandburntand thereafter,duetofearhewenttoHarijanvas.Atthetimeof occurrence his presence in the house and on seeing the mob,hewenttofieldisreliable,trustworthyandcannotbe doubted.Hissayissupportedfromotherevidencesuchas depositionofP.S.I.ShriParmar,Panchnamaetc.
P.W.82 Fakir Sabirabibi Sabirhusen has deposed on oath that, she is residing at Sardarpur adjacent to Dharoicolony.OnnextdayofGodhraincident,therewas Gujarat Bandh and on the 3rd day, there was Bharat Bandh.OnthedayofGujaratBandh,PatelsofSardarpur hadburntthecabinsinthemarketandonthesame3rd day, Patels of Sardarpur came shouting to beat, cut and burntheMuslims.Theywerehavingweaponslikesticks, pipe,spear,swordetc.Atabout8.00P.M.,theycameand therefore, the witness went to the field. Mob had burnt theirhouses.Thereafter,tosavetheirlives,theywenttothe houseofPravinbhaiKhemabhaiandonthenextday,went toSankhpur.
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It is argued by Shri Dhruv that, she is the wife of P.W.58 Fakir Sabirhusen Imamsha whose house was burntbythemob. Asperthedeposition,intheflameof herburninghouseshehasrecognizedthepersonbutshe has not stated this fact in any of her statements. In her statement dated 03.03.2002, she has stated that in the moonlightandbyvoicesherecognizedthepersons.Itis notbroughtonrecordbytheprosecutionthatonthatday there was full moon light and any one can recognize the person.Therewasnoidentificationoftheaccusednamed by her, either before Police or before court. It is further argued by Shri Dhruv that, looking to her husband's deposition,herhousewassetonfirebythemobofvillage Sundarpur. No one was involved from Sardarpur. Her house was attacked, they went to the fields and hence, thereisnoquestionofanyonebeingrecognizedorseenin themob. Inherstatementdated22.05.2008,recordedby the S.I.T. other names which have been given in her statement,knownbyherthroughvillagepersons.Ifwego throughherdepositioninconjunctionwiththatdeposition ofherhusband,itgivesdifferenceabouttheconversation that they left their house and went to Sankhpur at her brotherinlaw'shouse.Inherstatementdated03.03.2002,
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she has given time of incident at about 2.30 A.M., while beforethecourtsheisreferringtimeas8.00P.M.Sofaras herevidenceinthisregardisconcerned,itistruethatshe hasnotstatedinherstatementdated03.03.2002that,she has recognized the persons in the flame of her burning house.Shehasstatedthat,shehadseenthepersonsin moonlightandbyvoiceshehasrecognizedthepersons.As discussedearlieritwasaseconddayafterfullmoonnight. It is also evidenct on record that, house of Fakirs' were burnt therefore, if this witness is saying that, she could recognizethepersonsinthelightofflameorinmoonlight, thatisacceptableandtherewassufficientlightinwhicha personcanseethemob.Simplybecause,itisnotstatedin the statement dated 03.03.2002 that, she has recognized the persons in the light of flame of burning, we cannot discard this evidence of the witness, which is otherwise provedbytheprosecutionandnoprejudiceisgoingtobe caused to the accused from non stating this fact in statement dated 03.03.2002. It is true that, there is contradiction in her statement and deposition about the fact,whethershewenttothefieldorshewentstraightway toSankhpurtoherinlaws house.Shehasalsochanged thetimeofincidentas02.30A.M.whilebeforetheCourt,
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she is stating about 8.00 P.M. It is true that there are changes in timings in her deposition and contradiction. Therefore,thosecannotbetakenintoconsiderationbutshe istheresidentofVillageSardarpuratthetimeofincident, she was in Fakirvas and as the mob came and incident occurredduetofearshealongwithherhusbandandother family members went to Sankhpur that is proved by the prosecutionandtothatextent,herversionistoberelied upon. Her presence in Fakirvas at the time of incident cannot be discarded. And the fact which are established andsupportedbyotherwitnessesarerequiredtobetaken intoconsideration. P.W.83FakirSharifabanuSabirhusenhasdeposed onoaththat she is residing at Sardarpur, atthe time of incident,shewassittingalongwithherfamilymembersjust in front of Dharoi Colony, Sardarpur. At the time of incident,shewasdoinglabourwork.Shehasdeposedthat on the next day of Godhra train incident, Patels of Sardarpurhadburntthecabinsinthemarket.Themarket wasclosedonthatday.InthenightPatelswerestanding justinfrontofDharoiColonyandatabout8.00P.M.,they wereshoutingsloganstocut,beatandburntheMuslims. Theycametotheirhouse.Herfathercameoutandsawthe
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mobtherefore,theywentbacksidethefieldthereafter,they went to Harijanvas passing through the fields and they stayedinthehouseofPravinbhai.Inthemorning,police cameandtheywenttoSankhpurandthentheycameto Vijapur. ItisarguedbyShriDhruvthat,sheisthedaughterof P.W.58 Fakir Sabirhusen Imamsha. She has also given same version as per her mother. The accused who are namedbyherinherdepositionwerenotnamedbyherin any of her statements except accused Kacharabhai Tribhovandas.Thus,thiswitnesshastriedtoinvolvefalse persons at the instance of interested persons. From the depositionoffatherandmother,ithascomeoutthatthey hadgonetothehouseofheruncleatSankhpur,butsheis denyingthisfact.Namesoftheaccused,whicharegivenin the deposition as were recognized by her in the flame of burning house, but not stated in her statement dated 03.03.2002and24.06.2008.Thus,thereisanimprovement upontheversion.Ifshehadrecognizedthepersonsfrom thevoicetherewasnoquestionofidentifyingthembefore thecourtbyface.Theaccusedarenotidentifiedbyher.In the statement dated 03.03.2002, she has mentioned the timeofincidentofsettingonfireas2.30A.M.,whilebefore
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the court the time has been stated as 8.30 P.M. On 01.03.2002,the time of2.30A.M.supportsthetheory of defense that the mob of village Sardarpur came. The depositionofthiswitnessthatonthefirstdaytheywentto HarijanvasatthehouseofPravinbhaiandstayedtherefor anightandonthenextday,inPolicevehicle,theywentto Sankhpuratheruncleshouseisanimprovedversion.She has not stated this facts in any of her statement dated 03.03.2002.Shehasnotstatedincidentofsettingonfire thecabinsorhouseinShaikhMaholla. Consideringher deposition, she has deposed similar to her mother's deposition.Nodoubtthiswitnesshasdeniedthefactthat, theywenttoSankhpuracceptingthisfactasitisthefact that,mobcame,burnttheirhouseandtheywenttowards thefieldorHarijanvasismuchsupportedbyotherevidence anditisalsosupportedfromothercogent,reliableevidence that, she saw the mob in the flame of burning light or moon light. There was sufficient light, in which a person couldseethemob.Simplybecausethisfactisnotstatedin herstatementdated24.06.2008wecannotdiscardherthis say.Sofarasherversionthat,sherecognizedtheperson fromthevoiceisconcerned,shehasidentifiedtheaccused intheCourtbyface.Inthatcircumstancesmuchreliance
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cannot be placed on that identification. So far as contradiction, discrepancies with regard to timings of incidentisconcerned,thereiscontradictionatonepointof time,sheisstatingthetimeatabout8.30P.M.whileon very next time she is telling time at about 2.30 A.M. Therefore,noreliancecanbeplacedonherthisversion.So farashersaythat,onfirstdaytheywenttoHarijanvasin thehouseofPravinbhai,stayedforanightandonnextday in Police vehicle they went to Sankhpur at her uncle's houseisconcerned,nodoubtthisfactisnotstatedbyher in her statement dated 03.03.2002 but this fact is supportedfromtheevidenceofherfatherandmotheri.e. P.W.58 Fakir Sabirhusen Imamsha and P.W.82 Fakir SabirabibiSabirhusenrespectively.Therefore,herthissay cannotbediscardedandonthatcountthat,itcannotbe saidthatthiswitnessistutoredone. Herpresenceinher houseatthetimeofincidentcannotbedoubted.Sheisthe residentofVillageSardarpur,residinginFakirvas,Shewas residing with her parents, therefore, her say that, mob cameandsetonfirethehouseandtheywenttoHarijanvas and then to Sankhpur cannot be discarded and her depositiontothatextentistrustworthyandreliable. It is argued by Shri Dhruv that, one tractor was
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parkedneartohishousehaving2,3,4barrelsofKerosene and petrol.NathuKachraandBhikhaJoitawerepassing throughtheroadandwenttowardsthehouseofKantibhai Prabhudas.TheywerecarryingKerosenegallonswiththem andonthatdayatlatenightmobofPatelswereseenfixing light. Thereafter, witness saw the flames in the Shaikh Maholla and thereby from the house of Mahemudmiya. PersonsfromShaikhMahollawereshoutingforhelp,mob wasverylargeandhecouldnotgo.RasulmiyaNanumiya cameshoutingforhelp.MobofPatels,threatenhimthatif hewilltrytosaveMuslim,thenhewillbesetonfireandon thenextdaymorningthroughpapershecametoknowthat any one can give the deposition therefore, he alongwith Prahladbhai Nathumiya went to Vijapur and give a computerized typed copy of an application and after preparingitwassenttoSIT.Itisthesayoftheaccused thatafter6yearsforthefirsttimethiswitnesshassentan applicationtotheSITandpriortothatheissilenteither beforePoliceofficersorbeforeanyone.Hisstatementwas recorded on 20/05/2008, by SIT for the first time. It is highlyimpossiblethatanyonewhoisknowingsuchvital wouldnotdisclosethesefactsabout6yearsinacasewhen hiscabinwasalsosetonfire.HeisknowingMunsufkhan,
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he was present at the meeting arranged at the house of Munsufkhan,evenheisnotstatingthisfacttohimalso. This witness is a member of Gram Panchayat, Sardarpur since the year 2007. It is unbelievable that he would not inform any one about this fact. It is not the say of the witnessthathehadgonetothePoliceandPolicehasnot recordedhisstatement.Heisanuneducatedperson,and the application dated 07/5/2008 bears only signature. Applicationiscomputerized,hewasnothavingopportunity tomakesuchapplicationorinformaboutthisfact.Buthe hasnotdisclosedbeforeanyone,hisversioniscontraryto thestatementdated20/05/2008.Hehasnotstatedabout focuslightinhisstatement.Namesoftheaccused,which he has deposed before the court are not stated in his statementdated20/05/2008,carryingKerosenebarrelsby certain person has not been stated by him in his applicationaswellasinhisstatement.Storyofparkingof Tractor containing barrel of Kerosene is created after 6 years. Ramabhai Mohanbhai is named before S.I.T., but afterinvestigationitwasfoundthatheisnotanaccused onlyKantibhaiPrabhudasisnamedinhisstatementbuthe isnotidentifiedbeforethecourt.HehasnamedJitendra Kantibhai before the court. He is not an accused in the
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Court.Bhikhaisalsonamedbythiswitnessinthecourt butheisnotidentifiedbyhiminthecourt.Aspersayof thiswitnessShaikhMahollaisvisiblefromRawalvasand incidentwaswitnessedbyhimfromadistanceof25ft.and hesawPatelswhohadthreatenedhimatdistanceof20feet whohadcometoseeRasulmiya.Thiswitnessisnotsaying that Patels of his village are responsible for incident. Thoughheisknowingtheaccusedinthecourtroom,but heisnotsayingthattheyareinvolvedintheincident.Every thing stated by this witness in his application dated 7/05/2008, statement dated 20/05/2008 and deposition beforethecourt,isnotonrecord. 41. P.W.71RawalMangabhaiRamabhaihasstatedonoath that,heisresidingatSardarpurandstayinginRawalvas which is just behind the Shaikh Maholla. There are four Rawalvas in Sardarpur, one behind the panchayat, 2nd in themarketand4th onebehindShaikhMaholla.Thereare 40housesinRawalvasfallingbehindtheShaikhMaholla. ThesaidwitnesscarriesTeaStallnearPrimaryschool.On 28.02.2002therewasGujaratBandh.Hewasinhishouse. Inthelatehours,hecametoknowabouttheburningof cabins.TherewasmobofPatelstherefore,theycouldnotgo in the market. On the next day, at about 10.00 A.M., he
// 659 //
wenttothemarketwherehiscabinwasalsoburnt.Hesaw the cabins in burnt position therefore, he alongwith HaribhaiMaganbhaiandotherswhosecabinswereburnt, gatheredinthemarketand had decidedtodosomething about the burning of cabins therefore, they went to the house of Manubhai and told Manubhai that their cabins havebeenburnt.Munsufkhanhadwrittenthecomplaintof Haribhai Maganbhai. Haribhai Maganbhai stated the namesofthepersons.AstherewasBandh,transportation wasalsoclosed.TheycouldnotgotothePoliceandhence, Munsufkhan had informed the Vijapur Police. Vijapur Police had told that mobile van is coming. Then after, MunsufkhanwentforofferingNamazandwitnesswentto hishouse.Onthesameday,latenight,atabout9.00P.M. RamabhaiMohanbhaiPatelbroughttractorandhistractor wasstandingintheroadadjacenttothehouseinwhich 34barrelsofkeroseneandpetrolwasthere.Thereafter,he alongwith one Natubhai Kacharbhai, Jayantibhai Ambarambhai, Kalabhai Bhikhabhai, Jitendrakumar KantilalandBhikhabhaiJoitaram,passingfromtheroad fallingjustinfrontofhishousewenttowardsthehouseof KantibhaiPrabhudasinKapoorvas.Hesawthemcarrying with Kerosene. When they were passing from his house,
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smellof kerosenewascoming.Thereweretwowaysfrom thehouseofKantibhaiPrabhudas,forgoingtoKapoorvas. From that, a person can pass from Mahadev to Shaikh Maholla. They went accordingly and in the night, mob of Patelswereseen.Thereafter,sometime,hesawthefireand flamecomingfromthehouseofMahemudmiyaandShaikh Maholla.Heheardthevoicesscreamingforhelp.Asmob wasbig,theycouldnotgoforhelp.Theywerestandingjust infrontoftheirMaholla.RasulmiyaNanamiyacametohim screaming for help at that time, mob of police came and toldthemthatifyouhelptheMuslims,theywillburnthem also.Thereafter,hecametoknowthatatabout2.30A.M., 25 to 28 persons of Shaikh Maholla died. At about 2.30 A.M.policecameandtookthedeadbodies.Duetofearof Patels,personsofMahollaandthiswitnesswenttotheir relatives.Only24personswerestayedinMahollaandhe wasalsointheMaholla. Sofarasevidenceofthiswitnessisconcerned,heis the resident of Rawalvas, which is situated just behind ShaikhMaholla.AsperMapproducedbytheprosecution the Rawalvas, where the present witness is staying is shown towards Northern side of Mahemudmiya's house. This witness is an independent witness. On the date of
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incident dated 28.02.2002, his cabin in the market was alsoburntbythemob.Ontheverynextdaywhenhewent totheMarket,hecametoknowaboutsettingonfiretothe cabins. Cabins which were burnt were belonging to Balabhai Ramabhai, Prahladbhai Ganpatbhai, Nayi MangaldasGulabchand,Munsufkhan,JamalDilshadmiya, Motibhai Maganbhai, Haribhai Maganbhai, Girish MafatbhaiandKantibhaiKhemabhai,astheircabinswere burnttheygatheredandtodosomething,ameetingwas organisedinthehouseofMunsufkhanPathan,acomplaint wasdrafted,whichwaswrittenbyHaribhaiMaganbhai.As there was no transport facility available on that day, Munsufkhan informed the Police by telephone. Complaint inthisregardisregisteredvideI.CR.No.45/2002 withthe Vijapur Police Station supports the say of this witness regarding setting on fire cabins in the market on 28.02.2002.Further,asperdepositionofthiswitnesshe sawRamabhaiMohanbhaicarryingTractoratabout9.00 P.M.,havingbarrelsofkerosene,petroletc.Thereafter,he saw Natubhai Kacharabhai Patel, Kalabhai Bhikhabhai Patel, Jayantibhai Ambaram Patel, Bakabhai Mangaldas Patel, Kantibhai Prabhudas, Jitendra Kantibhai, Bhikhabhai Joitabhai passing from the road. Thereafter
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they went to the house of Kantibhai Prabhudas. He saw them carrying barrels of kerosene when they passed through his house, there was a smell of kerosene. Thereafter, he saw them passing through small doors for goingtowardsMahadevtemple sSFlgT,F, 5|E]NF;GF 3Z
TZOYL S5]Z DCM<,FDF\ HJFGL A[ AFZLVM K[fP Onthevery sameday,hesawthemob.AllthePatelsmentionedabove were in the mob. Thereafter, he saw the burning flames from Shaikh Maholla and persons from Shaikh Maholla werescreamingforhelp.Hewasstandingattheentranceof his Maholla, at that time Rasulmiya Nannumiya came to himandaskedhimtosavehim,atthattimemobofPatels cameandthreatenedhimifhehelpstheMuslims,theywill not leave him also. Thereafter, at about 2.30 A.M. Police cameandtookthedeadbodiestoCivilHospitalandrestof persons were shifted to their relatives. As per say of this witness,personsfromRawalvasalsowenttotheirrelatives. Only Ganabhai Nathabhai, Bhikhabhai Nathabhai and Govindbhai Mohanbhai stayed there. From this evidence, taking of petrol, kerosene by the Patels in the evening is concerned, it transpires that this fact is stated by this witnesswithaviewtoshowthat,therewaspreplantoburn the houses in Shaikh Maholla or to burn the cabins as
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alleged by the prosecution. But as discussed in the paragraphofconspiracythisevidenceisalreadydiscussed, therefore, there is no necessity to discuss this evidence regardingconspiracynow.Thisevidenceisnotsufficientto prove conspiracy therefore, no reliance can be placed on this version of the witness. So far as cabins which were burnton28.02.2002isconcernedcabinofthiswitnesswas also burnt. This fact is also supported by Panchnama of sceneofincidentandotherdocumentsandtherefore,the versionofthiswitnessinthisregardisreliable.Sofarashe sawthemobofPatelsisconcerned,fromthisevidenceit transpires that, he saw the flame of burning, who burnt whichhouseandatthattimewhowereinthemobisnot satisfactorily explained bythis witness. Asper his sayat thetimeofincident,hewasstandingattheentranceofhis Maholla as the mob came from the entrance of Shaikh MahollaandproceededtowardsMahemudmiya'shouse,it wasnotpossibleforthiswitnesstoseewholeincidentfrom theentranceofRawalvas.Therefore,itcannotbeinferred that,thiswitnessisthewitnessofincidentofburningthe houses in Shaikh Maholla. So far as threatening this witnessbythemobisconcerned,thereisnosuchcaseof theprosecutionthat,themobhadthreatenedthiswitness.
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So far as deposition of this witness regarding Rasulmiya Nannumiyaisconcerned,hemighthaveapproachedtothis witness but Rasulmiya Nannumiya is not examined as a witness. Further, it is not the case of prosecution that RasulmiyaNannumiyaapproachedtothewitnesstherefore, noreliancecanbeplacedontheversionofthiswitnessin this regard. So far as evidence regarding Police came at about 2.30 A.M. and took the dead bodies is concerned, thatfactissupportedbycogentandreliableevidenceofthe prosecution. Therefore, said version of this witness is reliable. He had replied to S.I.T., his statement was recorded by the S.I.T. From his crossexamination it transpires that, Rawalvas is at the distance of 50 Ft. if somethingoccursinShaikhMaholla,itcanbeseenfrom Rawalvas.FrontportionofShaikhMahollacannotbeseen fromRawalvaswhileGraveyardcanbeseenfromRawalvas. Hehadnotseentheincidentofsettingonfire.Therewas mobofPatels,hesawthemobatthedistanceof100Ft.,he saw the mob proceedings towards Mahadev's temple, he sawthemobontheroadwhichisfallingjustinfrontofhis Maholla, there were about 500 to 700 persons while on othersideroadtherewere200to300personsinthemob. WhenthemobcametowardsRawalvastherewere1000to
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1500personsinthemob.WhenthemobcametoRawalvas, hesawthemobatthedistanceof25Ft.Threateningwas giventohimbythePatelsfromthedistanceof20Ft.At that time there were Govindbhai Mohanbhai, Bhikhabhai NathabhaiandGanabhaiNathabhaiwithhim.Mobcameto killRasulmiya.Sofarasthisevidenceisconcerned,thisis not the case of prosecution. This witness is telling something new before the Court. This witness was silent aboutsixyears.Furtherfirsttimehehasmadeapplication toS.I.T.priortothat,he isnotstatinganyfactwhichis statedbyhimintheapplicationorinhisdepositionbefore theCourt.Further,heisnotavictimofincident.Therewas nonecessityforhimtohavefearfromPatelsofthevillage. ThereisnorivalrybetweenPatelsandRawals'.Asperthe case of prosecution there was no intention of mob to threaten or kill Rawals' etc. As per deposition of this witness, he was having close relation with Munsufkhan Pathan, which suggests that, there is possibility that, to help the victims at the instance of Munsufkhan, this witness is stating the facts contrary to the facts and evidence of prosecution. His evidence is contrary to his statementdated20.05.2008,whichwasrecordedbyS.I.T. pursuant to his application dated 07.05.2008 and that
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contradiction is proved in the deposition of Investigating OfficerThiswitnessissilentinhisstatementaboutfocus light.Inhisdepositionhehasstatedsomenewfacts,which are not stated in his application dated 07.05.2008 or 20.05.2008. Carrying of kerosene barrels by some of the persons is not stated by him in his statements. Further, when those persons were carrying kerosene barrels there was smell of kerosene. As this witness has deposed that Patels of his village are responsible for the incident occurredintheShaikhMahollaandheisclaimingthat,he isknowingeveryoneinthevillage.Eventheaccusedsitting in the Court room in spite of the fact that, he has not deposed that, those are involved in the incident, which occurredintheShaikhMaholla.Relyingonthisfact,itis argued by Shri Dhruv that, from the deposition of this witnessPatelsofVillageSardarpurarenotinvolvedinthe incidentandwhichsupportsthedefencecasethat,mobof Village Sundarpur has attacked the house of Mahemudmiya from the back side of his house. But this witness is not saying that mob had attacked the Mahemudmiya's house from the back side. From whole depositionofthiswitnessnowhereitcomesoutthat,mob of village Sundarpur has attacked the house of
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Mahemudmiya,fromthebacksideofthehousetherefore, arguments advanced by Shri Dhruv in this regard is not acceptable. However, considering whole deposition of this witness, as discussed above, is not much reliable, trustworthy. However, his evidence regarding burning of cabinsinthemarketon28.02.2002issupportedbyother evidenceandthatistobereliedupon. ItisarguedbyShriShahthat,heistheindependent witnessandresidentofSardarpur,Rawalvashavinghouses justbacksideofMahemudmiyashouse.Asperthiswitness on28.02.2002,atabout9.00P.M.,RamaMohancamewith tractor having twothree tins of Kerosene and one tin of Petrol. Thereafter, Natubhai Kachrabhai, Kantibhai Prabhudas, Jitendra Kantilal and Bhikhabhai Joitabhai camefromtheroadfallingjustinfrontofhishouseand theywenttowardsthehouseofKantibhaiPrabhudas.He hadseentakinggallonofKeroseneandpetrol.Whenthey were passing smell of kerosene was coming. He is the witnessofminorcommunity.Hehastostayinthevillage therefore, he wont go against the accused but there is possibility of pressure upon this witness. Therefore, if he was silent about this fact it is natural one. When again investigationstartedbyS.I.T,hehadgivenanapplication
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stating facts which is reliable one and is required to be considered. No statements were recorded of these independent witnesses therefore, their names are not mentioned in the Chargesheet. Assuming this witness is telling lie, then defence could have examined other three witnessesintheirsupport.Thiswitnessissufficientforthe evidenceofconspiracyandtherefore,thereisnoreasonto disbelievethiswitness.Heisstayinginthevillagetherefore, heknowstheaccused.HeisthememberofthePanchayat from where petrol and kerosene were brought and who broughtthepetrolandkerosene,forthisevidence,thisis an important witness. All the four accused have not explainedintheirfurtherstatementaboutthisevidenceas towhatpurposetheyhavebroughtpetrolandkerosene.
Consideringaboveall,thiswitnessisanindependent witnessbuttheincidentabouttakingtwotothreebarrels ofKeroseneandPetrolinTractorandthathesawNatubhai Kacharabhai, Kantibhai Prabhudas, Jitendrabhai Kantibhai,BhikhabhaiJoitabhaicamefromtheroadfalling just in front of the house of this witness and they went towards the house of Kantibhai Prabhudas is concerned, that incident cannot be considered as preplanned or
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conspiracy. No doubt this witness belongs to minor community and he has to stay in the village, he may be underpressureoftheaccusedbuthereinthepresentset ofcircumstancesthereisnoevidencefromwhichwecan inferthat,thiswitnesswasunderpressureofaccused.He was silent about six years. It is only before S.I.T. he has submitted the application. Considering the fact that, this witnessistheresidentofVillageSardarpurandhehasto stayinSardarpurandaftertheincident,victimshaveleft the Village Sardarpur and this witness is of minor communityandinthatcircumstanceshewassilentandon thatstrengthwecannotinferthat,thiswitnessisagotup witnessandheistellinglie.Initiallyhisstatementwasnot recordedandtherefore,hehasnotbeenshownaswitness inthechargesheet.Thisfactatthemostcanbeconsidered asirregularitiesininvestigationbuttheseirregularitiesare not such which will prejudice the rights of the accused. Further, accused could have examined other independent witnesses,whichwerewiththepresentwitnessatthetime of occurrence. But the defence has not resorted to that opportunity.Thus,thesayofShriDhruvthatthiswitness isnottrustworthy,reliableisnotacceptable. P.W.72 Rawal Prahladbhai Nathabhai resident of
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RawalvasinvillageSardarpurhasdeposedthatthereare four Rawalvas viz. one is behind Panchayat office, two in themarketandonebehindtheShaikhMahollaandnearto hishousetherearefourhousesofRawals.Thus,totalthere are 75 houses in Rawalvas. He is carrying business of driving.OnthenextdayofGodhraCarnagePatelsoftheir villagehasburnedthecabinssituatedbetweentheschool and his house. Those cabins where of Rawals', Harijans' andMuslims',andonthatday,hewassittingontheOttla ofMataji.Thereafter,hewenttohishouse,andonthenext daymorning,hewenttoSundarpurfordriving.Atabout8 9.00 P.M., he came back. He saw the mob of Patels of theirvillageinthemarket.Inthenighthewasinhishouse. At about 10.30 P.M., shop of Memon Chandbhai was brokenandtheyenteredinthehouseofValikakaandwere shouting to cut burn and beat Muslims, and they came towards their house. Inthe night, he sleptat about1.30 A.M.JunaidbhaiandVahidbhaicametohim,theywentto thehouseofMunsufkhanandhewenttotakethevehicle from Sundarpur. He went alongwith the Police and came backattheentranceoftheShaikhMahollaandtookthe dead bodies of 28 persons in the vehicle and went to Mahesana alongwith one Constable Maharaj and
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BadshahMahemudkhanPathantoCivilHospitalandafter Postmortemhetookthedeadbodiestograveyardandhe wenttoIlolalongwiththeinjuredandotherperson,andin thenighthecameback. ItisarguedbyShriDhruvthat,thiswitnesshasnot implicated any of the accused by name in his deposition assigning any overt act. He has identified Dahyabhai Kacharabhai. Two sons of Valikaka, P.W.42 Memon AltafhusenValibhai &P.W.43MemonAarifbhaiValibhai areexaminedbuttheyhavenotstatedaboutthedamages andransackingofwarehouse.Aspersayofpresentwitness Vallikaka came to his house at about 12.00 O'Clock and stayedthereforabouthalfanHour,whilesonsofVallikaka havestatedthattheywenttoHarijanvasandwenttothe house of present witness. He is the personwho took the deadbodiesinthevehicletoCivilHospital,Mahesanafor Postmortem. Dead Bodies were taken to graveyard and survived persons were taken to Ilol. Till then he is silent about the attack at the house of Vallikaka. Even he had preferredanapplicationintheyear2008andhehasnot disclosedthisfact.Forthefirsttimethisfactisdeposedby himbeforethecourt.
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Thiswitnessisthepersonwhotookthedeadbodies inhisvehicletoCivilHospital,MahesanaandafterPost mortemthosedeadbodiesweretakenbyhiminhisvehicle tograveyard.Thereafter,hewenttoIlol.Thiswitnessisalso anindependentwitness.Thiswitnesswassilentaboutfor sixyears.Nootherevidencehassupportedtheversionof thiswitnessthat,houseofValikakawassetonfire.
42.
P.W.84 Kureshi Imtiyazali Husenmiya has deposed that,heistheresidentofSundarpuron28.02.2002,there wasGujaratBandhandon01.03.2002,therewasBharat Bandh,hewasinhishouse.On28.02.2002,Patelsoftheir villagetoldthat,iftheywanttosavetheirlives,theymaygo totheirrelativesoratasaferplace.On01.03.2002,P.S.I. ShriParmarcametohishouse. Hecalledthemandtold that riots have taken place and if they wanted to go any where they will take them. Accordingly other persons of their Maholla were also told. Thereafter, they had a talk withHimmatkhanTajkhan totakethemfromSundarpur andP.S.I.Parmar,tookthemfromSundarpurtoSardarpur. About 20 persons were there in Jeep '705 Commander', who were taken from Sundarpur to Sardarpur, in four rounds. In the fifth round, when he was going from
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Sardarpur,hesawamobofPatelsinSardarpurmarket.As hisvehiclecameneartothatmob,BecharbhaiOdhavbhai threatened him that, if he will bring other in his vehicle theywillburnhimbypouringpetrol,thereafter,hewentto Sundarpur and told P.S.I. Shri Parmar about the threatening. Shri Parmar told him that, nothing will happen,heisthereandShriParmartoldhimtotakerest of the persons in his vehicle and thereafter, he took the vehicletoSardarpur.P.S.I.Parmar,wasinhisvehicleand they went to Sardarpur in Pathan Maholla. Shri Parmar went to the house of Munsufkhan, wherein, 10 to 15 Muslimswereinmeeting.HetookhisvehicletoSardarpur PathanMaholla.Afterhalfanhourhecametoknowthat, inSundarpurincidentofburningandcausingdamageto vehicle has started. Thereafter, at about 9.00 P.M. at the entranceofShaikhMahollaPatelshaveburntthecabins. Afterhalfanhour,policecameandthemobdisbursedand thereafterthepolicewentback.AgainintheChowk,mob gathered and hence started pelting stones towards the PathanMaholla.Atthattime,theywerepresentandthey hadalsostartedpeltingstone,thereafter,mobwenttowards ShaikhMaholla.Voicesofscreamingtosavepersonswas coming from Shaikh Maholla and mob of Patels were
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throwingthepersonsinthefireafterbeatingthem.Upto twotothreehoursthisincidenthappenedandtherewas silenceandonePolicepersoncametoPathanMahollaand told that in Shaikh Maholla 28 persons have been burnt and asked 4 to 5 persons to go to Shaikh Maholla. Therefore, this witness alongwith other persons from Pathan Maholla went to Shaikh Maholla. In Mahemudmiya's house, there were dead bodies, he got scaredandwenttoPathanMaholla,duringincidenthesaw BabubhaiAmbalalPanchalofSundarpurVillagewhowas injured and was taken by the persons to the private hospital. He was injured on his neck. This fact was not disclosedbyPatelsofSardarpur. Earlierinthemorning, twobusesandPoliceVancameandtookthemtoSavala. Subsequently,hecametoknowthat,Dalumiyaandsister Nurubibi were beaten by the mob and were lying just in front of their house. Police took them to Bhalak. On 28.02.2002, Mukeshbhai Madhabhai had organized a meeting in Sundarpur Village and had instigated the personsofSundarpurthat,inSabarmatiTrain,KarSevaks are murdered therefore, in Pathan Maholla, there are persons from Sundarpur in Village Sardarpur and have instigatedtocutandbeatthem.
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ItissubmittedbyShriDhruvonbehalfoftheaccused thatwhateverhehasstatedbeforethecourt,itisstatedfor the first time. He went up to Savala alongwith Police authorities but he was silent, this witness is telling differentstory.Asperthiswitnessafterassaultingpersons theywerethrowninthefirealive.Noneofotherwitnessis telling this fact and this fact is not stated by him in his statement dated 21.05.2008. As per his deposition one BabubhaiofSundarpurwasinjuredwhowasintheMob which suggests that there was Mob of village Sundarpur instigatedbyprerogativespeechofMukeshbhaiMadhabhai. This witness was shifted to village Sardarpur from Sundarpur.Thereafter,hewasshiftedtoSavalacamp.On 13.05.2008, he had preferred one application to S.I.T. narratingthecertainfactsinconnectionwiththeincident. From the evidence of this witness as well as arguments advanced on behalf of both the sides, it transpires that, he is the witness who had taken the personsfromSundarpurtoSardarpurinPathanvas,inhis vehicle.Thiswitnesshasstatedthat,hewasthreatenedby BecharbhaiOdhavbhaithat,ifhebringsthepersonsfrom Sundarpur, he will be burnt by pouring petrol and kerosene. As per Shri Shah this facts suggests that,
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persons from Sardarpur were annoyed as Muslims from Sundarpur were brought in Pathanvas. There is no evidence against Becharbhai Odhavbhai therefore, though application was preferred under Section 319 of Cr.P.C. to join him as an accused in the present case but after hearing both the sides and considering the evidence produced on record said application was rejected. This witness is saying that, he was threatened by Becharbhai Odhavbhai,whichisnotsupportedbyanyotherevidence. Thiswitnessisstatingthedifferentstorythatafterbeating thevictimstheywerethrowninthefire.Thiswitnessisthe onlywitnesswhoistellingaboutthepresenceofBabubhai PanchalofVillageSundarpur,whowaspresentinthemob. Nootherwitnessissupportingthisfact.NeithertheVijapur Police nor S.I.T. has taken Babubhai Panchal as an accused, as there was no evidence against Babubhai Panchal, assuming Babubhai Panchal was present in the mob.Fromthatalsowecannotinferthat,PatelsofVillage Sardarpurwerenotpresentinthemob.Asperdeposition of this witness when he brought the persons from SundarpurtoSardarpurandtheywereinPathanMaholla andatthattimeincidentinShaikhMahollaoccurred.This witness is the resident of Village Sundarpur. After the
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incident, he stayed about two months in Savala Camp. Thereafter, he went to Siddhpur and at present he is residingatVillageSundarpursincefouryears.Hehasnot informedPoliceoranyotherauthorityabouttheincident till he was in Savala Camp. Thus, this witness is telling somethingdifferentfromotherwitnesses.Relyinguponthe depositionofthiswitness,itisthesayofShriDhruvthat, thiswitnessissupportingthedefenceoftheaccusedside. Butbyconsideringtheevidenceasawholethereisnothing on record which suggest that, this witness is supporting the defence of accused that, mob from Sundarpur came andattackedShaikhMaholla.
43.
P.W.39 Memon Janmahmod Ismilbhai has stated on oaththat,heistheresidentofvillageSardarpurandheis caringbusinessinthenameofSahakarTraders,andthey are having Memon Cloth Store in Sardarpur. On 01.03.2002,therewasBharatBandh andon 28.02.2002, there was Gujarat Bandh and therefore, the shops were closedandtheywereinsidethehouse.Atabout8.309.00 P.M.voiceswerecomingtocuttheMuslims,notasingle Muslim should be left alive. Therefore, due to fear they went to Harijanvas, at about 12.00 12.30 A.M. he saw
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smokeandatabout2.30A.M.Policecameandaskedthem tocomeout.Theycameout,atthattime,therewassilence, thereafter,theywenttoinquireabouttheirshop.Shopwas burnt.Wholeitemswereburnt,includingthefurnitureand approximately he sustained damages of more than Rs.2,00,000/. Thereafter, they went to Shaikh Maholla and there was damage in Shaikh Maholla. Police was takingthedeadbodiesoutfromthehouseandtherewere seventoeightpersonsalive,whoweretakentothehospital. Thereafter,theywenttoHimmatnagar. It is submitted by Shri Dhruv that, this witness is stayinginareasurroundedbyPatelcommunitybutthere arenodamagetotheirhouse.Aspersayofthiswitnesson 28.02.2002and01.03.2002,hehaddonehisdailyroutine work.HeisnotstatingaboutthegatheringofPatelsoftheir villageandattack.Evenheiscontrarywithregardtothe timeofincident.Thiswitnessisnotgivingevidenceagainst anyaccused. From the evidence of this witness the incident of burningthecabinsaswellastheincidentoccurredinthe Shaikh Maholla are supported and this witness has also stated about the damages, which were done by the mob
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during burning of cabins in the market as well as the housesinShaikhMaholla. Nothingmorecomesoutfrom theevidenceofthiswitness.Therearecontradictionsinhis deposition about the timings of gathering of mob and committing the offence. This witness is not involving anyone. So far defence in timings is concerned, that discrepanciesarenotsuchfromwhichwecandiscardhis wholeevidence
P.W.40 Memon Mahmodaarif Janmahmod has deposed on oath that he is resident of Village Sardarpur carryingbusinessofcloths,inhisfathersnameasMemon ClothStoresandalsohavingshopofCementandSanitary waresinthenameofSahkarTraders.On28.02.2002there was Gujarat Bandh and on 01.03.2002 there was Bharat Bandh. On 28.02.2002 cabins of Muslims were burnt in theirvillage.Atmospherewastense.On01.03.2002,hewas inhishouse.Atabout7.308.00P.M.heheardthevoiceof mobshoutingtocutandburntheMuslimsandburnthe propertiesofMuslims.Afterhearingthosevoices,theywent toHarijanMaholla.Fromthere,theysawsmokeandflame coming from Shaikh Maholla. At about 2.30 A.M., police came and they came out from Harijan Maholla and went
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towardsShaikhMaholla.Hesaw23houseswereburntin Shaikh Maholla and police were taking the dead bodies from there. As he was scared, he went to his shop. His sanitary items were stollen. Gas and petrol were also stollen. Cement bags were in broken condition. Both the shopsofhisfatherwereburntandthereafter,theywentto HimmatnagarinthevehicleofSattarbhaiMemon. Thiswitnessisalsosupportingtheincidentofburning of cabins in the market and due to fear they went into Harijanvas and thereafter burning incident in Shaikh Maholla occurred. This witness is stating regarding the damagecausedtotheproperties.Nothingmorecomesout fromthedepositionofthiswitness. P.W.41 Memon Abdulkadir Ismilbhai, resident of village : Sardarpur has deposed that he is carrying his businessofGroceryinthenameofMemonGroceryStore. There was Gujarat Bandh on 28.02.2002 and Bharat Bandhon01.03.2002.On28.02.2002,cabinsofMuslims wereburntinVadvavalachowkandon01.03.2002,inthe eveningtwocabinsofMuslimswereburntandtherewas tenseatmosphereinthevillage.At about 9.30P.M., mob wasshoutingtocuttheMuslims.Duetofear,theywentto
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Harijanvas.Theincidentoccurredduringwholenightfrom 9.30P.M.to2.00A.M.Hesawthesmoke.Atabout3.00 A.M.,policecameandaskedthemtocomeout.Thereafter, theywenttotheirhouseandtheywenttoHimmatnagar. P.W.42 Memon Altafhusen Valibhai has deposed thatduetoGodhraincident,therewereriotsinGujarat.In Sardarpuralso,therewasriots.On28.02.2002,therewas GujaratBandhandon01.03.2002therewasBharatBandh therefore,afterclosingtheirshop,theywereinothershops. On 28.02.2002 in night, about 8 to10 cabins of Muslims andHinduswereburntandon01.03.2002atabout8.00 8.30P.M.,mobgatheredtherefore,byclosingtheirhouses, theywenttoHarijanvasandinthenight,theyheardthe voicesofmob.MobwasshoutingtocuttheMuslims.Nota singleMuslimsshouldbeleftalive.Thereafter,inthenight, they heard the voices screaming for help coming from Shaikh Maholla and they also saw the smoke. At about 2.30A.M.,policecameandpoliceaskedthemtocomeout. Thereafter,theycameoutandwenttotheirhouseandafter takingtheirclothestheywenttoHimmatnagar. P.W.43MemonAarifbhaiValibhaihasdeposedthat heistheresidentofvillageSardarpurhavingPanCentre
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cabin in the name of Rafash Pan Center, near the bus standandJognimatastemple.OnthenextdayofGodhra incident,therewasGujaratBandhtherefore,hiscabinwas closedandonthenextday,therewasBharatBandhand onthatday,hewasalsoinhishouseafterclosinghisshop. Onthatday,inthenight,cabinswereburntincludinghis cabinandheincurredlossworthRs.20,000/.Onthenext day, he heard the voices to cut and beat the Muslims. Thereafter,theywenttothehouseofHarijanvas.Atabout 12.30A.M.theyheardthevoicesfromShaikhMahollaand sawthesmoke.Atabout3.00A.M.,policecameandasked them to go at safer place. Thereafter, they went to Himmatnagar. P.W.44 Mansuri Munirahmed Noormahmed has deposed that he is the resident of Sardarpur. On 27.02.2002, there was Godhra incident. On the next day, therewasBharatBandh, marketwasclosed.Atmosphere wastensed.Duetofear,afterclosingthehouse,theywent toHarijanvasandonthatnight,riotstookplaceinShaikh Maholla. 28 persons were dead and others were injured. Thereafter, there was silence and at about 4.00 A.M., in privatevehicletheywenttoHimmatnagar.Intheriot,his cabin was damaged and he incurred damages worth
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Rs.35,000/.Hisbrotherscabinwasalsodamagedandhe tooincurreddamagesworthRs.35,000/. P.W.46PathanSabirmiyaAkumiyahasdeposedon oaththatheistheresidentofSardarpurvillageandresides inthehousesituatedjustoppositetoShaikhMahollaand heisservingaspeonintheGramPanchayatoffice.Atthe timeofincident,hewasservingasBoreOperator.Thaton 28.02.2002, there was Gujarat Bandh and at about 8.00 clock,hewenttowaterworks.Justinfrontofwaterworks, thereisashopofMahemudmiya.Amobof8to10persons were there and they were shouting to cut and beat the Bandiyas. After starting the water works, he went to his houseandthentothemarket.Tillthen,thepersonsinthe mob increased to 5060 persons and mob compellingly asking to close the shops. After closing the market and cabinsofShaikhMahollatheywenttoMahadevTemple.At that time, the witness went for water works. Thereafter, mobdisbursedfromthetempleandthewitnesswenttohis houseforhis lunch. Afterlunch, againhe came to water worksastherewasnolight.At5.00P.M.,afterclosingthe water works, he was going to his house. Thereafter, at about6.00P.M.,healongwithhisfamilymemberswentto hisfathersoldhouse.Thereafter,atabout8.00P.M.,anti
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socialelementhadburntthecabinssituatedinthefrontof panchayat and Primary School. Those cabins were of Muslimsandothercommunities.Inthemob,personsfrom PatelCommunitywerethere.Byburningthecabins,they created tense atmosphere in the village. On 01.03.2002, therewasBharatBandh.Hewasinhisfathershouse.In the night, there was meeting in Munsufkhan Yasinkhans house withregard todiscussingthe burning of cabins of their community. First they discussed to lodge complaint but as the transport facility was closed therefore, they could not lodge the complaint. Shankerbhai Someshwar Pandya, Kehsabhai Mohanbhai Raval, Mafatbhai
Sunderbhai Chauhan, Janmohmad Ismailbhai Memon, Kadarbhai Ismailbhai Memon, Nisarahmed Gulamnabi Mansuri, Pathan Kalekhan Aladkhan and Bachumiya Bapumiya were gathered in the house of Munsufkhan Pathan.Thereafter,thedaybeingFriday,itwasnamaztime andtheywenttooffernamazandtheydecidedtogather afternamaz.AfterofferingNamaz,theygatheredandP.S.I. ParmarfromVijapurcameandtheyhadrequestedShri Parmarthatthereistenseatmosphereinthevillage.Some untowardincidentmaytakeplaceinthevillageandasked for police protection. Persons from PatelCommunity were
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calledanditwastoldtothemthatnountowardincident should occur. Only two persons from Patel community namely Kanubhai Joitaram and Dashrathbhai Kacharbhai came in the meeting. They came and went away. Thereafter, P.S.I. Rathod came. They had also requested P.S.I. Rathod for police protection. Thereafter, P.S.I.RathodandParmarwenttotakeroundinthevillage. Thereafter, at about 2.30 A.M., the incident at Shaikh MahollahadstartedandthereaftertheDSPcametothem and went to Shaikh Maholla. Thereafter, he sent 4 to 5 personstotheirMahollaandthenpolicecameandasked himtogotoShaikhMahollatoloadthedeadbodiesinthe vehicle. Alongwith him, Kalekhan Aladankhan Pathan, MehmudkhanLatifkhanPathanandKamalkhanUmalkhan Pathan were there and they went to the Ordi of Mahemudmiya Ismailbhai. Door of the room was opened. D.S.P.wenttowardsthatdoorandhereceivedanelectric shock and near the window of the house of the Mahemudmiya,electricwirewaspassingfromthehouseof Natvarbhai Prabhabhai and it was tied with one iron rod and that iron road was put inside from the window. Thereafter, they went inside the room. Dead bodies were lying there and they took the dead bodies in Mini Truck
// 686 //
(TATA407). Prahaladbhai Raval was the driver of that vehicle.Thereafter,hewenttohisMaholla.Thereafter,they weretakentoSavala.
ItissubmittedbyShriDhruvthat,thiswitnesswas residing in the house situated just opposite of Shaikh Maholla and was serving as bore operator in Gram Panchayat.Thiswitnesswascalledbythepoliceafterthe incident to load vehicles with different dead bodies. His statementwasneitherrecordedbypolicenorhehadgiven hisstatementbeforepolicepriortoformationofS.I.Tand forthefirsttime,on06.05.2008,hehadwrittenaletterto S.I.T.Thereafter,hisstatementwasrecordedbyS.I.T.Itis submittedbytheaccusedsidethatwhenthiswitnesswas calledbythepoliceinShaikhMaholla,hehadnotnarrated the incident dated 28.02.2002. He was having ample opportunity to narrate the incident before the police. Thereafter, he went upto Savala. Then also he has not narratedtheincidentdated28.02.2002uptosixyears.This witnessissilentandnowheisdepositingbeforetheCourt abouttheincidentdated28.02.2002.Notonlythatasper hisdeposition,hewenttothehouseofMunsufkhanPathan on01.03.2002whereameetingwasconvenedandpeople
// 687 //
fromthevillagegatheredtheretodiscusstheissue.Police wasthereandinrespectofthatheisnotsayingasingle word about the incident dated 28.02.2002. As per the depositionofthiswitness,incidentdated28.02.2002they could not go to lodge the complaint because conveyance was worstly affected. P.W.90 Parmar Galbabhai Khemabhaihasdeposedthathesawcabinswhichwereset onfire.However,hehadnotreceivedinformationwhoand whenthosecabinsweresetonfire.Ifthepresentwitness was inclined to lodge the complaint, P.S.I. Parmar was verymuchpresentinthehouseofMunsufkhanPathan,he couldhavegiventhecomplainttoP.S.I.Parmaraboutthe incident dated 28.02.2002. This witness is staying in Sardarpurstillhowever,forthefirsttime,headdresseda lettertoS.I.T.dated06.05.2008andeventhatletterhehas notdisclosedthatduetothreathecouldnotdisclosethe incidentdated28.02.2002andnamesoftheaccusedside inperson.Itisallegedbytheaccusedsidethatapplication dated06.05.2008andaffidavitwerepreparedbytheCitizen for Justice and Peace therefore, this witness is unable to showhisabilitytostatewhethertheapplicationwasgotup type.Asperthiswitnessitwasroughwritingexecutedby him but he has not produced any such rough writing.
// 688 //
Further,itissubmittedbytheaccusedsidethatevidence of this witness is of material contradictions and embellishmentandliabletoberejected.Thiswitnesshas involvedVanabhaiIshwarbhaiandRajeshbhaiGovindbhai forthefirsttimeinhisdeposition.Theyarenottheaccused beforetheCourt.Further,itissubmittedthatasperthe depositionofthiswitness,incidentoccurredon28.02.2002 at8.00A.M.andthiswitnesshasgivencertainnamesof the accused and has deposed that those persons were forcingthepeopletoclose downthemarketinrespectof the incident dated 28.02.2002 but he has not stated anything about the incident dated 28.02.2002 at about 8.00 A.M. in his statement dated 20.05.2008 before the S.I.T. therefore, it is submitted by Shri Dhruv that this witnessisnotliableatall.
Onperusinghisevidenceaswellastopographyofthe village,ittranspiresthathishouseisjustinfrontofShaikh MahollaandatthetimeofincidenthewasworkingasBore OperatorinGramPanchayat.Atthetimeoffirstincidentat about 09.30 P.M. he was sitting just in front of Shaikh Maholla, where there was a Gram Floor Mill, which was owned byhis Uncle Sherumiya, As he is theresidentof
// 689 //
thatarea,hispresenceatthetimeofincident,asnarrated byhimisquitenatural.Asperhisdepositionithascome outthat,therewaselectricconnectioninMahemudmiya's house.Nodoubtnoonehasdiedduetoelectrocutionbut thepanchnamashowsburntwiresandlivewireslyingbut due to live wire lying no one died due to electrocution it cannotbesaidthat,victimsdiedduetoelectrocutionnot duetoburnsduetopouringofkeroseneandpetrol.From theevidence,panchnamaandotherwitnessesithascome out that, at the time of incident his father was having houseinPathanhouseandinthathousehisbrotherwas residingwithhisfamilymembers.Therewere35housesin Pathan Maholla and there were 166 Muslims residing in thosehouses.Itsuggeststhat,mobhadleftPathanvasas there was more Muslim persons while in Shaikh Maholla there were 18 to 20 houses therefore keeping aside Pathanvas mob had attacked Shaikh Maholla. He is the witness, who had loaded the dead bodies in the loading vehicle.Hisstatementwasnotrecordedbeforepoliceprior toformingofS.I.T.Itisonlyon06.05.2008,hehadwritten alettertoS.I.T.andthereafter,hisstatementwasrecorded andonthatstrengthaccusedhavestatedthat,thiswitness remainedsilentabouttheincidenttilltheapplicationwas
// 690 //
preferredbyhimasthecomplaintwasalreadyfiledbythe complainantandthiswitnesswasbusyinloadingthedead bodiesintheloadingvehicleandundersuchagraveand tenseatmosphereeveryonewouldtrytosavehimselfandgo toasaferplaceandtherefore,afterloadingdeadbodieshe wenttoSavala.UptoVillageSavala,policewaswithhim buthehasnotnarratedtheincident,thissilencedoesnot amount that, he was not present just in front of Shaikh Maholla and he has not seen the incident dated 28.02.2002.Noonecanexpectsuchapromptactionfroma person, who is having no roof for him or his family members,naturallypersonwilltrytogetroofandshelter forhimorhisfamilymembersandtherefore,silenceonthe partofwitnessfornotnarratingtheincidenttothepoliceis ofnoimportance.Itistruethat,hewashavingsufficient opportunitytonarratetheincidentbeforethePolicebutas discussed above, if this witness is narrating the incident aftersixyearsandtheincidentisotherwiseprovedbythe prosecution, it is not going to prejudice the accused and therefore, this silence is of no importance. So far as gathering of village persons in the house of Munsafkhan Pathanisconcerned,thiswitnesswasverymuchpresent inthemeetingandameetingwasorganisedintheHouseof
// 691 //
Munsufkhan Pathan and this fact is supported by GalbabhaiKhemabhaiParmarP.S.I.,MunsufkhanPathan andotherevidence.Therefore,theversionofthiswitnessin this regard gets support from this evidence. In that circumstancesifthisfactisnotstatedinhisstatementit becomes insignificant. As per his say there was no transactionavailabletherefore,theycouldnotgotolodge the complaint about the incident dated 28.02.2002. This fact is supported from the deposition of P.W.90 Parmar GalbabhaiKhemabhai,whohasdeposedthathehasseen the cabins, which were set on fire however, he had not receivedanyinformationwhoandwhenthosecabinswere setonfire.Nosuchcomplaintwasgivenbythiswitnessor by Munsufkhan Pathan to P.S.I. Shri Parmar. The complaint was lodged subsequently about the incident dated28.02.2002.Itistruethat,forthefirsttimehehas addressedalettertoS.I.T.on06.05.2008andinthatletter also he has not disclosed about the threat. So far as affidavitandapplicationpreferredbytheCitizenforJustice and Peace is concerned, ifthis witness being a low class persontakes help from any NGOslike Citizenfor Justice and Peace for preparing affidavit or application to get justiceandifanyNGOssupportsthewitness,wecannot
// 692 //
infer from that witness is telling lie or contents are false andfabricatedone.Simplyroughwritingisnotpreparedas narratedbyhiminhisversion,wecannotinferthat,non productionofroughwritingmeansnoroughwritingswere preparedbyhimandaffidavitswerepreparedbytheCitizen forJusticeandPeace.Sofarasdepositionofthiswitness regarding time is concerned this witness has stated the timeas8.00A.M.on28.02.2002butthistimeanddateis not stated in his statement dated 20.05.2008 before the S.I.T.Herethisisacontradictionbutitisthefactthaton 28.02.2002 mob was compelling the persons to close the shopsiswellsupportedfromtheotherevidencetherefore, simply this fact is not stated in the statement does not amountthat,thiswitnessisstatingfalsely.Onthatcount wecannotconcludethat,thiswitnessisnotreliableatall. 44. P.W.70 Pathan Munsafkhan Yasinkhan has stated on oath that he was serving with Police Department since 1969.Atthetimeofincident,hewasservingatKalolCity PolicestationasPoliceConstable.Atthetimeofincident, hewasonsickleaveandwasinSardarpur.On28.02.2002, cabinsofMuslimsandothercommunitywerebuntinthe market just in front of Panchayat Office and Primary School.ItwasmobofPatelsoftheirvillage.Hisagricultural
// 693 //
fieldis4.00Kms.awayfromthevillage.Hesawthemobin thevillageandtherefore,hecamebytractor.Atthattime, Muslimsweresittingandatabout5.00A.M.theywentto sleep. On the next day i.e. on 01.03.2002 he was in his house. Persons whose cabins were burnt on 28.02.2002, came to him and they discussed about lodging the complaint.HaribhaiMaganbhaihadseentheincident.He hadnarratedtheincidentandthiswitnesshaddraftedthe complaint. On that day, there was Bharat Bandh. Transportationwasclosedandtherefore,theycouldnotgo toVijapur.HeinformedVijapurPoliceStationbyphoneand theyweretoldthatP.S.I.Parmariscomingforpatrolling. Thereafter, they went for Namaz. After Namaz, he came backtohishouse.Meanwhile,P.S.I.Parmarcameandthe persons who came in the morning gathered in his house and thecomplaint which was providedat theinstanceof HaribhaiMaganbhai,wasgiventoP.S.I.ShriParmar.There was tense atmosphere in the village as the Patels of the villageweregathering.Withtheintentionthatthereshould notbeanyuntowardincidentinthevillagetheycalledthe leadersof thevillage.P.S.I.Parmarhimselfwenttothe leadersofPatels.Thereafter,meetingwasorganizedandin the said Meeting Kanubhai Joitabhai and Dashrathbhai
// 694 //
Kacharabhai came and other leaders of Patels were also calledinthesaidMeetingthroughKanubhaiSarpanchbut nooneturnedandatthattimeKanubhaitoldthatitisnot in his hands. Dashrathbhai was present upto 8.00 P.M. During that time, Revabhai Shankarbhai told to call the policeasheapprehendeduntowardincidentandtheyhad talked with P.S.I. Parmar. P.S.I. Parmar had informed Vijapurpolicestationthatduringthatperiod,telephoneof Himmatkhan Tajkhan from Sundarpur came to him and askedhimtotakethemfromSundarpurastherewastense atmosphere.P.S.I.Parmarwasinformedaccordinglyand P.S.I.ParmarwenttoSundarpur.Hetookalltheladiesof SundarpurandothermalesfromSundarpur.Someofthe males came to Sardarpur from Sundarpur by walking. Thereafter,P.S.I.Rathodcameandstayedforhalfanhour inthehouseofwitnessandthereafterP.S.I.ShriRathod and P.S.I. Shri Vaghela left from there. At that time, the witnesshadtoldthemnottoleavethevillageasthereis tense atmosphere. Some untoward incident may occur. Thentheytoldthattheyarereturningbackafterpatrolling andtheywentaway.Thereafter,thewitnesswenttohisold house which is inside the Maholla. His new house is outsidetheMaholla.Ifsomeincidentoccurred,therewas
// 695 //
fearofcausingdamagetohisnewhouseandtherefore,he came to his old house. At about 9.30 P.M., Patels of neighboringvillagecameshoutingsloganstocut,beatand burn the miyas and went towards Shaikh Maholla. Thereafter, police vehicle came and the mob disbursed. Soon as the police went away, mob again came and they started pelting stones towards the old house. They were pelting stone on his house. He had also pelted stones to savehimself.Thereafter,theyenteredShaikhMahollaand burntthehousesinShaikhMaholla.Duringlatenight,son ofAsifmiyaBachumiyacametotheMahollaandtoldthat mob of Patels have burnt their jeep and houses and the personswhoweresittinginsidetheMahemudmiyashouse werealso seton fireand he requested forhelp therefore, thiswitnesstoldhimthatthereisbigmobiftheygo,they will also kill them and he asked him to stay in their Maholla. If they come out, they will burn the persons of theirMahollaalsotherefore,hestayedwiththem.Atabout 2.30A.M.P.W.105GehlotAnupamsinhShreejaysinhcame attheentranceofPathanMahollaalongwithP.S.I.Parmar and called him and asked about the place of incident therefore,hewenttoShaikhMahollaalongwithD.S.P.and thereafter, he came back to his Maholla. Thereafter, he
// 696 //
cametoknowthat28personshavebeenburntinShaikh Maholla.OnepolicemancametotheirMahollatocallfor persons to take the dead bodies outside the room. Therefore,personsfromPathanMahollawentfortakingout thedeadbodies.Thereafter,PrahladbhaiNathabhaiwentto the Sundarpur to take the private vehicle and in that vehicle dead bodies were shifted to Civil Hospital, Mahesana and injured persons were also shifted to MahesanaCivilHospital.Thereafter,D.S.P.askedhimthat they have less police force and the atmosphere is also tensed therefore, they went wherever they wanted to go. Thereafter, they were shifted to Savala in two police vehicles.
ItissubmittedbyShriDhruvthat,therewasapolice caseregisteredagainstthiswitnessondifferenttimesand atthesametime,thiswitnesshasfiledpolicecase.Hewas under suspension also. He retired from the police departmenton30.06.2009aspoliceconstable.Thisreflects thenatureandcharacterofthiswitness.Itissubmittedby theaccusedthatthiswitnessisanengineerofthepresent casebecausetheaccusedarefromthevillageSardarpur. As per the deposition of thiswitness, he had draftedthe
// 697 //
complaintregardingtheincidentofcabinssettingoffireon 28.02.2002afterdiscussingwiththepersonswhosecabins weresetonfirebutcouldnotsendthatcomplainttothe policestationduetodisturbance.Asperhisadmission,he ispossessingtelephoneathisresidenceandhecouldhave lodgedthecomplaintbytelephonicmessagetherefore,the sayofthiswitnessthathecouldnotgotoVijapurforfiling complaint is not acceptable. Further, P.S.I. Shri Parmar had beentherebut thecomplaint was notgivenby this witness to him. This witness is well conversant with the proceduretolodgethecomplaintbutthatcomplaintisnot filed deliberately. Further as per the say of this witness, Haribhai Maganbhai was complainant of that complaint andthatwasgiventoP.S.I.Parmaron01.03.2002butas per the deposition of Shri Parmar, no such complaint is received by him. In fact the complaint was given by Haribhai Maganbhai on 06.03.2002 but this witness is tryingtosatisfytheCourtaboutthedelayinlodgingthe complaint.AsperthedepositionofP.S.I.ShriParmarfor theincidentdated 28.02.202ofsettingonfirethecabins inthevillage,noonehadgivenhimanycomplaintnorhe hasrefusedtoreceiveanysuchcomplaint.Further,ifthere was any peace in the village and he would not have
// 698 //
requested P.S.I. Shri Parmar to bring relatives from SundarpurtoPathanMahollaatSardarpur.P.S.I.Parmar wasonpatrollingatSardarpurastherewaspeaceinthe village,hewenttoSundarpur,metKureshiHusenbhaiand attheirrequest50malesandfemalesofvillageSundarpur were shifted to Sardarpur and they were brought at the house of this witness. This fact suggests that there was peaceinSardarpurtherefore,thesayofthiswitnessthat Sardarpur was sensitive even to the day prior to the incident is not correct. Further, it is submitted by the accused side that after the incident, on arrival of police, P.S.I. Shri Parmar went to call him at that time, D.S.P. Gehlot was present and this witness met D.S.P. at the entranceofPathanvas.Thiswitnesshadarrangedforthe vehicle for transporting dead bodies and Prahladbhai NathabhaiwassenttoSundarpurtobringthevehicle.This witnesshasdroppedD.S.P.atShaikhMaholla.Thiswitness hasstatedthisfactjusttoshowthathehadnottakenany partinlodgingthecomplaint.Itisthesayofthedefence thatcomplaintisalsoengineeredbythispersontherefore, the names of full accused are shown in the complaint. Lookingtothefacts,itishighlyimpossibletoacceptthat thiswitnesswouldnottakeinterestintherescueoperation
// 699 //
aftertheincident.Thiswitnesshasnotstatedaboutstone throwingon28.02.202inhisstatementdated06.03.2002. Thus, there is an improvement before the Court and by improvingthisfact,heistryingtoshowthatthesettingon firethecabinson28.02.2002,draftingofcomplaintforthe same,callingforthemeetingofthepersonsofthevillage forgettingpeace,requestmadetoP.S.I.Rathodfornotto leave the village as there is possibility of disturbance in village,arrivingofmobofPatels,shoutingofslogansand peltingofstonestowardsoldhouse,alltheseaspectsare improved versions with an intention to give him an opportunitytonamethe leading persons of thevillage in crime.HehasnotenteredtheShaikhMahollatherefore,it is say of defence that he is the main person behind the curtainwhocreatedthewholecaseandinvolvementofthe presentaccused.Whateverhehasstatedinpara2and3 of his deposition is not stated in his affidavit dated 31.03.2004 before the Hon'ble Supreme Court of India whichsuggeststhatheismasterofcreatingfalseevidence. Further, say of this witness that he has opportunity to nametheaccusedinthepresentcaseisalsonotfoundin any place in any of his statement or any of his affidavit. Thus, hewashavingnoopportunitytoseeandrecognize
// 700 //
anyoftheaccusedbuthehasadmittedtogivenamesof certain accused in his deposition by assigning a certain weaponstotheaccusedwhicharemajorimprovementsand contradictions.Withregardstothenarrationoftheincident dated 28.02.2002, is not stated by him in his statement dated11.06.2002and14.07.2008.Asperdepositionofthis witness,hehasreadoverhisstatementdated06.03.2002 and hisstatementdated11.06.2002and 14.07.2002were not read over to him. He has admitted that not only the statementwasreadovertohimhehadnotevenaskedforit toberead.Further,itisadmittedbyhimthathehadnot madeanycomplainttoanyoneinwriting.Thiswitnesshas confrontedhisstatementdated11.06.2008and14.07.2008 recordedbyS.I.T.wasalsoreadovertohim.Further,itis submittedbytheaccusedthatthiswitnessinconnivance with Teesta Setalvad and Raizkhan Pathan, prepared affidavits of the witness and filed the same before the Hon'bleSupremeCourtofIndia.Thiswitnessisinhabitof makingfalseallegationsagainsttheleadingpersonsofthe Statewithoutknowingthegenuinenessoftheallegation.It isadmittedbyhimthathehaslevelledseriousallegations against the Ex. Member of Parliament, Minster of Rajyasabha and M.L.A. Further, he has admitted that he
// 701 //
has notproducedany recordinrespectofhisallegations madeintheaffidavit.Itisadmittedbyhimthatwhatever statedintheaffidavit,ispreparedbyhim.Lookingtothe character of the witness, it is established that his deposition before the Court requires to be kept out of consideration.Whateverisdeposedbyhimisnotstatedin hisstatementdated06.03.202,11.06.2008and14.07.2008 and in the affidavit before the Hon'ble Supreme Court of India. He has deposed before the Court contrary to his statement and has placed improved version before the Courtandtherefore,thiswitnessisnotreliable.Further,it is submitted by the accused that this witness has attemptedtoshowthattherewaspeltingofstonesevenat Pathanvas.Pathanvasissurrounded bynorthsouthand westdirectionbyPatelcommunity.ForenteringPathanvas, thereisroadwithoutanydoorsorgate.Ifmobintendedto enterinPathanvas,itisveryeasy.Evennewhouseofthis witnessisattheentranceofPathanvas.Ifanyconspiracyis headedbyPatelsofthevillage,mobof1000to1500Patels with weapons, they would have certainly attacked Pathanvasfirst.Lookingtothedamageorattackalso,there isnodamagetothehouseofthepresentwitnessortoany ofthehouseinPathanMaholla.
// 702 //
ThiswitnessisresidentofPathanvas.Further,atthe timeofincidenthewasservinginPoliceDepartment.The grievancesmadebytheaccusedsideasnarratedintheir submissions is that, this witness is the engine of this incident and he was guiding the witnesses as well as he wasintouchwithNGOslikeCitizenforJusticeandPeace. No doubt this witness was serving in Police Department. Much has been brought in crossexamination about his past history or past record like criminal cases or suspensionetc.Butthepasthistoryisnotthegroundto discardtheevidenceofthiswitness.Onthedayofincident, many Muslims from Village Sundarpur were brought to Pathan Maholla. Even other wise Pathan Maholla is big ratherthanShaikhMahollatherefore,ifbyleavingPathan Maholla, Shaikh Maholla was attacked by the mob from this fact the say of accused that, Shaikh Maholla was attackedfromthebacksidenotfromthefrontsidecannot beaccepted.Fromtheevidenceadducedbytheprosecution aswellasfromtheevidenceofPolicewitnesses,ithascome out that mob came from the entrance side of Village Sardarpur,Fakirs'houseswereburntandthereafterfrom MarketsidemobcameattheentranceofShaikhMaholla andatthebacksideofShaikhMaholla,thereisMahadev
// 703 //
Temple and one way is passing from Mahadev Temple to ShaikhMahollaandfromtheevidenceofallthewitnesses ithascomeoutthat,themobenteredinShaikhMaholla fromthe entryof ShaikhMaholla andnot from theback sideofShaikhMaholla.Whilecomingfromthemarketto ShaikhMaholla,PathanMahollaisonthewaybutlooking to the situation of Pathan Maholla and Shaikh Maholla, PathanMahollaismuchsaferandbigMahollaandifmob had not attacked the Pathanvas and mob has attacked ShaikhMaholla,itispossibleand wecannotdiscardthe evidenceonthisground.Itistruethat,fromPathanvasa person cannot see what is happening in the Shaikh Maholla but from Pathanvas a person can see what is happeningattheentranceofShaikhMahollaoraperson canseetheflamesofShaikhMahollaorcanhearthevoices screamingforhelp.Inthatcircumstancesifthewitnessis sayingbystandinginfrontsideofPathanMaholla,hesaw the mob passing towards Shaikh Maholla, that is quite genuine.Therefore,thesayofaccusedsidethatmobcame from Sundarpur side and they have attacked Shaikh Maholla is not acceptable. Persons from Sundarpur were brought to Pathan Maholla, if the mob came from Sundarpur they would have attacked Pathanvas, rather
// 704 //
thanShaikhMahollaandtherefore,thesayofprosecution that this defence of the accused is not tenable is acceptable.Fromtheevidenceofthiswitnessprosecution casethataMeetingforpeacewasorganizedinhishouseis supportedandinthatMeetingP.W.90ParmarGalbabhai Khemabhai was present that is also supported by this witness and it also supported by this witness that, a complaint was prepared about the incident dated 28.02.2002,inwhichcabinsintheMarketwereburntand that complaint was prepared at the instance of Haribhai Maganbhai. But as there was no transport facility available,thecomplaintwasgivensubsequently.However, P.S.I. Shri Parmar had denied the fact that, no such complaintwasgiventohimonthatday.Ithasalsocome out that P.S.I. Shri Parmar was on petrolling at village Sardarpurastherewaspeaceinthevillage.Personsfrom SundarpurwerebroughttoPathanvasofVillageSardarpur. Persons from Village Sundarpur were brought in the eveningandatthattimetherewaspeacebuttheincident occurredinthenight.Thisfactalsogetssupportfromthe evidenceofthiswitness.FurtherwhenD.S.P.came,hehad accompaniedthe D.S.P.upto ShaikhMaholla.Fromthis evidencewecannotinferthat,thiswitnessisintentionally
// 705 //
showing that, he had not taken any part in lodging complaintandhehastakenactivepartduringinvestigation ofthiscaseabouttheinvolvementoftheaccused.Sofaras the incident of pelting of stones on 28.02.2002 is concerned,itisnotstatedbythiswitnessinhisstatement dated 06.03.2002. Incident regarding setting on fire on 28.02.2002 is also not stated in his statement dated 06.03.2002.Itcanbesaidanimprovementinhisversion. But if this witness has taken active part in preparing affidavits dated 31.03.2004 before the Hon'ble Supreme Courtandhehadhelpedthewitnessesitdoesnotmean that, he is the engineer of all creations. So far as opportunitytoseeandrecognizetheaccusedisconcerned, thiswitnessisresidinginPathanvasandifmobispassing frommarkettoShaikhMaholla,Pathanvasisontheway and when the mob entered in the Shaikh Maholla, thereafterthispersoncannotseethemob.Hisopportunity toseethemobuptoentranceofShaikhMahollacanbe believed.Therefore,thiswitnessissayingaboutsettingon fireofcabinsjustinfrontofShaikhMahollathatisreliable. It is also an admitted fact that, though this witness is serving in Police Department has not filed any complaint abouttheincidentdated28.02.2002and01.03.2002.Ithas
// 706 //
alsocomeoutthat,hewasintouchwithTeestaSetalvad and Raiskhan Pathan. So far as allegations that, this witnesswasinhabitofmakingfalseallegationsagainstthe leadingpersonsoftheStateisconcerned,ithascomeout that, he has levelled serious allegations against the Ex MemberofParliament,MinisterofRajyaSabhaandM.L.As. Further, he has not produced any record in respect of allegationsmadeintheaffidavit. Onthestrengthofthis fact,wecannotdiscardtheevidenceofthiswitness,which iswellsupportedfromotherevidence.Wecanconsiderthe depositionofthiswitnessinthelightofevidenceofother witnesses and police witnesses and other documentary evidences.Therefore,backgroundhistoryofthiswitnessas wellascharacterofthiswitnessdoesnotcomeintheway ofthefactswhicharealreadyprovedbytheprosecution.No doubtthereareimprovementsinhisversionandthereare contradictionsandomissionsinhisstatementsbutthose improvementsandcontradictionsarenotgoingtoeffectthe facts of prosecution which are already proved from the evidence of other witnesses. So far as arguments of accused side it is easy to enter Pathanvas and attack PathanvasasthereisnodoorinPathanvasisconcerned, consideringthetopographyofPathanvas,ShaikhMaholla
// 707 //
andsurroundingareasatthetimeofincidenttherewasno gate,atpresentthereisgateofPathanvas.Itissurrounded by Patel Community but if the mob has not attacked Pathanvas and has attacked Shaikh Maholla, we cannot conclude that, this incident in Shaikh Maholla has not occurredormobhasnotattackedtheShaikhMaholla.It hascomeoutthat,nodamagewascausedtoPathanvas. Thus,thepresenceofthiswitnessinthevillageonthedate ofincidentisnaturalone. 45. P.W.90 Parmar Galbabhai Khemabhai, P.S.I. has deposed on oath that on 28.02.2002 he was in Gandhinagar Vidhansabha Bandobast. Due to Godhra Carnage on 27.02.2002 he was relieved from Bandobast andhereachedVijapurPoliceStationatabout12.30and he was posted at Vijapur Circle by P.I. Shri Vaghela. At about19.00hours,hewasinstructedtotaketherequisite mobilevanalongwithhisstaffmembersforpatrollingupto thevillageLadol.Astherewaspeaceinthevillage,hecame back to Vijapur. Thereafter, he received message that in Sardarpur village, cabins were burnt near Panchayat and hewasinstructedtogotherealongwithhismobilevanand staff members hence, he went there and saw the cabins
// 708 //
wereburningjustinfrontofPanchayat.Therewasnomob. Heinformedfirefighters.Thereafter,hewasthere.Hetried to take the complaint but no one had given complaint beforehimandhereturnedbacktoVijapur.On01.03.2002 atabout8.00Oclock.Hewasinstructedtotakepatrolling at Vijapur town circle, Anandpura Cross Roads, Railway Station etc., just to see that there should not be any untoward incident. He was in patrolling at thattime, P.I. toldhimthatmobhasgatheredatSardarpur,yougothere. Therefore, alongwith his staff and mobile van he went to Sardarpur but there was no mob thereafter he went to SundarpurandmetKureshiHusenbhai,hetoldhimthat theywantedtogotoSardarpurandBhalakandtherefore, P.S.I.managedtoshift50ladiesandgentstoPathanvasat Sardarpur in private vehicles and called a meeting of leaders of the village alongwith Kanubhai Sarpanch, B.K.Patelandotherswhereintheyhadadiscussionabout peaceinthevillageandthereafterhewentforpatrollingin the village. In the front of Panchayat, he saw the tense atmosphere therefore he asked Vijapur Police Station to send more police force. He had continued his patrolling meanwhileP.S.IRathodalongwithhisstaffandmobilevan, cametoSardarpurandbothmobilevanhadcarriedoutthe
// 709 //
patrolling in Sardarpur Village. When they were in patrolling at that time about 1000 persons came from Sundarpursidehavingweaponsintheirhands.Whenthe witnesswasgoing towardsthePanchayat,atthattime,a mob of 500 persons came from north side means from Sardarpursideandtriedtoburnthecabins.Therefore,he asked the mob to disburse. Mob was not under control therefore, the lathi charge was done by him. As the mob had not disbursed Tear gas cells were lobbed. In spite of that, mobwasnotundercontrolthereafter, P.S.I.Rathod hadaskedpoliceconstableKrishnakanttofirefourrounds in air of 303 Rifle. Another constable Popatji was also instructed by him and he has fired two rounds in air. Thereafter, mob disbursed. Meanwhile P.SI. Gohel from Ladolsidecameandhehadalsodisbursedthemoband returnedbacktoLadolandboththeseP.S.I.alongwiththeir staff members were patrolling in the village. There after, there was no mobin theVillage. There was peace inthe village.HereceivedamessagefromP.I.Vaghelathatthere istenseatmosphereinVijapurandtwoMuslimshavebeen burntaliveinLadolanddeadbodiesofboththeMuslims arebroughttoVijapurforburialritualstherefore,hecame to Vijapur and met P.I. Shri Vaghela and he carried
// 710 //
patrolling continuously in Vijapur town at Circle points, RailwayStation,AnandpuraCrossRoadsetc.Ataboutlate night P.I. Shri Vaghela told him that again the mob has gatheredinSardarpur,yougotoSardarpur.Therefore,the witnessalongwiththestaffmembersandmobilevanwent to Sardarpur. While going to Sardarpur there were obstructionintheroadnearLadol.Roadswereblockedby putting wooden pieces, stones etc. By removing those obstructions they went to Sardarpur. P.S.I. Rathod alongwith the staff members and mobile van, came to Sardarpur. On the way of Sardarpur, near Village Sundarpur, road was obstructed and by removing those obstruction, they proceeded towards Sardarpur. ObstructionsweremadebyTrollyoftractor,Cabins,Carts, Stones,CementPipes,woodsetc.TheywentuptoPathan Mahollatherewasnomobandtherewassilenceandwhen theyreachednearShaikhMaholla,onseeingthemmobran away towards the opposite side. He saw the persons rushing towards the opposite side. At the entrance of ShaikhMahollathereweretwotothreecabinsandhouses were burnt therefore they had started rescue operation, meanwhiletwoinjuredMuslimscameandtoldthatthere are ladies and children who are burnt in the
// 711 //
Mahemudmiyas house. Therefore, he alongwith Rathod andotherpoliceforceswenttothehouseofMahemudmiya andtriedtoopenthedoorandtheytookapproximately10 personswhowereinjuredduetoburning.Theyweredoing their rescue operation meanwhile their higher authorities alongwiththeirstaffmemberscameandtookthepersons out from the neighbouring houses and the injured were shifted to Mahesana Civil Hospital thereafter, he was present there and other Muslims were shifted to Savala, Bhalaketc. Inthecrossexaminationofthiswitnessaccusedhave triedtobringonrecordthat,fordaytodayworktheyare required to make entry in the Daily Dairy and in the presentcase,nosuchentrywasmadebythiswitnessin DailyDairy.Whenweconsideredthisaspectifentryofday todayactivitiesisnotmadeinDailyDairyundersucha tense atmosphere it does not amounts that, witness is tellinglie.Sofarascrossexaminationregardingburningof cabinsinhispresenceon28.02.2002isconcerned,inhis crossexamination it has come out that, no cabins were burntinhispresenceon28.02.2002.Hehasnoknowledge, whohasburnedthecabins,nocomplaintwasgiventohim byanypersonthoughheaskedifanyonewantedtolodge
// 712 //
complaint. Further, in his crossexamination this witness hasadmittedthat,hehasnotstatedinhisstatementdated 09.03.2002 and on 16.08.2008 that, he came to Vijapur from Gandhinagar and he went to Police patrolling in Vijapur town as per instructions of P.I. Vaghela, during 19.00 hours, as per instructions he went to Ladol for patrollingastherewaspeaceinVillageLadol,hecameback to Vijapur and thereafter, he received a message about burning of cabins near Panchayat Office at Village Sardarpur and he was instructed to go to Sardarpur, he went to Sardarpur and saw the burning of cabins, near Panchayat.Sofarasthiscontradictionisconcerned,this witness is a Government servant, he has performed his dutiesasperinstructionsissuedbyhishigherauthorities, he had gone to Sardarpur for patrolling, he had shifted SundarpurMuslimstoSardarpurPathanvas.Further,itis an admitted fact on record that a Meeting for peace was organized at the residence of Munsafkhan Pathan, in his presence. Investigating Officer Shri K.R.Vaghela also supportsthefactthat,ShriParmarwassenttoSardarpur, witnesses are also stating the same and in that circumstances, if it is not stated in the statement it becomesimmaterialashispresenceandpatrollingaswell
// 713 //
asbringingofSundarpurMuslimstoSardarpurareproved by the cogent evidence. If list of the persons who were brought from Sundarpur to Sardarpur is not prepared undersuchatenseatmosphere,itisnaturaloneandwe cannotexpectfromapersontoseekandpreparealistin the such a tense circumstances rather than to shift the persons to a safer place. Therefore, deposition of this witnessonthiscountcannotbediscarded.Further,inhis crossexamination it has come out that, he was on petrollingintheVillageduring8.30P.M.to9.00P.M.and hewasinSardarpurupto10.00P.M.tillthennountoward incident occurred. Further, at about 10.00 P.M. when he was near Primary School, as per his say a mob of 1000 persons came from Sundarpur side, having weapons in theirhands.Hesawthemobatadistanceof400Mtrs.As perhissayhesawthemobattheentranceofSardarpur wheretheFakirHousewasburnt.Policewascompelledto Lathicharge in spite of that mob was not under control hence Police had lobbed tear gas cells. Six Rounds were firedandupto23.00hoursnoincidentoccurred.Further asperhisdeposition,hehasseenthehouseswereburntin theShaikhMaholla.Hehadtriedtoshelterthepersonsin ShaikhMaholla,hebroughtoutabout10injuredpersons
// 714 //
from Mahemudmiya's house and from other houses. Two injuredpersonscameoutfromonehouse,nostatementof thosetwopersonswererecordedbyhim.Itisquitenatural. Noonewouldgotorecordthestatementinsuchatense situations, innatural course in such acircumstance any onewilltrytosavethelifeofpersonsfirstandsamewas done by this witness alongwith other police witnesses therefore,simplyatthattimenotrecordingthestatements of those two witnesses, under above circumstances it cannot be said that, deposition of said witness is not relevantonthispoint.Sofarasincidentregardinglobbing ofTeargasandsixroundoffireinAirandlathichargeas narratedbythewitnessisconcernedwitnessfromShaikh MahollaornearbyShaikhMahollawhoareexaminedasa witness are denying the incident of lobbing of Tear Gas CellsandSixroundfireandlathicharge.Whenweevaluate the evidence of this witness on this point, as per this witnessincidentofteargascells,sixroundfireandlathi chargewashappenedattheentranceofvillagewhereFakir House, Panchayat House and Primary School is situated. ThereissufficientdistancefromFakirvas,ShaikhMaholla and PrimarySchool.Possibilitycannotberuledoutthat, witnessfromShaikhMahollamightnothavewitnessedthe
// 715 //
incident or heard the voices of such incident, in that circumstances if they are showing ignorance about this incident,itcannotbeconcludedthat,theyaresuppressing this fact with ulterior motive. Further, it also cannot be concludedthat,thiswitnesshascreatedthisfact.Thefact oflobbingofteargascell,dischargeofsixroundfireand lathi charge are supported by other Police witnesses and othersupportingdocumentaryevidence.Thiswitnesshas noreasontotellalie.Assumingincidentoffiringhadnot takenplace,eventhoughthisfactisnotgoingtoeffectthe mainincident.Butthefactstandsthat,asthepolicecame mob was disbursed, injured witnesses as well as other witnessesaretellingthesameandtherefore,discrepancies inrespectoflobbingofteargas,sixroundfireinairand lathi charge, which is pointed out by the accused are required to be ignored as it is established by the prosecution that, Police came and thereafter mob was disbursed. So far as discrepancies in respect of time is concerned,itistruethat,thiswitnessinhisdepositionis creating confusions regarding timings of incident. But in crossexamination,ithascomeoutthatupto23.00hours he alongwith P.S.I. Shri Rathod with his team were patrolling in the village. Further, from his cross
// 716 //
examination it also comes out that, at about 10.00 P.M. firstmobcame.Furtherfromhiscrossexaminationitalso transpires that, up to 12.00 Night hours no information aboutburninghousesinShaikhMahollawasreceivedby him.IfP.I.ShriVaghelawasnothavingdetailedinformation about the incident and he asked the witness to go to Sardarpur i.e. also quite possible that, he might have receivedinformationonlyabouttheburningofhousesand cabins. It does not mean that, no incident of burning of personshappenedanddepositionofthiswitnesscannotbe discardedonthispointalso. P.W.91RathodMahendrasinhLalsinhhasdeposed that,hewasinpatrollingalongwithhisstaffmembers.On 28.02.2002,hetookpatrollingfrom6.00to10.30A.M.in Vijapur town. Thereafter, there occurred some dispute between the Patels and Darbars in Madhi village and P.I. instructed him to go to Madhi and therefore, he went to Madhiandcamebackat15.30hoursthereafter,from18.30 to 21.00 hours, he was in patrolling and during 21.00 to 24.00hours,hewasinFaluandLadolforBandobast.On 01.03.2002, he was in 2nd mobile van alongwith head Constable Laljibhai Arjanbhai and others. They were in
// 717 //
patrollingfrom6.00O'clockto10.00O'clock.Thereafter,he receivedmessagetogotoLadoltherefore,hewenttoLadol forpatrolling.HetookthepatrollingalongwithP.S.I.Shri V.D.Gohel and at about 12.00 O' clock, he came back to Vijapur.Againat14.00hours,hereceivedmessagetogoto Ladol and he wenttoLadol asthere occurred communal incident and hence, he remained over there. Two Muslim persons, dead bodies were brought to Vijapur at about 18.30 hours and after the completion of burial rituals of both the dead bodies, he was in police Bandobast. Thereafter,atabout20.00hoursP.I.Vaghelatoldhimtogo to Sardarpur alongwith his staff members. He went to SardarpurandmetP.S.I.ShriG.K.Parmar.Atabout20.30 hours,theymetnearbusstationandthereafter,theyhad done patrolling in Sardarpur and thereafter, when they werestandingnearPrimaryschool,amobof1000persons camefromSundarpursideandmobof500personscame fromSardarpursidei.e.fromnorthside.Theywerehaving weaponswiththem.Atthattime,streetlightwasworking andmobwasshoutingtoburnthepropertiesofMuslims andtosendthePatelsback,theyhadwarnedthemobbut themobdidnotdisbursetherefore,GasmanShriKhodidas had lobbed the cells but the mob was uncontrollable
// 718 //
therefore, P.S.I. ShriParmar alongwith his staff members hadchargedlathiinspiteofthatthemobwasnotunder control. They had burnt the cabins of northern side and hadstartedpeltingstones.PoliceConstableKrishnakant KantilalandPopatlalJeevanji,firedintheair.Popatjifired towardsnorthsideofmobandKrishnakanthadfiredtwo roundsinairtowardsSundarpurmobandthereafter,mob disbursed. P.S.I. Gohel also came and they removed the obstacles from road thereafter, P.I.Gohel went back. P.I. Vaghela, told thatdeadbodiesof twoMuslims havebeen broughttoVijapurtownfromLadol.Situationistensed,if thereispeaceinSardarpur,immediatelygotoVijapur.As therewasnomobinSardarpurandtherewaspeace,they came to Vijapur. After coming to Vijapur, he had lodged complaint of the cabins burnt and the fire which took place.Meanwhile,P.I.Vaghleacamebackfrompatrolling. Hewasalsoinformedbythewitness.P.I.Vaghelaaskedto lodgethecomplaintandafterlodgingthecomplaint,itwas senttoP.S.O.Devjibhaitoregistertheoffence.Meanwhile, they were in town. P.I.Vaghela told him that you go to Sardarpur as the situation over there is tense. P.S.I. G.K.Parmar was already sent there and therefore, on 02.03.2002atabout00.10hours,hecamefromVijapur.On
// 719 //
the way, there were obstacles in the road which they removedwiththehelpofotherpolicepersons.Theywentto Changod.Therewasalsoobstructionintheroadandthose obstructionswerealsoremovedbythem.Whentheywere going from Sundarpur to Sardarpur, there was cabins, carts,tractoranddrainagepipesetc.Byallthesethings, roadwasobstructedandtheycamenearPanchayat.Near thePanchayatalso,roadwasobstructedbyputtingtreeson roadandbyremovingthoseobstructions,theywenttothe marketwherethestreetlightwasoffandcabinsandshops weredamagednearShaikhMaholla.Theysawthepersons rushingtowardstheoppositesideandneartheentranceof ShaikhMaholla,cabinsandhouseswereburnt.Hesawthe burningofcabinsandhousesandthereafter,theywentin Shaikh Maholla and told the persons that they are the police persons and without keeping any fear they should comeout.Twoinjuredpersonscameoutandtoldthemthat in Mahemudmiyas house, there are ladies, gents and children who are burnt. Therefore, they went towards Mahemudmiyashouse.Voiceswerecomingfrominsidethe house.Thedoorwasopenedbythemandrescueoperation tookplace.InjuredwereshiftedtoMahesana.Deadbodies were also brought to Mahesana Civil Hospital for Post
// 720 //
Mortem. D.S.P., Dy.S.P. and P.I. Shri Vaghela came there andfirefighterswerealsobroughtfromMahesana. In his crossexamination accused side have tried to bringonrecordthat,hehasnotmentionedthenamesof PoliceofficialsandHomeguards,whowerewithhim.From his crossexamination it transpires that, he saw the mob from 500 Ft. Further from his crossexamination it has come out that, cabins were burnt by said mob. Further from his crossexamination it transpires that, first time whenhewenttoSardarpuratabout8.30P.M.lightswere on while when he went second time at about 1.45 A.M. lights were off in Sardarpur. Specially, when he went in Shaikh Maholla, lights were off. Simply in his statement dated09.03.2002and17.06.2008,hehasnotstatedthat, persons from Mahemudmiya's house were screaming for help,itcannotbeinferredthathewasneitherpresentnor took the injured out from the houses. That was not the righttimetonotedownthenamesofinjuredwitnesses.To savetheinjuredwitnesses,wasthefirstandprimedutyof the witness, considering the situation. Therefore, on this count also his testimony cannot be doubted and his presence at that time in Shaikh Maholla cannot be doubted.Further,itistruethat,hehasnotstatedinanyof
// 721 //
hisPoliceStatementaboutmobfromtwosides. P.W.92GoswamiJivagiriVihagiri hasdeposedon oaththathewasonhisdutyasArmedA.S.I.Hewasin patrolling in Vijapur town. On 01.03.2002, there was BharatBandh.Hewasinrequisitemobilevanof2nd P.S.I. G.K.Parmar. Rajakbhai, Daniyalbhai and Ramanbhai Valjibhai and two home guards were also with them. At about 12.30 a communal riot took place near Ladol in whichtwoMuslimsweredead.P.I.ShriVaghelatoldthem togotoSardarpur.Atabout17.00hours,ShriG.K.Parmar alongwiththem,wenttoSardarpuratabout17.30hours. At that time, there was no untoward incident. There was peace in the village. They went to Sundarpur Muslims Maholla.P.S.I.ShriParmarmettheMuslimsandtheytold himthatthereistenseatmospheretherefore,P.S.I.Parmar tookthemtoMusalmanMahollaatVillageSardarpur.Some of Muslims were in private vehicle and they all came to Sardarpur Musalman Mahollas in private vehicle. Two to three rounds were done for carrying Muslims from SundarpurtoSardarpur.About50Muslimswerebrought toPathanMaholla.Thereafter,theywereinpatrolling.No untowardincidentoccurred.Thereafter,theywerestanding
// 722 //
nearPanchayatand theysawthepersons goingonroad. P.S.I. Shri Parmar informed Shri Vaghela about the gathering of persons. Therefore, Shri Rathod was sent to Sardarpur and Shri Rathod alongwith his staff members came in his mobile van to Sardarpur and they were standingnearthePanchayat.Therewasdark.Mobof1000 personsalongwithweapons,stickanddhariyacamefrom Sundarpursideandmobof500personscamefromnorth side. Mob was uncontrollable. P.S.I. Shri Rathod asked themtodisbursebutthemobwasnotundercontroland policehadstartedlathichargebutthemobwasnotunder control.Therefore,thepoliceconstableKhodidaslobbedthe Tear Gas cells even though, mob was not under control. PoliceconstableKrishnakanthadfiredfourroundsinair and Popatji Jeevanji had fired two rounds towards north sidefromtheir303Riffle.Thereafter,themobdisbursed. Meanwhile,P.S.I.Gohelalsocame.TheycametoVijapur andmetP.I.ShriVaghela.Aftersometime,P.I.ShriVaghela told Shri Rathod and G.K.Parmar to go to Sardarpur for patrolling.TheyreachedSardarpurat00.00hoursandhad startedpatrollinginSardarpur.Atthetimeofpatrolling,he was going to Sardarpur from Vijapur. There were obstructions on the road, they had removed those
// 723 //
obstruction and they came upto Sundarpur. Near Sundarpur also, there were obstructions which they removed and they reached upto 1.45 A.M. When they reached at the entrance of Shaikh Maholla, three cabins were burning. Seeing the police van, children, ladies and other Muslims were shouting to save them. Houses of ShaikhMahollawerealsoburnt.InsearchlightP.S.I.Shri G.K.ParmarandShriRathod,tooktheinjuredpersonsout and the persons who were burnt inside the house of Mahemudmiya, were also taken out by opening the door. Dead bodies were also taken out from Mahemudmiyas house and rescue operation had taken place and the injuredwereshiftedtoMahesanaandthedeadbodieswere also shifted to Mahesana. 28 persons have died. Dead bodies were brought in private 407 vehicle. Prahaladbhai Raval was the driver of Matador. This witness was also sitting in the said Matador. He was in the team of P.S.I. Shri G.K.Parmar, alongwith Shri G.K.Parmar he went to SardarpurandreachedatSardarpur17.30hours.Hehas statedsimilartoShriG.K.Parmar.Inhiscrossexamination hehasadmittedthat,hehasnotstatedaboutfourround firingtowardsSundarpursideandtworoundfiringtowards SardarpursideandtworoundbyPopatjiandtworoundby
// 724 //
Krishnakantarementioned.Thefactthat,firingwasdone bythemiswellsupportedbythedocumentaryevidenceas wellasfromthePolicewitnesses. Considering the evidence of P.W.90 Parmar Galbabhai Khemabhai, P.W.91 Rathod Mahendrasinh LalsinhandP.W.92GoswamiJivagiriVihagiriittranspires that, P.S.I. Parmar was in patrolling in Sardarpur, he brought Muslims from Sundarpur to Pathanvas. The defence theory is that mob from Sundarpur came and ransackedtheshopsandincidenttookplace.Ifinfact,the mob was of Sundarpur, then they would have attacked PathanvasinspiteofShaikhMahollaastheMuslimsfrom Sundarpur were brought to Pathanvas. Further, this witnesswhohasseentheearlierincidenthasdeposedthat there was tense atmosphere in the village and P.S.I. Shri Rathod was called and both had done patrolling in the village.Inspiteofthat,mobgatheredinthevillage.Asper thesayofthiswitness,mobcamefromSundarpurside.It isnotthesaythatmobfromSundarpurcame.Theywerein patrolling in the village. On 10.00 O' clock after firing incident, they went to Vijapur and lodged complaint of firing thereafter, at 0.00 hours, message was received by themandtheywenttoSardarpurandhesawthreecabins
// 725 //
attheentranceofShaikhMahollawereburning.Whenhe broughttheMuslimsfromSundarpurtoSardarpur,hehad notpreparedthelist,thisisnaturalone.Housesofaccused werealsoburnt.Aftertheincident,whentheinjuredwere shifted to the hospital, they were taken by P.S.I. Shri RathodandP.S.I.ShriParmarandotherswerewiththem. P.I. Shri Vaghela took 28 dead bodies. At that time, they have tried to save the injured persons in spite of taking statementsandthatisanaturalconduct.Thiswitnesshas stated that injured persons were taken out from Mahemudmiyas house and this evidence cannot be discarded.MehendrabhaiLalsinhRathodP.S.I.,reached at8.30P.M.atSardarpur.Hebroughtinjuredwitnessto CivilHospitalat5.00A.M.ThisfactissupportedbyDr.Soni anddepositionofShriRathodandDr.Sonisupportthisfact andtallieswitheachother.Twoinjuredwhofirstcameout fromShaikhMahollawerebroughttoCivilHospitalasthey wereinjuredandwereshiftedto Mahesanafortreatment and their complaint was recorded due to injury to them. Further, he has prepared the Panchnama of Memon KariyanaStorewhichisproducedvideExh.728.Jeevangiri Goswamireachedat5.30atVijapurandhewaswithP.S.I. Shri G.K.Parmar and he has supported the deposition of
// 726 //
P.S.I. Shri Parmar. Simply because he has not taken the complaint because P.I. Vaghela had taken the complaint andthattheoffenceisregisteredbyhim,doesnoteffectthe caseofprosecution.
P.W.99 Krushnakumar Kantilal has deposed on oaththatheisaPoliceConstableandon28.02.2002he was on patrolling alongwith P.S.I. Rathod and on 01.03.2002,twoMuslimswereburntaliveinLadol.Thus, thedeadbodieswerebroughttoVijapur.Therefore,there was tense atmosphere in Vijapur. He was in patrolling meanwhile, at about 20.00 hours, P.I. Shri Vaghela informedthemtogotoSardarpurandtohelpP.S.I.Shri G.K.Parmar.HealongwithotherstaffmembersandP.S.I. RathodwenttoSardarpuratabout20.30hoursandthey had carriedpatrolling in Sardarpur. At about 10.00P.M., they were standing near the panchayat office, a mob of about1000personscamefromSundarpursidewhilemob of 500 persons came from Sardarpur side. They were shoutingslogans.Firsttheywarnedthemobbutmobdid notdisburse.Therefore,lathichargewasresortedandmob peltedstonestherefore,P.S.I. ShriRathodaskedtheGas man Khodidas to lob cells even then the mob did not
// 727 //
disbursethereafter,P.S.I.Rathodorderedtofireinairand therefore,thiswitnesshadfiredfourroundsintheairby his 303 Riffle. Police constable Popatji had alsofired two rounds towards Sardarpur mob. Meanwhile, P.S.I. Gohel alongwith the requisite mobile van came there and they disbursedthemob.Thereafter,thepatrollingwasdoneby them and they saw two cabins and one handcart which wereburnt.Therefore, P.S.I.ShriRathodwenttoVijapur andrushedtolodgecomplaintabouttheincident.Atabout 00.10to00.15hours,P.I.ShriVaghelahadinformedthem to reach Sardarpur therefore, he alongwith their staff memberswenttoSardarpurbyremovingobstaclesonthe road. They reached Sardarpur. At about 1.45 A.M. they wenttowardsShaikhMaholla.Hesawthepersonsrushing towardstheMahadevTemple.SoonastheyreachedShaikh Maholla,theyaskedthepersonstocomeoutastheywere the police persons. Thereafter, on hearing this, 1012 personswerebroughtfromonehousewhowereburntand injured persons were shifted to Mahesana Civil Hospital alongwiththedeadbodies.
In his crossexamination, accused side have tried to brought on record that, the mob came from Sundarpur
// 728 //
side. If this witness has stated in his statement dated 09.03.2002,thatmobcamefromSundarpurside,itdoes notmeanthat,mobwasfromSundarpurVillagetherefore, this contradiction is of no importance. From the cross examinationofthiswitness,ititselfcomesoutthat,hewas presentinthechowkofVillageSardarpur,nearPanchayat. From8.30to10.00P.M.theywereinthevillage,incidentof burningofthreecabinsoccurredduringthatperiodexcept thatnountowardincidentoccurred.Further,inhiscross examinationithascomeoutthat,firingwasresortedinthe air,noonewasinjuredandperiodofincidentisshownas onehour.Hehadnotinquiredabouttheburningofthree cabins. Consideringhisdepositionittranspiresthat,heisthe personwhohadfiredintheair.Asperdepositionofthis witness during panchnama they saw two cabins and one HandcartwhichwereburntjustinfrontofShaikhMaholla. Heistheeyewitnessoftheincident.Hehasseenthemob at9.30 P.M.andmobhasburntthecabins.Inhiscross examination,ithascomeoutthat,atabout8.30to10.00 P.M., they were patrolling in the village and during that period,incidentofburningthethreecabinsoccurred.No other untoward incident occurred during that period. It
// 729 //
supports the say of the prosecution. Witnesses from Sardarpurarenotsayingaboutthefiring.Thereis2to3 furlong distance in between Panchayat office and Shaikh Maholla. Simply because witnesses are not saying about firingandthiswitnessissayingaboutthefiring,doesnot adversely effect the firing incident. In the whole cross examination,itisnotaskedtothiswitnessastowhether he has seen the burning of the three cabins. It is an admittedfactthat,whentheywereinpatrolling,atabout 9.30 to 10.00 P.M., three cabins near the entrance of ShaikhMahollawereburnt.Thereisnocontradictionatall onthis point. Therefore,the sayof thiswitnesssupports theprosecutioncase. P.W.100RajakbhaiAllarakhabhai hasdeposedon oaththatatthetimeofincident,hewasPoliceConstablein C.P.I.office.On28.02.2002,hewasinpatrollingalongwith P.S.I.ShriParmar.On01.03.2002,therewasBharatBandh andtheystartedpatrollingatabout8.00O'clockalongwith the Head Constable Jivagiri Vihagiri,PoliceConstable Ramanbhai Valjibhai, Police Constable Daniyalbhai Khimjibhai and P.S.I. Shri Parmar and there were two HomeGuardsandthedriverofMobilevannamelyRamaji
// 730 //
MaganjiVihol.Therewastenseatmosphere.Atabout17.00 hours,P.I.ShriVaghelaaskedthemtogotoSardarpuras the mob had gathered there. They were in patrolling in Sardarpurandtherewaspeace.Oneleaderhadtalkedwith P.S.I. Shri Parmar that there is tense atmosphere. Thereafter,about50personswerebroughtfromSundarpur to Sardarpur in requisite mobile van. Thereafter, meeting wasorganized in MunsufkhanPathanshousejust to see thatnountowardincidentoccurred.Theywerestandingin Primaryschool.Personswerepassingfromthere.Amobof 1000personscamefromSundarpursidehavingweapons in their hands and mob of 500 persons came from Sardarpursideshoutingslogans.First,mobwaswarnedto disburse but as the mob was not under control, Shri RathodaskedtheconstableKhodidastolobteargascells towardsSundarpur.Thoughtheteargas,lathichargewas resorted,themobwasnotundercontrol.Therefore,P.S.I. ShriRathodtoldKrishnakanttofireintheairbyhis303 riffle. Popatji Jivanji has also fired two rounds towards Sundarpur. At that time, P.S.I. Shri Gohel came and the mobofSundarpursidedisbursedandthereafter,theywere in patrolling and went towards Shaikh Maholla wherein they saw three cabins were burnt and there were no
// 731 //
persons atall. P.IShriVaghelatold them thatif thereis peace they should come to Vijapur as there is tense atmosphere in Vijapur. Therefore, P.S.I. Shri Parmar and Gohel went to Vijapur for patrolling. Thereafter, at about 00.00 hours, Shri Vaghela told them to go to Sardarpur immediately. Therefore, P.S.I. Shri Parmar and other members went to Sardarpur by requisite 2nd mobile van. WhentheyweregoingtoSardarpurtherewereobstructions on the Ladol road. They removed the obstacles and went towardsSardarpur.P.S.I.Rathodalsocamealongwithhis staff members and removed the obstacles and when they were standing near primary school, the road towards the Gram Panchayat, Sardarpur was obstructed by putting trees, pipes, supports etc. They removed those obstacles and went to Shaikh Maholla. Street lights were off. They reached Shaikh Maholla and they saw the persons were rushingtowardstheotherside.HousesofShaikhMaholla wereburnt.Theyaskedthepersonstocomeouttherefore, two Muslims came out and told that there are persons inside the house of Mahemudmiya who were burnt. Shri Parmar and Shri Rathod, opened the door of Mahemudmiyas house and they saw that persons were burntinsidethehouse.TheyweretakentotheMahesana
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CivilHospitaland28deadbodiesweretakentoMahesana CivilHospitalin407MatadorforPostMortem.Thereafter, firefighterscameforextinguishingfire. From the crossexamination of this witness, it transpiresthat,thiswitnesswasintheteamofP.S.I.Shri G.K.Parmarandalongwith ShriG.K.Parmar,hehadalso shiftedMuslimsfromSundarpurtoPathanvasofSardarpur and meeting for peace was organized in the house of MunsufkhanPathan,Hinduleaders,Sarpanch,Kanubhai Patel were present in that meeting. Further in his cross examination it also comes out that, during patrolling he sawthreecabinsinburntconditions,therewasnoperson andstreetlightwason.Incrossexaminationitalsocomes out that, when first time he went to Shaikh Maholla the lights were on but when he went second time in Shaikh Maholla,therewasdarkness.Fromhiscrossexamination italsotranspiresthat,mobdoesnotattackedthepolice.No injury was sustained by the police. No list of persons of MuslimsofSundarpurwasprepared. P.W.101KhodidasGovindbhaihasdeposedthathe wasinthe2ndmobilevanwithP.S.I.Rathodalongwithhim Head Constable Lalji Arjanji and Police Constable
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Punjabhai Bharatbhai was driving the mobile van. On 01.03.2002, two Muslims were burnt in Ladol village and aftercompletionoftheirburialritualstheycametoVijapur andtheywereinpatrolling.Atabout20.00hours,P.I.Shri VaghleainformedtheP.S.I.togotoSardarpurtohelpShri Parmarandsohe,alongwithP.S.I.Rathodandotherstaff members went to Sardarpur and reached Sardarpur at about20.30hoursandmetP.S.I.Parmarandhadstarted patrolling. At about 22.00 hours, they were near the primary school and the mob of 1000 persons came from Sundarpursideshoutingslogansandanothermobof500 personscamefromSardarpurvillagesideshoutingslogans andmobilevanwassurroundedbythemob.P.S.I.warned the mob, lathi charge was resorted but the mob was uncontrollable and therefore, teargas was lobbed to disburse the mob but then also, the mob was not under control and therefore, the Police Constable Krishnakant andPopatji,respectivelywastoldbyP.S.I.ShriParmarto fireinairandtherefore,Krishnakanthadfiredfourrounds towards Sundarpur while Popatji had fired two rounds towards Sardarpur meanwhile, P.S.I. Shri Parmar also came and mob disbursed. Thereafter, they went for patrolling.P.S.I.ShriGohelwentbacktoLadol.Theywere
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in patrolling and during patrolling they saw that two to three cabins were in burnt position at the entrance of Shaikh Maholla. Thereafter, they went to Vijapur and at about12.00O'clock,againtheywenttoSardarpurandthey reached Sardarpur at about 1.45 A.M. by removing the obstacles of the roads. They went at the entrance of Sardarpur.Theysawthemob.Seeingthepolice,themob rushed towards the Maholla side. The police went inside theShaikhMahollaandtoldthattheyarethepolice,come outtherefore,twopersonscameoutandtoldthatthereare ladies, children and other persons in the house of Mahemudmiya who are burnt. Therefore, they all went towardsthehouseofMahemudmiyaandopenedthedoor. Meanwhile, Dy.S.P. Jadeja, D.S.P. Gehlot and P.I. Shri Vaghela came towards the house of Mahemudmiya. Approximately, there were 10 injured persons 28 dead bodies, who were taken out from the house of Mahemudmiya and they were shifted to Mahesana Civil Hospital. From the crossexamination of this witness it transpiresthat,therewasnolightinShaikhMahollawhen secondtimehewentintheMaholla.Furtherinbothofhis statements, he has not stated that, mob went towards
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Mahadev side but the version as stated in chief examination that mob of 1000 persons were came from Sundarpur side and mob of 500 persons came from Sardarpur is not challenged in crossexamination. Therefore,thereisnoreasontodisbelievehiswholechief examination. P.W.102 Desai Laljibhai Arjanbhai has deposed thathewasworkingasA.S.I.andhewasinthemobilevan with P.S.I. Shri Rathod alongwith him Ganpatbhai Narsinhbhai, Krishnakant, Popatji, Jivaji and Khodidas Jivanbhaiwerethere.On01.03.2002,hewasin2ndMobile VanandtheywerepatrollinginVijapurandLadolanddead bodies of two Muslims were brought to Vijapur for performingburialrituals.Astherewastenseatmospherein Vijapur, he was in patrolling with P.S.I. Shri Rathod. At about 20.00 hours, P.I. Shri Vaghela asked him to go to Sardarpur to help P.S.I. Parmar therefore, they went to Sardarpur from Vijapur by removing obstacles and they reachedatabout20.30hoursandatSardarpurtheymet P.S.I.ShriParmar.Atabout22.00hours,theywerenear Gram Panchayat. A mob of 1000 persons came from Sundarpur side and mob of 500 persons came from
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Sardarpursideandtheywereshoutingandthepersonsof boththemobilevanweresurroundedbythem.P.S.I.asked the mob to go back but the mob was not under control therefore,lathichargewasresortedeventhenthemobwas uncontrollable and had started pelting stones towards policetherefore,P.S.I.RathodaskedthePoliceConstable Khodidas to lob teargas. He lobbed teargas towards the Sardarpur but the mob was not under control therefore, P.S.I.ShriRathodaskedPoliceConstableKrishnakantand Jivanjitofireintheairandtherefore,Krishnakantfired4 rounds towards Sundarpur and Popatji fired 2 rounds towardsSardarpurandthereafter,themobdisbursedand P.S.I. Gohel also came and the mob was disbursed. Thereafter,theywentforpatrollinginthevillage,therewas peaceinthevillageandhence,theycamebacktoVijapur andthecomplaintwaslodgedabouttheburningofcabins in Sardarpur and they againwentto patrolling. Atabout 00.10hours,P.I.ShriVaghelaaskedP.S.I.Rathodtogoto Sardarpur to help P.S.I. Shri Parmar thereafter, they alongwith other staff members went to Sardarpur by removing obstacles from Ladol. They reached near Sundarpur. When they were coming from Sundarpur to Sardarpur, there were obstacles of Cabins, woods, pipes
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etc.Theyhadremovedthoseobstaclesandtheywentnear theShaikhMaholla.Onseeingpolice,mobrushedtowards Mahollaside.Atthattime,voiceswerecomingfromShaikh Maholla and there were smoke in Shaikh Maholla and therefore,theywentinsidetheShaikhMahollaandasked thepersonstocomeoutastheyarethepolicepersons.Two injured persons came out and told them that there are ladiesandgentsinthehouseofMahemudmiyatherefore, theywenttowardsthehouseofMahemudmiyaandopened the door. About 10 persons were injured and 28 persons haddied.Meanwhile,higherauthoritiescameandrescue operationtookplaceandinjuredwereshiftedtoMahesana Civil Hospital while the dead bodies were brought to MahesanaCivilHospitalforPostMortem. Incrossexaminationithascomeoutthat,therewas noHalogenlight,asclaimedbythewitnessbuttherewas light of flame of burning houses and Jeep and rescue operationwasdoneintheheadlightofthevehicle.
Consideringhisdepositionittranspiresthat,houses wereburntandtherewaslightduetotheflameofburning. There is contradictionin the statementdated 09.03.2002 whilethereisnocontradictioninthestatementtakenby
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S.I.T. on 09.07.2008 therefore, there is no importance of thiscontradictioninrespectofthisfact.
P.W.103 GanpatbhaiNarsinhbhai hasdeposedon oaththaton01.03.2002,therewasBharatBandhandhe was in the mobile van with P.S.I. Shri Rathod alongwith Arjanaji, Police Constable Krishnakant, Driver Punjaji Bharthaji,PoliceConstablePopatjiJivanjiandGasman Khodidas. On 01.03.2002, there was tenseatmosphere at VijapurastwoMuslimshaddiedinLadolanddeadbodies werebroughttoVijapurforperformingtheirburialrituals. Theywereinpatrollingmeanwhile,atabout20.00hours, P.S.I. Shri Vaghela told P.S.I. Shri Parmar to go to Sardarpurtherefore,theywenttoSardarpurandmetP.S.I. Shri Parmar. They reached Sardarpur at about 20.30 by removing the obstacles which were on the way. At about 22.00 hours they were in patrolling near Primary school, Sardarpur.Mobof1000personscamefromSundarpurside and mob of 500 persons came from Sardarpur side and they had caused damages to the cabins near the Bus stand.First,theofficeraskedthemtodisbursebutasthe mob was not under control, P.S.I. Shri Rathod told Khodidastolobteargascell.Eventhenthemobwasnot
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under control and therefore, Police Constables KrishnakantandPopatjiwereorderedtofireintheair.Shri Krishnakantfired4roundsintheairwhilePopatjifired2 rounds in the air. Mob disbursed and thereafter, P.S.I. Gohelcameandafterpatrolling,theycametoVijapurand atVijapur,complaintwaslodged.
Itisadmittedbythiswitnessthat,inhis statement dated16.03.2002onseeingthePolicevehiclenearShaikh Maholla,mobdisbursedinthedark,theyreachedatabout 1.45 A.M. in Shaikh Maholla. At the entrance of Shaikh Maholla,threecabinswereburntandtheyhadworkedin the light of flame of burning houses and in the light of Battery.Therewasnohalogenlight.Sofarascontradiction regarding breaking of door of Mahemudmiya's house is concernedwhetherpersonsweretakenoutafterbreaking thedoorifthereissuchcontradictionitisofnoimportance asdoorwasopened.Thisevidencecannotbediscardedas itismuchsupportedbyotherevidence.
P.W.104 Jadeja Bachubha Vesalji who was the Dy.S.P.hasdeposedthathehadreceivedinformationfrom D.S.P., Mahesana to go to Vijapur Police Station and to
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maintainlawandorderimmediately.HewenttotheVijapur Police Station and managed for law and order and had started patrolling. He received message toreach Visnagar asthesituationatVisnagarwastense.Hemanagedpolice Bandobast at Visnagar. He stayed at Visnagar. On 01.03.2002, during mid night, atabout 2.00 A.M., D.S.P. informed him to reach Sardarpur therefore, he reached SardarpurandreachednearShaikhMaholla.Streetlights were off. P.S.I. Rathod, P.S.I. Parmar, P.I. Vaghela and D.S.P.werepresentandthehousesinShaikhMahollawere burnt.ThecabinsjustattheentranceofShaikhMaholla werealsoburnt.Notonlythatbutthescooterandjeepwere alsoburnt.Theyhaddonerescueoperationinthelightof scooter and jeep. At the last of Shaikh Maholla, there is graveyard.Whentheyreachedtherethepersonwhosejeep wasburntandother23personscametothemandtold them that last house is of Mahemudmiya and there are persons inside the house therefore, P.S.I. Parmar, P.S.I. Rathod and P.I. Vaghela reached towards the house of Mahemudmiyaandtheytook10injuredpersonsoutfrom thehouseofMahemudmiyaandtheywereshiftedtoCivil Hospital,Mahesana.Notonlythatbut28personshavedied inthehouseofMahemudmiyawhoweretakenoutfromthe
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houseofMahemudmiyaandtheirdeadbodiesweretaken to Mahesana Civil Hospital in 407 Matador. Thereafter, MuslimsfromShaikhMahollaandotherMahollaweresent toVijapur,Savala,Bhalak,Iloletc.
Inthecrossexaminationofthiswitnessdefencehas tried to bring on record that, complaint and Panchnama werenotverifybythiswitness.Thiswitnesshasnotvisited the scene of offence and it is submitted on behalf of accused side that, complaint was not verified by this witness because the complaint was created subsequently. Simply because the complaint is not verified by this witness,itcannotbesaidthatcomplaintisconcoctedone. Inacasewhenitisotherwiseprovedthiswitnesshasgiven satisfactory explanation that, complainant and witnesses were taken to Civil Hospital, Mahesana and therefore, he could not verified the complaint. Further, it is also explained by him that, complaint was not verified up to 23.02.2002ashewasbusyininvestigationofothermajor offences. A question was put tohim whether he inquired abouttheincidentwiththepersonwhoseJeepwasburnt andthetwopersonswhocamefromtheShaikhMahollaon reachingthePolice. Itisansweredbythiswitnessthat,he
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had inquired about the incident with the person whose Jeep was burnt and two persons who came out soon as Police reached in Shaikh Maholla but they have not narratedanyfactabouttheincidentbeforehim.Sofaras contradictionswithregardtostatementsdated09.07.2008 beforeS.I.T.isconcerned,itisdeniedbythiswitnessthat, hehasnotstatedbeforetheS.I.T.that,whentheyreached inShaikhMahollathepersonbywhomtheJeepwasowned andothertwotothreepersonscametohimandtoldhim that, in the House of Mahemudmiya there were persons, screaming for help. No question is asked about this contradiction to Investigating Officer Shri G.V.Barot, therefore, the fact cannot be discarded that, the person whoseJeepwasburntandtheothertwopersonscameto himandtoldaboutMahemudmiya'sHouseandthepersons insidetheHouse,screamingforthehelp.Simplythenames ofpersonswhoweretakenoffalivefromthehouse,nolist ofthosepersonswereprepareditcannotbeinferredthat thisisafalsefact.Insuchagraveandtenseatmosphereno onewillsittopreparealistinsteadofrushingforrescueto thevictims.Therefore,thisdefenceisnottenable.Further, itisadmittedbythiswitnessthat,allthevehicleswereout ofShaikhMahollaasitwasnotpossibletogoinsidewith
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thevehiclebecausethePassageissonarrow.Nodoubtitis anadmissionbutitisestablishedbytheprosecutionfrom the Panchnama as well as other evidence that, Jeep of BachumiyaImammiyawaslyingjustinfrontofhishouse.
Consideringhisdepositionittranspiresthat,theyhad triedtosavelifeofpersons,whoweretakenoutfromthe houseofMahemudmiyaandhehasnoreasontotellthelie. TheyhadmadeattemptstoshiftthemtotheCivilHospital Mahesana as early as possible. He has supervised the whole investigation. P.I. Shri Vaghela has recorded the statements which were verified by this witness. After recording the complaint, statements of witnesses were recordedbyP.I.ShriVaghelaandonverynextday,those statementswereverified,therefore,hisactionisprompt.He hasalsoverifiedthestatementdated06.03.2002.Thelaw andorderpositionwasworseinGujaratatthattime.This factisalsotobeconsideredandkeptinmind.ShriJadeja was very much present at the place of incident and was supervising and as per instruction statements of 11 personswererecorded.
P.W.105 Gehlot Anupamsinh Shreejaysinh, who
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wasD.S.P.,Mahesanaatthetimeofincidenthasdeposed that there was Bharat Bandh on 01.03.2002 and he had arranged police Bandobast. During the night, he received information that in Sardarpur village mob had gathered and there is possibility of attack upon the Muslims therefore,heinstructedVijapurP.I.tosendpoliceofficersto Sardarpurandhadalsoinstructedtofireifnecessary.Two P.S.Is.weresenttoSardarpur.TheywenttoSardarpurby removing obstacles from Ladol road. D.S.P. himself also went to Sardarpur and ordered other officers to reach Sardarpur, near Ladol. He saw the trees were burnt, drainagepipeswerelyingontheroad,Tractortrolleywas lyingontheroadandbyremovingthoseobstructions,they reachedSardarpur.NearPathanvas,hestoppedandasked about the incident. One person came and told him to go towards Shaikh Maholla therefore, he rushed towards Shaikh Maholla. There was darkness and in two police vehicle, P.S.I. Shri Parmar and Rathod were coming and they were searching the victims and at the entrance of Shaikh Maholla with the help of light of vehicles and batteries,theywentinsidetheShaikhMaholla.About20 houseswereburntandrescueoperationwasinprogress.In oneroom,therewereladies,gentsandchildren.Thatroom
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wasalsoburnt.Injuredpersonsweretakenfromhouseand deadbodiesweretakenfromthathouse.Thedeadbodies aswellastheinjuredpersonswereshiftedto Mahesana Hospital.Thereafter,Muslimsfromthevillagewereshifted tootherplacelikeSavala,Iloletc.Further,hehasdeposed thatwhenhe reached Sardarpur,it was about 2.25A.M. andhestayedthereupto5.00A.M.
Inhiscrossexaminationdefencehastriedtobringon recordthat,itisnotpossibletoseefromPathanvaswhatis happening in Shaikh Maholla. This witness has admitted that, a person cannot see from Pathanvas to Shaikh Maholla. During the Inspection visit by the Court it was observedthat,itisnotpossibletoseefromPathanvasto Shaikh Maholla but a person can see by standing in Pathanvas what is happening at the entrance of Shaikh Maholla.SupposethereisburningflameinShaikhMaholla that also can be seen from Pathanvas. Further, in his crossexamination it has come out when he entered in ShaikhMahollahesawhouseswereburnt,Jeepandtwo Wheelerswereburnt.Furthertwoburntpersonscameto himfromotherhousesofShaikhMaholla,whotoldhimto gotoMahemudmiya'shousewherethemajorincidenttook
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place. There was total darkness, in the light of vehicle rescueoperationwasdone,10personsweresavedwhile28 deadbodiesweretakenfromthehouseofMahemudmiya. About40personswerebroughtfromotherhouses.
Considering his deposition it transpires that, he receivedmessagefromSavalavillagethatPatelsfromKansa VillagehadpurchasedbulkofPetrolfromthePetrolPump and they will burn Savala during night. Therefore, he immediatelywenttoSavala,fromUnjhaviaVisnagarand had alerted the Police Officers accordingly. Thereafter, he cametoknowaboutthemobgatheredinSardarpurVillage andtherewasfearofuntowardincidentandthereforehe hadinstructedtheconcernedPoliceOfficeraccordingly.His thisdepositionsupportsthesayofthewitnessthatpetrol and kerosene were brought in Sardarpur village. Further fromthedepositionofthiswitness,itrevealsthatposition ofSardarpurwastenseandtherefore,hewenttoSardarpur where he had taken care that there should not be any untowardincidenthappened.Hisdepositionalsosupports thesayofMunsufkhanthatMunsufkhanhadtoldthemto go to Shaikh Maholla and this witness stopped at the entranceofShaikhMaholla.
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P.W.110VaghelaKakusinhRanjitsinh whoisthe firstInvestigatingOfficerofthiscasehasdeposedonoath that at the time of incident, he was P.I., Vijapur. Due to Godhra riots, so as to avoid untoward incident, police patrolling as well as police Bandobast were arranged on 27.02.2002, 28.02.2002 and 01.03.2002. On 01.03.2002, therewasBharatBandh.Atabout17.00hours,hereceived message about the mob towards Sardarpur and that atmosphere in Sardarpur was tense. He asked P.S.I. Parmar to take him to Sardarpur alongwith his staff members in mobile van. He was in Bandobast in Vijapur town.Atabout18.30hours,mobofHinduhadburntone Muslim husband and wife and their burial rituals were performed in Vijapur town and the Muslims of neighbouring village came to Vijapur. Atmosphere was tense. At about 8.00 P.M., P.S.I. Parmar had asked for additional police therefore, P.S.I. Parmar alongwith his staffmembersandhismobilevan,weresenttoSardarpur. Thereafter,P.S.I.GohelwasalsosenttoSardarpur.Asthe VijapurtownwastenseandtherewaspeaceinSardarpur, hecalledalltheP.S.Is.toVijapurandtoldthemthatthe mobhasgatheredandareburningthecabinsandshops
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andtherefore,theylathichargedandlobbedteargascells butthemobdidnotdisbursetherefore,sixroundfirewas resortedbythemandthentherewaspeace.Therefore,they camebacktoVijapur.TheywereinpoliceBandobastand P.S.I. Rathod was instructed to lodge the complaint in respectoffiringdonebytheminSardarpur.On02.03.2002 atabout2.30A.M.,hereceivedmessagebyD.S.P.Gehlotto come to Sardarpur, immediately meanwhile, fire fighters came from Mahesana to Sardarpur. Dy.S.P. Jadeja and D.S.P. Gehlot also came there and they went to Shaikh Maholla.AttheentranceofShaikhMaholla,theysawthe burnt cabins. In Shaikh Maholla, there was one pakka house and there were persons in that house who were burnt. There were some injured persons in the neighbouringhouseswhowerealsoburntandthosewho were alive and injured, were sent to Mahesana Civil Hospitalfortreatment.P.S.I.Rathodapproximatelytook25 persons to Mahesana Civil Hospital and thereafter, dead bodies lying in the room were taken in 407 Matador to Mahesana Civil Hospital and rest of the Muslims from Sardarpur were shifted to Savala, Bhalak, Vijapur etc. Thereafter,complaintwaslodgedbythecomplainantbefore himintheCivilHospitalwhichwasrecordedasperthesay
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ofthecomplainantandthesaidcomplaintwasregistered with Vijapur Police Station and he has recorded the statementsofsomeofthewitnessesondifferentdates. Whenweevaluatetheevidenceofthiswitness,hehas deposedthat,atmosphereinSardarpurvillagewastensed. He had sent P.S.I. Parmar at Sardarpur. At about8.00 P.M.P.S.I.Parmarhadaskedforfurtherpoliceforce.and P.S.I. Rathod and Gohel were also sent to Sardarpur. Thereafter, there was peace in Sardarpur. All the P.S.Is. were called at Vijapur as there was tense atmosphere in VijapurastwopersonswereburntaliveinLadol.P.S.I.from Sardarpur had told him that as mob gathered, they had burnt the shops and cabins therefore, they were lathi chargedandtodisbursethemob,teargascellwerelobbed. Eventhen,themobwasnotundercontrol,thensixrounds werefiredandnowthereispeaceinthevillage.Therefore, P.S.I. was instructed to file complaint on behalf of the Government. This fact supports the say of P.S.I. Parmar thathewassenttoSardarpurat5.00P.M.aswellaswhole incident subsequently narrated by P.S.I. Parmar and Rathodandotherpoliceofficers.Further,offenceregistered vide I.CR.No.45/2002 which is produced vide Exh.690 supportsthesayofthiswitness.
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P.W.112 Barot Gautamkumar Vishnubhai has deposedthatinhisinvestigation,ithascomeoutthaton 01.03.2002 at about 10.30 P.M., police had fired towards the mob which came from Sundarpur village side to Sardarpur. 46. SofarasF.I.R.givenbythecomplainantinrespectofI.CR. No.46/2002 is concerned it is regularly exhibited and in Para 21 discussed in detail and the contents of this complaintisrequiredtobeconsideredforcorroborationof the deposition of witnesses and complainant. When we peruse the contents of this F.I.R. it is mentioned in the complaintthat,on01.03.2002therewasBharatBandhdue to Godhara Rail Carnage incident. At about 11.30 in the night there were in their Village, Patels from their village haveburntthecabinsandtheyhavealsopeltedstonesand themobofabout1000persons,havingweaponslikesticks, stones,Dhariyaetc.andtheywereshoutingslogansasthe Policecamemobwasdisbursed,policehadresortedfiring to disburse the mob, soon as Police went back, mob of Patels again gathered and had burnt the houses of complainantandotherpersons.Personsfromthemobwere having Petrol, Kerosene and Stones with them.
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Complainantaswellaswitnesseshadalsopeltedstonesto themselvesandastherewasbigmobandwitnesseswere surrounded by the mob due tofear the complainant and otherwitnessescouldnotprotestthemob.Hehadseenand identified the persons in the mob. In the incident, complainant had received injury due to pelting of stones and the family members of the complainant went to the house of Mahemudmiya being Pakka house and complainantwasinhisHouseandtheaccusedaswellas otherpersonsfromthemobcauseddamagestothehouses of complainant and witnesses and thereafter they went back and when the complainant went towards Mahemudmiya's house and saw that the house of Mahemudmiya was burnt in which Rafikmiya Manumiya and Firoz Maqbulmiya were alive while his wife Ruksana aliasJayada,DaughterParvinandRaziyawerefounddead. Asiyanabanu Aashikhusen was alive, she was taken out from the room, Sharayabanu, D/o.Abbasmiya Kesarmiya, YunushusenSherumiyaRasulmiya,AarifhusenManubhai Shaikh, Sultanbhai Mahemudmiya Husenmiya Shaikh, Javedmiya Mustufamiya Rasulmiya, Rasidabanu, W/o. Jamalbhai Dosubhai, Idrishbhai Akbarbhai Shaikh, Mahemudabibi, W/o. Sherumiya Rasulmiya, Vahidabanu,
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W/o. Nazirmiya Akbarmiya, Barubibi, W/o.Babumiya Motamiya, Mumtazbanu, W/o.Maqbulhusen Kesarmiya, Faridabanu,D/o.MahemudbhaiHusenmiya,Mumtazbanu, D/o. Sherumiya Rasulmiya, Shamimbanu,
W/o.Mustufamiya Rasulmiya, Sakkarbanu W/o. Mahemudmiya Husenmiya Shaikh, Husenabibi, W/o. Hizbulmiya Husenmiya Shaikh, Abbasmiya Kesarmiya Shaikh, Bismillabanu Bhikhumiya Kalumiya,
Ruksanabanu Abbasmiya Kesarmiya, Johrabanu Manubhai Husenbhai, Rifakathusen Hizbulmiya Husenmiya,IrfanhusenMahemudmiyaShaikh,Bachumiya NathumiyaShaikh,SherumiyaRasulmiyaShaikhweredied and they were burnt while in the incident Iqbalmiya Rasulmiya, Hizbulmiya Husenmiya, Mustufamiya Rasulmiya, Nazirmiya Akbarmiya, Gulamali Akbarmiya, FaridabibiAasiqmiya,BasirabibiBachumiyaandRuksana, D/o.Ibrahimmiya Rasulmiya, Aminabibi Acchumiya, BhikhumiyaKalumiyaabout15to17personswereinjured whileYasinabanuhaddiedonthewaytoHospital.Asthe police came at late night and the dead bodies as well as injured are brought in the Government Hospital, this incidentoccurredduetoGodhraTrainincident.
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Asdiscussedearlierthiscomplaintwasgivenatabout 09.30 hours while the incident occurred early in the morning and the injured were shifted to Civil Hospital, Mahesana.ThiscomplaintwasrecordedinCivilHospital, Mahesana.Thustherewasnotimeforconcoction,whatever timehasbeentakeninrecordingthecomplaintthattime was spent by the Police witnesses in saving the lives of victimsorinshiftingtheinjuredaswellasdeadbodiesto theCivilHospital,Mahesana. Thus,thedelaywhichhas been caused is satisfactorily explained by the Police witnesses as well as by the Complainant and in that circumstance when we consider the contents of this complaint,ifsupposetheprosecutioncasethatabout28 personsweredeadand24personswereinjuredandnames ofinjuredpersonsandnamesofdeadpersons,whichare mentioned in the complaint, corroborates the version of otherwitnessesastherewasmistakeinthenameofwifeof thecomplainant.InfactRuksanaisthedaughterofthe Complainantandinthecomplainthernameismentioned as wife of the complainant and that mistake is subsequently rectified. In medical documentary evidence also that mistake is subsequently rectified, which is well supportedbytheMedicalOfficer.Thus,thiscomplaintfully
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corroborates the prosecution case about the incident occurred at about 11.30 hours on 01.03.2002 in Shaikh Maholla, specially in Mahemudmiya's House. And this Complaint is first in time and there is no reason to disbelievethesecontentsofthecomplaint. 47. SofarashistorygivenbeforeMedicalOfficerisconcernedit is a corroborative piece of evidence and required to be considered in the light of other evidence on record. It is argued by Shri Shah that referring the history that the medicalhistorygivenbytheinjuredpersonshimselfinthe medicalcertificate,supportsthefactthattheinjurieswere caused during the incident while the learned advocate appearingonbehalfoftheaccusedhasarguedthatinfact thereare24injuredpersonsinnumberandaspercharge thereare20injured.Outofthe24injured,2injureddied subsequently, namely Rafik Manubhai Shaikh and Firoz Maqbulhusen.InjurycertificatesareproducedvideExh.159 andExh.165while22InjuryCertificatesareproduced.Out ofthe22injured, 14witnessesareexamined,17injured received stone injuries during the riots, one injured received injury by electric shock, one injured received injuriesbystone,lathiandburnswhile3personsreceived
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burns during riots. Injured witnesses have given specific historyinconnectionwith2persons.Theinjurycertificates of24injuredcontainsthehistoryofburninginroomand how they have received the injuries. Herein the present case, majority of the witnesses have given history by themselves or in some cases, history is given by their relatives.Thehistory,whichisgivenbyrelatives,requires explanation. Unless those relatives are examined, that historyisinadmissibleinevidencewhilethehistorygiven bythepatientisadmissible.Referringtothehistorygiven by the complainant, it is argued by Shri Dhruv that the historymentionedinthecertificateisnotnarratedinthe complaint.Intheevidence,itismentionedthathewasnot inthehouse.Asperhisaffidavit,hewasintheroom.As per his deposition, he was not in room. Both are contradictorywhilehistoryspeaksthattheywerelockedin the room and burnt by pouring of petrol or kerosene. Therefore,itisthesayofShriDhruvoritisthetruefact that the history given by the complainant is not reliable. Further,asperthemedicalcertificates,someoftheinjured foundwithabrasionandfracture.Theywereintheroom andhowtheyhavereceivedsuchabrasionandfractureis notexplained.Itisnotthecaseoftheprosecutionthatthey
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werebeatenbystick, stone etc.and thereafter,theywere lockedinroomandthereafter,theywereburnt.Asperthe prosecutioncase,theywereintheroom.Therefore,itisthe sayofShriDhruvthatitisrequiredtobeexplainedbythe prosecution. In the absence of any explanation, no presumptioncanbedrawnaboutthefracture,abrasionetc. Different stories are given by different witnesses, which suggeststhatcertainimportantthingsarenotstatedbythe witnessestherefore,presumptioninfavouroftheaccusedis required to be drawn. Referring to the clothes of the injured,itisarguedbyShriDhruvthatinwhichclothes stoneswerepeltedisnotexplainedandasperthesayof witnesses, there were pelting of stones and they have receivedinjurybystonesduringriots.Simplybecausethey areinjuredtherefore,theyaretheeyewitnesses,itcannot bepresumed.Theincidenthadstartedat9.00P.M.They might have received injury in other place. Further, it is arguedbyhimthataspertheevidenceofDoctor,injuryis possiblebystone,hardandbluntsubstancealso.Thereare 4 certificates which are produced vide Exh.163, 175, 177 and187.Theyspeakaboutnoexternalinjury.4Certificates Exh.167, 172, 174, 185 speak about the abrasion and 2 certificatesExh.183andExh.191speakaboutcontusion.5
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Certificates Exh.169,182,193,195and219speakabout CLW.InExh.161,twofracturesareshown,injurybystone is shown. There is no bleeding injury. 3 Certificates produced vide Exh.170, 189 and 195 show burn injuries. Thus,thereareinjuryinadditiontoCLW.Someofthese witnesses are examined. Some of the witnesses are not examined.Thoughinjurycertificatesareonrecord.Noneof the injured witnesses who are examined says that they werebeaten.Ononeset,asperthesayofDoctor,injuryis possible by hard and blunt substance by stone. On the other side, none of the witnesses have explained about theseinjuries.Sofartheburnsinjuriesareconcerned,in Exh.195 shows CLW, history is given stone, lathi, burns during riots. Witness was inside the room of Mahemudmiya'shouse.Theremaybespecificevidencethat theinjuryispossiblebyhardandbluntsubstanceorby pelting of stones. In absence of such evidence, that possibility cannot be ruled out. Therefore, there is possibility that when mob came, the injured witnesses mighthavetriedtosavethemselvesandforthattheymight have rushed from hither to thither and they might have received injuries in above circumstances. There is no corroborationoftheinjurybystone.Asperthecaseofthe
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prosecution, 33 persons were inside the house of Mahemudmiya, 7 persons came alive from the house of Mahemudmiya and those 7 persons are examined as P.W.56 Shaikh Ayubmiya Rasulmiya, P.W.73 Shaikh Faridabibi Aashikhusen, P.W.75 Shaikh Firozabanu Bachumiya,P.W.78ShaikhBasirabibiBachumiya,P.W.79 Shaikh Samimbanu Mahemudmiya, P.W.80 Shaikh Ruksanabanu Ibrahimmiya and P.W.81 Shaikh DilavarkhanAbbasmiya.Asperthesayofthecomplainant, only3personscameoutalivefromMahemudmiya'shouse and those 3 persons had died subsequently. Out of 7 witnessesonly3injurycertificatesareproduced.Thereis noinjurycertificateforother4witnesses.Thus,itcanbe presumedthattherewasnoinjurytothe4witnessesi.e. P.W.56 Shaikh Ayubmiya Rasulmiya, P.W.75 Shaikh Firozabanu Bachumiya, P.W.76 Shaikh Hamidabibi Akbarmiya and P.W.89 Makwana Ambalal Karshanbhai. P.W.73 Shaikh Faridabibi Aashikhusen and P.W.78 ShaikhBasirabibiBachumiyawerehavingnoburninjuries respectively.Therewereexclusiveburnsanddeceaseddied due to burns and suffocation and there was inhale hot smoke. This fact is supported by the F.S.L. and panch witnesses etc. Whether in such circumstances, can it be
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possiblethatoutof7personsonly3wereinjuredandthere werenoinjuryto4persons.Further,theroom,asperthe Panchnamaandotherevidence,wasblackenedandthere was smoke burns. In that circumstance, whether it is possiblethatthewitnesseswouldnothavesustainedinjury or there is no effect to their clothes ? In such circumstances, every one who were inside the house, are boundtoeffectbyburns.Fromtherecord,itappearsthat thepersonscamefromdifferenthouses.Theinjuredwho wascompelledtotakeacidwhetherthatinjuredwasinside the house is not explained. While there is no injury certificate in respect of P.W.56 Shaikh Ayubmiya Rasulmiya,P.W.75ShaikhFirozabanuBachumiya,P.W.79 ShaikhSamimbanuMahemudmiya andP.W.81Shaikh Dilavarkhan Abbasmiya while P.W.73 Shaikh Faridabibi Aashikhusen, P.W.78 Shaikh Basirabibi Bachumiya and P.W.80ShaikhRuksanabanuIbrahimmiyawereinjured. Injury Certificates are produced to that effect. P.W.80 Shaikh Ruksanabanu Ibrahimmiya gives history of lathi, stoneburns.P.W.78ShaikhBasirabibiBachumiyagives historyofburninjury.Photographs,videography,mapand Panchnamashowsthepositionofroom. AsperDr.Sonis deposition,therewere4personswhosufferedsuffocation
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andcarbonparticleswerethereintrachea.Whatwasthe positionoftheirclothes.Therewasnoeffecttotheirclothes whichsuggestthattheywerenoinsidetheroomtherefore, itisthesayofShriDhruvthatitisdoubtfulwhetherthese four persons were inside the room or not ? Further, 3 persons who were inside the room whether they have receivedburninjuries?Therewereseveralhousesseton firebythemobandlookingtodepositionofpanchwitness P.W.38 Shaikh Inayat Husen Bachumiya, Panchnama Exh.424, map, videography and photographs, all these thingssuggest thatmanyhousesweresetonfire.Asper the say of Investigating Officer they saved many injured witnessesfromdifferenthouses.AspersayofShriGehlot, 40personsweresaved.ReferringtothedepositionofP.W.76 ShaikhHamidabibiAkbarmiya,itisarguedbyShriDhruv that there was injury by pelting of stones but no burn injuries. As per the say of Investigating Officer Shri Vaghela, P.W.76 Shaikh Hamidabibi Akbarmiya was in Nazirmiyas house and houses were burnt therefore, the saidwitnessrushedandshesustainedinjuries.Fromthe evidence,itcomesoutthatNazirmiya'shousewasburnt.In complaint,only27persons areshownasdeceased.Their houses were also burnt. In those houses, also, persons
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wereburnt.Simplybecausewitnessessustainedinjuriesby stone,itcannotbepresumedthathesawtheincident.In above circumstances, the presence of witness inside the house is doubtful. Prosecution is suppressing something andthattheprosecutionhasnotcomewithcleanhands. Complainantwashavingfractureandnotbleedinginjury. Complainants version is contradicting with the medical evidence. Referring to the deposition of P.W.62 Shaikh RafikmiyaMahmadhusen,itisarguedbyShriDhruvthat contradiction is proved by the deposition of Investigating Officer Shri K.R.Vaghela. Referring to the deposition of P.W.84KureshiImtiyazaliHusenmiya,itisarguedbyShri Dhruv that, he is a witness from Sundarpur, he speaks somethingelsethathesaw2to3personswerethrownin burningcabinsandhesawtheincidentatadistanceof150 Ft. He further states that he saw the mob beating with weapons. There is no complaint about suffocation. Referring to the Inquest Panchnama and PostMortem of Bachumiya Nathumiya, it is argued by him that fracture injurywhichisshown,isnotpossiblebystone.Itisnotthe caseoftheprosecutionthataccusedenteredinthehouse of Mahemudmiya and they have beaten the witnesses. Further,fromwherethebloodfromdifferentbodiescame,it
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isalsonotexplained.InsomeofthePostMortemReports, injuriesbyburnsareshownwhichsuggestthatincidentas narrated by the witnesses has not happened. There is possibility that injured and deceased might have been beaten outside or inside the room and thereafter, thrown insidetheroomandburntbutwitnessesarenotsayingso. Asperthecaseofprosecution,7witnesseswereinsidethe roomnoneofthemaresayingthatwhatwerethepersons doing who were inside the room. Injury of Bachumiya corroborates with the Inquest Report but no opinion is givenbythedoctorthattheinjurysustainedispossibleby flame. So far as fracture in Sherumiyas PostMortem is concerned,nothingismentionedbythedoctor.Thus,there injuries on different body, there were blood stains, suffocation and presence of carbon particles and all the chambers were full of blood. There were 1st, 2nd and 3rd degree burns, in that circumstances, persons cannot surviveiftheywereinsidetheroom.Allthesefactssuggest thatincidenthasnothappenedinthewayandmanneras witnesseshavedeposed.Prosecutionisrequiredtoexplain theinjuriessustainedtothewitnesses.Thereissilenceon the part of the injured persons in this regard. For this purpose,ShriDhruvhasreliedupon 1988CriminalLaw
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Journal page 1812 SMT.LICHHAMADEVI v. STATE OF RAJASTHAN, in which it has been observed that, statement of disinterested person Medical Officer that, deceased told him that her motherinlaw has burnt her acceptedthoughhehasnotrecordedthesameinMedical register. In the cited ruling the doctor was Government Doctor, on duty in the Hospital, who has treated the deceased, nothing had been elicited from his cross examinationthat,hewasinterestedinorinimicaldisposed towardstheaccused.Further,hehasreliedupon1996(1) G.L.R.PAGE292STATEOFGUJARATv.BHIKHAGOVA HARIJAN, in which it has been observed that, Medical officerwhilerecordinghistoryoftheinjurynotmentioning name of assailant under the pretext that such was the practice.Practicewasdeprecatedwithobservationsthat,it is the duty of the Medical Officer to take down whatever voluntarilyfallsfromthelipsofthevictim.Itwouldalsobe thedutyoftheMedicalOfficertoinquireandfindoutfrom theinjuredthenameofassailant,ifpossible.Itisindeed the first and foremost duty of such doctor to take down whatevervoluntarilyfallsdownfromthelipsoftheinjured formingitpartofcasepapersandifinjuredpersondoes notvolunteerofhis/herownnamingtheassailantthenin
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that case, itis equallythe further duty of theconcerned doctortoinquireandfindoutfromhimastowhowasthe assailant because at that stage what ought we not know thatbutforthelaststatementofinjuredrecordedbydoctor he may ultimately come to the injury there would be nothing no other piece of evidence to tress and connect with the accused with the crime under such demanding andnottobetakenchancewiththecircumstancesifthe doctorattendingtheinjuredremains justwoodenpassive placid unconcerned, mechanical he would be simply inadvertentlyplayinginthehandshelpingtheaccusedto gounpunished.Nodoubtitisfirstandforemostdutyofthe medical officertotreattheinjuredpersonandthatheis certainly notpolice officer torecord the complaintbutat the same time in all medico legal case medical officer attendinguponthetreatinginjuredwhenhasopportunities toknowthematerialfactsmoreparticularlythenamesof assailants he would not be justified in not recording the sameonthegroundthathewasthefirstandlastjobwas onlytogivemedicaltreatmentonlytotheinjuredandthat hehadnoconcernorbusinesswhatsoevertodoanything furtherbyrecordingthenamesofassailants.Inthecited rulings it is also observed that, the medical papers
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indicatingthathistoryoftheincidentwasgivenbyfatherof thedeceasedcreatingdoubtwhetherinjuredwasinfitstate of mind when the complaint was given. In that circumstancesitwasstatedbythefatherofthedeceased had stated that, doctor was present when the complaint wasgiven.Underabovecircumstancesitwashelddoubtful. Keeping in mind the ratio laid down in the cited rulings, when we consider the present case the history givenbeforethedoctorinthepresentcaseisconcerned,it transpires that there are 24 injury certificates containing historyofburninginroom.Itisnotspecificallymentioned howtheyreceivedinjuriesintheroom.Itisalsotruethat insomeofthecaseshistoryisgivenbythepatienthimself andinsomeofthecases,historyisgivenbytherelativesof theinjured.Inthatcircumstances,namesofrelativesare notmentionedinthehistoryandthatrelativesarealsonot examined by the prosecution. Unless and until that relativesisexaminedthehistorygivenbytherelativesare inadmissible in evidence. But the history given by the patient himself is admissible in evidence. Therefore, the argumentsadvancedbythelearnedadvocateShriDhruvin this regard are acceptable in the eye of law. So far as history givenbythecomplainantisconcerned,whenwe
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perusethecertificateofcomplainant,whichisproducedon record vide Exh.161, in the certificate history of pelting stonesandburningbypouringpetrolandkeroseneinthe roomon02.03.2002atbetween00.30to2.30A.M.patient wasconsciousismentioned.Whetherthishistoryisgiven by the complainant, this certificate is silent about it. However,theargumentsadvancedbythelearnedadvocate ShriDhruvthat,thisfactisnotnarratedinthecomplaint andinevidencehewasnotinthehouseofMahemudmiya while as per his affidavit he was in the room and thus contradictory statements are there in this regard and history given by the complainant is not reliable is concerned, this point will be decided at the time of discussing and appreciating the evidence of the complainant. So far as injuries of abrasion and fractures sustainedbysomeofthewitnessesisconcerned,itistrue that those injuries are not explained by the witnesses in theirdepositionsbutthoseinjuriesarenotsuchtodiscard theburnsinjuries.Ifthoseinjuriesarenotexplainedbythe witnesses,thatwillnoteffecttheburnsinjuries,whichare sustainedbytheinjuredintheroomandthosecannotbe discardedonthegroundofnonexplanationofinjuriesof abrasionandfractureandthatistruethatmorethan55
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persons were in the room, there were suffocation in the room due to burns, they might have sustained abrasion and fracture injuries either in the room or before going insidetheroom,asthereisclearcutevidencethatbefore the witnesses went inside the house of Mahemudmiya, incident of pelting stones took place and witnesses were injured in pelting stones. In that circumstances if in the historybeforethedoctor,itismentionedthat,injurieswere sustainedinpeltingstonesthatcorroboratestheversionof the witnesses as well as that supports the injuries of abrasion and fractures by hard and blunt substance. Therefore, non explanation of those injuries would not amountfailureoftheevidenceofprosecutioninrespectof burnsinjuriesandhistorymentionedcannotbediscarded onthatcount.Therefore,ifintheabovecircumstancesif thehistoryisgivenbythepatientthatisadmissibleand reliableone.
48.
Thus from above evidence prosecution has established beyond reasonable doubt that, the alleged incident occurredon01.03.2002during09.30P.M.to02.30A.M.in ShaikhMahollaofSardarpurvillage,inwhich33persons died and 24 persons were injured and houses in Shaikh
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Mahollaweresetonfireandthreecabinsattheentranceof ShaikhMahollawereburntandthemainincidentoccurred inMahemudmiya'shouseandthattherewereabout55to 60 persons inside the Mahemudmiya's house and by pouringpetrolandkeroseneandotherinflammableitems, house of Mahemudmiya was burnt by the mob and the resultis33personsdiedandotherswereinjured.Someof thedeceaseddiedduetosuffocationandcarbonparticles in trachea and one victim has sustained injuries due to electrocution. It is also proved by the prosecution that, damagetothegraveyardwasalsocausedbythemoband oneJeepbearingRegistrationNo.GJ17A8775,whichwas standing near the house of Bachumiya Imammiya was burnt by the mob and one Scooter bearing Registration No.GAF4710 which was lying in front of the house of ShaikhBabubhaiMahmadbhaiwereburnt.Itisalsoproved bytheprosecutionthat,allthevictimswereshiftedtoCivil Hospital, Mahesana, where PostMortems of 32 persons wereperformedeitherinCivilHospitalMahesanaorinCivil Hospital, Ahmedabad. The prosecution also proves injury Certificates of 24 persons. It is also proved by the prosecutionthat, therewas sufficientlightat thetime of occurrence.Itisalsoprovedbytheprosecutionthat,firing
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was resorted by the Police to disburse the mob at about 09.30P.M.whenfirstmobcame.Itisalsoprovedbythe prosecutionthat,mobhascamefromtwosides,onefrom SundarpursideandanotherfromSardarpurside.Itisalso establishedbytheprosecutionthat,meetingforpeacewas organized at the residence of Munsufkhan Yasinkhan Pathan.Itisalsoprovedbytheprosecutionthat,atabout 02.30A.M.D.S.P.ShriGehlot,Dy.S.P.ShriJadeja,P.I.Shri K.R.Vaghela, P.S.I. Shri Rathod, Parmar and Gohel and otherpoliceofficialsreachedattheplaceofoccurrenceand rescue operation took place at about 2.30 A.M. and subsequently,thevictimswereshiftedtovillageSavalaand otherplacesaspertheirdesire.Buttheprosecutioncould not prove the meeting organized by Patel Naranbhai Lallubhai, M.L.A., Unjha at Mahadev Temple of Village Sardarpurand Hareshbhaismeetingabouthalogenlight, aboutdirectillegalwire,aboutdistributionofkeroseneand alsoaboutBasirabibiwastoldintheshopabouttheeating ofBhajia(ediblefood)whenshetookgramfloorandabout thekeyofthewaterworkswastakenbeforetheincident.
So far as contention regarding consistent improvements in the evidence of witnesses who had
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supported the prosecution case is concerned, all these witnesses have been extensively crossexamined and all possiblelatitudewasgiventothelearnedadvocatesinthe matterofcrossexaminationandnoattemptwasmadeto curtail the length of the same at any time. Further the whole argument of impossibility to see the mob is unrealisticseeingorobservingamobisnotthesamething asobservingasinglestationaryobject.Inthepresentcase mobisstatedtobeconsistingof1000to1500personsitis truetothatcorrectnessofthefigurecanbedoubtedbut there can be no dispute that a large number of persons werethereinthemob.Theareaandthespaceoccupiedby suchabigmobwouldbeconsiderableanditwouldbefutile to say that mob could be seen from any particular point onlyorthatitcouldbeseenfromanotherparticularpoint. Thepositionofapersoninthemobcanbeataveryfar place from that another in same mob as the mob was movingtowardsMahemudmiya'shousetheevidenceshows the presence of atthe time and place of occurrence. The eyewitnesses also present in the Shaikh Maholla. Under thesecircumstancethereisnothingtoindicatethatclaim ofhavingseensomeoftheaccused amongstthemobof rioters as deposed by the eyewitnesses in their evidence
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relatetoanyparticularpointoftime.Theevidenceofeye witnesscannotbeconstruedsoastomeanthatwhatso everwere seenbythem as persons in themob of rioters were so observed only when they were inside the Mahemudmiya's house or some other house in Shaikh Mahollatheydidnotseeanyone.Thus,theconclusionis thereforeirresistiblethatthereisnothingintheevidence whichwouldindicatethatitwasnotpossiblefortheeye witnessestohaveseenoridentifiedanypersonsinthemob of rioters. Evidence indicates that there was every possibilities of the eyewitnesses or being able to see the mobatleastsomepersonsinthemobduringtheperiodfor whichthemobwasthere.
49.
Now, whether the present accused or any of them is involved in the incident is required to be appreciated for this purpose. When we peruse the evidence of P.W.110 VaghelaKakusinhRanjitsinh,itisdeposedbyhimthat,on 08.03.2002 at about 11.15 to 1.15 one Dhariya was producedbyRameshbhaiKantibhaiinpresenceofPanchas andoneIronpipewasproducedbyDashrathbhaiAmbalal, oneswordbyBaldevbhaiRanchhodbhai,onethickironrod wasproducedbyRajendrabhaiKarshanbhai,oneironpipe
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by Madhabhai Vitthalbhai, which was recovered and Panchnama was prepared in the presence of P.W.29 Naranbhai Manilal Patel and P.W.30 Babubhai MathurbhaiPatelandthesaidPanchnamaisproducedvide Exh.822.InthisregardNaranbhaiManilalPatelPanchis examined at Exh.376 while BabubhaiMathurbhai Patel PanchisalsoexaminedatExh.387,whoarenotsupporting thisPanchnama.Theyhadbeendeclaredhostilebutthey haveadmittedtheirsignaturesinthePanchnamaandthey havealsoadmittedtheirsignaturesintheslips,pastedon the Muddamal Articles. Those slips are produced vide Exh.377,378,379,380,381,382,383,384,385and386. When we go through the Panchnama produced vide Exh.822,itsupportsthesayofInvestigatingOfficerandit is signed by both the Panchas as well as by the Investigating Officer, it was prepared on 08.03.2002 at about11.15to13.15.SlipsofMuddamalArticles,whichare signed by both the panchas also supports the say of Investigating Officer about the recovery of Muddamal Articles, as deposed by the Investigating Officer in his depositionthereafter,on12.03.2002fouraccusedappeared beforehimandPatelRameshbhaiRamabhaihasproduced DhariyawhileAshvinbhaiJagabhai,PrahladbhaiJagabhai
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and Parshottam Mohanbhai appeared before him and Panchnama was prepared in presence of Panchas Patel ArvindbhaiBecharbhaiandBabubhaiVarvabhaiandthat Panchnama is produced vide Exh.829. When we peruse thePanchnama,producedvideExh.829itsupportsthesay ofInvestigatingOfficerandthatPanchnamaispreparedon 12.03.2002atabout13.00to14.30hoursanditissigned by Arvindbhai Becharbhai and Babubhai Varvabhai. For thispurposewhenweperusethedepositionofArvindbhai BecharbhaiandBabubhaiVarvabhaiatExh.389and391 asP.W.31and32respectively,theyaredeclaredashostile andtheyhavenotsupportedthesayofInvestigatingOfficer buttheyhaveadmittedtheirsignaturesinPanchnamaand in Slips pasted on Muddamal Articles and which is producedvideExh.390.Forthispurposewhenweperuse the crossexamination of the Investigating Officer nothing comes out by the accused side from which we can infer that,theInvestigatingOfficerisinimicaltotheaccusedor haveanyulteriormotiveagainsttheaccused.Itistheduty oftheaccusedtobringoutonrecordthat,thePanchnama ispreparedbytheInvestigatingOfficerwithulteriormotive butfromwholecrossexamination,nothingcomesoutfrom which we can infer about the malafide intention of the
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Investigating Officer therefore, the say of Investigating Officerthat,hehaspreparedthePanchnamaproducedvide Exh.829andaccordinglyhehasrecoveredtheMuddamal Articles from the accused as narrated in the Panchnama and those weapons were sent to F.S.L. By following due procedure and those weapons were received by F.S.L. in intactconditionandthesaidprocedurewasadoptedbythe Investigating Officer in his official capacity therefore, the contents of Panchnama are proved by the prosecution in the deposition of Investigating Officer which is much supportedbytheF.S.L.report. Thereafter,on15.03.2002 threeaccusedappearedbeforeInvestigatingOfficer,asper his deposition he has prepared the panchnama during 17.00 hours to 18.15 hours and the panchnama was preparedinthepresenceofBabulalSankalchandPanchal and Thakore Amaraji Kodarji. As per deposition of Investigating Officer Ambalal Maganbhai and Rameshbhai Prabhabhai have produced Dhariya while Kanaiyalal Nathalal has produced sticks. The panchnama was preparedandMuddamalarticleswereseizedandsignature of panchas in the slips were taken and it was affixed in muddamal. The said panchnama is produced vide Exh. 834.PanchasofthispanchnamaAAmrajiodarjiThakoreand
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ManishkumarBabulalOzaareexaminedvideExh.392and 396asP.W.33and34botharedeclaredhostileandthey havenotsupportedthesayofInvestigationOfficerbutthey haveadmittedtheirsignaturesinpanchnamaand inslip andthesaidmuddamalwassenttoF.S.L.induecourse which was received by F.S.L. which supports the say of InvestigatingOfficer WhenweperusethedepositionofP.W.109Baranda Rohitkumar Dhuljibhai, he has deposed on oath that on 11.06.2002, Patel Jayantibhai Ambaram with stick, JivanbhaiDhwarkadasswithIronpipeappearedbeforehim and he had prepared the Panchnama in the presence of Fulabhai Somabhai Chauhan and Manishbhai Babubhai Oza.Thesaidpanchnamawaspreparedduring17.00hours to 18.30 hours. For this purpose when we peruse the depositionofChauhanFulabhaiSomabhaiheisdeclared hostile. He has not supported the say of Investigating Officer.Onlyhissignatureinslipaswellaspanchnamais admitted by him. The said panchnama is produced vide Exh.778. When we peruse the panchnama produced vide Exh.778,itispreparedon11.06.2002during17.00to18.30 hoursitissignedbypanchFulabhaiSomabhaiChauhan and Oza Manishkumar Babulal. This panchnama is
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support the say of Investigating Officer. When we peruse thecrossexaminationofbothInvestigatingOfficernothing comes out by the accused side from which we can infer that,theInvestigatingOfficerisinimicaltotheaccusedor haveanyulteriormotiveagainsttheaccused.Itistheduty oftheaccusedtobringoutonrecordthat,thePanchnama ispreparedbytheInvestigatingOfficerwithulteriormotive butfromwholecrossexamination,nothingcomesoutfrom which we can infer about the malafide intention of the Investigating Officer therefore, the say of Investigating Officerthat,theyhavepreparedthePanchnamaproduced vide Exh.778, 822 and 829 and accordingly they have recovered the Muddamal Articles from the accused as narratedinthePanchnamaandthoseweaponsweresent to F.S.L. By following due procedure and those weapons were received by F.S.L. in intact condition and the said procedure was adopted by the Investigating Officer in his officialcapacitytherefore,thecontentsofPanchnamasare provedbytheprosecutioninthedepositionofInvestigating OfficerwhichismuchsupportedbytheF.S.L.report.For this purpose when we peruse F.S.L. report vide Exh.684 and691aresupportingthesayofInvestigatingOfficer.As perF.S.L.reportinthreeDhariyashumanbloodwasfound,
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asperF.S.L.reportarticleNo.C1Dhariawasproducedby RameshbhaiKantibhaiwhileArticleNo.C2wasproduced by Dashrathbhai Ambalal and No.C6 was produced by Ramanbhai Jivabhai. In Muddamal Article No.C6 the human blood was found but blood group could not be determined by the F.S.L. Officer while in Article C1 and C2humanbloodgroupBwasfound.Itisnotthesayof Prosecutionthatanyofthesethreeabovethesaidaccused have wielded their Dharia on any of the witnesses. Witnesses have not deposed about those articles having been used by any of the accused. Therefore it would not connectanyoftheaccusedwiththecrime.ItissayofShri Dhruv that, any recovery of muddamal articles and weaponsfromtheaccusedandfindallbloodstainsoverit isofnohelp.About16weaponsweresenttoF.S.L.butin 13weaponsnothinghavebeenfound.Further,itisnotthe sayof prosecutionthatthoseweaponswerewieldedover anyofthewitnesses.Aspersayofprosecutionmuddamal articleNo.37DhariahasbeenrecoveredfromRameshbhai Kantibhai.WhileP.W.49IqbalmiyaRasulmiyadeposesthat muddamal article No.37wasin thehandsof Mathurbhai Trikambhai while as per P.W.55 Ashikhusen Bachumiya Shaikh assigns the same muddamal article No.37 in the
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hands of Rameshbhai Prabhabhai. As per prosecution version muddamal article No.37 was in the hands of MathurbhaiTrikambhaiandRameshbhaiPrabhabhai.But the said muddamal was not recovered from Mathurbhai Trikambhai and Rameshbhai Prabhabhai. No doubt muddamal contains blood stains over it but, it cannot connectRameshbhaiKantibhaiwiththecrime.Further,as perpanchnamavideExh.822muddamalarticleNo.38was recoveredfromDashrathbhaiAmbalalbutasperdeposition of Investigating Officer the pipe was recovered from Dashrathbhai Ambalal. ComplainantIqbalmiyaRasulmiya assigns muddamal article No.38 in the hands of Rameshbhai Punjabhai while P.W.59 Mohmad Sattar BachumiyaassignsmuddamalarticlesNo.46inthehands ofRajeshbhaiPunjabhaiwhileMuddamalarticleNo.46is said tohave been recovered from Sureshbhai Baldevbhai. AspersayofprosecutionMuddamalarticleNo.46stickwas recovered from Sureshbhai Baldevbhai while muddamal articleNo.38isrecoveredfromDashrathbhaiAmbalal.On muddamal article No.C2 blood GroupB human blood stains is found. It is submitted by Shri Dhruv that it is proved to be contrary. It is argued by Shri Dhruv that prosecution has concocted the case thorough tutored
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witnesses against the accused and have attempted to involve the accused by assigning them specific weapons. Muddamal article No.42 Dharia is recovered from Ramanbhai Jivabhai but Mohmad Sattar Bachumiya deposessaidarticleinthehandsofRameshbhaiKantibhai. Further,threegallonswerefoundfromthesceneofoffense oneoftingallonwhichisattributedbydifferentwitnesses to different accused. Further, muddamal article No.30 plastic can is attributed by Iqbalmiya Rasulmiya in the hands of Ashvinbhai Baldevbhai while Ashikhusen has attributed article No.36 gray colour plastic gallon in the handsofAshvinbhaiBaldevbhai.Thus,differentwitnesses assign different articles in the hands of same accused. F.S.L.reportinrespectofweaponsnowhereconnectanyof theaccusedwithcrime.Further,participationofaccused intheincidentifprovedbeyondreasonabledoubtinthat circumstances recovery of no incriminating material from theaccusedcanalonebenogroundforacquittalornon identification of Muddamal article alone in above circumstancescanbeagroundtodisbelievethetestimony of witness. Further, if nothing recovered/discovered from theaccuseditdoesnotamountfatalofprosecutioncase.
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50.
Before entering into the involvement of accused in the offence, it is desirable to discuss the law relating to identificationparadeandovertactandunlawfulassembly, common object. Both the sides have cited rulings in supportoftheirrespectivecase.Consideringthecitations prosecution has relied upon the Judgement delivered in CRIMINALAPPEALNO.1156OF2001,DANAYADAVv. STATE OF BIHAR, in the cited ruling accused were identified by the witness first time in the Court without previousidentificationparadeanditwasheldinthecited rulingthatfailuretomaketestidentificationparadedoes not make the evidence of identification in the court inadmissible. Further, 2002(1) G.L.H. 176, VINUGIRI MOTIGIRIv.STATEOFGUJARAT,inwhichitisobserved that,failuretoholdanidentificationparadedoesnotmake inadmissibletheevidenceofidentificationinthecourt.Ifa witness identifies the accused in Court for the first time after a long time, the probative value of such uncorroboratedevidencebecomesminimal.Itisalsoheld bytheHon'bleHighCourtthat,thereisdifferencebetween thepersonsunknownandthepersonswhosenamesmay notbeknownfailuretoholdanidentificationparadedoes notmakeitaninadmissible.Theevidenceofidentification
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inT.I.Paradeisnotasubstantivepieceofevidencebutitis acorroborativepieceofevidence.Ifawitnesshasknownan accusedearlierandinconsistencythereisnoreasonwhy the statement in Court about identification of accused shouldnotbereliedupon.Itwasheldinthecitedruling that,complainantknewalltheaccusedandtherefore,not namingtwooftheminF.I.R.doesnothelptheaccusednot namedascomplainantidentifiedallofthemintheCourt and her evidence also gets support from the evidence of otherwitnesses,whohadknownalltheaccusedandhave named them accordingly conviction was confirmed. Further, in the case of 2000(2) G.L.H. PAGE 572, RAMANBHAI NARANBHAI PATEL v. STATE OF GUJARAT the Hon'ble Supreme Court of India has observedthat,IndianPenalCode,1860Ss.149,302,307 and 326 Evidence of injured eyewitness Identifying accusedforthefirsttimeinCourtNoidentificationParade washeldEvidencenottotallyirrelevantorinadmissible. Further, in the case of CRIMINAL APPEAL NO.1156 OF 2001 DANA YADAV v. STATE OF BIHAR, the Hon'ble Supreme Court of India has observed in the cited ruling that, accused identified by witness first time in Court without previous identification parade examination of
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accusedbywitnessafteralapseof2yearswhetherthe factthatprayerforholdingTestIdentificationParadewas rejectedorifgrantednosuchparadewasheldismaterial and would in any manner affect the evidence of identificationof an accusedinCourtbyawitnessTrial CourtconvictedappellantsandHighCourtconfirmedthe convictionwithsentenceoflifeimprisonmentheld,failure to make test identification parade does not make the evidenceofidentificationincourtinadmissible.Furtherin the case of 2002(1) G.L.H. PAGE 176, VINUGIRI MOTIGIRI v. STATE OF GUJARAT, the Hon'ble High Court of Gujarat has observed in the cited ruling that, identification parade two of the accused out of six, not named initially witnesses were knowing them by face thereisadifferencebetweenpersonsunknownandpersons whose name may not be known. Failure to hold an identification parade does not make inadmissible the evidence of identification in Court. The evidence of identificationinTIParadeisnotasubstantiveevidencebut isonlycorroborativeevidenceIf awitnessidentifiesthe accused in Court for the first time after a long time the probative value of suchuncorroborated evidence becomes minimal,somuchsothatitbecomesunsafetorelyonsuch
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apieceofevidenceHowever,ifawitnesshasknownan accusedearlierandifthereisnoinherentimprobabilityor inconsistence, there is no reason why his statement in court about identification of accused should not be relief upon On facts, held that the complainant knew all the accusedandtherefore,notnamingtwooftheminFIRdoes nothelptheaccusednotnamedascomplainantidentified allofthemincourtandherevidencealsogetssupportfrom the evidence of other witnesses who had known all the accusedandhadnamedthemconvictionofallaccused confirmedappealsdismissed. While accused side has relied upon 52 CRIMINAL LAWJOURNAL1951, PRAVASHKUMARBOSEv.THE KING, whereinitisheldthat,thefactthatthewitnesses have identified the accused in the court is of very little consequenceinaprosecutionwhennoneofthewitnesses knew the accused from before such identification can be accepted as sufficient to establish the identity of the accused. It is very necessary that there must be good corroborative evidence. The evidence of their having identifiedsuchpersonsatatestidentificationparadehas notsubstantivevaluebutitisveryimportantcorroboration oftheirevidenceincourt.
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Accused have also relied upon 1979 CRI. L.J. 919, KANAN AND OTHER v. STATE OF KERALA, wherein it has been observed that, where a witness identifes an accusedwhoisnotknowntohimintheCourtforfirsttime, hisevidenceisabsolutelyvaluelessunlesstherehasbeen previousT.I.Paradetotesthispowersofobservation.
Inthecaseof1991SUPREMECOURTCASES(CRI.) 586,BOLLAVARAMPEDDANARSIREDDYANDOTHERS v. STATE OF ANDHRA PRADESH wherein it has been observedthat,thecredibilityoftheevidencerelatingtothe identification depends largely on the opportunity the witnesshadtoobservetheassailantswhenthecrimewas committed and the memorize the impression when the crimewascommittedduringthehoursofdarknessandthe assailants were utter strangers to the witnesses. The identification of the accused persons assumes great importance. The prevailing light is a matter of crucial significance. Necessity to have the suspects identified by thewitnessessoonaftertheirarrestalsoarises.Furtherit is observed in the cited rulings that, in a case when witnessisastrangertotheaccusedandheidentifiesthe
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accusedpersonbeforetheCourtforthefirsttimetheCourt willnotordinarilyacceptthatidentificationasconclusive.It is to lend assurance to the testimonies of the witnesses. That evidence in the form of earlier identification is standard. If the accused persons are identified by the witnesssoonaftertheirarrestandsuchidentificationdoes not suffer from any infirmity. That circumstances lends corroboration to the evidence given by the witness before the Court but in a case where the evidence before the CourtisitselfshakytheidentificationbeforetheMagistrate wouldbeofnoassistancetotheprosecution.
In the case of 2001 CR.LAW J. 1762, GANGA DIN AND OTHERS v. STATE OF U.P. in the cited ruling incidenttookplaceindarknight.InF.I.R.onlyonetorch wasmentionedasasourceoflightwhileinhisstatement more than one torch mentioned. There was improved versionregardingdescriptionsofmiscreants.Itwasfound doubtfulabouttheavailabilityofsourceoflighttoidentify the accused persons at the place of incident. Further, possibilityofaccusedhavingbeenshowntothewitnesses in transit to jail was also there. In that circumstances, identificationofaccusedpersonwasconsidereddoubtful.
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Inthecaseof2005SUPREMECOURTCASES(CRI.) 801,STATEOFM.P.v.GHUDAN inthecitedrulingsthe witnesseshadstatedexistenceoftubelightattheplaceof occurrencebecauseofwhichheidentifiestheaccusedand in site plan no such light was mentioned. In that circumstancesidentificationwashelddoubtful. In the case of 2007(1) SUPREME COURT CASES (CRI.)140,AROKIATHOMASv.STATEOFT.N. inthe cited ruling witness had not stated in the F.I.R. that, he identified the accused in the source of light. During the investigationhewasknownandaftertwoandhalfyearthe witness had disclosed the fact before the Sessions Court that, he identified the accused in the light of Motorcycle while other witness was claiming to have identified the accusedinthetorchlightfromadistanceof400Ft.,which wasconsideredhighlyimprobableandbenefitwasgivento theaccused.
Inthecaseof 1998SCC(CRI.)PAGE1064,MOHD. IQBAL M. SHAIKH v. STATE OF MAHARASHTRA, it is observedinthecitedrulingthat,itwasthecaseinwhich
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the witness had identified the accused by face. It was observedinitthat,whilethewitnesswasresidinginthe same locality for a fairly long period and was other wise known to the accused persons and according to several accusedpersonswerethreateninginthelocalitybeforethe actualincidentoffire.Itisimpossibletobelievethat,even byfacialidentificationhecouldonlypointouttwoofthem. Itwasobservedthat,theconductonthepartofthewitness ishighlyimprobableinasmuchifhewasscaredtoremain alone with his family members in their own room and wantedtostayintheneighboursroomwhenitisexpected from all of that, they would remain together. Further anotherwitnessinthecitedrulinghasstatedthenameof theaccusedbutonbeingaskedtoidentifyhiminCourt, thoughhecorrectlypointoutsomebutcouldnotcorrectly point out some others. In earlier statements, he had not statedthattheaccusedcametotheChawlatthetimeof incident. It was observed in the ruling that though the witnesses are claiming residing for a long period in the locality,itwouldbehighlyunsafetorelyontheirevidence. The case of 52 CR.L.J. 1951 CALCUTTA HIGH COURT(C.N.268),PROVASHKUMARBOSE&ANOTHER
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v.THEKING,wasacaseofidentificationbeforeCourtand in the cited ruling it was held that, the fact that the witnesseshaveidentifiedinCourt,theaccusedisofvery little consequence in a prosecution u/s.384, Penal Code, whennoneofthewitnessesknewtheaccusedfrombefore. Before such identification can be accepted it is very necessarythattheremustbegoodcorroborativeevidence and the corroborative evidence which one is entitled to expect in cases of this nature is the evidence of the witnesseshavingpointedtheaccusedwhomtheyidentified inCourtfromthemidstofotherpersonswithwhomthey weremixedupatatestidentificationparade.Theevidence of their having identified such persons at a test identificationparadehasnosubstantivevaluebutisvery importantcorroborationoftheirevidence.
Thecaseof2001CRI.L.J.PAGE1762,GANGADINAND OTHERSv.STATEOFU.P.wasacaseofidentificationof accusedpersons.Inthiscaseincidenttookplaceindark nightInF.I.R.onlyonetorchwasmentionedassourceof light ButinstatementbeforeCourtavailabilityof more than one torch mentioned Further there was improved versions regarding figurative description of miscreants
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Availabilityofsourceoflighttoidentifyaccusedpersonsat placeofincidentdoubtful.
So far as the factum of availability of proper light for identification of these accused person is concerned, the evidenceofthewitnessesisembellishedbyimprovement. IntheFIRonlyonetorchisalleged,thattoowithJaiRam Singh,whichwastakenawaybythemiscreants.Noother lightisallegedinthisdocument.InthestatementinCourt allthewitnesseshavestatedclearlythatthedacoitswere also holding torches, which they were flashing towards them and the light of these torches and the torch of Jai RamSinghtheywereabletoidentifythemiscreants.Itis furtherimportanttopointoutthatnofigurativedescription was disclosed by these witnesses in the FIR or in their statements to the I.O., but in the trial Court they have statedthattheyhavegivenoutthedescriptionaboutthe culpritsintheirstatementstotheI.O. Itisalsoadmitted to the witnesses that it was a dark night and no other sourceoflightexceptthetorcheswereavailabletothemto identifythe miscreants. These improvements areserious omissionsintheirpreviousstatementsandtheygotothe
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rootofthecaseoftheprosecutionregardingavailabilityof anysourceoflight.Iftherewasnolightavailabletothem thenitisnextimpossibletoacceptthevalueoftheirtest identification and the identification of these culprits by theminCourt. Withoutanyoutsideaiditisunbelievable that these witnesses could have performed so excellently. AppellantGangaDinwasidentifiedbyasmanyasseven witnessesoutofninesentforthepurposeandSundarwas identified by the all nine witnesses. These identification results,inthecircumstancediscussedabove,aretoogood tobeacknowledgedbythisCourt. Intheresultthevalue of the identification is lost to the prosecution for the purposesofupholdingtheirconviction.
Inthecaseof1979CRI.L.J.PAGE919=AIR1979 SUPREMECOURT1127,KANANANDOTHERSv.STATE OF KERALA, it is observed in the cited ruling by the Hon'ble Supreme Court of India that, where a witness identifiedanaccusedwhoisnotknowntohimintheCourt forthefirsttimehisevidenceisabsolutelyvaluelessunless therehasbeenapreviousT.I.Paradetotesthispowersof observation.TheideaofholdingT.I.Paradeu/s.9istotest theveracityofthewitnessonthequestionofcapabilityto
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identify an unknown personwhom the witness may have seen only once. It no T.I. Parade is held then it will be whollyunsafetorelyonhisbaretestimonyregardingthe identificationofanaccusedforthefirsttimeinCourt.
Inthecaseof1991SUPREMECOURTCASES(CRI.) PAGE 586, BOLLAVARAM PEDDA NARSI REDDY AND OTHERSv.STATEOFANDHRAPRADESH,itisobserved inthecitedrulingbytheHon'bleSupremeCourtofIndia that, the credibility of the evidence relating to the identification depends largely on the opportunity the witnesshadtoobservetheassailantswhenthecrimewas committedandmemorizetheimpression.Whenthecrime was committed during the hours of darkness and the assailants were utter strangers to the witnesses, the identification of the accused persons assumes great importance. The prevailing light is a matter of crucial significance.Thenecessitytohavethesuspectsidentified bythewitnessessoonaftertheirarrestarises.Itisfurther heldthat,inabsenceofcogentevidencethatthewitnesses by reason of the visibility of the light at the place of occurrence and proximity to the assailants had a clear visionoftheactionofeachoneoftheaccusedpersonsin
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orderthattheirfeaturescouldgetimpressedintheirminds to nebale them to recollect the same and identify the assailants even after along lapse of time, it would be hazardous to draw the inference that the accused appellantsaretherealassailants. WhentheInvestigating Officer visited the scene, he made reference to the street lights,petrolbunklightetc.Whetherthestreetlightsand thepetrolbunklighthadbeenburningatthetimeofthe occurrenceandthespotwheretheincidenthappenedwas so located as to receive the light emanating from these sources are required to be made out by the prosecution. Whenthissignificantfactisleftoutintheearliestrecord, theimprovementinthecourseoftheinvestigationandtrial wouldbeofnoavail. Whennonaturallightwasavailable andthestreetlightwasatadistanceitisunlikelythatthe eyewitnessesbymomentaryglanceoftheassailantswho surrounded the victim had a lasting impression and the chanceofidentifyingtheassailantswithoutmistake.
Itisfurtherheldthat,theevidencegivenbythewitnesses before the Court is the substantive evidence. In a case where the witness is a stranger to the accused and he identifiestheaccusedpersonbeforethecourtforthefirst
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time,theCourtwillnotordinarilyacceptthatidentification asconclusive. Itistolendassurancetothetestimonyof the witnesses that evidence in the form of an earlier identificationistendered. Iftheaccusedpersonsaregot identifiedbythewitnesssoonaftertheirarrestandsuch identification does not suffer from any infirmity that circumstancelendscorroborationtotheevidencegivenby the witness before the court. But in a case where the evidencebeforethecourtisitselfshaky,theidentification before the magistrate would be of no assistance to the prosecution. In the present case, the appellants are
admittedly persons withwhom the twowitnesses had no previous acquaintance. The occurrence happened on a dark night. When the crime was committed during the hoursofdarknessandtheassailantsareutterstrangersto the witnesses, the identification of the accused persons assumesgreatimportance.Theprevailinglightisamatter ofcrucialsignificance.Thenecessitytohavethesuspects identified by the witnesses soon after their arrest also arises. According to the prosecution, the attack on the deceasedwassuddenandsimultaneousandtheassailants slipped away in to time. There, in the absence of cogent evidencethatPws1and2byreasonofthevisibilityofthe
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light at the place of occurrence and proximity to the assailantshadaclearvisionoftheactionofeachoneofthe accused persons in order that their features could get impressed in their mind to enable them to recollect the sameandidentifytheassailantsevenafteralonglapseof time,itwouldbehazardoustodrawtheinferencethatthe appellantsaretherealassailants. Thereisnowhisperin Ex.P1 that there was some source of light at the scene. Theomissioncannotbeignoredasinsignificant.Whenthe Investigating Officer has visited the scene, he made referencetothestreetlights,petrolbunklightetc.Whether thestreetlightsandthepetrolbunklighthadbeenburning atthetimeofoccurrenceandthespotwheretheincident happenedwassolocatedastoreceivethelightemanating from these sources are required to be made out by the prosecution. Whenthis significant fact is leftout inthe earliest record, the improvement in the course of the investigationandtrialcouldbeofnoavail. Thefactthat there had been no proof regarding the identity of the assailantsuntilAugust18,1974wouldsuggestthateven persons who collected at the scene in the course of the incidentorsoonthereafterwerenotinapositiontoidentify anyoneoftheassailants. SincetheInvestigatingOfficer
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arrivedatthescenethesamenightandtheinquestwas heldthenextmorning,itwouldhavebeenpossibleforthe investigating agency to collect information regarding the identityoftheassailantsearliertoAugust18,1974,ifthey hadbeenreallyidentifiedbyanyofthewitnessesexamined inthecase. Whennonaturallightwasavailableandthe street light was at a distance it is unlikely that the eye witnesses by momentary glance of the assailants who surrounded the victim had a lasting impression and the chanceofidentifyingtheassailantswithoutmistake. The credibility of the evidence relating to the identification depends largely on the opportunity the witness had to observetheassailantswhenthecrimewascommittedand memorizetheimpression. Thisaspectofthematterhad been stressed by the trial court in appreciating the evidenceofPWS1and2.TheHighCourthasignoredthe inherentinfirmityandfailedtodealeffectivelywithevery important circumstance in the evidence which weighed withthetrialcourttodisbelievetheprosecutioncase.
In case of 2005 SUPREME COURT CASES (CRI.) PAGE801,STATEOFM.P.v.GHUDAN itisheldbythe Hon'ble Supreme Court of India that, it was a very
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important fact mainly because the identification of the accusedisavital factortobeprovedbytheprosecution. The benefit of the omission to point out the existence of such light in the sketch should go to the accused. It is further held that, in I.T. Parade there was serious discrepancieswitnesshadspecificallystatedcertainsilent features of accused which assisted him in identifying the accused. But his evidence in Court regarding I.T. Parade indicating that, he was not able to see though silent featuresduringI.T.Paradeandthewitnessfailedtoidentify theaccused.Itwasheldthatidentificationoftheaccused by the witness was not reliable. Further it is held in the ruling that, the recovery could not be said to be from a place to which respondent alone had exclusive access. Much importance cannot be placed on a recovery of this nature. 51. Before discussing the overt act, identification parade, common object and unlawful assembly it is desirable to have a look upon the citations submitted by the Special Prosecutor Shri Shah and learned advocate Shri Y.B. Shaikh, on behalf of complainant as well as by learned advocate Shri Dhruv in respect of unlawful assembly, commonobjectetc.
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In support of prosecution case Mr.Shah has relied upon the case of (2009) 10 SUPREME COURT CASES 477, VISHNU ANDOTHERSV. STATEOFRAJASTHAN theHon'bleSupremeCourtofIndiahasheldthat,Section 149 IPC provides for vicarious liability. If an offence is committed by any member of an unlawful assembly in prosecution of a common object thereof or such as the members of that assembly knew that the offence to be likelytobecommittedinprosecutionofthatobject,every person who at the time of committing that offence was member would be guilty of the offence committed. The common object may be commission of one offence while there may be likelihood of commission of yet another offence, the knowledge whereof is capable of being safely attributable to the members of the unlawful assembly. Whetheramemberofsuchunlawfulassemblywasaware asregardslikelihood ofcommissionof anotheroffenceor not would depend upon the facts and circumstances of each case. Background of the incident, the motive, the natureoftheassembly,thenatureofthearmscarriedby themembersoftheassemblytheircommonobjectandthe behaviour of the members soon before, at or after the
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actualcommissionofthecrimewouldberelevantfactors fordrawinganinferenceinthatbehalf.
In the case of AIR 1997 SUPREME COURT 322, BINAYKUMARSINGHv.STATEOFBIHAR, the Hon'ble SupremeCourtofIndiahasobservedthat,Identificationof accused massacre drawing hiatus between injured witnesses and noninjured witnesses as for capacity of identifyassailantswhileinactionnotproper.Itisfurther heldthat,numberofwitnessesidentificationofaccused evenatestimonyofsinglewitnessissufficienthoweveris caselargesizeofunlawfulassembly,thecourtcaninsiston atleasttworeliablewitnessesforidentificationofaccused. Itisfurtherheldthat,thereisnoruleofevidencethatno convictioncanbebasedunlessacertainminimumnumber of witnesses have identified a particular accused as member of the unlawful assembly. It is axiomatic that evidenceisnottobecountedbutonlyweighedanditisnot thequantityofevidencebutthequalitythatmatters.Even the testimony of the single witness, if wholly reliable is sufficient to establish the identification of an accused as memberofanunlawfulassembly.
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In the case of AIR 2001 SUPREME COURT PAGE 4024,CHANDRASHEKHARBINDv.STATEOFBIHAR, theHon'bleSupremeCourtofIndiahas heldthat, large numberofaccusedparticipatedinincidentTwowitness theorycanbeadoptedBenefitofdoubtgiventoaccused who had not been identified by more than one witness Convictionofotheraccusedpersonswhowereidentifiedby two witnesses, maintained Moreso, when presence of thesetwowitnessesonscenecannotbedeniedAndthere is no reason why they should falsely implicate accused AndalltheaccusedwereknowntothesewitnessesPleaof juvenility being mixed question of law and fact and not raised before trial Court or High Court or in SLP Plea cannotbepermittedtoberaisedforfirsttimeincriminal appealbeforeSupremeCourt. In the case of 1998 CRI. L.J. PAGE 988 DULI CHANDv.THESTATE.ItwasacaseofUnlawfulassembly and mass killing. The Hon'ble Delhi High Court has observedinthecitedrulingthat,accusedchargedwithaid ofS.149prosecutionprovingthataccusedwasmemberof unlawful assembly which shared common object of murder,lootandburningpropertiesproofofspecificovert
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actinsuchsituationisnotnecessary.Furthertherewas allegation that, accused were among rioters having commonobjectofkillingpersonsofparticularcommunity lootingandburningtheirpropertiesminordiscrepancies and contradictions in testimony of witnesses tardy investigation non recovery of dead bodies or weapon of offence in facts and circumstances not fatal non mentioning of name of accusedvictim in FIR also not significantconvictionofaccusedproper.Furtheritisheld that,Offencetookplacemorethan12yearsagomerelong lapse of time due to total apathy of administration and policeduringriotsnotsufficientgroundtoconvertdeath sentenceintolifeimprisonmentcasefallswithincategory ofrarestofrarecasesdeathsentenceimposedonaccused confirmed. Inthecaseof1989CRI.L.J.PAGE850 LALJIAND OTHERSv.STATEOFU.P.,theHon'bleSupremeCourtof Indiahasheldthat,Section149makeseverymemberofan unlawfulassemblyatthetimeofcommittingoftheoffence guiltyofthatoffence.TheSectioncreatesaconstructiveor vicariousliabilityofthemembersoftheunlawfulassembly fortheunlawfulactscommittedpursuanttothecommon
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objectbyanyothermemberofthatassembly.However,the vicariousliabilityofthemembersoftheunlawfulassembly extendsonlytotheactsdoneinpursuanceofthecommon objectoftheunlawfulassembly,ortosuchoffencesasthe membersoftheunlawfulassemblyknewtobelikelytobe committedinprosecutionofthatobject.Oncethecaseofa person falls within the ingredients of the Section the questionthathedidnothingwithhisownhandswouldbe immaterial.Hecannotputforwardthedefencethathedid notwithhisownhandscommittheoffencecommittedin prosecutionofthecommonobjectoftheunlawfulassembly orsuchasthemembersoftheassemblyknewtobelikely tobecommittedinprosecutionofthatobject.Thebasisof theconstructiveguiltunderS.149ismeremembershipof theunlawfulassembly,withtherequisitecommonobjector knowledge. Thus, once the Court holds that certain accused persons formed an unlawful assembly and an offence is committed byany member of that assembly in prosecutionofthecommonobjectofthatassembly,orsuch as the members of the assembly knew to be likely to be committedinprosecutionofthatobject,everypersonwho atthetimeofcommittingofthatoffencewasamemberof thesameassemblyistobeheldguiltyofthatoffence.After
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suchafindingitwouldnotbeopentotheCourttoseeas to who actually did the offence act or require the prosecutiontoprovewhichofthemembersdidwhichofthe offensiveacts.Theprosecutionwouldhavenoobligationto proveit.InotherwordsitisnotopentotheCourttoacquit membersoftheunlawfulassemblyforlackofcorroboration as to their participation. Further it is held that, Section 149,I.P.C.providesthatifanoffenceiscommittedbyany member of an unlawful assembly in prosecution of the commonobjectofthatassembly,orsuchasthemembers of the assembly knew to be likely to be committed in prosecutionofthatobject,everyperson,whoatthetimeof committing of that offence is a member of the same assembly,isguiltyofthatoffence.Ashasbeendefinedin S.141, I.P.C. an assembly of five or more persons is designatedan'UnlawfulAssembly',ifthecommonobjectof the persons composing that assembly is to do an act or actsstatedinclauses'First''Second','Third','Fourth'and 'Fifth'ofthatSection.Anassembly,astheexplanationto the Section says, which was not unlawful when it assembled, may subsequently become an unlawful assembly.Whoeverbeingawareoffactswhichrenderany assembly an unlawful assembly intentionally joins that
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assembly,orcontinuesinit,issaidtobeamemberofan unlawful assembly. Thus, whenever so many as five or more persons meet together to support each other, even against opposition, in carrying out the common object which is likely to involve violence or to produce in the minds of rational and firm men any reasonable apprehensionofviolence,theneventhoughtheyultimately departwithoutdoing anythingwhatevertowardscarrying outtheircommonobject,themerefactoftheirhavingthus metwillconstituteanoffence.Ofcourse,thealarmmust notbemerelysuchaswouldfrightenanyfoolishortimid person, but must be such as would alarm person of reasonablefirmnessandcourage.Thetwoessentialsofthe Sectionarethecommissionofanoffencebyanymemberof an unlawful assembly and that such offence must have been committed in prosecution of the common object of that assembly or must be such as the members of that assembly knew to be likely to be committed. Not every personisnecessarilyguiltybutonlythosewhoshare,in the common object. The common object of the assembly mustbeoneofthefiveobjectsmentionedinS.141,I.P.C. Commonobjectoftheunlawfulassemblycanbegathered fromthenatureoftheassembly,armsusedbythemand
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the behaviour of the assembly at or before scene of occurrence.Itisaninferencetobedeductedfromthefacts andcircumstancesofeachcase.Section149makesevery memberofanunlawfulassemblyatthetimeofcommitting oftheoffenceguiltyofthatoffence.Thesectioncreatesa constructive or vicarious liability of the members of the unlawful assembly for the unlawful acts committed pursuant to the common object by any other member of that assembly. However, the vicarious liability of the membersoftheunlawfulassemblyextendsonlytotheact doneinpursuanceofthecommonobjectsoftheunlawful assembly or to such offences as the members of the unlawful assembly knew to be likely to be committed in prosecutionofthatobject.Oncethecaseofapersonfalls withintheingredientsofthesectionthequestionthathe didnothingwithhisownhandswouldbeimmaterial.
Inthecaseof 2011(0)GLHELSC49654SUPREME COURTOFINDIAKULDIPYADAVv.STATEOFBIHAR, the citation Rajendra Shantaram Todankar V. State of Maharashtra and others (2003) 2 SCC 257 = 2003 SCC (cri.)506isreferredinwhichithasbeenheldthat,Section 149oftheIndianPenalCodeprovidesthatifanoffenceis
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committed by any member of an unlawful assembly in prosecutionofthecommonobjectofthatassembly,orsuch asthemembersofthatassembly,orsuchasthemembers of that assembly knew to be likely to be committed in prosecutionofthatobject,everypersonwhoatthetimeof the committing of that offence, is a member of the same assembly is guilty of that offence. The two clauses of Sec.149 vary in degree of certainly. The first clause contemplatesthecommissionofanoffencebyanymember ofanunlawfulassemblywhichcanbeheldtohavebeen committed in prosecution of the common object of the assembly. Thesecondclauseembraceswithinitsfoldthe commission of an act which may not necessarily be the commonobjectoftheassembly,nevertheless,themembers of the assembly had knowledge of likelihood of the commissionofthatoffenceinprosecutionofthecommon object. The common object may be commission of one offencewhiletheremaybelikelihoodofthecommissionof yet another offence, the knowledge whereof is capable of being safely attributable to the members of the unlawful assembly. In either case, every member of the assembly would be vicariously liable for the offence actually committedbyanyothermemberoftheassembly. Amere
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possibility of the commission of the offence would not necessarilyenablethecourttodrawnaninferencethatthe likelihood of commission of such offence was within the knowledgeofeverymemberoftheunlawfulassembly.Itis difficult indeed, though not impossible, to collect direct evidenceofsuchknowledge. Aninferencemaybedrawn from circumstances such as the background of the incident,themotive,thenatureoftheassembly,thenature ofthearmscarriedbythemembersoftheassembly,their common object and the behaviour of the members soon before, at or after the actual commission of the crime. Unless the applicability of Sec.149 either clause is attractedandthecourtisconvinced,onfactsandinlaw, both, of liability capable of being fastened vicariously by referencetoeitherclauseofSec.149IPC,merelybecausea criminalactwascommittedbyamemberoftheassembly everyothermemberthereofwouldnotnecessarilybecome liableforsuchcriminalact.Theinferenceastolikelihood ofthecommissionofthegivencriminalactmustbecable of being held to be within the knowledge of another member of the assembly who is sought to be held vicariouslyliableforthesaidcriminalact....
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Insupportofcomplainant'scaseMr.Shaikhhasrelied uponthecaseof(1995)4SUPREMECOURTCASES392 RANBIRYADAVv.STATEOFBIHAR. Inthe citationof Baladinv.StateofU.P.,AIR1956SUPREMECOURTPAGE 181 has been referred in which it is held that, it is well settledthat,merepresenceinanassemblydidnotmakea personofamemberofanunlawfulassemblyunlessithas shownthat,thepersonhasdonesomethingoromittedto do something which would make him a member of an unlawful assembly or unless the case fall under Section 182ofI.P.C.Furtheritwasheldinthecitedrulingthat,it is for the prosecution to lead evidence pointing to the conclusionthat,theaccusedhaddoneorbeingcommitting someovertactinprosecutionofthecommonobjectofthe unlawfulassembly.
Inthecaseof AIR2004SUPREMECOURT4570, DANI SINGHANDOTHERSv.STATEOFBIHAR, theHon'ble Supreme Court of India has observed in the cited ruling that, Unlawful assembly Proof No proof that some of accuseddissuadedotheraccusedpersonsfromcommitting criminalactorwithdrewduringcourseofincidentwould constitutebyitselfstepinfurtheranceofultimateoffence
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Pleathatthoseaccusedpersonsdidnotcommitanyovert act Not of any consequence. It is further held that, Unlawful assembly and murder proof Eyewitnesses identifying accused persons No discrepancy so far as identificationwasconcernedandaboutweaponscarriedby identified accused persons Targeted victims were deceased persons with whom animosity was admitted ObjectivefindingsrecordedbyInvestigationOfficeronspot verification also in line with evidence of eyewitnesses Village being faction ridden no independent witnesses couldbeexaminedNothingcomingoutinlengthycross examination of eyewitnesses which would belie their credibility Conviction of accused Not liable to be set aside.
In the case of (1994) 4 SUPREME COURT CASES 397, KAKI RAMESH AND OTHERS v. STATE OF A.P., the Hon'bleSupremeCourtofIndiahasobservedinthecited rulingthat,forfasteningofliabilitywiththeaidofSection 149 of the Penal Code, commission of overt act is not necessary.This proposition inlaw iswellsettled.In the presentcasethemerefactthatonlyinthecourseoftrial two of the appellants alongwith four others had been
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namedasthosewhohad draggedthedeceasedoutfrom inside the room, cannot create reasonable doubt about theseappellantshavingreallydonesoonthefaceofclear statement in the FIR about dragging the deceased and namingofthesetwoappellantsalsointheFIRasmembers of the unlawful assembly; who in particular had dragged thedeceasedwasnotrequiredtobestatedintheF.I.R.
In the case of AIR 1995 SUPREME COURT PAGE 1748, SHAMSHUL KANWAR v. STATE OF U.P., the Hon'bleSupremeCourtofIndiahasobservedinthecited rulingthat,inthecitedrulingtherewasincidentofrioting andmurderandonfactsitwasheldthat,accusedparty were aggressors and indulged in indiscriminate firing causingdeathofmanypeople.Itwasheldthattheywere members of unlawful assembly with common object of attackingandkillingthemembersofoppositeparty.
In support of the case of accused, learned advocate ShriDhruvhasrelieduponfollowingcitations:
Inthecaseof1965(1)CRI.L.J.PAGE226(VOL.70, C.N. 73) MASALTI (IN CR.A.NO 30 OF 1964) MUNGA
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RAM AND OTHERS (IN CR.A.NO. 31 OF 1964) BHAGWATI AND OTHERS (IN CR.A.NO.32 OF 1964) CHANDAN SINGH AND OTHERS (IN CR.A.NO.33 OF 1964)LAXMIPRASAD(INCR.A.NO.34OF1964)v.THE STATE OF UTTAR PRADESH, it is held by the Hon'ble Supreme Court of India that, mere presence in an assembly does not make a person, who is present, a memberofanunlawfulassemblyunlessitisshownthathe had done something or omitted to do something which would make him a member of an unlawful assembly, or unlessthecasefallsunderS.142,I.P.C.cannotbereadas laying down a general proposition of law that unless an overtactisprovedagainstapersonwhoisallegedtobea memberofanunlawfulassembly,itcannotbesaidthathe isamemberofsuchanunlawfulassembly.Whathastobe provedagainstapersonwhoisallegedtobeamemberof an unlawful assembly is that he was one of the persons constitutingtheassemblyandheentertainedalongwiththe other members of the assembly the common object as definedbyS.141,I.P.C.Anassemblyoffiveormorepersons actuatedby,andentertainingoneormoreofthecommon objectsspecifiedbythefiveclausesofS.141,isanunlawful assembly.Thecrucialquestiontodetermineinsuchacase
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iswhethertheassemblyconsistedoffiveormorepersons andwhetherthesaidpersonsentertainedoneormoreof the common objects as specified by S.141. While determiningthisquestion,itbecomesrelevanttoconsider whethertheassemblyconsistedofsomepersonswhowere merelypassivewitnessesandhadjoinedtheassemblyasa matterofidlecuriositywithoutintendingtoentertainthe common object of the assembly. In fact. S. 149 makes it clearthatifanoffenceiscommittedbyanymemberofan unlawfulassemblyinprosecutionofthecommonobjectof that assembly,or suchas the members of thatassembly knew to be likely to be committed in prosecution of that object,everypersonwho,atthetimeofthecommittingof thatoffence,isamemberofthesameassembly,isguiltyof thatoffence;andthatemphaticallybringsouttheprinciple that the punishment prescribed by S.149 is in a sense vicariousanddoesnotalwaysproceedonthebasisthatthe offence has been actually committed by every member of theunlawfulassembly.Theobservationsin(S)AIR1956S. C.181,Explained.
In the case of 2009 3 SUPREME COURT CASES (CRI.) PAGE 431, AKBAR SHEIKH AND OTHERS v.
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STATE OF WEST BENGAL, it is observed in the cited rulingbytheHon'bleSupremeCourtofIndiathat,thecore question which arises for consideration is as to whether someoftheappellantswhohadnotcommittedanyovert actmustbeheldtobeapartoftheunlawfulassemblyor sharedthecommonobjectwiththemainaccused. ThequestioncameupforconsiderationbeforetheCourtin BaladinV.StateofU.P. whereinHon'bleCourthasopined thatwithaviewtoinvoketheprovisionsofSection149of the Penal Code, it was necessary therefore for the prosecutiontoleadevidencepointingtotheconclusionthat alltheappellantsbeforeushaddoneorbeencommitting someovertactinprosecutionofthecommonobjectofthe unlawfulassembly. Acourtisnotentitledtopresumethateverypersonwhois provedtohavebeenpresentnearariotousmobatanytime ortohavejoinedorleftitatanystageduringitsactivities is in law guilty of every act committed by it from the beginningtotheend,orthateachmemberofsuchacrowd must from the beginning have anticipated and contemplated the nature of the illegal activities in which theassemblywouldsubsequentlyindulge.
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Section141ofthePenalCodedefinesunlawfulassembly tobeanassemblyoffiveormorepersons.Theymusthave a common object inter alia to commit any mischief or criminaltrespassorotheroffence.Section142ofthePenal Codepostulatesthatwhoever,beingawareoffactswhich render any assembly an unlawful one, intentionally joins thesamewouldbeamemberthereof. Section143ofthePenalCodeprovidesforpunishmentof being a member of unlawful assembly. Section 149 provides for constructive liability on every person of an unlawful assembly if an offence is committed by any member thereof in prosecution of the common object of that assembly or such of the members of that assembly knew to be likely to be committed in prosecution of that object. Insuchacase,itmaybesafetoconvictonlythosepersons againstwhomovertactisallegedwiththeaidofSection 149IPC.
Inthecaseof1991SUPREMECOURTCASES(CRI.) PAGE1059,SHEREYANDOTHERSv.STATEOFU.P.it
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is observed by the Hon'ble Supreme Court of India that, whenthereisageneralallegationagainstalargenumberof persons, court hesitates to convict all of them on vague evidence there must be some reasonable circumstances lending assurance Held on facts, it would be safe to convict only those accused whose presence was not only consistently mentioned from the stage of FIR but also to whom overt acts were attributed Fact that they were armedwithlethalweaponsandattackedthevictimsshows thattheyweremembersofanunlawfulassemblywiththe common object of committing murder and other offences withwhichtheywerecharged.Butnamesofotheraccused mentionedinanomnibuswaythattheywerearmedwith lathiswithoutattributinganyovertacttoanyoneofthem and medical evidence ruling out any lathis having been usedHencetheseaccusedcannotbeconvicted.
In the case of (2006) 2 SUPREME COURT CASES (CRI.)PAGE43MUNNACHANDAv.STATEOFASSAM,it is observed by the Hon'ble Supreme Court of India that, Homicidaldeathofthedeceasedisundisputed. However, there is no evidence as to who had assaulted him. Role played by the accused either conjointly or individually in
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causingdeathofthedeceasedisnotknown.Someoffence wascommitted,butwhodidsoisnotknown.Itisalsonot known as to whether if one or all of the appellants were present,whenthelastblowwasgiven. Itcannotbesaid that they had common object of intentional killing of the deceased.NeitherSec.34norSec.149ofthePenalCodeis, therefore,attracted. Theconceptofcommonobject,itiswellknown,isdifferent fromcommonintention. Itistruethatsofarascommon objectisconcernednopriorconcertisrequired.Common objectcanbeformedonthespurofthemoment.Courseof conductadoptedbythemembersoftheassembly,however, is a relevant factor. At what point of time the common objectoftheunlawfulassemblywasformedwoulddepend uponthefactsandcircumstancesofeachcase.
Section 149 IPC creates a specific and distinct offence. Therearetwoessentialingredientsthereof:
(a) commonsofanoffencebyanymemberofanunlawful assembly,and (b) such offence must have been committed in prosecutionofthe common object of that assembly
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ormustbesuchasthemembers of that assembly knewtobelikelytobecommitted. 52. WhiledealingwiththeissueofUnlawfulAssembly,accused side has relied upon PANDURANG CHANDRAKANT MHATRE AND OTHER v. STATE OF MAHARASHTRA, (2010) 1 SUPREME COURT CASES (CRI.) 413, it is observedinthecitedrulingthat,conductofeachmember of unlawful assembly before and at the time of attack is relevant consideration. Object of unlawful assembly is a question of fact, which has to be determined keeping in viewthenatureofassembly,armscarriedbymembersand behaviourofmembersatornearsceneofincident.Further, it is observed in the ruling that, designs of unlawful assemblymaynothavebeensharedbytheothermembers ofunlawfulassemblyhencebyapplyingruleofcautionthe presence as members of parties of assailants was consistentlymentionedandtheirovertactsinchasingand assaulting the deceased were clearly proved beyond reasonabledoubt.
Relyingupontheabovecitations,itisarguedbyShri Dhruv that here in the present case, there are no eye witnessmakingallclaimsofhavingwitnessedtheincident.
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TheyhavenotdeposedbeforetheHonbleCourtthatoutof themob,whodonotclaimtobeatthetimecommissionof offence and who set on fire the house of Mahemudmiya, killing 25 persons in it. If any of them have already witnessed the incident, they would have certainly named particularpersons.Assomanypersonshavebeennamed inFIRandstatements,whoassaultedandsetonfirethe houseofMahemudmiya.Further,itisarguedbyhimthat substantive offence of murder be shown to have been committed by any particular accused and if there is no evidence on record that who set on fire the house of Mahemudmiya,thepresentaccusedcannot beconvicted. ConvictingtheaccusedwiththeaidofSection149,some overtactmustbeshowntohavebeencommitted bythe accused for committing substantive offence. Further it is submitted that all the witnesses including complainant havemateriallyimprovedtheirversionandtheyhavegiven absolutely different version than what they gave before Investigating Authority. Over and above, they have materiallychangedandimprovedupontherebeingwritten affidavits produced before the Honble Supreme Court of India and written applications addressed to S.I.T. more particularly in dealing with the communal riots matter
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whereemotionswererunninghighbetweenthetwogroups. Evidenceofwitnesseswouldrequiretobeexamined very cautiously. Evidence adduced by all the witness is full of material and important contradictions. They have absolutelychangedtheirversionbeforetheCourtthatwhat they first stated before the Investigating Agency or in the affidavitsorintheapplications.Furtheritissubmittedby ShriDhruvthat,defencesubmittedbytheaccusedismuch acceptableonthebasisoftheevidenceadducedbeforethe Court. Accused is not required to prove his case beyond reasonabledoubtasitisupontheprosecutiontoprovethe guilt of the accused beyond reasonable doubt. As reasonable doubt about the complicity of the accused, is shown on the basis of the prosecution evidence, the accusedwouldbeentitledforacquittal.Inthepresentcase, accused have successfully shown that the house of Mahemudmiyawhichisallegedtohavebeensetonfirein which there were nearly 29 persons who have died, was attacked from the backside of his house by the mob of villageSundarpurandnotbythemobofSardarpurfrom wherethepresentaccusedbelonges.Evenalltheaccused have given plausible and possible explanation, as to why they have been framed as an accused by the witnesses.
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Further, it is argued by Shri Dhruv that witnesses have claimedthattheyhaveseentheaccusedfromaverylittle distance. They identified certain accused from the mob, alsohowever,allthewitnessesaresilentaboutthefactas towhosetonfirethehouseofMahemudmiyaandhowthe housewassetonfire.Further,itisarguedbyShriDhruv thatlookingtothepositionofthehouses,itisimpossible that any one who is inside would ever survive. However, prosecutionwitnessesclaimthatcertaininjuredwitnesses wererescuedfromthehouseofMahemudmiyaandforthis purpose,ShriDhruvhasdrawnmyattentiontowardsthe FIRinwhichitismentionedthatonlythreepersonswere rescuedfromthehouseofMahemudmiyawhohavediedon thewaytothehospital.AsperP.W.56ShaikhAyubmiya Rasulmiya, P.W.73 Faridabibi Aashikhusen Shaikh, P.W.78 Shaikh Basirabibi Bachumiya and P.W.80 Shaikh Ruksanabanu Ibrahimmiya Shaikh, all of them havedeposedbeforetheCourtthattheysustainedinjury while they were inside the room. Further, there is no evidence on record to suggest that attack was predetermined or act of setting on fire the house of Mahemudmiya was predetermined. There is evidence on recordtoshowthatMahemudmiyashousewastargetedfor
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particularly itcontained more persons inside it. If amob haspredeterminedtosetonfirethepersonsonparticular communitythentheywouldnotspareanywitnessesfound singleontheirway.FurtheritissubmittedbyShriDhruv that,assumingtheaccusedsharedcommonobjecttokilla personofparticularcommunitythenthecertainwitnesses whowereseenbythemobstandinginthesaidMaholla, none of the witnesses were attacked by that mob and therefore,itisthesayofShriDhruvthatthemobreferred by the witnesses has notkilled anyone or seton fire the houseofMahemudmiya.Thewitnesseswhowerefoundin thesaidMaholla,seenbythemobwereverysofttargetto takeawaytheirliveseventhoughnoneofthepersonsfrom themobhadanyobjectthoughthosewitnesseswerefound standingintheMahollatherefore,itcanneverbesaidthat the mob had any object even in commission to kill particular person of that community. Further, it is submittedthattheincidenthasnotoccurredinthemanner inwhichitisdeposedbythewitnesses.Whatisdeposedby thewitnessesintheCourtisnotbeingstatedatthefirst available opportunity either to the police to any of the member of any or community or to S.I.T. formed after 6 years.Itgoestosuggestthatprobablythewitnesseshave
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not witnessed the incident and they have framed the accused. 53. Sofarascontentionregardingconsistentimprovementsin the evidence of the witnesses, who have supported the prosecution case is concerned, all these witnesses have beenextensivelycrossexamined.Allpossiblelatitudewas given to the learned advocates in the matter of cross examinationandnoattemptwasmadetocurtailthelength of the same, at any point of time. Further, the whole argumentsofaccusedsideinrespectofimpossibilitytosee themobisunrealistic,seeingorobservingthemobisnot thesamethingasobservingasinglestationaryobject.In thepresentcasemobisstatedtobeconsistingof1000to 1500persons.Itistruethat,correctnessofthisfigurecan bedoubted.Buttherecanbenodisputethat,largenumber of persons were there in the mob. The area and space occupiedbysuchabigmobwouldbeconsiderableandit would be futile to say that, mob could be seen from any particular point only or that it could not be seen from another particular point. The position of a person in the mobcanbeataveryfarplacefromthatofanotherinthe same mob as the mob was not standing but moving towards Mahemudmiya's house. The evidence shows the
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presence of mob at the place of occurrence during the period. The eyewitnesses were also present. Under these circumstancesthereisnothingtoindicatethat,theclaimof havingseenthesomeofaccusedamongthemobofrioters asmadebytheeyewitnesseswithintheirevidencerelates to any particular point of time. The evidence of eye witnesses cannot be construed so as to mean that, whatsoeverwereobservedbythemaspersonsinthemobof rioters were so observed only when they were inside the Mahemudmiya's or some other house in Shaikh Maholla theydidnotseeanyone.Thus,theconclusionistherefore irresistible that, there is nothing in the evidence which wouldindicatethatitwasnotpossiblefortheeyewitnesses tohaveseeoridentifyanypersonsinthemobofrioters. Evidenceindicatesthat,therewaseverypossibilityofthe eyewitnesses being able to see the mob. At least some persons in the mob during the time for which mob was there. Sofarastheargumentsadvancedbytheaccused sidethat,ifobjectofthemobwastokilltheMuslimswhy theyhaveleftthewitnesses,whowereverymuchpresentin ShaikhMaholla.Noonehadpreventedthemobtokillthem toachievetheirobjectisconcerned,anunlawfulassembly thoughdoespossessacommonunlawfulassemblyobjectis
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notnecessarilygovernedbyanyfixorplannedprogramme. Theobjectiscommonanditistobeaccomplishedbutthe methodarelefttothememberconcernedtobedecidedon thebasisofwhatwouldhappenedonthespot.Itisevident that, there was no specific object to kill any specific personsoranyspecificnumberofpersons,settingonfire the cabins and houses in Shaikh Maholla. Specially the houseofMahemudmiyainShaikhMahollawastheeasiest andmostconvenientwayofcausingdamagetotheperson andpropertytocreatemoreterribleimpactorfearinthe minds of Muslim community. House of Maholla was dwelling house and members of unlawful assembly were clearly aware that, number of persons were inside the house in spite of that, the whole house was set on fire. Consideringaboveallitcannotbesaidthat,theobjectof theunlawfulassemblywasnottotakeawaythelivesofany of the persons. The arguments on behalf of the accused that,iftheobjectofmobwastokilltheMuslimshowthey havesparedthewitnessesisconcerned,itisnotthatany individual member of assembly would instantly kill any Muslim as soon as Muslim would come in contact with him. It is the only collective action of the assembly, supported by numerous persons then only he would be
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instigatedtocommitsuchact.Whenanindividualisapart ofthemobhelooseshisidentityandtakesontheidentity ofthemobthenanypersonhowevermildoraggressive,he maybe,doeswhatthemobdoes.Itisalwaysseeninaction bymobandindividualcomesupwiththestrongestpossible expression on such occasion while in the mob of rioters. Further,changeinthecompositionoftheassemblywould notmakeanydifferenceinthepenalliabilitytobefastened on an individual accused. For fastening such liability on himitistobeshownthat,hewasamemberofunlawful assembly at the time of committing an offence. Thus, assuming there is number of changes in the composition eventhenitistobetreatedasasingleunlawfulassembly byreasonofthecontinuityofitsactivitiesandidentifyof the objectand accused is liable forguiltfor offence if he waspresentinunlawfulassemblyatthetimeofincident. The movement a member disassociates from the membership of unlawful assembly his responsibility or liability for the acts committed by unlawful assembly thereaftercomestoanend.Here,themembersofunlawful assembly have committed capital offences. The act of settingonfirethehousesinShaikhMaholla,speciallythe Mahemudmiya'shouseisanindicativeofanintentionorat
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leasttheknowledgenecessarytoconstitutetheoffenceof murder in the circumstances that death of 33 persons and24injuredonaccountoffiresoset. By keeping in mind the ratio laid down in all the citations, cited on behalf of both the sides, when we consider the fact of the present case, accused as well as witnesses are the resident of the same village. They are known to each other. As discussed earlier there was sufficientlightatthetimeofoccurrence.Sothatwitness could see the mob. Under above circumstances if no identification parade of the accused is carried out it becomesofnoimportance.
54.
Whether accused persons were members of unlawful assembly is required to be established on the basis of identificationoftheaccusedalso.Themainchallengefrom the accused side is that it was not possible for the witnessestoseethemobofriotersanditisarguedbythem thatnoidentificationparadeofaccusedpersonshasbeen made during investigation. The fundamental and basic questioninrespectoffixationofidentityoftheaccusedis concerned, the actual evidence regarding identification is that which is given by a witness in the court. If that
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evidenceisacceptablethequestionwhethertheidentityof the accused had been satisfactorily established at the investigationstagewouldbeimmaterial.However,itmaybe relevantforjudgingthereliabilityoftheidentificationmade in the court identity satisfactorily established during the investigationstageinsomecasesserveascorroborationto theidentificationtothecourtbutitwouldnotberelevant at all. The identity during trial is to be established by proper evidence. If the victim or witness names certain personsasaccusedduringtheinvestigation,confirmation abouttheidentityoftheaccusedisnecessaryforarresting purpose and investigating officer has to ascertain the identityoftheaccusedbeforesendinghimfortrial.Once thecasecomestothetrialtheidentityoftheaccusedis required to be established by legally admissible evidence. Asdiscussedearlierwhileappreciatingevidence,itwould be normal reaction of witnesses to see as to what was happeningwhenthestoneswerebeingpelted,sloganswere being given, and cabins were set on fire and to see who werethepersonsformingthemob.Itisonlyafterknowing whattheyweredoing,thewitnesseswouldknowtowhat extenttheywereindanger.Usuallyapersonundersucha tense atmosphere observes better and remembers clearly.
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Theevidenceofthewitnessisrequiredtobeappreciated withextracareandcaution.Hereinthepresentcasethe incidenthaslastedforalongperiodmorethanonehour. Therewassufficientopportunitytothewitnessestoseethe offenders.Moreparticularlyinacircumstanceswhenthe mob was from the same locality. Duration of incident mannerandopportunitytoobservetheincidentisrequired to be considered while appreciating the evidence on identification,there cannotbearejectionofevidenceon thegroundthattheywerenotabletoseethemob.There waseverypossibilityforthewitnessestoseethepersonsin themobasmobwasforalongperiodintheMaholla.Once theaccusedarewellknowntothewitnesses,thereisno necessity for test of identification parade. By keeping in mindthesettledpropositionoflawinthisregard,whenwe consider the present case the substantive evidence as regardtheidentificationwouldonlybetheidentificationof an accused made by a witness in the court. Test identificationparadeisnecessarywhereoffenderwouldnot beknowntothewitnessesbeforeincident.Thus,failureto holdidentityparademaydisprovefactonlyincaseswhere theoffenderwouldnotbeknowntothewitnesses.Therule isbasedonlogiccommonsenseandprudence.Hereinthe
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presentcaseaccusedhavebeenidentifiedbythemasthey were known to them since previously. Here some of the witnesseshaveidentifiedtheaccusedbyfaceasthoseare notknowntothembyname.Herenoidentificationparade wasdemandedbytheaccusedduringinvestigation.During thetrialithascomeoutthataccusedbelongstothesame villageandsamearea.Itisnotindisputethataccusedare not belonging from Sardarpur. On the contrary evidence suggests that accused are from same area. Then in that case nothing more is required toaccept statementof the witnesses that they know them unless it is shown positivelythatwitnessesarelyinginthisrecord.Herethere ispositive claim of thewitnesses that, they and accused belongtothesamearea.Thereisnoreasontodisbelieve thesayofwitnesseswhentheysaythataccusedidentified by them are known to them since before. Now the questions which requires to be appreciated is whether evidence of identification should be disbelieved on the groundthateitherthenamesorthedetailsofparticulars of the accused identified by the witnesses were not mentionedbythemtothepolice,itistruethatitwould amountomissiontostateamaterialandtothesignificant fact,rejectionoftheevidenceofsuchidentificationinthe
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courtisamatterthatdependsupondifferentfactor.The effect of not naming the accused or not giving details or information to the police would result in rejection of evidenceofidentificationmadebysuchwitnesseslatterin thecourtismatterdependingonanumberoffacts. The actual evidence regarding identification is that, which is given by a witness in the Court. If that evidence is acceptablethequestionwhethertheidentityoftheaccused had been satisfactorily established at the investigation stagewouldbeimmaterial.Saveandexceptinsofarasit may be relevant for judging the reliability of the identification made in the Court. If the identity of the accused is satisfactorily established during investigation stage,itmayinsomeofthecasesserveascorroborationto the identification in Court. But by itself it would not be relevant at all. the confirmation of the identity of the culpritsbytheinvestigatingofficeratthetimeofthearrest would undoubtedly be necessary but the investigating officer cannot be restricted to have such confirmation of identityfromaparticularcaseorinaparticularmanner. Hisconfirmationofidentityisforhisownsatisfactionbut notforthesatisfactionoftheCourtduringthetrial.His satisfaction about the identity would be relevant for the
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purposeofarrestandtillthatstagetheidentityduringthe trialistobeestablishedbyproperevidence.Ifthevictims orthewitnesseswouldnamecertainpersonorpersonsas accused undoubtedly, the investigating officer while arrestingthemisrequiredtoconfirmtheiridentityasthe samepersonsagainstwhomallegationshasbeenleveled. However, this satisfaction is to be reached by the InvestigatingOfficer.Hecanarriveatitbyanymodewhich hethinkssatisfactory.Thisisclearfromthefactthateven wherethenamesarenotgiven,orevenwheretheculpritis stated to be unknown to the victims, the Investigating Officerhastoascertaintheidentityofanaccusedasthe culprit before sending him for trial. Obviously, in such cases, confirmation of identity cannot be done from the victims.Thesourceonwhichhisbeliefwouldbebased,has nothingtodowiththeadmissibility,asapieceofevidence, of that source. The Investigating Officer may reach the requisitesatisfactionfromasourceotherthanthevictims and the witnesses even where they have named the offenders. The contention of impossibility of the eye witnesseshavingseenthemoborsomepersonsinthemob asadvancedisconcernedthemobwasof1000to1500.It isprovedthat,stoneswerethrownandkeroseneandpetrol
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were poured inthat circumstances itwould be a normal behaviourofwitnessestoseewhatwashappeningswhen thestoneswerepeltedandsloganswerebeinggivenand fire was being set. At any rate a common reaction of a humanbeingwouldbetotrytoascertainastofromwhere howseriousandofwhatnaturethedangerexists.When themobwouldbecollectedandgivingslogans,itwouldbe quitenaturalforthewitnessestofirsttrytoseeastowhat washappeningsandinthatprocessobviouslytoseewho werethepersonsformingthemob.Itisonlyafterknowing what they were doing the witnesses would know towhat extenttheywereindanger.
Prioracquaintancemaynotbeinferredfromthefact thataccusedandwitnessesaretheresidenceofthesame localityornearbyarea.Hereisaspecificcaseofwitnesses that witnesses and accused belong to the same village whichstrengthentheclaimofwitnesses.
Itisnotindisputethatduringtheperiodofpresent incident number of cases of serious offences were being registered and there was serious law and order problem
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whichthe police was facing. Itwas notpossible tomake detailedinquirywiththewitnessesandtrytoillicitdetail information from them. Further considering the mental andphysicalconditionoftheinjuredwitnesses,itwasnot possibletoacceptthattheywillgivedetailsoftheincident. Itwasnotpossibletomaintainaccuraterecordofwhatthe witnesses said. The authenticity and accuracy of the statementsrecordedbyInvestigatingOfficerarerequiredto be considered carefully. The alleged discrepancies contradictions,omissionsintheappreciationarerequired to be considered by keeping above evidence in the mind. Most of the contradictions and omissions which are brought on record are insignificant and immaterial. The only significant and material omission would be to state thenamesofcertainaccusedpersonsasbeingpresentin the mob in case of those witnesses who claim to have knownthemfrombefore.Contradictionsinthestatements of concerned eyewitnesses as compared with the statements recorded by Investigating Officer, cannot be allowedtoeffectthecredibilityofthosewitnesses.Further no much importance can be given to the so called contradictions and omissions in the circumstances in whichstatementswererecorded.Therecannotbeinflexible
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rulethatifawitnessdidnotnameanaccusedbeforethe policehisevidenceidentifyingtheaccusedforthefirsttime inthecourtcannotbereliedupon.Failuretoname the accusedinthestatementsbeforethepolicethoughknown would not result in drawing an adverse inference against the prosecution. There may be several reasons for witnesses not naming the accused or to state that the accused was known to himand ifthereasons arefound acceptable, the evidence of the witnesses cannot be doubtedonlyduetosuchfailure.Suchomissionsonthe part of witnesses would only require deeper and closer scrutinyoftheevidenceanddoesnotwarrantitsoutright rejection. Further, effect of the victim not naming the accusedbeforethepolicethoughpreviouslyknowntohim isconcernedhereinthepresentcasevictimshavesuffered abrutalmentalagonyandinthatcircumstancesandthat too,thataccusedandwitnessesareresidinginsameand nearbylocalitywouldcertainlypreventthewitnessesfrom naming the accused before police. There was tense atmosphere. The victims were under tremendous tense atmosphere. In that circumstances if the witnesses have not named the accused before police though known to them that would not be sufficient to discard their
// 834 //
testimony.Thebasicsuppositionaboutthebehaviourorre actionorperceptionofthewitnessesregardingtheincident will be wrongly presumed if we expect that they should have mentioned specifically in spite of the situation prevailingatthattime.Wehavetogiveathoughthowa witnesswillexpressastowhathadhappened.Theattack was indeed by a Hindu mob with no particular enmity towards any particular victim. The actions of individual accused were only a part of the actions of the mob and naturally were precised as actions of the mob by the victims and witnesses. In such circumstances history as giveninmedicalpapersisproper,whetheranybodyfrom the mob was known to the witnesses was matter which couldbestatedbythewitnessesonlyonspecificquestion to them, in the light of evidence as to the condition of injured,tenseatmosphere,heavyburdenonthepolice,itis impossible to hold that any attemptto elicit this specific information against the offenders were made or injured witnesseswereinapositionatthematerialpointoftimeto givesuchevidence.Inthesituationthatwasprevailingat thematerialtime,itwasimpossibleforInvestigatingOfficer tocoollyandcalmlyelicitsuchdetailsfromthevictimswho wereundersuchtenseatmosphereandinjured.Therefore,
// 835 //
evidence of eye witnesses cannot be discredited on the ground that no identification test parade was done or accused were not identified by the witnesses before the police. Here in the present case it is not claimed by the accused that they are not known to the witnesses. They have not demanded test identification parade during investigation which is notheld.Accusedareidentified by thewitnessesinthecourtduringthetrialthatwouldnot helptheaccusedinanyway. 55. Ihavenohesitationtoconcludethattheevidenceofeye witnessesregardingidentificationcannotbediscreditedon the ground that, they had not named or not given descriptionoftheaccusedidentifiedbythemtothepolice though they are previously known. There is nothing contradictory, incredible, imporobable or inconsistant in theirevidence.Further,consideringthewholeevidenceof the witnesses, all the witnesses have avoided attributing false overt acts to the accused identified by them, which wouldhavebeenquiteeasyforthem.Therearenumberof incidentsinevidenceofthesewitnesses,whichsuggestthat theycouldhaveimplicatedmoreaccusedthenidentifiedby them or attributed more serious acts to the accused
// 836 //
identifiedbythemwhichhasnotbeendone.
56.
Itissubmittedonbehalfofaccusedthat,eyewitnessare tutored by Smt.Teesta Setalvad. The interest of Teesta Setalvad and her organization in the present case is obvious.Thewitnesseshavespecificallydeniedthat,Teesta Setalvadhastoldthemastowhatevidencewastobegiven inacase.Consideringtheevidenceandfactinthisregard whenweconsiderthisfactmerediscussionaboutthecase would not necessarily indicate tutoring. It is not an accepted proposition that, the witnesses are never to be contacted by any one or spoken to about the matter regardingwhichtheyaretodepose.Anumberofthingscan be told to the witnesses such as not to be nurvous, carefullylistentothequestionputtothem,statethefacts beforetheCourtwithoutfear,thereforeitdoesnotappear anyobjectionablemorallyorlegally.Tutoringawitnessis quitedifferentfromguidinghimastohisbehaviour.Inthe presentcase,theinjuredwitnesseswereinsuchastateof mind that without the active support of someone they mightnothavecome beforethecourttogiveevidenceat all. The encouragement and the advice if provided by CitizenforPeaceandJusticethatcannotbeconsideredas
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tutoringandsimplybecauseofthat,wecannotinferthat the witnesses are tutored. From the matter it transpires that Citizen for Justice and Peace have made allegations before the Hon'ble Supreme Court of India against the State authorities but on that strength it cannot be said that, NGOs. have worked with bad motives. If they had fought for truth what was believed by them as truth. It does not mean that they have tutored the witnesses to falselyidentifytheaccusedintheCourt.
57.
Inthisregardwhenweconsidertheevidence,witnesscould be tutored only by a person who knew the facts. It is difficult for a person who was not present at the time of occurrencetotutoranoccurrencewitnessandifatallthis canbedone,itwouldbebasedontherecordsofthecase, whichdoesnotseentohavebeenhappenedinthepresent case. Further, more the happenings and the manner in whichinthepresentcasetookplace,isalsonotmuchin dispute,sotheaspectoftutoringwouldbeconfinedtothe identification only. It is not easy to tutor one to identify another as victims and accused are previously known to eachotherbutnotknowntotutoringpersons.Tutoringof thistypewouldrequirethepersonstutoring,theconcerned
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accused and the concerned witness to be together for a reasonable period or one or more occassion. Further, tutoringinsuchcaseswouldbeinconsonancewithpolice record or prosecution case which does not appear to be happenedinthiscase.Further,itisalsoimportanttobe considered that, before identification in the Court by the witnessaccusedwereaskedtositintheCourtaspertheir own choice, they were not forced to sit at serial number giventotheminChargesheetoranyotherfixorderand theirnameswereneverloudlybeingcalledoutinthecourt inthepresenceofwitnesses.Theidentificationofaccused havetakenplaceundertheobservationoftheCourt.Sothe courtcanviewtheactions/reactionsofthewitnesses.All precautionsweretakenbytheCourtwhileidentificationof accused were carried out in the Court room. Further, precautionswerealsotakenbytheCourtwhetherwitness couldseethepersonssittingintheCourtroom.Similarly accused were given liberty to sit in the court in any manner,anywhere.
58.
Sofarasirregularitiesaspointedoutcommittedduringthe courseofinvestigationisconcerned,fromtheevidenceon record it appears that, Investigating Officer Shri
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K.R.Vaghela was making sufficient efforts for arrest of accused. Due to non support from locality he could not arrest all the accused immediately and it took sometime. Even, some of the accused are arrested subsequently, by Shri R.D.Baranda, the then Police Inspector and after Investigation by S.I.T., I.O. Shri G.V.Barot it does not amount fatal to the case since all the accused are not named in F.I.R. or in the statement of witnesses. Thus, thereisnodeliberatedefectiveinvestigation,noLecunaleft for falsely implicating the accused. The allegation of manipulation of F.I.R. have no substance, as discussed earlierthereisnoevidencesuggestingthemanipulationof therecordwithintenttoimplicatetheaccusedmoreand more.Nomanipulationhavebeendonewithregardtothe articles sent for examination to F.S.L. for connecting the articles with the offence in question. No doubt there are someirregularitiesandlapsesininvestigationbutthoseare notsuchwhichcouldprejudicetheaccused.Thusthecase stands on the evidence of identification of accused by witnesses and no proper efforts to collect any other evidenceweremadeduringtheinvestigation.Theclaimof the accused side that, this was done to implicate the accusedfalsely,isnotacceptable.Itiswellsettledifthereis
// 840 //
any irregularities in investigation and if accused is not prejudicedduetosuchirregularities,itwillnotbeafatalof thecase.Hereaccusedarenotclaimingthat,theyarenot known to the witnesses and also have not demanded IdentificationParade,whichisnotheldinthepresentcase andwitnesseshaveidentifiedtheaccusedinthecourtbut no such steps were taken by the accused in the present case.Thus,thereisnothinginthecasetoindicateabout defectiveinvestigationduetowhichaccusedareprejudiced. Thus, there is nothing wrong and improper in the identificationevidence.
59.
InCriminaltrialmotiveisoneofthefactorbutinacaseof murderandofdirectevidencemotiveisofnoimportanceif thecaseisotherwiseprovedfromothercogentandreliable evidence.Whileinacaseofcircumstantialevidencemotive plays important role. However, when we consider the evidence in the present case, the motive behind the present occurrence is to take revenge from Muslim communityas"KarSevaks"wereburntaliveinSabarmati TrainatGodhraandthismotiveisprovedfromtheevidence ofallthewitnessesandalsoitisnotchallenged.
// 841 //
60.
Theunlawfulassemblyhastobedeterminedwithrespect ofeachsuchassemblythatwasformedduringtheperiodof occurrence.UnlawfulassemblyasdefinedinSection149of I.P.C. In assembly of five or more persons actuate by an entertainingoneormoreofthecommonobjectsspecified by the five clauses of the said section is an unlawful assembly. Change in the composition in the assembly wouldnotmakeanydifferenceinthepenalliabilitytobe fastened on an individual accused. For fastening such liabilityonhim,itistobeshownthathewasmemberof unlawfulassemblyatthetimeofcommittingofanoffence. Thusassumingtherearechangesincompositioneventhen itistobetreatedassingleunlawfulassemblybyreasonof the continuity of its activities and identity of object. An accusedisliableforguiltforoffenceifhewaspresentin unlawfulassemblyat thetimeof incident,themoment a memberdisassociatefromthemembershipoftheunlawful assembly his responsibility or liability for the acts committed by unlawful assembly thereafter comes to an end. The act of setting on fire the houses in Shaikh Maholla, especially of Mahemudmiya's house in Shaikh Maholla is an indicative of an intention or at least the knowledgewhichisnecessarytoconstitutetheoffenceof
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murderinthecircumstancesofdeathof33personsand24 injuredonaccountthefiresoset.Sofarasthearguments advancedbyShriDhruvthatif,objectofthemobwasto killtheMuslimstheywouldnothaveleftthewitnessesalive in Shaikh Maholla who were very much present in the ShaikhMaholla.Noonehadpreventedthemobtokillthem toachievetheirobjectandunlawfulassemblythoughdoes notpossessacommonunlawfulobject,isnotnecessarily governedbyanyfixedandplannedprogramme.Theobject iscommonanditistobeaccomplishedwherethemethods are left tothe members concerned tobe decidedonthe basisofwhatwouldhappenonthespot.Itisevidentthat therewasnospecificobjecttokillanyspecificpersonor specific number of person setting on fire the cabins and houses in Shaikh Maholla, specially the house of Mahemudmiya in shakih Maholla was easiest and most convenient way of causing damage to the person and propertytocreatemoreterribleimpactorfearinmindsof Muslim community. House of Mahemudmiya dwelling houseandmembersofunlawfulassemblywereawarethat numberofpersonshadbeeninsidethehouseinspiteof thatwholehousewassetonfire. Consideringaboveallit cannotbesaidthattheobjectofunlawfulassemblywasnot
// 843 //
totakeawaylivesofanyperson.SofarasargumentbyShri Dhruv that, if the object of mob was to kill the Muslims howtheyhavesparedthewitnessisconcerneditisnotthat anyindividualofassemblywouldinstantlykillanyMuslim assoonasMuslimwouldcomeincontactwithhim.Itis only the collective action of the assembly supported numerous persons then only he would be instigated to commitsuchacts.Whenanindividualisapartofthemob helooseshisidentityandtakesontheidentityofthemob thenanypersonhowevermildoraggressive,hemaydoes whatthemobdoes.Itisalwaysseeninanactionbymob an individual comes up with the strongest possible expression on such occasion only while in the mob of rioters. In the present case it cannot be ignored that communalriotsstartedasareactioncausebythebelief thatKarsevakhadbeenburnttodeathbyMuslims.The riots are said to be retaliatory action. Therefore, there is nothing surprising if method of burning is adopted for killingthepeople.Toburnanyonetodeathisaneasyform of murder. It does not need any weapon and there is no evidenceleftbehindit,isaneasiestwaytoinflictpainand there is no physical contact between the assailant and victim. The various acts such as shouting slogans and
// 844 //
peltingstones,burningcabinshouses,werenotcommitted atthewhimsofindividualmembercomposingtheunlawful assembly.Itisevidenceonrecordthatsettingonfirethe cabinsandhousesinShaikhMahollacausingburnsinjury to injured as well as to deceased clearly indicate the common object of the said unlawful assembly. Further entering in Shaikh Maholla by the mob itself indicate towardsthecommonobjectofthemobtherefore,therewas no reason for any of the person from the mob to go to Shaikh Maholla at such a late hours. In Shaikh Maholla onlythewitnesseswereresiding.Itwasnotapublicplace orpublicwayforpassingandrepassingaperson.Persons canbeexpectedinShaikhMahollaforparticularpurpose only.Itisnotthesayofanyoftheaccusedthat,hehad been there for any other purpose. Further there was no previous enmity between the victims and accused on the contrary witness were working either in the fields of the accused or in brickklin or some other places of the accusedwhythewitnesseswilltrytofalselyimplicatethe personswhowereprovidingsourceof incometothemby leaving the actual culprits. Thus, the common object of unlawfulassemblyisclearlyestablishedbytheprosecution.
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61.
Now,keepinginmindaboveconceptofsettledproposition ofLawalongwiththeevidenceandfactofthepresentcase wehavetodiscusstheinvolvementofaccusedinthecrime. InSessionsCaseNo.275/2002thereweretotal55accused persons, out of which accused No.10 Patel Jayantibhai Jivanbhai died during the trial of this case hence case against him is abated while one Rohitkumar Ramanbhai Prajapati is shown as Accused No.19 in the Chargesheet but being minor i.e. 17 years age, case against him is orderedtobeproceededbeforetheJuvenileJusticeBoard againstsaidaccused,videExh.71,while accusedNo.20 PrajapatiRavikumarAmratbhaiwasshownagedabout17 yearsbutbyvirtueofPursispassedbelowExh.74,itwas foundthat,saidaccusedisagedabout18yearsatthetime of commission of crime hence case against him is conducted by this Court. In Sessions Case No.7/2009 accusedNo.1PatelKantibhaiPrabhudas,agedabout61 Yearshasdiedduringthetrialofthiscaseandtherefore, caseagainsthimisabated inpursuanceoforderpassed belowExh.540and523,whileSupplementaryChargesheet against accused Arvind Kashiram was submitted, which was committed before Sessions Court vide Sessions Case No.72/2010 hence charge, against him was framed on
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25.08.2010andtheirSessionCaseistriedalongwithother Sessions Cases, arising from the same Crime Register Number,byconsolidatingalltheSessionsCases. 62. The main defence of the accused is based on falsely implication of accused. The Court cannot keep aside the realissuesindisputewhichrequiredtobedeeplyexamined therefore,itisabsolutelynecessarytoexaminetheevidence againsteachaccusedseparately.Toseewhetherisofsuch adegreesoastocometoaconclusionoftheinvolvementof the particular accused of the alleged offence. It is rarely thatthecourtcomestotheconclusionofawitnessbeing whollyreliablesoastoacceptandbelieveeverythingthat hesays.Thepointofreliabilitydoesnotdependonlyonthe attitudeofthewitnessorhisdesiretospeakthetruthbut alsoontheaccuracyofhisperceptionandhismemory. AccusedNo.1PATELRAMESHBHAIKANJIBHAI (SessionsCaseNo.275/2002) P.W.47IbrahimmiyaRasulmiyaShaikh,whoisthe complainanthasdeposedinhisdepositionthat,whenthe mobhadburntthehousesinShaikhMahollaatthattime hesawtheaccusedinthemob.Butinhisdepositionhe
63.
// 847 //
has not identified the accused in the Court. But in the complaint,hehasmentionedthenameoftheaccusedbut in his statement dated 10.03.2002, 01.06.2002 and applicationdated01.06.2002andaffidavitdated06.11.2003 and in the Statement dated 11.06.2008 before the S.I.T., nameofpresentaccusedisnotmentioned.Hisnameisalso not mentioned in the application and statement dated 09.05.2008beforeS.I.T.Whenweperusethedepositionof P.W.68 Gulamali Akbarmiya Shaikh, he has stated the nameofpresentaccusedinhisdepositionthat,hesawthe accused in the mob when mob came inside, he was standing in the Naveli of Bachumiya Imammiya Shaikh. ThiswitnesshasidentifiedtheaccusedbeforetheCourt,he took 12 minutes in identifying the present accused alongwith other accused. He has mentioned the name of thisaccusedinhisstatementdated10.03.2002buthasnot mentioned his name in the application dated 09.05.2008 and he has named the accused in his statement dated 10.05.2008 but there is contradiction in his statements from where and how he has seen the accused but as discussedearlierthiscontradictionbecameinsignificantas therewassufficientopportunitiesforthewitnesstoseethe mobandinthatcaseifthewitnessissayingthathesaw
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theaccusedthatisreliablewhichiscorroboratedbyF.I.R. P.W.73 Faridabibi Aashikhusen Shaikh has not stated the name of this accused in her statement dated 02.03.2002 and 11.06.2008 and has not named in her depositionbutshehasidentifiedtheaccusedintheCourt forthefirsttimebyfaceonly. AsdiscussedearlierinthisJudgement,allthethree witnesses had sufficient opportunities to see the mob. In that circumstances if P.W.47 Ibrahimmiya Rasulmiya Shaikh and P.W.68 Gulamali Rasulmiya Shaikh are statingthat,theyhaveseentheaccusedinthemobthat possibility cannotberuled outas accused and witnesses are resident of village Sardarpur and well known to each other.SofarasidentificationofthisaccusedbyFaridabibi Aashikhusen Shaikh before the Court is concerned, she has not named the accused in any of her statement nor beforetheCourtbutbyfacesheisidentifyingtheaccused. As the accused and witness are resident of Village Sardarpur in that circumstances when the witnesses not knowingthenameoftheaccused,muchreliancecannotbe placed on the say of P.W. 73 Faridibibi Aashikhusen Shaikhonthispointwithoutthesupportofotherevidence but the say of Ibrahimmiya Rasulmiya Shaikh and
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Gulamali Akbarmiya Shaikh about the presence of said accusedinthemobcannotbedoubted.Thus,itisproved bytheprosecutionbeyondreasonabledoubtthat,present accusedwasthememberofunlawfulassembly.
Itisnotindisputethat,theaccusedistheresidentof VillageSardarpurandwitnessesarealsoresidentofVillage Sardarpur.Theyareknowntoeachothersincepreviously hence evidence of witnesses can safely be accepted as regardstotheinvolvementofthisaccusedandevidenceof witnessesasdiscussedearlierhavingseentheaccusedin the mob cannot be doubted at all. Once it is established and accepted that, witness and accused are resident of same locality, well known to each other, only question requires about falsely implication of the accused. The question of making any mistake in that regard does not arise. It does not possible to hold false implication of accused. Here, in the present case entering in Shaikh Mahollaatthetimeofincidentitselfsuggestthecommon objectofthemobaswellasspecificroleattributedtothe accused.TherewasnoreasontoenterinShaikhMahollaat thatoddtime.Thereforebybecomingamemberofunlawful assemblyaccusedenteredinShaikhMahollaandincident
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ofburningofcabins,housesinShaikhMahollaaswellas incidentinMahemudmiya'shouseoccurred.Furtherthere was incident of pelting of stones also occurred. This fact itselfsuggestovertactinconnectionwithcommonobject ofthemob.Meaningtherebyaccusedhadparticipatedin furtherance of common object of the mob. Therefore involvementofaccusediswellestablishedfromtheabove circumstances. But no weapon is connected with the accusedandoffenceintheevidenceofwitnesses.Butmuch importancecannotbegiventothisaspectastheevidence of identification of accused is established. Therefore, the basic defence of the accused in his examination under Section313 ofCr.P.C.thathehasfalselybeenimplicated andheisinnocentandthathewasnotpresentatthetime ofincidentisnotacceptable.Simplywitnessesandaccused know each other is not sufficient to accept the false implication on this ground. There is no previous enmity betweenthem.Thereisnoreasontofalselyimplicatethe accused.Noonewouldfalselyinvolveaninnocentperson, keepingasidetherealculprit.Therefore,thedefenceofthe accusedisnotacceptable.
64.
Accused No.2 PATEL CHATURBHAI ALIAS BHURIO VITTHALBHAI
// 851 //
(SessionsCaseNo.275/2002) P.W.46PathanSabirmiyaAkumiyahasstatedinhis depositionthat,hesawtheaccusedinthemobandhehas identifiedtheaccusedNo.2ChaturbhaiVitthalbhaiPatel, andheissilentaboutthenameofthepresentaccusedin theapplicationdated06.05.2008andthiswitnesshasnot statedthenameofpresentaccusedinthestatementdated 05.08.2008.WhileP.W.47IbrahimbhaiRasulbhaiShaikh hastakennameinhisdepositionofthepresentaccusedin respectofincidentdated01.03.2002butthisaccusedisnot identified by the witness in spite of the fact that, this witnessisthecomplainantandonperusingthecomplaint dated 02.03.2002 name of the accused is stated. While nameofthisaccusedisnotstatedbythecomplainantin his statement dated 10.03.2002, 01.06.2002, application dated01.06.2002,affidavitdated06.11.2003andstatement before S.I.T. dated 06.11.2008. Further, this complainant hasnotstatedthenameofthisaccusedintheapplication beforeS.I.T.dated09.05.2008andstatementbeforeS.I.T. dated09.05.2008.WhileP.W.55AashikhusenBachumiya Shaikhhastakennameofthisaccusedinhisdepositionin respect of incident dated 01.03.2002 and this accused identifiedbythewitnessandforidentificationhetook15
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minutestime.Thereiscontradictioninthestatementdated 02.03.2002aboutthefactfromwhereandhowthewitness hadseentheaccused.Thiswitnesshasnottakenthename ofthisaccusedinhisaffidavitdated06.11.2003.Further, statement dated 19.05.2008 before S.I.T. is silent about this accused. While P.W.59 Mohmad Sattar Bachumiya Shaikhhastakennameofthisaccusedabouttheincident dated01.03.2002atabout09.30P.M.inrespectofsetting on fire of cabins and also about the incident occurred during11.30to12.00P.M.onthesamedayandhasalso statedthenameofthisaccusedintheincidentofpelting stones. This accused is identified by the witness in the Court.Hetook15minutestimeinidentifyingtheaccused. Thiswitnesshasnotstatedthenameofthisaccusedinhis statementdated02.03.2002andalsonotstatedthename of this accused in his affidavit dated 06.11.2003. In a statementbeforeS.I.T.dated19.05.2008itisstatedthat, nameofthisaccusedinthestatementdated02.03.2002is writtenbythePolice.Hetook15minutestimeinidentifying theaccusedinthecourtbutwhenweconsidertheevidence of this witness no doubt he took 15 minutes time in identifying the accused alongwith other accused in the Courtbuthetook15minutestimeinidentifyingabout17
// 853 //
to 18 persons. Thus, 15 minutes time in identifying the accused can be said reasonable time. At the time of identification it was verified by the Court whether the witnessisabletoseeallthepersonsintheCourtandafter satisfactory answer witness had identified the accused in the Court. P.W.66 Akbarmiya Rasulmiya Shaikh has named this accused in his deposition about the incident dated 01.03.2002 and has identified the accused in the Court.Hetook10minutestimeforidentifyingtheaccused intheCourt.Heightofthiswitnessisabout5Ft.Itwas verifiedthat,thiswitnesscouldseeeachandeveryperson sittingintheCourtandthereafter,hehasidentifiedeight accused in the Court. Out of eight accused, he has identifiedaccusedNo.2also.Inabovecircumstancesifhe took 10 minutes time that is reasonable one. There is contradiction,inhisstatementdated10.03.2002howand from where he has seen the witness but as discussed earlierwhileappreciatingtheevidenceofthiswitnessthat, this witness was able to see the mob this contradiction becomeinsignificant.Thiswitnesshasnotstatedthename ofthisaccusedinhisapplicationdated09.05.2008andin hisstatementbeforeS.I.T.dated09.05.2008.Thiswitness has taken the name of this accused in respect of role of
// 854 //
pelting stone. While P.W.70 Munsufkhan Yasinkhan Pathan has stated in his deposition that, he saw the incidentandpersonsatthetimeofpeltingstonesthrowon his old house at Pathan Maholla on 01.03.2002. He has identified the accused before the Court and he took 7 minutestimeforidentifyingtheaccusedintheCourtbutin 7 minutes, he has also identified other 14 accused. This witnesswasPoliceemployee,wellconversantwiththelegal procedures and in that circumstances if he identifies 14 accused within 7 minutes that is quite possible. In his statement dated 06.03.2002, there is contradiction about fromwhereandhowhehasseentheincident.Hehasnot stated the name of this accused in his affidavit dated 31.03.2004.Thereiscontradictionfromwhereandhowhe hasseentheaccusedinhisstatementbeforeS.I.T.dated 11.06.2008.InhisstatementbeforeS.I.T.dated14.07.2008 incidentalongwiththenameofthisaccusedisnotstated. While P.W.73 Faridabibi Aashikhusen Shaikh has not namedtheaccusedintheCourtbutidentifiedtheaccused in the Court for the first time by face only. She has identifiedtheaccusedasMathurbhaiinsteadofChaturbhai Vitthalbhai. She has not named this accused in her statement dated 02.03.2002, 11.06.2008. P.W. 77
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Badrunisha Akbarmiya Shaikh has named the accused abouttheincidentdated01.03.2002butshehasidentified Chaturbhai Kanabhai as Chaturbhai Vitthalbhai. In her statementdated06.03.2002fromwhereandhowshesaw the accused is contradictory but this contradiction is already discussed while discussing the evidence of this witness.Inherstatementdated22.05.2008,itisstatedby herthatshehasgivennameoftheaccusedbutshewas not knowing to him. P.W. 79, Samimbanu Mahmadmiya Shaikhhasnotnamedtheaccusedinherdepositionbut identifiedtheaccusedinthecourtforthefirsttimebyface. Inherstatementdated06.03.2002shehasstatedthat,she sawtheaccusedbutitisnotstatedthat,shecanidentify theaccusedbyface.Whileinstatementdated22.05.2008 she has not stated that she can identify the accused by face.
Thus considering the over all evidence against the present accused, no doubt some of the witnesses have identified him in the Court by face and his name is not stated in their earlier statement, one of the witness has wrongly identified him, some of the witnesses have not identifiedhimintheCourtbutsomeofthewitnesseslike
// 856 //
P.W.66 Akbarmiya Rasulmiya Shaikh, P.W.70 Munsufkhan Yasinkhan Pathan, P.W.55 Aashikhusen Bachumiya Shaikh, P.W.46 Sabirmiya Akumiya Pathan, haveidentifiedtheaccusedinthecourtandthisaccused was in the mob having stone in his hands. Therefore, consideringtheappreciationofevidenceasdiscussedwhile discussing the evidence of witnesses the presence of this accused in the mob is satisfactorily proved by the Prosecutionandhewasinthemobandpeltingstonesin the mob. Thus, it is proved by the prosecution beyond reasonabledoubtthat,presentaccusedwasthememberof unlawfulassembly.
Itisnotindisputethat,theaccusedistheresidentof VillageSardarpurandwitnessesarealsoresidentofVillage Sardarpur.Theyareknowntoeachothersincepreviously hence evidence of witnesses can safely be accepted as regardstotheinvolvementofthisaccusedandevidenceof witnessesasdiscussedearlierhavingseentheaccusedin the mob cannot be doubted at all. Once it is established and accepted that, witness and accused are resident of same locality, well known to each other, only question requires about falsely implication of the accused. The
// 857 //
question of making any mistake in that regard does not arise. It does not possible to hold false implication of accused. Here, in the present case entering in Shaikh Mahollaatthetimeofincidentitselfsuggestthecommon objectofthemobaswellasspecificroleattributedtothe accused.TherewasnoreasontoenterinShaikhMahollaat that time. Therefore by becoming a member of unlawful assemblyaccusedenteredinShaikhMahollaandincident ofburningofcabins,housesinShaikhMahollaaswellas incidentinMahemudmiya'shouseoccurred.Furtherthere was incident of pelting of stones also occurred. This fact itselfsuggestovertactinconnectionwithcommonobject ofthemob.Meaningtherebyaccusedhadparticipatedin furtherance of common object of the mob. Therefore involvementofaccusediswellestablishedfromtheabove circumstances. But no weapon is connected with the accusedandoffenceintheevidenceofwitnesses.Butmuch importancecannotbegiventothisaspectiftheevidenceof identification of accused is established. In his Further Statement, recorded under Section 313 of Cr.P.C. he has addedthat,AashikmiyaBachumiyaShaikhandSamirmiya BachumiyaShaikharedriversandaccusedisalsodriver andtherefore,theyknoweachotherverywellandhencehe
// 858 //
has falsely been implicated in the case. Simply witnesses andaccusedknoweachotherisnotsufficienttoacceptthe false implication on this ground. There is no previous enmity between them. There is no reason to falsely implicate the accused. No one would falsely involve an innocentperson,keepingasidetherealculprit.Therefore, thedefenceoftheaccusedisnotacceptable.
65.
AccusedNo.3PATELKARSHANBHAITRIBHOVANBHAI (SessionsCaseNo.275/2002) Sofarasinvolvementofthisaccusedintheincidentis concerned, none of the witness has deposed about the involvement of this accused in the incident. No role has been attributed by any witness to this accused, nor this accused is identified by any witness. Thus, prosecution failed to establish that, this accused was involved in the incidentasallegedbytheprosecution.
66.
AccusedNo.4NARAYANLALSHITALMALLAKHWARA (SessionsCaseNo.275/2002) P.W.55AashikhusenBachumiyaShaikhhasnamed thisaccusedinrespectofincidentdated01.03.2002.Asper thiswitness,thisaccusedwasinvolvedinpeltingstonebut thiswitnesshasnotidentifiedtheaccusedthoughhetook
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15minutestimeforidentificationoftheaccused.Hehas notstatedthenameofthisaccusedinhisstatementdated 02.03.2002, affidavit dated 06.11.2003. In his statement beforeS.I.T.dated19.05.2008,hehasstatedthat,hehas notgiventhenameoftheaccusedinthestatementdated 02.03.2002.Nootherwitnesshasinvolvedthisaccusedin hisdeposition.Thus,presenceofthisaccusedinthemobis notsatisfactorilyprovedbytheProsecutionandthathewas notinthemob.Thus,itisnotprovedbytheprosecution beyond reasonable doubt that, present accused was the memberofunlawfulassembly. Itisnotindisputethat,theaccusedistheresidentof Village Sardarpur and witness is also resident of Village Sardarpur. No specific role has been attributed to the accusedbyanywitness.Furtheraccusednotidentifiedby thewitness.Therefore,thefactsremainsthat,itisnotsafe toholdaccusedguiltyonthebasisofgeneralallegations. There is no other material on record against the present accusedtoshowhisinvolvementintheallegedoffence.It would be hazardous to base a conviction only on the evidenceofgeneralallegations.Itwouldbeappropriateto givebenefitofdoubtandacquittheaccused.Inmyopinion thoughtheirexiststrongsuspicionagainsttheaccuseditis
// 860 //
notpossibletoholdthat,hisinvolvementintheoffenceis establishedintheabsenceofanybodypointingouttowards himintheCourtasapersonwhowasinthemobrequires acquittal.
67.
AccusedNo.5PATELJAYANTIBHAIMANGALBHAI (SessionsCaseNo.275/2002) P.W.46PathanSabirmiyaAkumiyahasdeposedthat Jayantibhai Mangalbhai was present in the mob in the incidentoccurredon28.02.2002andalsointheincident occurred on 01.03.2002. He has identified Jayantibhai MangalbhaiasBakabhaiMangalbhai.Hehasnarratedhis name in his application dated 06.05.2008 and statement dated 20.05.2008. P.W.47 Complainant Shaikh Ibrahimbhai Rasulbhai has mentioned the name of the accusedinrespectofincidentdated01.03.2002.Asperthe depositionofthecomplainant,JayantibhaiMangalbhaiwas presentinthemobandthecomplainanthasidentifiedthe witnessintheCourtandhehastakennameoftheaccused inhiscomplaintdated01.03.2002andnameoftheaccused istakenasBakaMangal.Complainanthasnotstatedthe name of the accused in his statement dated 10.03.2002, 01.06.2002, application dated 01.06.2002, affidavit dated
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06.11.2003 and statement before S.I.T. dated 11.06.2008 and has not stated name of the present accused in the application before S.I.T. in statement dated 09.05.2008. WhileP.W.55ShaikhAashiqhusenBachumiyahasnamed theaccusedintheincidentdated01.03.2002.Hehasnot identified the accused in the Court though, he took 15 minutes time for identification of the accused and in his affidavit dated 06.11.2003 he has not stated the name of theaccused.P.W.57ShaikhMustufamiyaRasulmiyahas namedthisaccusedinhisdepositioninrespectofincident dated 01.03.2002. He has identified the accused in the Court. He took 15 minutes time in the Court for identificationofaccused.Forthispurposewhenweperuse the deposition no doubt he took 15 minutes time for identification of accused but in 15 minutes he has identified17accused. BeforeidentificationintheCourtit wasverifiedbytheCourtthat,whetherthewitnesscansee the persons sitting in the Court and thereafter, accused wasidentifiedbythewitness.Hehasnotstatedthename ofthisaccusedinhisstatementdated10.03.2002,affidavit dated 06.11.2003, statement dated 19.05.2008, statement dated 05.08.2008. P.W.59 Shaikh Mohmad Sattar Bachumiya has deposed the name of this accused in his
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deposition in respect of incident dated 01.03.2002 and duringidentification,hehasstatedthat,thisaccusedisnot present in the court in spite of the fact that 15 minutes timewastakenbythewitnessforidentifyingtheaccused. Sofartasstatementdated02.03.2002isconcerned,itis stated by this witness in his statement dated 19.05.2008 that name of this accused was written by Police. This witness has not stated the name of this accused in his affidavit dated 06.11.2003. In his statement dated 19.05.2008beforeS.I.T.thiswitnesshasstatedthat,name of this accused is written by the police in his statement dated 02.03.2002. P.W.62 Shaikh Rafikmiya
Mahmadhusen has deposed the name of this accused in hisdepositioninrespectofincidentdated01.03.2002.He hasdeposedthat,thiswitnesswasverymuchpresentin the mob. He has identified the accused in the Court. He took 15 minutes time for identification of accused and during 15 minutes he identified 9 accused including the presentaccused.AfterdueverificationbytheCourtthat, he can see all the persons sitting in the Court. As the heightofthiswitnessis5'3hecouldseeallthepersons sittinginthecourtanditwasmanagedintheCourtthat, thewitnesscouldseethepersonstherefore,therewasno
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necessity to permit the witness to step down from the witnessboxandtoidentifytheaccusedfromverynear.He hasnotstatedthenameofthisaccusedinhisstatement dated 10.03.2002 and 10.05.2008. P.W.66 Shaikh AkbarmiyaRasulmiyahasdeposedinhisdepositionthat, thisaccusedwaspresentinthemobalongwithweapon.He has not identified the accused in the Court. He has not stated the name of the present accused in his statement dated 10.03.2002, application dated 09.05.2008 and statement dated 09.05.2008. P.W.71 Rawal Mangabhai Ramabhaihasstatedthenameofthepresentaccusedin respectofincidentdated01.03.2002.Hehasidentifiedthe accused in the Court. He took 7 minutes time for identificationoftheaccusedintheCourtandin7minutes he has identified four accused. This witness is having 5' HeightanditwassatisfiedbytheCourtandhecouldsee the persons sitting in the Court. This witness has not stated the name of this accused in his statement dated 20.05.2008. P.W.78 Shaikh Basirabibi Bachumiya has deposedthenameofthisaccusedinherdepositionandshe has identified the accused in the Court. She took 12 minutes time for identification and she has identified 8 accusedintheCourt.beforeidentification,itwassatisfied
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by verifying by the Court that the witness can see the persons inthe Court. She is having 5' height but as per depositionofthiswitnesssheisagedabout50yearsand hereyesightisweakandasperhersaysheisabletosee personssittingintwolinesonlybutshehasidentifiedthe presentaccusedwhowassittinginthefourthlineinthe Court.Shehasnotstatedthenameofthisaccusedinher statement dated 22.05.2008 and 11.06.2008. Therefore, consideringtheappreciationofevidenceasdiscussedwhile discussing the evidence of witnesses the presence of this accused in the mob is satisfactorily proved by the Prosecutionandhewasinthemob.Thus,itisprovedby the prosecution beyond reasonable doubt that, present accusedwasthememberofunlawfulassembly.
Itisnotindisputethat,theaccusedistheresidentof VillageSardarpurandwitnessesarealsoresidentofVillage Sardarpur.Theyareknowntoeachothersincepreviously hence evidence of witnesses can safely be accepted as regardstotheinvolvementofthisaccusedandevidenceof witnessesasdiscussedearlierhavingseentheaccusedin the mob cannot be doubted at all. Once it is established and accepted that, witness and accused are resident of
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same locality, well known to each other, only question requires about falsely implication of the accused. The question of making any mistake in that regard does not arise. It does not possible to hold false implication of accused. Here, in the present case entering in Shaikh Mahollaatthetimeofincidentitselfsuggestthecommon objectofthemobaswellasspecificroleattributedtothe accused.TherewasnoreasontoenterinShaikhMahollaat that time. Therefore by becoming a member of unlawful assemblyaccusedenteredinShaikhMahollaandincident ofburningofcabins,housesinShaikhMahollaaswellas incidentinMahemudmiya'shouseoccurred.Furtherthere was incident of pelting of stones also occurred. This fact itselfsuggestovertactinconnectionwithcommonobject ofthemob.Meaningtherebyaccusedhadparticipatedin furtherance of common object of the mob. Therefore involvementofaccusediswellestablishedfromtheabove circumstances. Further as per witnesses the present accusedwaspresentinthemobwithSwordbutthereisno evidence about the use of sward by the accused in the incident. Therefore, the weapon in question cannot be connected with the offence and no importance cannot be given to this aspect as the evidence of identification of
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accusedisestablished.Therefore,thebasicdefenceofthe accusedinhisexaminationunderSection313 ofCr.P.C. thathehasfalselybeenimplicatedandheisinnocentand that he was not present at the time of incident is not acceptable.Simplywitnessesandaccusedknoweachother is not sufficient to accept the false implication on this ground.Thereisnopreviousenmitybetweenthem.Thereis noreason to falsely implicate the accused. No one would falsely involve an innocent person, keeping aside the real culprit. Therefore, the defence of the accused is not acceptable.
68.
AccusedNo.6PATELAMRATBHAISOMABHAI (SessionsCaseNo.275/2002) P.W.48ShaikhSabirhusenKadarmiyahasdeposed thenameofthisaccusedintheincidentdated01.03.2002. He has identified the accused in the Court. He has not stated the name of this accused in his statement dated 06.03.2002. P.W.54 Shaikh Sharifmiya Bhikhamiya has deposed the name of this accused in his statement in respectofincidentdated01.03.2002.Hehasnotidentified theaccusedintheCourt.Thiswitnesshasstatedthat,this accusedhas connectedtheHalogenlight onElectricPole
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on01.03.2002at7.00PM.Hehasnotstatedthenameof this accused in his affidavit dated 06.11.2003, statement dated 06.03.2002 and 22.05.2008. P.W.55 Shaikh Aashiqhusen Bachumiya has not stated the name of this accused in his deposition in respect of incident dated 01.03.2002butidentifiedtheaccusedintheCourtandhe took15minutestimeforidentificationoftheaccusedinthe Courtandhehasidentified4accusedintheCourt.During said15minuteshehasidentified17accusedintheCourt. He has not stated name of the accused in his statement dated02.03.2002.Inaffidavithehasstatedthat,accused was in mob but in his statement before S.I.T. dated 19.05.2008 he has not stated the name of the accused. P.W.59ShaikhMomhadSattarBachumiyahasnotnamed this accused in respect of incident 01.03.2002 but identified the accused in the Court. He took 15 minutes timeforidentificationoftheaccusedintheCourt.During 15 minutes he has identified about 20 accused. This witnesshasidentifiedtheaccusedafterduesatisfactionby the Court that, this witness could see each and every person in the Court. P.W.70 Pathan Munsafkhan Yasinkhanhasdeposedthat,thisaccusedwaspresentat thetimeofstonethrowing.Atthattimethiswitnesswasin
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his old house. He has identified the accused and for identificationhetook7minutesandin7minuteshehas identified14accused.Hehasnotstatedthenameofthis witnessinhisaffidavitdated31.03.2004,statementbefore S.I.T.dated14.07.2008.Thereiscontradictionaboutfrom whereandhowhehasseentheaccusedinhisstatement dated 06.03.2002 and 11.06.2008. Therefore, considering theappreciationofevidenceasdiscussedwhilediscussing theevidenceofwitnessesthepresenceofthisaccusedin themobissatisfactorilyprovedbytheProsecutionandhe was in the mob. Thus, it is proved by the prosecution beyond reasonable doubt that, present accused was the memberofunlawfulassembly.
Itisnotindisputethat,theaccusedistheresidentof VillageSardarpurandwitnessesarealsoresidentofVillage Sardarpur.Theyareknowntoeachothersincepreviously hence evidence of witnesses can safely be accepted as regardstotheinvolvementofthisaccusedandevidenceof witnessesasdiscussedearlierhavingseentheaccusedin the mob cannot be doubted at all. Once it is established and accepted that, witness and accused are resident of same locality, well known to each other, only question
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requires about falsely implication of the accused. The question of making any mistake in that regard does not arise. It does not possible to hold false implication of accused. Here, in the present case entering in Shaikh Mahollaatthetimeofincidentitselfsuggestthecommon objectofthemobaswellasspecificroleattributedtothe accused.TherewasnoreasontoenterinShaikhMahollaat that time. Therefore by becoming a member of unlawful assemblyaccusedenteredinShaikhMahollaandincident ofburningofcabins,housesinShaikhMahollaaswellas incidentinMahemudmiya'shouseoccurred.Furtherthere was incident of pelting of stones also occurred. This fact itselfsuggestovertactinconnectionwithcommonobject ofthemob.Meaningtherebyaccusedhadparticipatedin furtherance of common object of the mob. Therefore involvementofaccusediswellestablishedfromtheabove circumstances. But no weapon is connected with the accusedandoffenceintheevidenceofwitnesses.Butmuch importancecannotbegiventothisaspectastheevidence of identification of accused is established. Therefore, the basic defence of the accused in his examination under Section313 ofCr.P.C.thathehasfalselybeenimplicated andheisinnocentandthathewasnotpresentatthetime
// 870 //
ofincidentisnotacceptable.Simplywitnessesandaccused know each other is not sufficient to accept the false implication on this ground. There is no previous enmity betweenthem.Thereisnoreasontofalselyimplicatethe accused.Noonewouldfalselyinvolveaninnocentperson, keepingasidetherealculprit.Therefore,thedefenceofthe accusedisnotacceptable.
69.
AccusedNo.7PRAJAPATIBABUBHAILAVJIBHAI (SessionsCaseNo.275/2002) Sofarasinvolvementofthisaccusedintheincidentis concerned, none of the witness has deposed about the involvement of this accused in the incident. No role has been attributed by any witness to this accused. Nor this accused is identified by any witness. Thus, prosecution failed to establish that, this accused was involved in the incidentasallegedbytheprosecution.
70.
AccusedNo.8PRAJAPATIRAJESHKUMARAMRUTBHAI (SessionsCaseNo.275/2002) P.W.55ShaikhAashiqhusenBachumiyahasdeposed thenameofthisaccusedintheincidentdated01.03.2002. He has identified the accused in the Court. There is contradictioninrespectofwhereandhowthewitnesshad
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seentheaccused.Thiswitnesshasnotstatedthenameof this accused in his affidavit dated 06.11.2003. In his statementdated19.05.2008beforeS.I.T.hehasstatedthat, he has not given the name of this accused in statement dated02.03.2002. P.W.81ShaikhDilvarkhanAbbasmiya hasnotstatedthenameoftheaccusedinthedeposition butidentifiedtheaccusedinthecourtforthefirsttimeby faceonly.Hehasnotstatedthenameoftheaccusedinhis statementdated22.05.2008.Nootherwitnesshasinvolved this accused in his deposition. Thus, presence of this accused in the mob is not satisfactorily proved by the Prosecutionandthathewasnotinthemob.Thus,itisnot proved by the prosecution beyond reasonable doubt that, presentaccusedwasthememberofunlawfulassembly.
Itisnotindisputethat,theaccusedistheresidentof Village Sardarpur and witness is also resident of Village Sardarpur. No specific role has been attributed to the accusedbyanywitness.Furtheraccusednotidentifiedby thewitness.Therefore,thefactsremainsthat,itisnotsafe toholdaccusedguiltyonthebasisofgeneralallegations. There is no other material on record against the present accusedtoshowhisinvolvementintheallegedoffence.It
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would be hazardous to base a conviction only on the evidenceofgeneralallegations.Itwouldbeappropriateto givebenefitofdoubtandacquittheaccused.Inmyopinion thoughtheirexiststrongsuspicionagainsttheaccused,but itisnotpossibletoholdthat,hisinvolvementintheoffence is established in the absence of anybody pointing out towardshimintheCourtasapersonwhowasinthemob requiresacquittal.
71.
AccusedNo.9PATELBHAVESHKUMARKANUBHAI (SessionsCaseNo.275/2002) P.W.46PathanSabirmiyaAkumiyahasdeposedon oathnamingthepresentaccusedinrespectofpresenceof this accused in the Court regarding the incident dated 28.02.2002. He has identified the accused by stepping downfromthewitnessboxfromverynear.P.W.55Shaikh AashiqhusenBachumiyahasnamedthepresentaccusedin hisdepositioninrespectofincidentdated01.03.2002.He hasdeposedthathesawaccusedwithweaponthoughhe took15minutestimebuthasnotidentifiedtheaccusedin the Court. There is contradiction in his statement about fromwhereandhowhehasseentheaccused.Hehasnot stated the name of the accused in the affidavit dated
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06.11.2003, statement before S.I.T. dated 19.05.2008. P.W.80ShaikhRuksanabanuIbrahimmiyahasnotnamed presentaccusedbutidentifiedtheaccusedfirsttimeinthe courtbyfaceonly.Shetook7minutestimeforidentifying the accused in the Court. In her statement dated 10.03.2002shehasnamedotheraccusedstatingthat,she saw them but she has not stated that, she can identify thembyface.Shehasnotstatedthenameoftheaccused in her statement dated 22.05.2005. Thus consideringthe evidenceofallthethreewitnesses,Sabirmiyaistellingthe presenceofthisaccusedintheincidentdated28.02.2002. Whileforincidentdated01.03.2002,thereisnosatisfactory evidence showing the involvement of this accused as Aashiqhusen has not identified the accused and Ruksanabanuisidentifyingtheaccusedbyface.Therefore, involvementofthisaccusedisnotprovedbythisaccused bytheprosecutionbeyondreasonabledoubt.
Itisnotindisputethat,theaccusedistheresidentof VillageSardarpurandwitnessesarealsoresidentofVillage Sardarpur. No specific role has been attributed to the accusedbyanyofthewitnesses.Therefore,theadditional explanationgivenbytheaccusedinhisFurtherStatement
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that,heisthesonofKanubhai,thethenSarpanchandat thetimeofincidenthewasstudyingin12thStandardand preparingforexaminationandsimplybecauseheistheson ofKanubhaihehasfalselybeeninvolvedintheincidentis acceptable.Furtheraccusednotidentifiedbythewitnesses. Therefore, the facts remains that, it is not safe to hold accusedguiltyonthebasisofgeneralallegations.Thereis noothermaterialonrecordagainstthepresentaccusedto show his involvement in the alleged offence. It would be hazardous to base a conviction only on the evidence of generalallegations.Itwouldbeappropriatetogivebenefit of doubt and acquit the accused. In my opinion though their exist strong suspicion against the accused it is not possible to hold that, his involvement in the offence is establishedintheabsenceofanybodypointingouttowards himintheCourtasapersonwhowasinthemobrequires acquittal.
72.
AccusedNo.10PATELJAYANTIBHAIJIVANBHAI (SessionsCaseNo.275/2002) Abatedasaccuseddiedduringthependencyoftrial.
73.
AccusedNo.11PATELJAGABHAIDAVABHAI (SessionsCaseNo.275/2002)
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P.W.47 Shaikh Ibrahimmiya Rasulmiya has taken the name of this accused in his deposition in respect of incident dated 01.03.2002 but has not identified the accused inthe Courtbuthas narrated the name of the accused in the complaint dated 02.03.2002. He has not stated the name of this accused in his statement dated 10.03.2002, application and statement dated 01.06.2002 andaffidavitdated06.11.2003andstatementbeforeS.I.T. dated 11.06.2008 and application before S.I.T. dated 09.05.2008 and statement dated 09.05.2008. P.W.59 ShaikhMohmadSattarBachumiyahasstatedthenameof thisaccusedinrespectofincidentdated01.03.2002.Asper his deposition accused was present in the mob during 11.30to12.00PM.Hehasidentifiedtheaccusedbeforethe Courtandhetook15minutestimeforidentificationandin 15 minutes he has identified about 21 accused. before identification,itwassatisfiedthat,thewitnesscouldseeall the persons sitting in the Court. Thereafter, he has identified the present accused in the Court. As per statement dated 19.05.2008, it is stated by this witness that, in his statement dated 02.03.2002, name of this accusediswrittenbythePoliceandnameofthisaccused isnotmentionedintheaffidavitdated06.11.2003.Inhis
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statementdated19.05.2008beforeS.I.T.hehasstatedthe name of this accused was written by Police in his statementdated02.03.2002.P.W.70PathanMunsufkhan Yasinkhanhasdeposedonoaththat,hesawtheincident andpersonsatthetimeofthrowingstonesonhishousein PathanMahollaon01.03.2002.Hetook7minutestimefor identificationofaccusedandhehasidentified14accused intheCourtincludingpresentaccused.Hehasstatedin hisstatementdated11.06.2008that,hehasnotgiventhe name of this accused in his statement dated 11.06.2008 that he had not given the name of this accused in the statementdated06.03.2002.Hehasnotstatedthenameof thisaccusedinaffidavitdated31.03.2004.Inhisstatement beforeS.I.T.dated14.07.2008hasnotnarratedtheincident withnameofthisaccused.Thusconsideringtheevidence ofallthethreewitnesses,P.W.70wasapoliceemployee, muchconversant,withthelawandprocedureandeducated person.Ifhehasnotmentionedthenameofthisaccused in his statement, affidavit, in that circumstances if he is identifyingtheaccusedbeforethecourtandsayingthat,he saw the incident from his old house at Pathan Maholla, muchreliancecannotbeplaceduponthetestimonyofthis witness in respect of identification of this accused. While
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P.W.59hasidentifiedthisaccusedbeforetheCourtbutin anyofhisstatement,hehasnotstatedthenameofthis accused.Andthecomplainantwhohasnamedtheaccused incomplaintbuthasnotidentifiedtheaccusedbeforethe Court.Fromsuchtypeofevidence,itcannotbesaidthat, prosecution has proved the involvement of this accused beyond reasonable doubt. Therefore, considering the appreciationofevidenceasdiscussedwhilediscussingthe evidenceofwitnessesthepresenceofthisaccusedinthe mobissatisfactorilyprovedbytheProsecutionandhewas inthemob.Thus,itisprovedbytheprosecutionbeyond reasonabledoubtthat,presentaccusedwasthememberof unlawfulassembly.
// 878 //
requires about falsely implication of the accused. The question of making any mistake in that regard does not arise. It does not possible to hold false implication of accused. Here, in the present case entering in Shaikh Mahollaatthetimeofincidentitselfsuggestthecommon objectofthemobaswellasspecificroleattributedtothe accused.TherewasnoreasontoenterinShaikhMahollaat that time. Therefore by becoming a member of unlawful assemblyaccusedenteredinShaikhMahollaandincident ofburningofcabins,housesinShaikhMahollaaswellas incidentinMahemudmiya'shouseoccurred.Furtherthere was incident of pelting of stones also occurred. This fact itselfsuggestovertactinconnectionwithcommonobject ofthemob.Meaningtherebyaccusedhadparticipatedin furtherance of common object of the mob. Therefore involvementofaccusediswellestablishedfromtheabove circumstances. But no weapon is connected with the offenceintheevidenceofwitnesses.Butmuchimportance cannot be given to this aspect as the evidence of identificationofaccusedisestablished.Therefore,thebasic defence of the accused in his examination under Section 313ofCr.P.C.thathehasfalselybeenimplicatedandheis innocent and that he was not present at the time of
// 879 //
incident is not acceptable. Simply witnesses and accused know each other is not sufficient to accept the false implication on this ground. There is no previous enmity betweenthem.Thereisnoreasontofalselyimplicatethe accused.Noonewouldfalselyinvolveaninnocentperson, keepingasidetherealculprit.Therefore,thedefenceofthe accusedisnotacceptable.
74.
AccusedNo.12PATELPRAHLADBHAISOMABHAI (SessionsCaseNo.275/2002) P.W.55 Shaikh Aashiqhusen Bachumiya has taken the name of this accused in his deposition in respect of incidentdated01.03.2002that,thisaccusedwasinvolved in pelting stones. He has identified the accused in the Court and he took 15 minutes time for identification of accused. He was permitted to identify the accused after satisfyingthathecanseethepersonssittingintheCourt andhehasidentified17accusedbeforetheCourtwithin15 minutes. P.W.79 Shaikh Samimbanu Mahmadmiya has not named accused in her deposition but identified the accusedintheCourtforthefirsttimebyface.Shehasnot statedinherstatementdated06.03.2002and22.05.2008 thatshecanidentifytheaccusedbyface.P.W.80Shaikh
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RusksanabanuIbrahimmiyahasnotnamedtheaccusedin herdepositionbutidentifiedtheaccusedbyfaceinrespect of incident dated 01.03.2002. She took 7 minutes for identification of accused. She has not stated in her statement dated 10.03.2002 that she can identify the accused by face. She has not stated the name of this accused inher statementdated 22.05.2005. Thus P.W.79 andP.W.80aresimplyidentifyingtheaccusedbyfacebut whetherhewasinthemobornot,itisnotstatedbythem. Therefore, simply identification in the Court, without any involvementoftheaccusedintheincidentcannotberelied upon. P.W. 55 is identifying him but he has not stated anythingabouthispresenceinanyofhisstatementbuthe is involving the accused in incident of pelting of stones. Therefore, as per deposition of P.W. 55, this witness was very much present in the mob but there is no other evidence supporting the presence of this accused in the Court. Even none of the witness in their supported the presenceofthisaccusedinthemob.Therefore,simplymere identificationandinvolvementofthisaccusedinthemob by this witness cannot be given much weightage. Consideringtheappreciationofevidenceasdiscussedwhile discussing the evidence of witnesses the presence of this
// 881 //
accused in the mob is not satisfactorily proved by the Prosecutionandthathewasnotinthemob.Thus,itisnot proved by the prosecution beyond reasonable doubt that, presentaccusedwasthememberofunlawfulassembly.
Itisnotindisputethat,theaccusedistheresidentof VillageSardarpurandwitnessesarealsoresidentofVillage Sardarpur. No specific role has been attributed to the accused by any of the witnesses. Further accused not identified by the witnesses. Therefore, the facts remains that, itisnotsafetoholdaccusedguiltyonthebasisof general allegations. There is no other material on record againstthepresentaccusedtoshowhisinvolvementinthe allegedoffence.Itwouldbehazardoustobaseaconviction only on the evidence of general allegations. It would be appropriatetogivebenefitofdoubtandacquittheaccused. Inmyopinionthoughtheirexiststrongsuspicionagainst theaccuseditisnotpossibletoholdthat,hisinvolvement in the offence is established in the absence of anybody pointingouttowardshimintheCourtasapersonwhowas inthemobrequiresacquittal.
75.
AccusedNo.13PRAJAPATIBHARATBHAI RAMESHBHAI
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(SessionsCaseNo.275/2002) Sofarasinvolvementofthisaccusedintheincidentis concerned, none of the witness has deposed about the involvement of this accused in the incident. No role has been attributed by any witness to this accused. Nor this accused is identified by any witness. Thus, prosecution failed to establish that, this accused was involved in the incidentasallegedbytheprosecution.
76.
AccusedNo.14PATELKACHARABHAITRIBHOVANDAS (SessionsCaseNo.275/2002) P.W.47ShaikhIbrahimbhaiRasulmiyahasdeposed on oath in respect of incident dated 01.03.2002 involving thepresentaccused.Asperhisdepositionatthetimeof incident Kacharabhai Tribhovandas in the mob. He has identifiedtheaccusedintheCourt.Hehasnotstatedthe name of present accused in the complaint dated 02.03.2002. He has not stated the name of the present accused in the statement dated 10.03.2002, 01.06.2002, application dated 01.06.2002 and statement dated 11.06.2008beforeS.I.T.whilehehasstatedthenameofthe accusedintheaffidavitdated06.11.2003.WhileP.W.48 Shaikh Sabirhusen Kadarmiya has named the present
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accused in his deposition about the incident dated 01.03.2002.HehasidentifiedtheaccusedintheCourt.He has notstatedthenameof theaccusedinhisstatement dated 06.03.2002 and statement dated 10.05.2008 before S.I.T.P.W.55ShaikhAashiqhusenBachumiyahasstated the name of the present accused in respect of incident dated 01.03.2002. As per deposition of this witness the presentaccusedhadfiredhisJeep.Hehasidentifiedthe accused in the Court. He took 15 minutes time in identifyingtheaccused.Hehasnotnamedtheaccusedin hisaffidavitdated06.11.2003.P.W.56ShaikhAyubmiya Rasulmiyahasdeposedthenameofthepresentaccusedin hisdepositionthat,theaccusedwaspresentinthemob.As thewitnesseshasrequestedtoleavehimhetoldtofoldthe hands,thewitnesshasfoldedhandsinspiteofthat,they were not left and they were burnt. He has identified the accusedintheCourt.Hehasnotstatedthenameofthe present accused in his statement dated 10.03.2002, affidavitdated06.11.2003andstatementbeforeS.I.T.dated 19.05.2008.P.W.57 ShaikhMustufamiyaRasulmiyahas statedthenameofthepresentaccusedinhisdepositionin respectofincidentdated01.03.2002.Hehasidentifiedthe accused in the Court. He took 15 minutes time for
// 884 //
identifyingtheaccused.Hehasidentifiedtheaccusedfrom very near with the permission of the Court as he was havingPterygiuminhiseyebutatthetimeofincidenthe wasabletosee.Hehasnotstatedthenameofthepresent accusedinhisaffidavitdated06.11.2003,statementdated 19.05.2008. P.W.58 Shaikh Sabirhusen Imamsha has stated the name of the present accused in respect of incident dated 01.03.2002. He has identified the accused beforetheCourt.Hehasnotstatedthenameofthepresent accused in the statement dated 03.03.2002. P.W.59 Shaikh Mohmad Sattar Bachumiya has named in his deposition the accused in respect of incident dated 01.03.2002.HehasidentifiedtheaccusedbeforetheCourt. He took 15 minutes for identifying the accused in the Court. He has identified the present accused after satisfying by the Court that, he is able to see each and every person sitting in the Court. He has not stated the name of the present accused in the statement dated 02.03.2002.Asperhisstatementdated19.05.2008name of the present accused was written by the Police. In his affidavit dated06.11.2003thiswitnesshasnotstatedthe name of present accused. In his statement before S.I.T. dated19.05.2008hehasstatedthat,inhisstatementdated
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02.03.2002nameofthisaccusediswrittenbythePolice. P.W.60 Shaikh Bachumiya Imammiya has stated the nameofthepresentaccusedinhisdepositioninrespectof dated 01.03.2002. First incident about 09.30 P.M. in respectofsettingonfirethecabinsandsecondincidentat about 11.00 P.M. and has stated that, during second incidentthisaccusedhaspouredkeroseneonhisJeep.He has identified the accused before the Court. He took 12 minutesforidentificationofaccused.During12minuteshe has identified about 21 accused. He has not stated the name of this accused in respect of incident occurred at about 09.30 P.M. P.W.61 Shaikh Safikmiya Bachumiya hasdeposedthenameofthepresentaccusedinrespectof incident dated 01.03.2002. He has deposed that, this accused was in mob with weapon. He has identified the accusedintheCourt.Hetook15minutesinidentifyingthe accused.Hehasidentified6accusedinthecourt.Afterdue satisfactionbytheCourtthatthewitnesscanseeeachand everypersonintheCourt.Thiswitnessishavingheightof 4'11.Thereiscontradictioninrespectoffromwhereand how witness had seen the accused. P.W.63 Shaikh BhikhumiyaKalumiyahasdeposedthenameofthepresent accused in respect of incident dated 01.03.2002. He has
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identified the accused in the Court. P.W.65 Shaikh AkbarmiyaNathumiyahasnotnamedtheaccusedinhis depositionbutidentifiedtheaccusedinthemob.P.W.66 AkbarmiyaRasulmiyahasdeposedthenameofthepresent accusedinrespectofincidentdated01.03.2002.Asperhis depositionaccusedwaspresentinthemobwithBottleand tins.ThiswitnesshasidentifiedtheaccusedintheCourt. He took 10 Minutes for identifying the accused in the Court. He has identified 8 accused in the Court. before identification, it was satisfied by the Court that, witness can see each and every person in the Court. In his application dated 09.05.2008 he has not stated that, accusedwaswithweaponandhehasalsostatedthesame beforeS.I.T.inhisstatementdated09.05.2008.P.W.67 Shaikh Imtiyazbhai Mahmadhusen has deposed on oath aboutthepresenceofthisaccusedinthemobinrespectof incidentdated01.03.2002hehasidentifiedtheaccusedin the Court. He took 5 minutes for identification. He has identified 2 persons in the Court. There is contradiction aboutfromwhereandhowhehasseentheaccused,which isalreadydiscussedwhileappreciatingtheevidenceonthat point. P.W. 69 Shaikh Mahemudmiya Husenmiya has deposedonoathabouttheinvolvementofthisaccusedin
// 887 //
respectofincidentdated01.03.2002.Hehasidentifiedthe accused in the Court. He took 20 minutes for identifying the accused. He has identified 5 accused in the Court. Courthadverifiedfromthewitnesswhether,hecouldsee thepersonspresentintheCourtandafterduesatisfaction identification was performed. No doubt witness is handicappedbutintheCourtitwasproperlyarrangedso that,thewitnesscanseethepersonsittingintheCourt. Hehasnotstatedthenameofthepresentaccusedinhis statement dated 06.03.2002 and has stated that, his statement dated 22.05.2008 was not recorded. P.W. 70 Pathan Munsufkhan Yasinkhan has stated in his deposition about the incident dated 01.03.2002 stating thereinthat,KacharabhaiTribhovandasPatelwaspresent inthemobwithbottle.Hehasidentifiedtheaccusedinthe Court. He took 7 minutes time for identification of the accused. However, witness has stated the name of the accused with bottle. In his statement dated 06.03.2002 witness has stated the name of present accused in the affidavit dated 31.03.2004. In his statement before S.I.T. dated11.06.2008thereiscontractionsaboutbottle.While in statement before S.I.T. dated 14.07.2008 incident alongwith the accused not narrated. P.W.73 Faridabibi
// 888 //
AashiqhusenShaikhhasnotstatedthenamebutidentified theaccusedintheCourtforthefirsttimeandthatistooby face. He has not stated the name of the accused in her statement dated 02.03.2002 and has also not stated the nameinthestatementdated11.06.2008.P.W.75Shaikh Firozabanu Bachumiya has deposed the name of the presentaccusedinrespectofincidentdated01.03.2002.As perherdepositionshesawtheaccusedatthetimeoffiring of Jeep.ShehasidentifiedtheaccusedbeforetheCourt. She has taken 15 minutes time for identification of accused.During15minutesshehasidentified7accused. Herheightisabout5'meaningtherebysheisabletosee the person sitting in the court. P.W.77 Shaikh Badrunisha Akbarmiya has deposed the name of the present accused in respect of incident dated 01.03.2002. She hasidentifiedtheaccusedintheCourt.Shehasnot stated thename of the present accused inher statement dated 06.03.2002 and 22.05.2008. P.W. 78 Shaikh BasirabibiBachumiyahasdeposedthenameofthepresent accusedinthemob.Shehasidentifiedtheaccusedinthe Court. She took 12 minutes for identification of the accused. She has stated about the involvement of the accused in the incident and identified 8 accused. before
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identification, it was verified by the Court whether the witnesscanseethepersonssittinginthecourtandafter duesatisfactionidentificationwasperformedintheCourt. As per say of this witness, at the last this witness by shouting Bharat Mata Ki Jay went but this fact is not stated in her statement dated 17.04.2002. She has not named the present accused in her statement dated 22.05.2008and11.06.2008.P.W.79ShaikhSamimbanu MohmadmiyahasnotnamedtheaccusedintheCourtbut identifiedtheaccusedintheCourtforthefirsttimebyface. Inherstatementdated06.03.2002shehasnotstatedthat, she can identify the accused by face. In her statement dated 22.05.2008 also she has not stated that, she can identifytheaccusedbyface.P.W.83ShaikhSharifabanu Sabirhusenhasdeposedonoathabouttheinvolvementof this accused in the mob in respect of incident dated 01.03.2002 butshe hasnot identifiedtheaccusedinthe Court. Thusallthewitnesseshaveidentifiedtheaccused in the Court and stated about the involvement of the accusedintheincident. Inthisregard whenweconsider thesayofaccusedside,itisthesayofaccusedthatthe present accused was the ViceSarpanch of Village Sardarpur,hehasbeeninvolvedbythewitnessassigninga
// 890 //
roleofinstigatingthemobinthedeposition.Hehasfalsely been involved. The accused is identified by all the three witnesses and has also named in deposition. In his deposition he has deposed that, Sabirhusen has deposed thattheaccusedwasverymuchpresentinthemoband was instigating the mob and thereafter they have started setting on fire the houses in Shaikh Maholla and pelting stones.SimplybecausethisaccusedwasViceSarpanch,it cannot be said that, he has falsely been involved as an accused in the incident, why the witnesses will involve innocentpersonleavingrealculpritfree.Nothinghascome out from crossexamination from which we can infer the absenceofthisaccusedinthemob.Specificrolehasbeen attributedtothisaccusedthat,hewasverymuchinvolved inburningtheJeepofBachumiyaImammiyaShaikhand hehadinstigatedthemob.Hewaspresentinthemobwith bottle and he poured the kerosene on the Jeep. He is identifiedbyP.W.60,P.W.61,P.W.62,P.W.63,P.W.66,P.W.67, P.W.68, P.W.69, P.W.70, P.W.75, P.W.77, P.W.78 and has been identified by face by P.W.79. Thus, considering the appreciationofevidenceasdiscussedwhilediscussingthe evidenceofwitnessesthepresenceofthisaccusedinthe mobissatisfactorilyprovedbytheProsecutionandthathe
// 891 //
was in the mob. Thus, it is proved by the prosecution beyond reasonable doubt that, present accused was the memberofunlawfulassembly.
Itisnotindisputethat,theaccusedistheresidentof VillageSardarpurandwitnessesarealsoresidentofVillage Sardarpur.Theyareknowntoeachothersincepreviously hence evidence of witnesses can safely be accepted as regardstotheinvolvementofthisaccusedandevidenceof witnessesasdiscussedearlierhavingseentheaccusedin the mob cannot be doubted at all. Once it is established and accepted that, witness and accused are resident of same locality, well known to each other, only question requires about falsely implication of the accused. The question of making any mistake in that regard does not arise. It does not possible to hold false implication of accused. Here, in the present case entering in Shaikh Mahollaatthetimeofincidentitselfsuggestthecommon objectofthemobaswellasspecificroleattributedtothe accused.TherewasnoreasontoenterinShaikhMahollaat that time. Therefore by becoming a member of unlawful assemblyaccusedenteredinShaikhMahollaandincident ofburningofcabins,housesinShaikhMahollaaswellas
// 892 //
incidentinMahemudmiya'shouseoccurred.Furtherthere was incident of pelting of stones also occurred. This fact itselfsuggestovertactinconnectionwithcommonobject ofthemob.Meaningtherebyaccusedhadparticipatedin furtherance of common object of the mob. Therefore involvementofaccusediswellestablishedfromtheabove circumstances.OnperusalofF.S.L.Report,noweaponis connectedwiththeoffenceintheevidenceofwitnesses.But much importance cannot be given to this aspect as the evidence of identification of accused is established. This accused has added that earlier, he was Sarpanch of the villagehence,peoplefromthevillageknowhimverywell.If any officer calls him, he has to go to that officer in the capacityofSarpanch.Policehadcalledhimatabout2.00 O'clockinthemidnightandarrestedhim.Hisnameisnot mentionedintheF.I.R.buthehasfalselybeeninvolvedby thecomplainantandwitnesses.Intheyear2002,hewasin jail even though persons from each community of the village had selected him as Sarpanch. He had done good work for the village and he had made attempts that all persons from different community resides in the village cordially. He has made attempts for the development of each community but he has falsely been involved in the
// 893 //
incident.Therefore,thebasicdefenceoftheaccusedinhis examination under Section 313 of Cr.P.C. that he has falselybeenimplicatedandheisinnocentandthathewas notpresentatthetimeofincidentisnotacceptable.Simply witnessesandaccusedknoweachotherisnotsufficientto accept the false implication on this ground. There is no previousenmitybetweenthem.Thereisnoreasontofalsely implicate the accused. No one would falsely involve an innocentperson,keepingasidetherealculprit.Therefore, thedefenceoftheaccusedisnotacceptable.
77.
AccusedNo.15PATELJAYANTIBHAIBALDEVBHAI (SessionsCaseNo.275/2002) Sofarasinvolvementofthisaccusedintheincidentis concerned, none of the witness has deposed about the involvement of this accused in the incident. No role has been attributed by any witness to this accused, nor this accused is identified by any witness. Thus, prosecution failed to establish that, this accused was involved in the incidentasallegedbytheprosecution.
78.
AccusedNo.16PATELMANGALBHAIMATHURBHAI (SessionsCaseNo.275/2002)
// 894 //
P.W.55ShaikhAashiqhusenBachumiyahasnamed this accused during his deposition in respect of incident dated01.03.2002thatthisaccusedwasinthemobandhe was pelting stones. He has identified the accused in the Court.Hetook15minutestimeforidentification.Hehas identified17accusedintheCourt.beforeidentification,it wasverifiedbytheCourtwhetherthewitnesscouldseethe personssittingintheCourtandafterduesatisfactionthe witness has identified the accused. For identifying 17 accusedhetook15minutestime,whichcanbeconsidered asreasonabletimeforidentification.Hehasnotstatedthe name of this accused in his affidavit dated 06.11.2003. P.W.58 Fakir Sabirhusen Imamsha has deposed in his depositionabouttheincidentdated01.03.2002.Asperhis deposition the present accused Patel Mangalbhai Mathurbhaiwaspresentinthemob.Hehasidentifiedthe accused in the Court. There is contradiction in his statementdated03.03.2002inrespectoffromwhere,when and how he has seen the accused. Further there is contradiction in his statement before S.I.T. dated 22.05.2008 from where, when and how he has seen the accused. P.W.60 Shaikh Bachumiya Imammiya has deposedonoathnamingthepresentaccusedinrespectof
// 895 //
incidentdated01.03.2002aboutfirstincidentofsettingon fire the cabins at about 09.30 PM and also named the accusedinsecondtimemob.Hehasidentifiedtheaccused intheCourt.Hetook12minutestimeforidentificationof accused.Inhisdepositionhehasidentified5accusedin12 minutes.Hisheightisabout5'.ItwasverifiedbytheCourt whether, the witness could see the persons sitting in the Court and the arrangement was made accordingly. Consideringhisheight,itwasquitepossibleforapersonto see all the persons sitting in the Court. And he has identifiedthepresentaccusedfromthewitnessbox.This witnesshasnotstatedthenameofthisaccusedinrespect ofincidentofsettingonfirethecabinsatabout09.30PM andalsonotstatedthenameofpresentaccusedinrespect of incident occurred at about 11.30 PM. Statement dated 10.05.2008beforeS.I.T.andapplicationdated09.05.2008 issilentaboutit.Aspersayofaccusedthiswitnesshasnot stated the name of this accused attributing any role on setting on fire cabins outside Shaikh Maholla at about 09.30PM.Inhis statementdated03.03.2002he has not stated the name of present accused. P.W.66 Shaikh AkbarmiyaRasulmiyahasstatedthenameofthisaccused in respect of incident dated 01.03.2002 and as per his
// 896 //
deposition this accused was present in the mob with weapon.Hehasnotidentifiedthepresentaccusedinthe Courtthoughhetook10minutestime.Hehasnotstated the name of present accused in his statement dated 10.03.2002, in his application dated 09.05.2008. He has notstatedthat,accusedwaswithweapon.Inhisstatement before S.I.T. dated 09.05.2008, he has not stated that, accusedwaswithweapon.Itissubmittedbytheaccused that,inhiscrossexaminationthiswitnesshasstatedthat, hesawtheaccusedinthemobfromthedistanceof10Ft. while in his application dated 09.05.2008 and statement recorded by S.I.T. dated 09.05.2008 stated that, the accused was pelting brick from the terrace of nearby housesinjuringBachumiyaNathumiyaonhisheadbythe brick therefore, on the strength of this deposition, it is arguedbyShriDhruvthat,depositionofthiswitnessisnot believable at all. Further it is submitted by Shri Dhruv that,thiswitnesshasfalselyimplicatedthisaccusedand hisevidenceisrequiredtobediscarded.Forthispurpose considering his whole evidence, this witness has not identified present accused and has also not stated the name of this accused alongwith weapon in any of his statement, therefore, thedepositionof this witnessis not
// 897 //
supporting the involvement of present accused. P.W.78 ShaikhBasirabibiBachumiyahasdeposedonoathstating the name of the presentaccused inthe mob. As per her deposition she has identified the accused in the Court. before identification, it was verified by the court whether she could see the persons sitting in the Court. She has identified the present accused and she took 12 minutes time for identification of accused and during said 12 minutesshehasidentified8accused.Shehasnotstated the name of the present accused in her statement dated 17.04.2002 and statement dated 11.06.2008 and also not statedfromwhereandhowshehasseentheaccusedinthe mob in her statement dated 22.05.2005. It is argued by Shri Dhruv that, though this witness has identified the accusedbeforetheCourtbutnotnamedtheaccusedinher first statement which was recorded nearly after one and half month. Placing reliance on it, it is argued by Shri Dhruvthatidentificationunderabovecircumstancesdoes not inspire any confidence. And this witness has at her sweetwilladdingandsubtractingnamesoftheaccusedin thedifferentstatementstherefore,herstatementcannotbe reliedupon.Nodoubtshehasnotstatedthenameofthe presentaccused inanyof her statement thoughher first
// 898 //
statement was recorded after one and half months. But considering her deposition as discussed earlier she was able to see the persons in the mob and as per her depositionshehadseentheaccusedinthemobandother witnesses are also supporting the fact that, the present accusedwaspresentinthemobandtherefore,herthissay is reliable and inspiring confidence and therefore, arguments advanced by Shri Dhurv in this regard is not sustainable. P.W.80 Shaikh Ruksanabanu Ibrahimmiya hasnotnamedtheaccusedinherdepositioninrespectof incident dated 01.03.2002 but for the first time, she has identifiedtheaccusedinthecourtbyface.Inherstatement dated10.03.2002shehasstatedthat,shecanidentifythe accused by face. But in her statement dated 22.05.2005 she has not stated the name of present accused. It is arguedbyShriDhruvthat,noreliancecanbeplacedupon the evidence of this witness. This witness had taken 7 minutes time for identification of accused and she has identified9accusedbyface.Fromoverallevidenceofthis witnessittranspiresthat,shehasnowherestatedthefact that,shecanidentifytheaccusedbyfaceandtherefore,no reliancecanbeplacedonthesayofthiswitnessinrespect of presence of this accused in the mob. P.W.82 Fakir
// 899 //
SabirabibiSabirhusenhasnamedpresentaccusedinher depositioninrespectofincidentdated01.03.2002.Shehas identified present accused before the Court. But in her statementsdated03.03.2002and22.05.2008shehasnot stated the name of this accused. She has identified the presentaccusedintheCourt.Sheishavingheightabout 5'.P.W.83FakirSharifabanuSabirhusenhasnamedthe presentaccusedinherdepositionandasperhersaythis accused was very much present in the Court. She has identified the accused. She has not stated the name of present accused in her statements dated 03.03.2002 and 24.06.2008. Thus considering overall evidence of all the witnessespresenceofthisaccusedinthemobcannotbe doubted as it is supported by the evidence and he is identified by the witnesses in the Court. Therefore, consideringtheappreciationofevidenceasdiscussedwhile discussing the evidence of witnesses the presence of this accused in the mob is satisfactorily proved by the Prosecutionandhewasinthemob.Thus,itisprovedby the prosecution beyond reasonable doubt that, present accusedwasthememberofunlawfulassembly.
Itisnotindisputethat,theaccusedistheresidentof
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VillageSardarpurandwitnessesarealsoresidentofVillage Sardarpur.Theyareknowntoeachothersincepreviously hence evidence of witnesses can safely be accepted as regardstotheinvolvementofthisaccusedandevidenceof witnessesasdiscussedearlierhavingseentheaccusedin the mob cannot be doubted at all. Once it is established and accepted that, witness and accused are resident of same locality, well known to each other, only question requires about falsely implication of the accused. The question of making any mistake in that regard does not arise. It does not possible to hold false implication of accused. Here, in the present case entering in Shaikh Mahollaatthetimeofincidentitselfsuggestthecommon objectofthemobaswellasspecificroleattributedtothe accused.TherewasnoreasontoenterinShaikhMahollaat that time. Therefore by becoming a member of unlawful assemblyaccusedenteredinShaikhMahollaandincident ofburningofcabins,housesinShaikhMahollaaswellas incidentinMahemudmiya'shouseoccurred.Furtherthere was incident of pelting of stones also occurred. This fact itselfsuggestovertactinconnectionwithcommonobject ofthemob.Meaningtherebyaccusedhadparticipatedin furtherance of common object of the mob. Therefore
// 901 //
involvementofaccusediswellestablishedfromtheabove circumstances. But no weapon is connected with the accusedandoffenceintheevidenceofwitnesses.Butmuch importancecannotbegiventothisaspectastheevidence of identification of accused is established. Therefore, the basic defence of the accused in his examination under Section313 ofCr.P.C.thathehasfalselybeenimplicated andheisinnocentandthathewasnotpresentatthetime ofincidentisnotacceptable.Simplywitnessesandaccused know each other is not sufficient to accept the false implication on this ground. There is no previous enmity betweenthem.Thereisnoreasontofalselyimplicatethe accused.Noonewouldfalselyinvolveaninnocentperson, keepingasidetherealculprit.Therefore,thedefenceofthe accusedisnotacceptable.
79.
Accused No.17 PRAJAPATI GORDHANHBHAI REVABHAI (SessionsCaseNo.275/2002) P.W.52 Shaikh Hizbulmiya Husenmiya has named thepresentaccusedinhisdepositioninrespectofincident dated 01.03.2002. He has identified the accused in the Court. He took 15 minutes time for identification of accused. During 15 minutes he has identified 5 accused
// 902 //
persons.Hehasnotstatedthenameofpresentaccusedin his statement dated 11.06.2008, 05.08.2008, 19.05.2008. In his statement dated 19.05.2008 he has stated that, Police has written the name of the present accused in statement dated 19.05.2008. While statement dated 10.03.2002 is silent in respect of involvement of present accused. P.W.55 Shaikh Aashiqhusen Bachumiya has namedthepresentaccusedinhisdepositioninrespectof incident dated 01.03.2002. As per his deposition the present accused was pelting stones in the mob. He has identified Gordhanbhai Revabhai as Ashwinbhai Baldevbhai. He took 15 minutes for identification. In his statementdated02.03.2002fromwhere,howhehasseen theaccusedisnotmentioned.Inhisaffidavit06.11.2003he has not stated the name of present accused while in his statementbeforeS.I.T.dated19.05.2008hehasstatedthat, he has not given the name of accused in his statement dated 02.03.2002. Thus, considering the above evidence against the present accused, one of the witness is not identifyingtheaccusedandonewitnessthoughidentifying butinanyoftheirstatementstheyhavenotmentionedthe nameofpresentaccused.Forthefirsttimehisnamehas beenmentionedbeforetheCourt.Thus,itdoesnotinspire
// 903 //
confidence and on the strength of these evidence. Consideringtheappreciationofevidenceasdiscussedwhile discussing the evidence of witnesses the presence of this accused in the mob is not satisfactorily proved by the Prosecutionandthathewasnotinthemob.Thus,itisnot proved by the prosecution beyond reasonable doubt that, presentaccusedwasthememberofunlawfulassembly.
Itisnotindisputethat,theaccusedistheresidentof Village Sardarpur and witness is also resident of Village Sardarpur. No specific role has been attributed to the accusedbyanywitness.Furtheraccusednotidentifiedby thewitness.Therefore,thefactsremainsthat,itisnotsafe toholdaccusedguiltyonthebasisofgeneralallegations. There is no other material on record against the present accusedtoshowhisinvolvementintheallegedoffence.It would be hazardous to base a conviction only on the evidenceofgeneralallegations.Itwouldbeappropriateto givebenefitofdoubtandacquittheaccused.Inmyopinion thoughtheirexiststrongsuspicionagainsttheaccuseditis notpossibletoholdthat,hisinvolvementintheoffenceis establishedintheabsenceofanybodypointingouttowards himintheCourtasapersonwhowasinthemobrequires
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acquittal.
80.
AccusedNo.18PATELBHIKHABHAIJOITABHAI (SessionsCaseNo.275/2002) P.W.55ShaikhAashiqhusenBachumiyahasdeposed in his deposition the name of the present accused in respectofincidentdated01.03.2002.Asperhisdeposition this accused was pelting stones in the mob. He has identified the accused in the Court. He has identified 17 accusedinthecourt.ItwasverifiedbytheCourt,whether thewitnesscouldseethepersonsintheCourtroomand afterduesatisfactionwitnesshasidentifiedtheaccused.In 15minutestimewitnesshasidentified17accused,thatcan besaidreasonabletimeforidentification.Inhisstatement dated02.03.2002,he has notstatedfromwhere,howhe has seen the accused. In his affidavit 06.11.2003 and statementbeforeS.I.T.dated19.05.2008hehasnotstated about the presence of this accused. P.W.66 Shaikh AkbarmiyaRasulmiyahasdeposedonoaththenameofthe presentaccusedinrespectofincidentdated01.03.2002.As per his deposition this accused was in the mob with weapon. He has identified the accused in the Court. He took10minutesforidentificationofaccused.Duringsaid
// 905 //
10 minutes he has identified 8 accused. It was verified whether the witness could see the persons sitting in the Courtand after fullsatisfying identification was made by thepresentwitness.Hehasnotstatedthenameofpresent accused in his statement dated 10.03.2002, application dated09.05.2008,statementbeforeS.I.T.dated09.05.2008 whileP.W.68ShaikhGulamaliAkbarmiyahasstatedthe name of present accused in his deposition in respect of incidentdated01.03.2002.Hehasidentifiedtheaccusedin theCourtandhetook12minutestimeinidentifyingthe accused. It was verified and after full satisfaction identificationwascarriedoutandthewitnesshasidentified 19 accused within 12 minutes and that can be said reasonable time. He has not stated the name of present accused in his statement dated 10.03.2002, application dated 09.05.2008 and statement before S.I.T. dated 09.05.2008. P.W.71 Rawal Mangabhai Ramabhai has statedthenameofthepresentaccusedinhisdepositionin respectofincidentdated01.03.2002.Hehasidentifiedthe accusedintheCourt.Hetook7minutesforidentification of accused. before identification, it was verified and after full satisfaction identification was carried out and this witnesshasidentified4accusedintheCourt.Hehasnot
// 906 //
statedthenameofthisaccusedintheapplicationbefore S.I.T. and statement dated 20.05.2008. P.W.76 Shaikh Hamidabibi Akbarmiya has deposed on oath about the presenceofthisaccusedinthemobinrespectofincident dated01.03.2002.Shehasstatedthat,shecannotidentify the person from the mob. She could not identify Bhikhabhai Joitabhai in the Court. She has identified JagabhaiJivanbhaiasBhikhabhaiJoitabhaiintheCourt. Inrespectofstatementsdated21.06.2002and22.05.2008 shehasstatedthat,herstatementwasnotrecorded.Thus consideringtheoralevidenceinrespectofpresentaccused none of the witnesses have stated the name of present accused in their earlier statements. But Four witnesses have identified the accused in the Court and his specific roleisattributedtothepresentaccused.Presenceofthis accusedinthemobinrespectofincidentdated01.03.2002 at about 11.30 PM cannot be doubted though reliance cannot be placed upon the deposition of P.W.76 HamidabibiAkbarmiyaShaikhasshecouldnotidentifythe accusedinthemob.Thus,consideringtheappreciationof evidence as discussed while discussing the evidence of witnesses the presence of this accused in the mob is satisfactorilyprovedbytheProsecutionandhewasinthe
// 907 //
mob. Thus, it is proved by the prosecution beyond reasonabledoubtthat,presentaccusedwasthememberof unlawfulassembly.
// 908 //
incidentinMahemudmiya'shouseoccurred.Furtherthere was incident of pelting of stones also occurred. This fact itselfsuggestovertactinconnectionwithcommonobject ofthemob.Meaningtherebyaccusedhadparticipatedin furtherance of common object of the mob. Therefore involvementofaccusediswellestablishedfromtheabove circumstances. But no weapon is connected with the accusedandoffenceintheevidenceofwitnesses.Butmuch importancecannotbegiventothisaspectastheevidence ofidentificationofaccusedisestablished.Thisaccusedhas addedinhisFurtherStatementthat,onthebacksidewall ofthehouseoftheaccused,ShaikhMahollaissituatedand accusedisfalselyinvolved.Therefore,thebasicdefenceof the accused in his examination under Section 313 of Cr.P.C. that he has falsely been implicated and he is innocent and that he was not present at the time of incident is not acceptable. Simply witnesses and accused know each other is not sufficient to accept the false implication on this ground. There is no previous enmity betweenthem.Thereisnoreasontofalselyimplicatethe accused.Noonewouldfalselyinvolveaninnocentperson, keepingasidetherealculprit.Therefore,thedefenceofthe accusedisnotacceptable.
// 909 //
81.
Accused No.19 PRAJAPATI ROHITKUMAR RAMANBHAI (SessionsCaseNo.275/2002) As per order passed below Exh.71, trial against this accusedsenttoJuvenileJusticeBoard.
82.
AccusedNo.20PRAJAPATIRAVIKUMARAMRATBHAI (SessionsCaseNo.275/2002) P.W.52ShaikhHizbulmiyaHusenmiyahasdeposed about the presence of this accused in the mob in the incidentdated01.03.2002.Hehastaken15minutestime for identification of accused but could not identify the accused.HehasidentifiedRajeshbhaiAmratbhaiasRavi AmratbhaiHehasnotnamedthepresentaccusedinhis affidavit dated 06.11.2003, statement dated 11.06.2008, 05.08.2008 and statement dated 19.05.2008. He has mentioned that, accused was not in the mob. Police has writtenthenameoftheaccused.Thus,onthestrengthof such evidence we cannot conclude the presence of this accused in the mob. P.W.55 Shaikh Aashiqhusen Bachumiya has deposed in his deposition about the incident dated 01.03.2002 and stated that, accused was pelting stones in the mob. He took 15 minutes time but could not identify the accused. In his statement dated
// 910 //
02.03.2002,heiscontradictingfromwhereandhowhehas seentheaccused.Inhisaffidavitdated06.11.2003,hehas not stated the name of the present accused while in his statementbeforeS.I.T.dated19.05.2008hehasstatedthat, hehasnotgiventhenameofthepresentaccusedinthe statementdated02.03.2002.Thus,consideringthewhole evidence of this witness, we cannot conclude that this accused was not in the mob. While P.W.81 Shaikh Dilavarkhan Abbasmiya has not named the present accusedintheCourtregardinghispresenceintheincident dated 01.03.2002 but identified in the Court for the first timebyfaceonly.Inhisstatementdated22.05.2008before S.I.T.hehasnotgivennameofanyoftheaccused.Thus, consideringtheevidenceofallthethreewitnessesagainst thepresentaccused,thereisnosuchevidencefromwhich wecanconcludetheinvolvementofpresentaccusedinthe incident.Thusconsideringtheappreciationofevidenceas discussed while discussing the evidence of witnesses the presence of this accused in the mob is not satisfactorily provedbytheProsecutionandthathewasnotinthemob. Thus,itisnotprovedbytheprosecutionbeyondreasonable doubtthat,presentaccusedwasthememberofunlawful assembly.
// 911 //
Itisnotindisputethat,theaccusedistheresidentof Village Sardarpur and witness is also resident of Village Sardarpur. No specific role has been attributed to the accusedbyanywitness.Furtheraccusednotidentifiedby the witnesses. This accused has added that, he was studying in 12th Standard and during the midnight on 04.03.2002,hewassleeping,atthattimehewasarrested is acceptable. Therefore, the facts remains that, it is not safe to hold accused guilty on the basis of general allegations.Thereisnoothermaterialonrecordagainstthe present accused to show his involvement in the alleged offence.Itwouldbehazardoustobaseaconvictiononlyon theevidenceofgeneralallegations.Itwouldbeappropriate to give benefit of doubt and acquit the accused. In my opinion though their exist strong suspicion against the accuseditisnotpossibletoholdthat,hisinvolvementin the offence is established in the absence of anybody pointingouttowardshimintheCourtasapersonwhowas inthemobrequiresacquittal.
83.
AccusedNo.21PATELBABUBHAIKANTIBHAI (SessionsCaseNo.275/2002)
// 912 //
P.W.51 Shaikh Nazirmohnmad Akbarmiya has deposedaboutthepresenceofthisaccusedinthemobin theincidentdated01.03.2002andhehasdeposedthat,the presentaccusedwasinthemobwithburningrag.Hehas identifiedtheaccusedintheCourt.Hehasnotstatedthe name of the present accused in his affidavit dated 06.11.2003.P.W.59ShaikhMohmadsattarBachumiyahas deposed in respect of incident dated 01.03.2002. He has deposedthat,thepresentaccusedwaspresentinthemob withstone.HecouldnotidentifytheaccusedintheCourt. Asperhisstatementdated02.03.2002,hehasnotnarrated the name of the present accused while in affidavit dated 06.11.2003, he has not stated the name of the present accused.InhisstatementbeforeS.I.T.dated19.05.2008he hasstatedthat,inthestatementdated02.03.2002Police has written the name of the accused. P.W.70 Pathan Munsufkhan Yasinkhan has stated that, he saw the accused at the time of stone throwing at his old house situatedinPathanMahollaincidentdated01.03.2002.He hasidentifiedtheaccusedintheCourt.Hetook7minutes time for identification of accused. In his statement dated 06.03.2002, he has not named the accused. There is contradiction from where and how he has seen the
// 913 //
accused. In his affidavit dated 31.03.2004, he has not named the accused. In his statement before S.I.T. dated 11.06.2008, from where, how he has seen the accused is contradictory. In his statement before S.I.T. dated 14.07.2008 he has not stated the name of the present accused.Thus,therearethreewitnesses,outofwhichone witnessissayingthatthisaccusedwaswithburningrag, another is saying this accused was with stone while the other witness who is the police employee has saw the present accused while stone throwing. All the three witnesses are stating differently about the involvement of thisaccused.Further,oneofthewitnessisnotidentifying theaccusedintheCourtandstatementandaffidavitand applications are silent about the involvement of the accused.Thus,consideringtheappreciationofevidenceas discussed while discussing the evidence of witnesses the presence of this accused in the mob is not satisfactorily provedbytheProsecutionandthathewasnotinthemob. Thus,itisnotprovedbytheprosecutionbeyondreasonable doubtthat,presentaccusedwasthememberofunlawful assembly.
// 914 //
Village Sardarpur and witness is also resident of Village Sardarpur. No specific role has been attributed to the accusedbyanywitness.Furtheraccusednotidentifiedby thewitnesses. Therefore,thefactsremainsthat,itisnot safe to hold accused guilty on the basis of general allegations.Thereisnoothermaterialonrecordagainstthe present accused to show his involvement in the alleged offence.Itwouldbehazardoustobaseaconvictiononlyon theevidenceofgeneralallegations.Itwouldbeappropriate to give benefit of doubt and acquit the accused. In my opinion though their exist strong suspicion against the accuseditisnotpossibletoholdthat,hisinvolvementin the offence is established in the absence of anybody pointingouttowardshimintheCourtasapersonwhowas inthemobrequiresacquittal.
84.
AccusedNo.22PATELDINESHKUMARBALDEVBHAI (SessionsCaseNo.275/2002) P.W.48ShaikhSabirhusenKadarmiyahasdeposed inhisdepositionaboutthepresenceofthisaccusedinthe mobintheincidentdated01.03.2002.Hehasnotidentified theaccusedintheCourt.Hehasnotstatedthenameof thepresentaccusedintheCourtwhilehehasstatedthe
// 915 //
nameofthepresentaccusedbeforetheS.I.T.instatement dated 10.05.2008. P.W.59 Shaikh Mohmadsattar Bachumiyahasdeposedonoathandinhisdepositionhe has named the present accused in the mob in incident dated01.03.2002withstone.Hehasidentifiedtheaccused intheCourt.Hetook15minutestimeforidentifyingthe accused.Afterverifyingthewitnesscouldseethepersons sittingintheCourt,identificationofaccusedwascarried outandhehasidentifiedthepresentaccusedalongwith22 accused and that can be said reasonable time for this witness for identification of accused. As per statement dated19.05.2008 itisstatedby thiswitness that,inthe statementdated02.03.2002,Policehaswrittenthenameof the accused while in affidavit no name of the present accused is mentioned. P.W.73 Shaikh Faridabibi Aashiqhusenhasnottakenthenameofpresentaccusedin herdepositionbutidentifiedtheaccusedforthefirsttime in Court by face in respect of incident dated 01.03.2002. She has not stated the name of present accused in her statementdated02.03.2002.Hisnameisnotstatedinthe statement dated 11.06.2008. Thus, considering the evidence of all these three witnesses, one witness is identifying the accused by face, one is identifying the
// 916 //
accusedbeforetheCourtandonewitnessisnotidentifying the accused in the Court. When the witness P.W.59 has identifiedtheaccused,fromhisstatementsithascomeout that,nameofthisaccusediswrittenbythePolice.Thus, considering above all there is no cogent and reliable evidenceforinvolvingthepresentaccusedintheincident. Furthermore,onewitnessisinvolvingthisaccusedhaving stonewithhimintheincident.Thus,evidenceagainstthe present accused does not inspire any confidence. Thus, considering the appreciation of evidence as discussed, whilediscussingtheevidenceofwitnessesthepresenceof thisaccusedinthemobisnotsatisfactorilyprovedbythe Prosecutionbeyondreasonabledoubt.Thus,itisnotproved bytheprosecutionbeyondreasonabledoubtthat,present accusedwasthememberofunlawfulassembly.
Itisnotindisputethat,theaccusedistheresidentof Village Sardarpur and witness is also resident of Village Sardarpur. No specific role has been attributed to the accusedbyanywitness.Furtheraccusednotidentifiedby thewitnesses. Therefore,thefactsremainsthat,itisnot safe to hold accused guilty on the basis of general allegations.Thereisnoothermaterialonrecordagainstthe
// 917 //
present accused to show his involvement in the alleged offence.Itwouldbehazardoustobaseaconvictiononlyon theevidenceofgeneralallegations.Itwouldbeappropriate to give benefit of doubt and acquit the accused. In my opinion though their exist strong suspicion against the accuseditisnotpossibletoholdthat,hisinvolvementin the offence is established in the absence of anybody pointingouttowardshimintheCourtasapersonwhowas inthemobrequiresacquittal.
85.
AccusedNo.23PATELVISHNUBHAIGOPALBHAI (SessionsCaseNo.275/2002) Sofarasinvolvementofthisaccusedintheincidentis concerned, none of the witness has deposed about the involvement of this accused in the incident. No role has been attributed by any witness to this accused. Nor this accused is identified by any witness. Thus, prosecution failed to establish that, this accused was involved in the incidentasallegedbytheprosecution.
86.
AccusedNo.24PATELKANUBHAIKARSHANBHAI (SessionsCaseNo.275/2002) Sofarasinvolvementofthisaccusedintheincidentis
// 918 //
concerned, none of the witness has deposed about the involvement of this accused in the incident. No role has been attributed by any witness to this accused. Nor this accused is identified by any witness. Thus, prosecution failed to establish that, this accused was involved in the incidentasallegedbytheprosecution. 87. AccusedNo.25PRAJAPATIDAHYABHAIVARVABHAI (SessionsCaseNo.275/2002) P.W.52ShaikhHizbulmiyaHusenmiyahasdeposed onoathinrespectofincidentdated01.03.2002that,this accused was present in the mob with pipe. He took 15 minutestimeandhasidentifiedJagaJivanasDahyabhai Varvabhai. He has not stated the name of the present accusedinhisstatementdated10.03.2002,affidavitdated 06.11.2003, statement dated 11.06.2008, statement dated 05.08.2008whileinhisstatementdated19.05.2008hehas statedthenameofpresentaccused.Asthiswitnesshasnot identifiedtheaccusedproperlywecansafelysaythat,this witness failed in involving the accused in the incident. P.W.55 Aashiqhusen Bachumiya has deposed in his depositionabouttheincidentdated01.03.2002.Asperhis deposition,thisaccusedwaspresentinthemobandwas involved in pelting stone. He has identified the present
// 919 //
accused before the Court and he took 15 minutes for identification of accused. He had seen 22 persons in the mob.Asperhisdepositionhesawtheaccusedinthemob with weapon. He has identified 17 accused. He has identified the accused within reasonable time but in his statementdated02.03.2002fromwhere,howhehasseen the accused is contradictory. In his affidavit dated 06.11.2003nameofpresentaccusedisnotmentionedwhile in his statement before S.I.T. dated 19.05.2008 he has stated the name of present accused. P.W.68 Shaikh GulamaliAkbarmiyahasnotnamedthepresentaccusedin hisdepositionbutidentifiedbeforetheCourt.Hetook12 minutestimeforidentificationofaccused.Inhisstatement dated 10.03.2002 from where, how he has seen there is contradiction about it. In application dated 09.05.2008 from where and how he has seen there is contradiction. While in his statement dated 10.05.2008 name of the present accused is not mentioned. This witness has identified19accusedin12minutes.Afterverifyingthathe was able to see the persons sitting in the Court room, identification was carried out. Therefore, he took reasonabletimeinidentifyingtheaccused.P.W.75Shaikh FirozabanuBachumiyahasstatedthenameofthepresent
// 920 //
accused in her deposition but has not identified the accusedintheCourt.Onthecontraryshehasidentified GordhanbhaiRevabhaiasDahyabahiVarvabhai.Thus,no reliance can be placed on deposition of this witness in respectofinvolvementofpresentaccusedintheincident. P.W.80ShaikhRuksanabanuIbrahimmiyahasnotnamed the present accused in her deposition but identified the accusedintheCourtforthefirsttimebyface.Inrespectof incidentdated01.03.2002,shehasnotstatedthat,shecan identify the accused by face. In her statement dated 22.05.2005, she has not stated the name of present accused. Considering such evidence no reliance can be placedinrespectofinvolvementofpresentaccusedinthe incidentdated01.03.2002. Consideringthefactthat,one witnessisstatingthat,thisaccusedwashavingPipeinhis handwhileotherwitnessissayingthat,thisaccusedwas pelting stone while another witness is not naming the present accused but identifying and silent about the weaponinthehandofthisaccused.Therefore,considering aboveallevidenceasawholeitdoesnotinspireconfidence to involve the present accused in the incident. Thus, considering the appreciation of evidence as discussed whilediscussingtheevidenceofwitnessesthepresenceof
// 921 //
thisaccusedinthemobisnotsatisfactorilyprovedbythe Prosecutionbeyondreasonabledoubt.Thus,itisnotproved bytheprosecutionbeyondreasonabledoubtthat,present accusedwasthememberofunlawfulassembly.
Itisnotindisputethat,theaccusedistheresidentof Village Sardarpur and witness is also resident of Village Sardarpur. No specific role has been attributed to the accusedbyanywitness.Furtheraccusednotidentifiedby thewitnesses. Therefore,thefactsremainsthat,itisnot safe to hold accused guilty on the basis of general allegations.Thereisnoothermaterialonrecordagainstthe present accused to show his involvement in the alleged offence.Itwouldbehazardoustobaseaconvictiononlyon theevidenceofgeneralallegations.Itwouldbeappropriate to give benefit of doubt and acquit the accused. In my opinion though their exist strong suspicion against the accuseditisnotpossibletoholdthat,hisinvolvementin the offence is established in the absence of anybody pointingouttowardshimintheCourtasapersonwhowas inthemobrequiresacquittal.
88.
AccusedNo.26PATELRAGHUBHAIREVABHAI
// 922 //
(SessionsCaseNo.275/2002) P.W.59 Shaikh MohmadSattar Bachumiya has deposed in his deposition about the involvement of this accused in respect of incident dated 01.03.2002 at about 11.30to12.00P.M.Asperdepositionofthiswitness,the presentaccusedwaspresentinthemobwiththestone.He has not identified the accused in the Court though 15 minutestimewastakenbyhim.Asperhisstatementdated 19.05.2008nameofthepresentaccusedwaswrittenbythe Police in the statement dated 02.03.2002 and in his affidavitdated06.11.2003nonameofthepresentaccused ismentioned.Thus,evidenceofthiswitnessisnotinvolving the present accused in the incident. Simply, in his deposition, he is naming the accused. P.W.60 Shaikh BachumiyaImammiyahasdeposedonoath,inrespectof incidentdated01.03.2002.Theaccusedhasaskedhimto transfer his cabin from near his house as his grass will burnbuthehasnotidentifiedtheaccusedthoughhetook 12minutestimeforidentification.Inhisstatementdated 03.03.2002 he has not stated the incident dated 27.02.2002. Thus, there is no evidence in deposition of P.W.60regardingtheinvolvementofpresentaccused.P.W. 61ShaikhSafikmiyaBabumiyahasdeposedinvolvingthe
// 923 //
presentaccusedintheincidentdated01.03.2002.Asper hisdepositionthisaccusedwaspresentwithweapon.He has identified the accused before the Court. He took 15 minutes time for identification of accused and he has identified7accusedintheCourtwithin15minutes.Thus, he took reasonable time for identification of accused and identificationwascarriedoutafterdueverificationwhether witnesswasabletoseethepersonssittingintheCourtas theheightofthiswitnessisabout4'11.Hehasnotstated the name of present accused in the statement dated 10.03.2002,03.05.2002and10.05.2008.P.W.70Pathan Munsufkhan Yasinmiya has stated the name of present accusedinpeltingstone.Asperhisdepositionhesawthe incidentandtheaccusedatthetimeofstonepeltingonhis old house at Pathan Maholla on 01.03.2002. He has identified the accused in the Court. He took 17 minutes time for identification of accused and in the said 17 minutes, he has identified 14 accused. In his statement dated 11.06.2008, he has not given the name of present accused with weapon in his statement dated 06.03.2002. He has not named the present accused in his affidavit dated 31.03.2004. In his statement before S.I.T. dated 11.06.2008,hehasnotstatedfromwhereandhowhehas
// 924 //
seen the accused with weapons. He has not stated the incident with name of present accused. In his statement beforeS.I.T.dated14.07.2008.P.W.75ShaikhFirozabanu Bachumiya has deposed in her deposition in respect of incidentdated01.03.2002that,shesawtheaccusedinthe mobwhilegoingtowardsMahemudmiya'shouse.Shetook 15minutestimeforidentificationofaccusedbutshecould identifytheaccusedintheCourt. Inherstatementdated 02.03.2002fromwhereandhowshehasseentheaccused is not stated. In her statement dated 22.05.2008 from whereandhowshehasseentheaccused,herstatementis contradictory. Thus, deposition of this witness is not sufficienttoinvolvethepresentaccusedintheincident.So farasinvolvementofthisaccusedbyP.W.70isconcerned, hewasapoliceemployee,wellconversantwiththelawand procedure even though he has not stated the name of presentaccusedinhisaffidavit.Further,hisstatementis contradictory about from where, how he has seen the accusedwithweapon.Whileheisstatinginhisdeposition abouttheinvolvementofaccusedwithstone.Considering the standard of this witness, we can not conclude the involvementoftheaccusedonthebasisofevidenceofthis witness. We have to consider the other evidence also.
// 925 //
Whether there is other evidence to involve the present accusedintheincidentevidenceofP.W.59,60and75are not sufficient to involve the present accused. So far as evidence of P.W. 61 is concerned, he has involved the present accused with weapon. He has identified this accused before the court. Thus, P.W. 70 is involving the accusedinthemobwithstone.WhileP.W.61isinvolving the accused with weapon. There is no other evidence to support the involvement of this accused in the incident. Thus,bykeepingrelianceuponthesetwoevidencewhich arecontradictorytoeachother.Wecannotconcludeabout theinvolvementofpresentaccusedintheincident.Thus, considering the appreciation of evidence as discussed whilediscussingtheevidenceofwitnesses,thepresenceof thisaccusedinthemobisnotprovedbeyondreasonable doubtbytheProsecutionandthathewasnotinthemob. Thus,itisnotprovedbytheprosecutionbeyondreasonable doubtthat,presentaccusedwasthememberofunlawful assembly.
Itisnotindisputethat,theaccusedistheresidentof Village Sardarpur and witness is also resident of Village Sardarpur. No specific role has been attributed to the
// 926 //
accusedbyanywitness.Furtheraccusednotidentifiedby the witnesses. This accused has added in his Further Statement that, he was carrying business of milk and buttermilk etc. therefore, presence from the village know him well therefore, he was identified falsely by the witnesseswhoareresidingbehindhishouseisacceptable. Therefore, the facts remains that, it is not safe to hold accusedguiltyonthebasisofgeneralallegations.Thereis noothermaterialonrecordagainstthepresentaccusedto show his involvement in the alleged offence. It would be hazardous to base a conviction only on the evidence of generalallegations.Itwouldbeappropriatetogivebenefit of doubt and acquit the accused. In my opinion though there exist strong suspicion against the accused it is not possible to hold that, his involvement in the offence is establishedintheabsenceofanybodypointingouttowards himintheCourt,asapersonwhowasinthemobrequires acquittal.
89.
AccusedNo.27PATELMATHURBHAIRAMABHAI (SessionsCaseNo.275/2002) P.W.48ShaikhSabirhusenKadarmiyahasdeposed the name of the present accused in respect of incident
// 927 //
dated 01.03.2002. He has identified the accused in the Court.Hehasnotstatedthenameofthepresentaccused inhisstatementdated06.03.2002whileinhisstatement beforeS.I.T.dated10.05.2008hisnameisstated.Itisalso deposedinhisdepositionthat,thisaccusedwasinthemob andinstigatingthemobandhewasalsoinvolvedinpelting stone. This witness has identified the accused after verificationthatheisabletoseeallthepersonssittingin the Court. While P.W.59 Shaikh Mohmad Sattar Bachumiya has deposed on oath in respect of incident dated01.03.2002thatthisaccusedwasinvolvedinpelting stone.HehasidentifiedtheaccusedintheCourt.Before identification,itwasverifiedbytheCourtwhetherwitness could see the persons sitting in the court and after due satisfaction,identificationwascarriedoutandthiswitness hasidentifiedabout22accused.Thiswitnesshasstatedin his statement dated 09.05.2008 that, in his statement dated 02.03.2002 police has written the name of the accused. This witness has not stated the name of this accusedinhisaffidavitdated06.11.2003.P.W.62Shaikh Rafikmiya Mahmadhusen has not named this accused in his deposition but identified Ramdas as Mathurbhai Ramabhaiandhetook15minutestimeforidentifyingthe
// 928 //
accused.Hehasstatedthenameofthepresentaccusedin his statement dated 10.03.2002 and 10.05.2008. Identification was carried out after due satisfaction that witnesscouldseethepersonssittingintheCourtandin15 minutes he has identified 9 accused. P.W.65 Shaikh Akbarmiya Nathumiya has not stated the name of this accusedinhisdepositionbutidentifiedtheaccusedinthe Court. He took 10 minutes time in identification and identificationwascarriedoutafterdueverificationwhether thewitnessisabletoseethepersonssittingintheCourt. During said 10 minutes he has identified 10 accused. P.W.68ShaikhGulamaliAkbarmiyahasdeposedonoath namingtheaccusedinrespectofincidentdated01.03.2002 thathewaspresentinthemob.Hetook12minutestime inidentifyingtheaccused.Hehasidentified19accusedin the Court. Identification took place after due verification whetherwitnesscouldseethepersonssittingintheCourt. He has not stated the name of this accused in his statement dated 10.03.2002, in his application dated 09.05.2008fromwhereandhowhehasseentheaccusedis contradictory mentioned and in his statement dated 10.05.2008hehasnotstatedthenameofpresentaccused. P.W.70 Pathan Munsufkhan Yasinkhan has named the
// 929 //
accused. As per his deposition he saw the incident and personsatthetimeofstonethrowingonhisoldhouseat PathanMahollaon01.03.2002.Asperhisdepositionthis accused was present in the mob with stone. He took 7 minutestimeinidentifyingtheaccused.Hehasidentified 14accusedintheCourt.Inhisstatementdated06.03.2002 from where and how he has seen the accused is contradictorymentioned.Thereisalsocontradictionsabout theweapon.Hehasnotstatedthenameofthisaccusedin hisaffidavitdated31.03.2004.InhisstatementbeforeS.I.T. dated 11.06.2008 from where and how he has seen the accused with weapon is contradictory. In his statement before S.I.T. dated 14.07.2008 he has not narrated the incidentwithnameofthepresentaccused.Itisarguedby ShriDhruvthat,thiswitnesshasdeposedbeforetheCourt referringthenameofthepresentaccusedhavingseenby the witness when the mob set on fire three cabins near ShaikhMaholla.Hehasnotnamedthisaccusedinhisfirst statement. Thus, there is material improvement in his deposition which is proved contradiction. It is argued by Shri Dhruv in respect of deposition of P.W.59 Shaikh Mohmad Sattar Bachumiya that, he has named this accusedbeforetheCourt.Inearlierstatementshehasnot
// 930 //
named the present accused therefore, it is submitted by himthat,hisdepositioninrespectofidentificationofthis accusedisrequiredtobediscarded.ItissubmittedbyShri Dhruv that, in spite of the fact that, P.W.62 Shaikh Rafikmiya Mahmadhusen has not deposed in the depositionthat,thisaccusedwasinthemobatthetimeof allegedincidenteventhoughhehasidentifiedtheaccused intheCourtjusttoinvolvetheaccusedfalsely.Itisargued byShriDhruvthat,P.W.65ShaikhAkbarmiyaNathumiya has not implicated the present accused in his deposition but identified him before the Court therefore, this identificationhasnovalueasheisnotassignedanyrolein the mob. Referring to the deposition of P.W.70 Pathan Munsufkhan Yasinkhan, it is submitted by Shri Dhruv that,thiswitnesshasidentifiedthepresentaccusedinthe Courtandhasdeposedaboutthepresenceofthisaccused inthemobatthetimeofincidentbutinhisaffidavitand other statements this witness has not implicated the present accused therefore, this witness has tried to implicatepresentaccusedfalsely.Consideringtheevidence against present accused P.W.48 Sabirhusen Kadarmiya Shaikh has identified the accused and deposed the presenceofthisaccusedwhileMohmadSattarhasstated
// 931 //
the presence of this accused with stone but none of his statementsupportsthathehasearlierstatedthenameof the present accused while in two statements of P.W.62 RafikmiyaMohmadhusenShaikh nameofthisaccusedis mentioned. In two statements and one affidavit P.W.65 Akbarmiya Nathumiya Shaikh, name of this accused is mentioned. He has identified this accused. P.W.68 Gulamali Akbarmiya Shaikh has stated the name of this accusedaswellasinapplicationalsonameofthisaccused ismentioned.Simplythereiscontradictionfromwhereand howhehasseentheaccusedbutthisissueisdiscussedat the relevant time while appreciating the evidence. While appreciating the evidence on this point P.W.70 Munsufkhan Yasinkhan is the Police employee and well conversantwiththeLawandProcedure.Hehasidentified theaccused.Thereiscontradictionaboutfromwhere,how he has seen the accused. There is contradiction about weaponalso.Wecannotweighttheevidenceofthiswitness morebutwhileconsideringtheevidenceofotherwitnesses, wecanconsidertheevidenceofthiswitnessalso.Fromthe evidence of all the witnesses as stated above, there is sufficientreasonstodisbelievetheargumentsadvancedby ShriDhruvthat,thisaccusedwasnotinthemobandhas
// 932 //
falselybeeninvolvedbythewitness.Thus,consideringthe appreciationofevidenceasdiscussedwhilediscussingthe evidenceofwitnessesthepresenceofthisaccusedinthe mobissatisfactorilyprovedbytheProsecutionthathewas inthemob.Thus,itisprovedbytheprosecutionbeyond reasonabledoubtthat,presentaccusedwasthememberof unlawfulassembly.
Itisnotindisputethat,theaccusedistheresidentof VillageSardarpurandwitnessesarealsoresidentofVillage Sardarpur.Theyareknowntoeachothersincepreviously hence evidence of witnesses can safely be accepted as regardstotheinvolvementofthisaccusedandevidenceof witnessesasdiscussedearlierhavingseentheaccusedin the mob cannot be doubted at all. Once it is established and accepted that, witness and accused are resident of same locality, well known to each other, only question requires about falsely implication of the accused. The question of making any mistake in that regard does not arise. It does not possible to hold false implication of accused. Here, in the present case entering in Shaikh Mahollaatthetimeofincidentitselfsuggestthecommon objectofthemobaswellasspecificroleattributedtothe
// 933 //
accused.TherewasnoreasontoenterinShaikhMahollaat that time. Therefore by becoming a member of unlawful assemblyaccusedenteredinShaikhMahollaandincident ofburningofcabins,housesinShaikhMahollaaswellas incidentinMahemudmiya'shouseoccurred.Furtherthere was incident of pelting of stones also occurred. This fact itselfsuggestovertactinconnectionwithcommonobject ofthemob.Meaningtherebyaccusedhadparticipatedin furtherance of common object of the mob. Therefore involvementofaccusediswellestablishedfromtheabove circumstances. But no weapon is connected with the offenceintheevidenceofwitnesses.Butmuchimportance cannot be given to this aspect as the evidence of identificationofaccusedisestablished.Therefore,thebasic defence of the accused in his examination under Section 313ofCr.P.C.thathehasfalselybeenimplicatedandheis innocent and that he was not present at the time of incident is not acceptable. Simply witnesses and accused know each other is not sufficient to accept the false implication on this ground. There is no previous enmity betweenthem.Thereisnoreasontofalselyimplicatethe accused.Noonewouldfalselyinvolveaninnocentperson, keepingasidetherealculprit.Therefore,thedefenceofthe
// 934 //
accusedisnotacceptable.
90.
AccusedNo.28PATELSURESHBHAIRANCHHODBHAI (SessionsCaseNo.275/2002) P.W.48ShaikhSabirhusenKadarmiyahasdeposed the name of the present accused in respect of incident dated 01.03.2002. He has deposed on oath that, this accusedwasinstigatingthemobandhealongwiththemob burningthehousesinShaikhMahollaandalsopeltingthe stone.HehasidentifiedtheaccusedintheCourtandthere is contradiction in his statement dated 06.03.2002 from where and how he has seen the accused but this contradiction is already discussed at the relevant time in theJudgement.Thiswitnesshasnotnamedthisaccused inhisstatementbeforeS.I.T.dated10.05.2008.Itisargued by Shri Dhruv that, this witness has seen the present accusedinthemobsettingonfirethreecabinsnearShaikh MahollaintheFocuslight,fixedneartheShaikhMaholla. But he is not stating the name of this accused in his statement. P.W.54 Shaikh Sharifmiya Bhikhumiya has deposedonoaththename ofthe present accused inthe mob with burning rag. He has not identified the present accusedintheCourtthoughhehasidentifiedfouraccused
// 935 //
in the Court. Present accused is present in the Court. Witnesshasstatedthat,heisnotpresentintheCourt.In his statement dated 06.03.2002 from where and how he hasseentheaccused,thereiscontradictionaboutit.But this contradiction is already discussed at the time of appreciation of evidence. This witness has not stated the nameofthisaccusedinhisaffidavitdated06.11.2003and statementbeforeS.I.T.dated22.05.2008.P.W.68Shaikh GulamaliAkbarmiyahasdeposedthenameofthepresent accusedinrespectofincidentdated01.03.2002that,this accused was present in the mob with burning rag. This witnesshasidentifiedthepresentaccusedintheCourt.He took12minutestimeforidentificationandhasidentified19 accusedin12minutes.Hisheightisabout52anditwas verified whether he could see the persons sitting in the Courtandafterduesatisfactionidentificationwascarried out. There is contractions in his statement dated 10.03.2002fromwhereandhowhehasseentheaccused. Evidence in respect of contradiction is already discussed. This witness has not stated in his application dated 09.05.2008 that, this accused was present with burning rag. There is contradiction in his statement dated 10.05.2008fromwhereandhowhehasseentheaccused,
// 936 //
whichisalreadydiscussed.P.W.69ShaikhMahemudmiya Husenmiya has deposed on oath that, this accused was verymuchpresentinthemobwithburningrag.Hehasnot identifiedtheaccusedintheCourt.Whileaspersayofthis witness, his statement was not recorded on 22.05.2008. P.W.81 Shaikh Dilavarkhan Abbasmiya has not named thisaccusedinthisdepositionbutidentifiedtheaccusedin theCourtbyfaceonlyandhehasnotnamedthepresent accused in his statement dated 22.05.2008. Thus consideringtheoverallevidenceofallthesewitness,itis comeoutthat,thisaccusedwasverymuchpresentinthe mob with burning rag and he took active part in the incident and he was also instigating the mob. P.W.48, P.W.68fullysupportsthisfactwhiletheevidenceofP.W.54 does not inspire confidence about the presence of this accusedinthemob.Evidence ofP.W.69and 81does not inspire any confidence and therefore, no reliance can be placedupontheirsayaboutthepresenceandroleplayed bytheaccusedintheincident.Buttheevidenceofother witness supports the presence of this accused. Thus, considering the appreciation of evidence as discussed whilediscussingtheevidenceofwitnesses,thepresenceof this accused in the mob is satisfactorily proved by the
// 937 //
Prosecutionandthathewasinthemob.Thus,itisproved bytheprosecutionbeyondreasonabledoubtthat,present accusedwasthememberofunlawfulassembly.
// 938 //
incidentinMahemudmiya'shouseoccurred.Furtherthere was incident of pelting of stones also occurred. This fact itselfsuggestovertactinconnectionwithcommonobject ofthemob.Meaningtherebyaccusedhadparticipatedin furtherance of common object of the mob. Therefore involvementofaccusediswellestablishedfromtheabove circumstances. In the evidence of witnesses this accused was connected with burning rag. Therefore, the basic defence of the accused in his examination under Section 313ofCr.P.C.thathehasfalselybeenimplicatedandheis innocent and that he was not present at the time of incident is not acceptable. Simply witnesses and accused know each other is not sufficient to accept the false implication on this ground. There is no previous enmity betweenthem.Thereisnoreasontofalselyimplicatethe accused.Noonewouldfalselyinvolveaninnocentperson, keepingasidetherealculprit.Therefore,thedefenceofthe accusedisnotacceptable. 91. AccusedNo.29PATELCHATURBHAIKANABHAI (SessionsCaseNo.275/2002) P.W.47ShaikhIbrahimbhaiRasulbhaihasdeposed in respect of incident dated 01.03.2002 and named the
// 939 //
presentaccused.Hehasnotidentifiedtheaccusedinthe Courtthoughsufficienttimewasgiventohimanditwas verifiedwhetherheisabletoseeallthepersonssittingin theCourtroomornot.Hehasnamedthepresentaccused in his complaint but not named in his statement dated 10.03.2002, 01.06.2002, application dated 01.06.2002, affidavitdated06.11.2003andstatementbeforeS.I.T.dated 11.06.2008 but named the present accused in the application and statement before S.I.T. dated 09.05.2008. P.W.48ShaikhSabirhusenKadarmiyahasdeposedinhis deposition naming the present accused in the mob in respectofincidentdated01.03.2002.Hehasidentifiedthe accusedintheCourt.Asperdepositionofthiswitnessthe present accused alongwith other accused was instigating themobandalsopeltingstoneandburningthehousesin ShaikhMaholla.Hehasidentified14accusedintheCourt. beforeidentification,itwasverifiedwhetherhewasableto see the persons sitting in the Court and after satisfying identificationwascarriedout.Hehasnotstatedthename ofpresentaccusedinhisstatementdated06.03.2002.He hasstatedthenameofpresentaccusedinthestatement beforeS.I.T.dated10.05.2008.Itissubmittedonbehalfof the accused that, the present witness has deposed that,
// 940 //
mobofnearly500to700personssetonfirethreecabins near Shaikh Maholla in the Focus light, fixed near the ShaikhMaholla.Hesawthepresentaccused.Thiswitness hasfalselyinvolvedthepresentaccusedbuthasnotnamed theaccusedinhisfirststatement.Thus,thereismaterial improvementinhisstatementandthereiscontradictionin the deposition of this witness which is proved in the deposition of Investigating Officer P.W.49 Shaikh Iqbalmiya Rasulmiya has deposed on oath naming the presentaccusedwithpipeinthemob.Hehasnotidentified the present accused. There is contradiction in his statement dated 10.03.2002 from where and how he has seentheaccusedbutinthestatementbeforeS.I.T.dated 10.05.2008 and 10.06.2008 supports the say of the witness.WhileP.W.52ShaikhHizbulmiyaHusenmiyahas deposedin hisdepositionnamingthepresentaccusedin the mob with pipe. He has not identified the present accused.Hehasstatedthenameofthepresentaccusedin thestatementdated10.03.2002buthasnotnamedinhis affidavit dated 06.11.2003, statement dated 11.06.2008, statement dated 05.08.2008 and statement dated 19.05.2008. It is argued by Shri Dhruv that, out of 12 accused, 8 accused are named by present witness in his
// 941 //
statementbyfullnamebutunabletoidentifythembefore the Court. Further, itis argued by ShriDhruv that, this witnesshasassignedMuddamalArticleNo.41Pipeinthe hands of present accused while P.W.49 Ibrahimmiya RasulmiyaShaikhassignsMuddamalArticleNo.41Pipe toaccusedNo.51MarvadiAashutoshaliasPavankumar Murlidhar. Thus, said Muddamal is assigned to different accused by the witnesses. Thus, there is improvement in thestatementofthiswitnessandwitnesshastendencyto involvefalsepersonsinthecrimeandtheevidenceofthis witnessisnotcreditworthy.P.W.55ShaikhAashiqhusen Bachumiyahasdeposedthenameofthepresentaccused in his depositioninrespectof incidentdated 01.03.2002. Looking to his deposition he has not named that, this accused was in the mob. He has identified the present accusedintheCourt.Hetook15minutestimeandduring 15minuteshehasidentified4accused.Hehasstatedthe nameofpresentaccusedinhisaffidavitdated06.11.2003 whereashasnotstatedthenameofpresentaccusedinthe statementdated19.05.2008beforeS.I.T. P.W.56Shaikh ShaikhMustufamiyaRasulmiyahasdeposedthenameof the present accused with pipe in the mob in respect of incident dated 01.03.2002. He has not identified the
// 942 //
accusedintheCourt.Inhisstatementdated10.03.2002he hasnotstatedthenameofthepresentaccusedinthemob. InhisstatementbeforeS.I.T.thereiscontradictionabout fromwhereandhowthiswitnesshasseentheaccused.So farascontradictionsinthestatementsareconcernedthat is discussed and decided at the time of appreciation of evidence.P.W.59ShaikhMohmadSattarBachumiyahas deposed in his deposition in respect of incident dated 01.03.2002 at about 11.30 to 12.00 P.M. naming the present accused with pipe in the mob. He has identified ChaturKanjiasChaturKana.Hetook15minutestime for identification of accused and has identified about 20 accusedintheCourt.beforeidentification,itwasverified whether theaccused could see the persons sitting inthe Courtroomandafterduesatisfactiontheidentificationwas carriedout.Asperhisstatementdated19.05.2008Police haswrittenthenameofpresentaccusedinthestatement dated 02.03.2002. In his affidavit witness has not stated the name of present accused. P.W.61 Shaikh Safikmiya Babumiyahasdeposedonoathinrespectofincidentdated 01.03.2002namingthepresentaccusedinthemobhaving weapon in his hand. He has identified 6 accused in the Court.Hisheightisabout4'11.Hetook15minutestime
// 943 //
for identifying the accused in the Court though proper arrangement was made so that, witness could see each andeverypersonintheCourtinspiteofthat,witnesswas notabletoseesomeoftheaccusedandhehadrequested tostepdownfromthewitnessboxandaccordinglyhewas permitted for the same and has identified the present accused from very near. He has not stated the name of present accused in his statement dated 10.03.2002 and 03.05.2002buthasstatedthenameofpresentaccusedin his statement dated 10.05.2008. P.W.77 Shaikh Badrunnisha Akbarmiya has deposed in her deposition naming the present accused in the incident dated 01.03.2002. She has not identified the present accused. She has identified Chatur Kanji as Chatur Vitthal. As perherstatementdated06.03.2002shesawfromtheField side.Shehasnotstatedthenameofpresentaccusedinher statementdated06.03.2002 andthereiscontradictionin herstatementdated22.05.2008fromwhereandhowshe hasseentheaccused.Thisfactisalreadydiscussedwhile appreciatingtheevidenceinthisregard.P.W.80Shaikh Ruksanabanu Ibrahimmiya has not named the present accused in her deposition in respect of incident dated 01.03.2002.Butshehasidentifiedtheaccusedforthefirst
// 944 //
timeintheCourt.Shetook7minutestimeforidentifying the accused. In her statement dated 10.03.2002 she has notstatedthat,shesawtheaccusedandshecanidentify himbyface.Inherstatementdated22.05.2005shehasnot stated the name of present accused. Considering the evidence of above all witnesses, no doubt in complaint nameofpresentaccusedismentionedbutcomplainanthas notidentifiedtheaccused.P.W.48SabirhusenKadarmiya Shaikh, P.W.49 Iqbalmiya Rasulmiya Shaikh though sayingthatthisaccusedwaspresentinthemobwithpipe. But no reliance can be placed on his say as he has not identified the present accused. Hizbulmiya is also not identifyingthepresentaccusedandtherefore,noreliance canbeplacedontheevidenceofthiswitnessalso.P.W.55 AashiqhusenBachumiyaShaikhisnotsayingthepresence ofpresentaccusedinthemobhoweverheisidentifyingthe accused therefore, no reliance can be placed on his depositionalso. So far as P.W. 56 Ayubmiya Rasulmiya Shaikh isconcerned,heissayingaboutthepresenceof thisaccusedwithpipeinthemobbutnotidentifyingthe accused in the court and therefore, no reliance can be placedonhisdepositionabouttheinvolvementofpresent accused in the incident. P.W.59 Mohmad Sattar
// 945 //
Bachumiya Shaikh is not properly identifying the present accusedandtherefore,hissayaboutthepresenceofthis accusedalongwithpipecannotbegivenweightageinacase where in the statement dated 19.05.2008 it is stated the nameofthepresentaccusediswrittenbythePoliceinthe statement dated 02.03.2002. P.W.61 Safikmiya Babukmiya Shaikh though identifying and naming the present accused. Evidence of Badrunnisha and Ruksanabanu are not sufficient to involve the present accusedintheincident.Thus,overallevidenceisnotmuch satisfactorytoconcludebeyondreasonabledoubtthatthe present accused was involved in the incident. Thus, considering the appreciation of evidence as discussed whilediscussingtheevidenceofwitnessesthepresenceof thisaccusedinthemobisnotsatisfactorilyprovedbythe Prosecutionandthathewasnotinthemob.Thus,itisnot proved by the prosecution beyond reasonable doubt that, presentaccusedwasthememberofunlawfulassembly.
Itisnotindisputethat,theaccusedistheresidentof Village Sardarpur and witness is also resident of Village Sardarpur. No specific role has been attributed to the accusedbyanywitness.Furtheraccusednotidentifiedby
// 946 //
the witnesses. This accused has added in his Further Statementthat,hisoldhouseis62to70Ft.away,since theyear1997heisstaying0.5Km.awayfromthevillage and asearlier he was stayingin theold house witnesses wereknowntohimisacceptable.Thisaccusedhasadded inhisFurtherStatementthat,hewascarryingbusinessof milkandbuttermilketc.therefore,presencefromthevillage know him well therefore, he was identified falsely by the witnesseswhoareresidingbehindhishouseisacceptable. Therefore, the facts remains that, it is not safe to hold accusedguiltyonthebasisofgeneralallegations.Thereis noothermaterialonrecordagainstthepresentaccusedto show his involvement in the alleged offence. It would be hazardous to base a conviction only on the evidence of generalallegations.Itwouldbeappropriatetogivebenefit of doubt and acquit the accused. In my opinion though their exist strong suspicion against the accused it is not possible to hold that, his involvement in the offence is establishedintheabsenceofanybodypointingouttowards himintheCourtasapersonwhowasinthemobrequires acquittal.
92.
AccusedNo.30PATELTULSIBHAIGIRDHARBHAI
// 947 //
(SessionsCaseNo.275/2002) P.W.47ShaikhIbrahimbhaiRasulbhaihasdeposed the nameofpresent accusedinrespect ofincidentdated 01.03.2002 but he has not identified the accused in the CourtbuthasnamedintheComplaintdated02.03.2002 butnotstatedthenameoftheaccusedinthestatement dated10.03.2002,applicationdated01.06.2002,statement dated01.06.2002,affidavitdated06.11.2003andstatement beforeS.I.T.dated11.06.2008buthasnamedtheaccused inhisapplicationtoS.I.T.dated09.05.2008andstatement before S.I.T. dated 09.05.2008. P.W.51 Shaikh NazirmohmadAkbarmiyahasdeposedthenameofpresent accused in respect of incident dated 01.03.2002 that the presentaccusedwaspresentinthemobwithburningrag but has not identified the accused in the Court but has stated the name of the present accused in his statement dated10.03.2002.Hehasnotstatedthenameofpresent accused in affidavit dated 06.11.2003 but has stated the name of the accused in his statement dated 19.05.2008 beforeS.I.T.P.W.57ShaikhMustufamiyaRasulmiyahas namedtheaccusedinhisdepositioninrespectofincident dated 01.03.2002 and has identified the accused in the Court.Hetook15minutestimeforidentification.Hehas
// 948 //
stated the name of the accused in the statement dated 10.03.2002butthereiscontradictioninthestatementfrom whereandhowhehasseentheaccusedandthatisalready discussed in earlier part of the judgement at the time of appreciatingtheevidence.Hehasnotnamedtheaccused inhisaffidavitdated06.11.2003hasnotstatedthenameof thepresentaccusedinhisstatementdated19.05.2008.He has stated the name of the present accused in his statement dated 05.05.2008 but so far as contradiction fromwhereandhowhehasseentheaccusedisconcerned already discussed in the earlier part of the Judgement. P.W.61ShaikhSafikmiyaBabumiyahasdeposedonoath that, present accused was present in the mob in the incident dated 01.03.2002. He was having weapon with him. He has identified the present accused in the Court andtook15minutestimeforidentifyingtheaccused.He has identified six accused during 15 minutes. Before identification,itwasverifiedandproperarrangementwas madesothatthe,witnesscanseethepersonsintheCourt. Heightofthewitnessis4'11.Hehasidentifiedtheaccused after stepping down from the witness box with the permissionoftheCourt.Hehasnotstatedthenameofthe present accused in his statement dated 10.03.2002,
// 949 //
03.05.2002 and 10.05.2008. P.W.65 Shaikh Akbarmiya Nathumiya has deposed in his deposition naming the presentaccusedhavingburningraginthemob.Hetook10 minutestimeinidentifyingtheaccusedintheCourt.In10 minutes he has identified 10 accused. before identification, it was verified and satisfied whether the witness could see the persons sitting in the Court room. The height of the witness is 4'7. He has not stated the nameofthepresentaccusedinhisapplication.Thereis contradictionaboutfromwhereandhowwitnesshasseen the accused in his statement dated 10.03.2002 and statementbeforeS.I.T.dated10.05.2008.P.W.66Shaikh Akbarmiya Rasulmiya has deposed on oath in his deposition naming the present accused in respect of incident dated 01.03.2002. As per his deposition present accusedwaspresentinthemobwithweapon.Thiswitness hasnotidentifiedthepresentaccusedintheCourtinspite of 10 minutes time taken by him. He has not stated the name of the present accused in his statement dated 10.03.2002. He has not stated the name of the present accusedwithweaponinhisapplicationdated09.05.2008 and statement before S.I.T. dated 09.05.2008. P.W.67 ShaikhImtiyazbhaiMahmadhusenhasdeposedthename
// 950 //
of the present accused in his deposition in respect of incident dated 01.03.2002. He has identified the present accusedintheCourt.Itwasverifiedandsatisfiedbythe Courtwhetherwitnesscouldseethepersonssittinginthe Courtandthereafteridentificationwascarriedon.Hetook fiveminutestimeforidentificationoftheaccusedandhas identified three persons. This witness has not stated the name of the present accused in his statement dated 17.04.2002buthasstatedthenameofpresentaccusedin hisstatementdated22.05.2008.P.W.68ShaikhGulamali Akbarmiyahasdeposedthenameofthepresentaccusedin respect of incident dated 01.03.2002 stating therein that, theaccusedwaspresentinthemobwithburningrag.He has not identified the present accused in the Court. 12 minutestimehasbeentakenbyhimforidentificationofthe accused.beforeidentification,itwasverifiedbytheCourt whetherthiswitnessisabletoseethepersonssittingin theCourt.Heightofthewitnessis5'2. Fromwhereand howhehasseentheaccusedthereiscontradictionitabout in his statement dated 10.03.2002 which is already discussedattheearlierstage.Sofarasnamingthepresent accusedintheapplicationdated09.05.2008andstatement dated10.05.2008,isconcerned,itisnotmentionedinthe
// 951 //
applicationthat,accusedwaspresentwithburningragin the mob. Further there is contradiction in respect from whereandhowthewitnesshasseentheaccused.P.W.77 Shaikh Badrunisha Akbarmiya has deposed the name of the present accused in respect of incident dated 01.03.2002. She has identified the accused in the Court but she has not stated the name of the present accused thatshesawtheaccusedfromFieldside.Furthershehas notstatedthe name of present accused inher statement dated 22.05.2008. P.W.79 Shaikh Samimbanu Mahemudmiyahasnotnamedthepresentaccusedinher depositionbutidentifiedtheaccusedintheCourtforthe first time by face in respect of incident dated 01.03.2002 butshehasnotstatedinherstatementdated06.03.2002 and22.05.2008thatshecanidentifytheaccusedbyface. P.W.81ShaikhDilavarkhanAbbasmiyahasnotstatedthe nameofthepresentaccusedinhisdepositioninrespectof incidentdated01.03.2002butidentifiedtheaccusedinthe court for first time by face and in his statement dated 22.05.2008beforeS.I.T.hehasnotstatedthenameofthe present accused. Thus considering above all complainant thoughnamedinthecomplaintbuthasnotidentifiedthe accusedintheCourt.P.W.51,P.W.66,P.W.67,P.W.68have
// 952 //
also not identified the accused and therefore, no reliance can be placed upon their deposition in respect of identificationofpresentaccused.Inthecomplaint,nameof the present accused is mentioned that can only be considered for corroboration purpose. But complainant himselfisnotidentifyingtheaccused.ButP.W.57,P.W.61, P.W.65, PW.77 have identified the accused in the Court andaspertheirsaytheaccusedwaspresentinthemob with burning rag. As discussed earlier they were having sufficientopportunitiestoseethemob.Therefore,theirsay thattheyhaveseentheaccusedwithburningragcannot be discarded and their say is corroborated from the complaint.SofarasdepositionofP.W.81isconcerned,he hassimplyidentifiedtheaccusedbyfaceandthereisno such statement supporting his say and therefore, no reliancecanbeplacedonhisthissay. Thus,considering theappreciationofevidenceasdiscussedwhilediscussing theevidenceofwitnessesthepresenceofthisaccusedin themobissatisfactorilyprovedbytheProsecutionandthat hewas inthemob.Thus,itisprovedbytheprosecution beyond reasonable doubt that, present accused was the memberofunlawfulassembly.
// 953 //
Itisnotindisputethat,theaccusedistheresidentof VillageSardarpurandwitnessesarealsoresidentofVillage Sardarpur.Theyareknowntoeachothersincepreviously hence evidence of witnesses can safely be accepted as regardstotheinvolvementofthisaccusedandevidenceof witnessesasdiscussedearlierhavingseentheaccusedin the mob cannot be doubted at all. Once it is established and accepted that, witness and accused are resident of same locality, well known to each other, only question requires about falsely implication of the accused. The question of making any mistake in that regard does not arise. It does not possible to hold false implication of accused. Here, in the present case entering in Shaikh Mahollaatthetimeofincidentitselfsuggestthecommon objectofthemobaswellasspecificroleattributedtothe accused.TherewasnoreasontoenterinShaikhMahollaat that time. Therefore by becoming a member of unlawful assemblyaccusedenteredinShaikhMahollaandincident ofburningofcabins,housesinShaikhMahollaaswellas incidentinMahemudmiya'shouseoccurred.Furtherthere was incident of pelting of stones also occurred. This fact itselfsuggestovertactinconnectionwithcommonobject ofthemob.Meaningtherebyaccusedhadparticipatedin
// 954 //
furtherance of common object of the mob. Therefore involvementofaccusediswellestablishedfromtheabove circumstances. But no weapon is connected with the offenceintheevidenceofwitnesses.Butmuchimportance cannot be given to this aspect as the evidence of identificationofaccusedisestablished.Therefore,thebasic defence of the accused in his examination under Section 313ofCr.P.C.thathehasfalselybeenimplicatedandheis innocent and that he was not present at the time of incident is not acceptable. Simply witnesses and accused know each other is not sufficient to accept the false implication on this ground. There is no previous enmity betweenthem.Thereisnoreasontofalselyimplicatethe accused.Noonewouldfalselyinvolveaninnocentperson, keepingasidetherealculprit.Therefore,thedefenceofthe accusedisnotacceptable.
93.
AccusedNo.31PATELRAMANBHAIJIVANBHAI (SessionsCaseNo.275/2002) P.W.46 ShaikhSabirmiya Akumiya and P.W.48 ShaikhSabirhusenKadarmiyahavedeposedthenameof present accused in respect of incident dated 01.03.2002 that this accused was present in the mob and have
// 955 //
fsidentifiedtheaccusedintheCourt.Beforeidentification it was verified and satisfied whether the witnesses could seethepersonssittingintheCourtroom.P.W.46Shaikh SabirmiyaAkumiyahasstatedthenameoftheaccusedin hisapplicationdated06.05.2008butnotstatedthename ofpresentaccusedinhisstatementdated20.05.2008while P.W.48ShaikhSabirhusenKadarmiyahasnotstatedthe name of the accused in his statement dated 06.03.2002 and statement before S.I.T. dated 10.05.2008. P.W. 59 ShaikhMohmadSattarBachumiyahasstatedthenameof thepresentaccusedinrespectofincidentdated01.03.2002 about cabin fire incident at 09.30 PM and main incident about11.30to12.00P.M.Itisdeposedbythewitnessthat, accused was present in the mob with stone. He has identified the accused in the Court. He took 15 minutes time for identifying the accused in the Court. He has identified about 20 accused in the Court. before identification, it was verified and satisfied whether the witness could see the persons sitting in the Court room. This witness has not stated the name of the present accusedinhisstatementdated02.03.2002,affidavitdated 06.11.2003.InhisstatementbeforeS.I.T.dated19.05.2008 he has stated that, in his statement dated 02.03.2002
// 956 //
Policehaswrittenthenameofthepresentaccused.P.W.67 ShaikhImtiyazbhaiMohmadhusenhasdeposedthename of the present accused in respect of incident dated 01.03.2002. He has not identified the present accused in theCourtthoughsufficientopportunitiesweregiventohim for identifying the accused. before identification, it was verified and satisfied whether the witness could see the personssittingintheCourtroom.Thereiscontradictionin hisstatementdated17.04.2002and22.05.2008fromwhere andhowhehasseentheaccused.Contradictionisalready discussedatthetimeofappreciationofevidence.P.W.68 Shaikh Gulamali Akbarmiya has not named the present accusedintheCourtbutidentifiedthepresentaccusedin the Court. He took 12 minutes time for identifying the accusedintheCourt. beforeidentification,itwasverified and satisfied whether the witness could see the persons sittingintheCourtroom.Thiswitnesshasnotstatedthe name of the present accused in his statement dated 10.03.2002, 10.05.2008 and there is contradiction in his applicationdated09.05.2008fromwhereandhowhehas seentheaccused.Thiscontradictionisalreadydiscussed. Consideringaboveallevidence,P.W.46,P.W.48,P.W.59have supportedtheprosecutioncasethat,accusedwaspresent
// 957 //
inthemobwithstonewhileP.W.67couldnotidentifythe accused therefore, no reliance can be placed on his depositioninrespectofidentificationofthisaccused.Sofar as P.W.68 is concerned, he has simply identified the accused in the court but not named that, he was in the mobtherefore,noreliancecanbeplacedinhisdeposition in respect of identification of this accused. Thus, consideringtheappreciationofevidenceasdiscussedwhile discussing the evidence of witnesses the presence of this accused in the mob is satisfactorily proved by the Prosecutionandthathewasinthemob.Thus,itisproved bytheprosecutionbeyondreasonabledoubtthat,present accusedwasthememberofunlawfulassembly. Itisnotindisputethat,theaccusedistheresidentof VillageSardarpurandwitnessesarealsoresidentofVillage Sardarpur.Theyareknowntoeachothersincepreviously hence evidence of witnesses can safely be accepted as regardstotheinvolvementofthisaccusedandevidenceof witnessesasdiscussedearlierhavingseentheaccusedin the mob cannot be doubted at all. Once it is established and accepted that, witness and accused are resident of same locality, well known to each other, only question
// 958 //
requires about falsely implication of the accused. The question of making any mistake in that regard does not arise. It does not possible to hold false implication of accused. Here, in the present case entering in Shaikh Mahollaatthetimeofincidentitselfsuggestthecommon objectofthemobaswellasspecificroleattributedtothe accused.TherewasnoreasontoenterinShaikhMahollaat that time. Therefore by becoming a member of unlawful assemblyaccusedenteredinShaikhMahollaandincident ofburningofcabins,housesinShaikhMahollaaswellas incidentinMahemudmiya'shouseoccurred.Furtherthere was incident of pelting of stones also occurred. This fact itselfsuggestovertactinconnectionwithcommonobject ofthemob.Meaningtherebyaccusedhadparticipatedin furtherance of common object of the mob. Therefore involvementofaccusediswellestablishedfromtheabove circumstances. The witnesses have stated that, this accusedwashavingburningragintheirhandsatthetime ofincident.Therefore,thebasicdefenceoftheaccusedin hisexaminationunderSection313 ofCr.P.C.thathehas falselybeenimplicatedandheisinnocentandthathewas notpresentatthetimeofincidentisnotacceptable.Simply witnessesandaccusedknoweachotherisnotsufficientto
// 959 //
accept the false implication on this ground. There is no previousenmitybetweenthem.Thereisnoreasontofalsely implicate the accused. No one would falsely involve an innocentperson,keepingasidetherealculprit.Therefore, thedefenceoftheaccusedisnotacceptable.
94.
AccusedNo.32PATELRAJESHBHAIKARSHANBHAI (SessionsCaseNo.275/2002) P.W.55 Shaikh Aashikhusen Bachumiya has deposedonoaththenameofpresentaccusedinrespectof incident dated 01.03.2002. As per his deposition the accused was present in the mob with pipe. This witness hasidentifiedtheaccusedintheCourt.Hetook15minutes time for identifying the accused in the Court. before identification, it was verified and satisfied whether the witness could see the persons sitting in the Court room. There is contradiction in his statement dated 02.03.2002 from where and how he has seen the accused. This contradictionisalreadydiscussedearlier.Thiswitnesshas notstatedthenameofthepresentaccusedinhisaffidavit dated06.11.2003.Hehasstatedthenameofthepresent accusedinhisstatementbeforeS.I.T.dated19.05.2008.As per deposition of this witness Muddamal Article No.40
// 960 //
Iron Pipe was in the hands of present accused. For this purpose when we peruse the Panchnama it tallies that Muddamal Article No.40 was with the present accused. P.W.62ShaikhRafikmiyaMohmadhusenhasdeposedon oathaboutthepresenceofthisaccusedinthemobwith LathiandPipeinrespectofincidentdated01.03.2002.He hasidentifiedtheaccusedintheCourt.Hetook15minutes time for identifying the accused in the Court. He has identified 9 accused. before identification, it was verified and satisfied whether the witness could see the persons sitting in the Court room. There is contradiction in his statementdated10.03.2002,10.05.2008aboutfromwhere andhowhehasseentheaccused.Itisalreadydiscussedin the earlier part of this Judgement. P.W.68 Shaikh Gulamali Akbarmiya has deposed on oath about the presenceofthisaccusedinthemobinrespectofincident dated 01.03.2002. He has identified the accused in the Court.Hetook12minutestimeforidentifyingtheaccused in the Court. He has identified 19 accused. before identification, it was verified and satisfied whether the witness could see the persons sitting in the Court room. His height is 5'2. He has not stated the name of the presentaccusedinhisstatementdated10.03.2002,inhis
// 961 //
application dated 09.05.2008 and statement dated 10.05.2008. There is contradiction about from where and howhehasseentheaccused.Itisalreadydiscussedinthe earlier part of this Judgement. Considering above all the evidence,allthethreewitnesseshavestatedthenameof presentaccusedinthemobandidentifiedtheaccusedin thecourt.Thus,consideringtheappreciationofevidenceas discussed while discussing the evidence of witnesses the presenceofthisaccusedinthemobissatisfactorilyproved bytheProsecutionandthathewasinthemob.Thus,itis proved by the prosecution beyond reasonable doubt that, presentaccusedwasthememberofunlawfulassembly.
Itisnotindisputethat,theaccusedistheresidentof VillageSardarpurandwitnessesarealsoresidentofVillage Sardarpur.Theyareknowntoeachothersincepreviously hence evidence of witnesses can safely be accepted as regardstotheinvolvementofthisaccusedandevidenceof witnessesasdiscussedearlierhavingseentheaccusedin the mob cannot be doubted at all. Once it is established and accepted that, witness and accused are resident of same locality, well known to each other, only question requires about falsely implication of the accused. The
// 962 //
question of making any mistake in that regard does not arise. It does not possible to hold false implication of accused. Here, in the present case entering in Shaikh Mahollaatthetimeofincidentitselfsuggestthecommon objectofthemobaswellasspecificroleattributedtothe accused.TherewasnoreasontoenterinShaikhMahollaat that time. Therefore by becoming a member of unlawful assemblyaccusedenteredinShaikhMahollaandincident ofburningofcabins,housesinShaikhMahollaaswellas incidentinMahemudmiya'shouseoccurred.Furtherthere was incident of pelting of stones also occurred. This fact itselfsuggestovertactinfurtheranceofcommonobjectof the mob. Meaning thereby accused had participated in furtherance of common object of the mob. Therefore involvementofaccusediswellestablishedfromtheabove circumstances.Witnesseshavestated in theirdepositions that,thisaccusedwashavingLathiandPipeinhishands atthetimeofincident.Therefore,thebasicdefenceofthe accusedinhisexaminationunderSection313 ofCr.P.C. thathehasfalselybeenimplicatedandheisinnocentand that he was not present at the time of incident is not acceptable.Simplywitnessesandaccusedknoweachother is not sufficient to accept the false implication on this
// 963 //
ground.Thereisnopreviousenmitybetweenthem.Thereis noreason to falsely implicate the accused. No one would falsely involve an innocent person, keeping aside the real culprit. Therefore, the defence of the accused is not acceptable.
95.
AccusedNo.33PATELRAMESHBHAIKANTIBHAI (SessionsCaseNo.275/2002) P.W.46PathanSabirmiyaAkumiyahasdeposedon oath the name of present accused in respect of incident dated 01.03.2002 as well as in respect of incident dated 28.02.2002 near water works and incident dated 28.02.2002morningincident.Thiswitnesshasidentified the accused in the Court. In his application dated 06.05.2008,hehasstatedthenameofthepresentaccused but has not stated the name in shouting and also not stated the name in his statement dated 20.05.2008 in respect of incidents dated 28.02.2002. P.W.47 Shaikh Ibrahimbhai Rasulbhai complainant has deposed on oath the name of present accused in respect of incident dated 01.03.2002. This witness has not identified the accused in the Court but has taken the name of the presentaccusedintheComplaintdated02.03.2002butnot
// 964 //
stated the name of the present accused in his statement dated 10.03.2002, 01.06.2002, application dated 01.06.2002 and affidavit dated 06.11.2003, Statement beforeS.I.T.dated11.06.2008andalsonotstatedthename of the present accused in the application to S.I.T. dated 09.05.2008 and statement dated 09.05.2008. P.W.51 ShaikhNazirmohmadAkbarmiyahasdeposedonoaththe name of present accused in respect of incident dated 01.03.2002andhasstatedthat,accusedwaspresentinthe mobwithDhariya.Thiswitnesshasidentifiedtheaccused in the Court. before identification, it was verified and satisfiedwhetherthewitnesscouldseethepersonssitting intheCourtroom.Hehasstatedthenameofthepresent accusedinhisstatementdated10.03.2002and19.05.2008 but not named the accused in his affidavit dated 06.11.2003.P.W.55ShaikhAashiqhusenBachumiyahas deposedonoaththenameofpresentaccusedinrespectof incident dated 01.03.2002. As per his deposition present accused was throwing stone from the mob. He took 15 minutestimeforidentifyingtheaccusedintheCourt.He has identified 17 accused. before identification, it was verified and satisfied whether the witness could see the personssittingintheCourtroom.Hehas notstatedthe
// 965 //
name of the present accused in his affidavit dated 06.11.2003.Hehasstatedthenameofthepresentaccused in his statement before S.I.T. dated 19.05.2008. There is contradiction in his statement dated 02.03.2002 from whereandhowhehasseentheaccused,whichisalready discussedintheJudgementattherelevanttime.P.W.59 ShaikhMohmadSattarBachumiyahasdeposed onoath the nameofpresent accusedinrespect ofincidentdated 01.03.2002 about 11.30 to 12.00 PM incident. As per depositionofthiswitnesstheaccused waspresentinthe mobwithDhariya.Thiswitnesshasidentifiedtheaccused intheCourt.Hetook15minutestimeforidentifyingthe accusedintheCourt.Hehasidentifiedabout21accused. AsperdepositionofthiswitnessMuddamalArticleNo.42 Dhariyawasinthehandsofpresentaccused.Butitdoes nottallywiththePanchnamaandotherevidence. Asper deposition of this witness in his statement before S.I.T. 19.05.2008hehasstatedthat,Policehaswrittenthename ofthepresentaccusedinhisstatementdated02.03.2002. Hehasnotstatedthenameofthepresentaccusedinhis affidavit dated 06.11.2003. P.W.60 Shaikh Bachumiya Imammiya has deposed on oath the name of present accusedinrespectofincidentdated28.02.2002forclosing
// 966 //
thecabinsincidentandincidentinrespectof09.30P.M.in respectofsettingonfiretothecabins.Thiswitnesshasnot statedthisincidentinthestatementdated03.03.2002.He hasnotstatedthenameofthepresentaccusedin09.30 cabin incident. He has not identified the accused in the Court though sufficient opportunities were given to him. before identification, it was verified and satisfied whether thewitnesscouldseethepersonssittingintheCourtroom. P.W.62ShaikhRafikmiyaMohmadhusenhasdeposedon oath the name of present accused in respect of incident dated28.02.2002cabinincidentandincidentinrespectof 01.03.2002.Hehasnotidentifiedtheaccusedinthecourt though sufficient opportunities were given to him. before identification, it was verified and satisfied whether the witness could see the persons sitting in the Court room. Heightofthiswitnessis5'3.Hehasnotstatedtheincident dated 28.02.2002 in his statement dated 10.03.2002 and alsonotstatedthenameofpresentaccusedinrespectof incidentdated01.03.2002.Further,hehasnotstatedthe incident dated 28.02.2002, in his statement dated 10.05.2008. P.W.66 Shaikh Akbarmiya Rasulmiya has deposedonoaththenameofpresentaccusedinrespectof incident dated 01.03.2002 and has stated that, accused
// 967 //
waspresentinthemobwithweapon.Hehasnotidentified the accused in the Court though sufficient opportunities weregiventohim.Before,identificationitwasverifiedand satisfiedwhetherthewitnesscouldseethepersonssitting intheCourtroom.Hetook10minutestimebutcouldnot identify the accused in the Court. He has not stated the name of the present accused in his statement dated 10.03.2002, he has not stated the name of the present accusedwithweaponinhisapplicationdated09.05.2008 and statement before S.I.T. dated 09.05.2008. P.W. 68 ShaikhGulamaliAkbarmiyahasdeposedthenameofthe presentaccusedinrespectofincidentdated01.03.2002at about 2.30 PM and incident dated 01.03.2002. He has identified the accused in the Court. He took 12 minutes time for identifying the accused in the Court. He has identified 19accused. beforeidentification, it was verified and satisfied whether the witness could see the persons sittingintheCourtroom.Hehasnotstatedthenameof the present accused in his statement dated 10.03.2002, application dated 09.05.2008 and statement dated 10.05.2008. Considering the evidence in respect of involvementofpresentaccusednodoubtMuddamalArticle No.42Dhariya,whichisshowninthehandsofaccused
// 968 //
doesnottallywiththePanchnama.Itisbutnaturalthatin a mob of 1000 to 1500 that too in the night, if the Muddamal Article Dhariya is shown in the hands of accuseddoesnottally,doesnotamountthat,thewitnessis telling lie simply on that basis. The witnesses have identified the accused. Presence of accused and involvement of accused is proved from the evidence of witnesses.Asdiscussedaboveconsideringtheappreciation of evidenceasdiscussedwhilediscussingtheevidenceof witnesses the presence of this accused in the mob is satisfactorilyprovedbytheProsecutionandthathewasin the mob. Thus, it is proved by the prosecution beyond reasonabledoubtthat,presentaccusedwasthememberof unlawfulassembly.
// 969 //
same locality, well known to each other, only question requires about falsely implication of the accused. The question of making any mistake in that regard does not arise. It does not possible to hold false implication of accused. Here, in the present case entering in Shaikh Mahollaatthetimeofincidentitselfsuggestthecommon objectofthemobaswellasspecificroleattributedtothe accused.TherewasnoreasontoenterinShaikhMahollaat thatoddtime.Thereforebybecomingamemberofunlawful assemblyaccusedenteredinShaikhMahollaandincident ofburningofcabins,housesinShaikhMahollaaswellas incidentinMahemudmiya'shouseoccurred.Furtherthere was incident of pelting of stones also occurred. This fact itselfsuggestovertactinconnectionwithcommonobject ofthemob.Meaningtherebyaccusedhadparticipatedin furtherance of common object of the mob. Therefore involvementofaccusediswellestablishedfromtheabove circumstances. Witnesses have stated in their evidence that,thisaccusedwashavingDhariainhishandsatthe timeofincident.Therefore,thebasicdefenceoftheaccused inhisexaminationunderSection313ofCr.P.C.thathehas falselybeenimplicatedandheisinnocentandthathewas notpresentatthetimeofincidentisnotacceptable.Simply
// 970 //
witnessesandaccusedknoweachotherisnotsufficientto accept the false implication on this ground. There is no previousenmitybetweenthem.Thereisnoreasontofalsely implicate the accused. No one would falsely involve an innocentperson,keepingasidetherealculprit.Therefore, thedefenceoftheaccusedisnotacceptable.
96.
AccusedNo.34PATELMADHABHAIVITTHALBHAI (SessionsCaseNo.275/2002) P.W.46PathanSabirmiyaAkumiyahasdeposedon oath the name of present accused in respect of incident dated 01.03.2002 as well as in respect of incident dated 28.02.2002 near water works and incident dated 28.02.2002morningincident.Thiswitnesshasidentified the accused in the Court. In his application dated 06.05.2008,hehasstatedthenameofthepresentaccused buthasnotstatedthenameinshoutingandhasnotstated thenameinhisstatementdated20.05.2008inrespectof incidents dated28.02.2002.P.W.47ShaikhIbrahimbhai Rasulbhaicomplainant hasdeposed onoaththename ofpresentaccusedinrespectofincidentdated01.03.2002. This witness has not identified the accused in the Court but has taken the name of the present accused in the
// 971 //
Complaint dated 02.03.2002 and not stated the name of the present accused in his statement dated 10.03.2002, 01.06.2002, application dated 01.06.2002 and affidavit dated06.11.2003,StatementbeforeS.I.T.dated11.06.2008 andalsonotstatedthenameofthepresentaccusedinthe applicationtoS.I.T.dated09.05.2008andstatementdated 09.05.2008. P.W.48ShaikhSabirhusenKadarmiyahas deposedin hisdepositionnamingthepresentaccusedin themobinrespectofincidentdated01.03.2002.Hehasnot identified the accused in the Court. As per deposition of thiswitnessthepresentaccusedalongwithotheraccused wasinstigatingthemobandalsopeltingstoneandburning thehousesinShaikhMaholla.Hehasidentified14accused intheCourt.beforeidentification,itwasverifiedwhether hewasabletoseethepersonssittingintheCourtandafter satisfying,identificationwascarriedout.Hehasnotstated the name of present accused in his statement dated 06.03.2002.Hehasstatedthenameofpresentaccusedin the statement before S.I.T. dated 10.05.2008. P.W.49 ShaikhIqbalmiyaRasulmiyahasdeposedonoathnaming the present accused in respect of incident dated 01.03.2002. He has stated that this accused was in the mob with pipe. He has identified the present accused.
// 972 //
There is contradiction in his statement dated 10.03.2002 from where and how he has seen the accused but his statements,beforeS.I.T.dated10.05.2008and10.06.2008 supports the say of the witness. P.W.51 Shaikh NazirmohmadAkbarmiyahasnotnamedpresentaccused in respect of incidentdated 01.03.2002 inhis deposition, thiswitnesshasidentifiedtheaccusedintheCourt.before identification, it was verified and satisfied whether the witnesscouldseethepersonssittingintheCourtroom.He has not stated the name of the present accused in his affidavit dated 06.11.2003. P.W.55 Shaikh Aashiqhusen Bachumiyahasnamedthisaccusedduringhisdeposition inrespectofincidentdated01.03.2002thatthisaccused wasinthemobwithpipe.Hehasidentifiedtheaccusedin the Court. He took 15minutestimeforidentification. He hasidentified17accusedintheCourt.beforeidentification, itwasverifiedbytheCourtwhetherthewitnesscouldsee thepersonssittingintheCourtandafterduesatisfaction the witnesshas identifiedthe accused.Foridentifying17 accusedhetook15minutestime,whichcanbeconsidered asreasonabletimeforidentification.Hehasnotstatedthe nameofthisaccusedinhisaffidavitdated06.11.2003.As perdepositionofthiswitnessMuddamalArticleNo.45was
// 973 //
in the hands of present accused but on perusing the Panchnama it does not tally with the deposition of this witness. P.W.56 Shaikh Ayubmiya Rasulmiya has deposedthenameofthepresentaccusedwithDhariyain the mob in respect of incident dated 01.03.2002. He has identifiedtheaccusedintheCourt.beforeidentification,it wasverifiedbytheCourtwhetherthewitnesscouldseethe personssittingintheCourtandafterduesatisfactionthe witnesshasidentifiedtheaccused.Inhisstatementdated 10.03.2002 and 19.05.2008 before S.I.T. there is contradictionaboutfromwhereandhowthiswitnesshas seen the accused. So far as contradictions in the statementsareconcernedthatisdiscussedanddecidedat thetimeofappreciationofevidence.Inhisaffidavitdated 06.11.2003hehasnotstatedthenameofpresentaccused. P.W.57 Shaikh Mustufamiya Rasulmiya has stated the nameofthepresentaccusedinhisdepositioninrespectof incidentdated01.03.2002.Hehasidentifiedtheaccusedin the Court. He took 15 minutes time for identifying the accused. In his statement dated 10.03.2002, 10.05.2008 and application there is contradiction about from where and how this witness has seen the accused. So far as contradictions in the statements are concerned that is
// 974 //
discussed and decided at the time of appreciation of evidence. P.W.66 Shaikh Akbarmiya Rasulmiya has deposed the name of the present accused in respect of incident dated 01.03.2002. As per his deposition accused waspresentinthemobwithweapon.Thiswitnesshasnot identifiedtheaccusedintheCourt.Hetook10Minutesfor identifying the accused in the Court. He has identified 8 accusedintheCourt.beforeidentification,itwassatisfied bytheCourtthat,witnesscanseeeachandeverypersonin theCourt.Inhisapplicationdated09.05.2008hehasnot statedthat,accusedwaswithweaponandhasalsostated thesamebeforeS.I.T.inhisstatementdated09.05.2008. P.W.68 Shaikh Gulamali Akbarmiya has deposed the name ofthepresent accusedinrespect ofincidentdated 01.03.2002.HehasidentifiedtheaccusedintheCourt.He took 12 minutes time for identifying the accused in the Court.Hehasidentified19accused.Beforeidentification,it wasverifiedandsatisfiedwhetherthewitnesscouldseethe personssittingintheCourtroom.Hehas notstatedthe name of the present accused in his statement dated 10.03.2002andstatementdated10.05.2008whilehehas statedthenameofpresentaccusedinhisapplicationdated 09.05.2008. Considering the evidence in respect of
// 975 //
involvement of present accused P.W.46, P.W.49, P.W.51, P.W.55,P.W.56,P.W.57,P.W.65,P.W.68havefullysupported the prosecution case while P.W.47 though named the accusedintheComplaintnot supporting theprosecution caseinrespectofinvolvementofpresentaccused.P.W.48, P.W.57andP.W.66arealsonotsupportingtheinvolvement ofpresentaccused. Thereissufficientevidenceinvolving the present accused in the incident. As discussed above consideringtheappreciationofevidenceasdiscussedwhile discussingtheevidenceofwitnesses,thepresenceofthis accused in the mob is satisfactorily proved by the Prosecutionandthathewasinthemob.Thus,itisproved bytheprosecutionbeyondreasonabledoubtthat,present accusedwasthememberofunlawfulassembly.
// 976 //
same locality, well known to each other, only question requires about falsely implication of the accused. The question of making any mistake in that regard does not arise. It does not possible to hold false implication of accused. Here, in the present case entering in Shaikh Mahollaatthetimeofincidentitselfsuggestthecommon objectofthemobaswellasspecificroleattributedtothe accused.TherewasnoreasontoenterinShaikhMahollaat that time. Therefore by becoming a member of unlawful assemblyaccusedenteredinShaikhMahollaandincident ofburningofcabins,housesinShaikhMahollaaswellas incidentinMahemudmiya'shouseoccurred.Furtherthere was incident of pelting of stones also occurred. This fact itselfsuggestovertactinconnectionwithcommonobject ofthemob.Meaningtherebyaccusedhadparticipatedin furtherance of common object of the mob. Therefore involvementofaccusediswellestablishedfromtheabove circumstances. Witnesses have stated in their evidence that,thisaccusedwashavingLathi,PipeandDhariainhis handsatthetimeofincident.Therefore,thebasicdefence of the accused in his examination under Section 313 of Cr.P.C. that he has falsely been implicated and he is innocent and that he was not present at the time of
// 977 //
incident is not acceptable. Simply witnesses and accused know each other is not sufficient to accept the false implication on this ground. There is no previous enmity betweenthem.Thereisnoreasontofalselyimplicatethe accused.Noonewouldfalselyinvolveaninnocentperson, keepingasidetherealculprit.Therefore,thedefenceofthe accusedisnotacceptable.
97.
AccusedNo.35PATELSURESHKUMARBALDEVBHAI (SessionsCaseNo.275/2002) P.W.46PathanSabirmiyaAkumiyahasdeposedon oath the name of present accused in respect of incident dated 01.03.2002 as well as in respect of incident dated 28.02.2002 near water works and incident dated 28.02.2002morningincident.Thiswitnesshasidentified the accused in the Court. In his application dated 06.05.2008hehasstatedthenameofthepresentaccused buthasnotstatedthenameinshoutingandhasnotstated thenameinhisstatementdated20.05.2008inrespectof incidentsdated28.02.2002andhasnotstatedtheincident ofdistributionofTrishulbyHareshBhatt.P.W.47Shaikh Ibrahimbhai Rasulbhai complainant has deposed on oath the name of present accused in respect of incident
// 978 //
dated 01.03.2002. This witness has not identified the accused in the Court but has taken the name of the present accused in the Complaint dated 02.03.2002 and has not stated the name of the present accused in his statementdated10.03.2002,01.06.2002,applicationdated 01.06.2002 and affidavit dated 06.11.2003, Statement beforeS.I.T.dated11.06.2008andhasalsonotstatedthe name of the present accused in the application to S.I.T. dated09.05.2008andstatementdated09.05.2008.P.W.52 Shaikh Hizbulmiya Husenmiya has named the present accused in his deposition in respect of incident dated 01.03.2002.HehasnotidentifiedtheaccusedintheCourt thoughsufficientopportunitiesweregiventohim.Hetook 15 minutes time for identification of accused. During 15 minutes he has identified 5 accused persons. before identification, it was verified and satisfied whether the witnesscouldseethepersonssittingintheCourtroom.He has not stated the name of present accused in his statement dated 10.03.2002, 11.06.2008, 05.08.2008 but has stated the name of present accused in his affidavit dated 06.11.2003 and 19.05.2008. P.W.62 Shaikh Rafikmiya Mahmadhusen has named present accused in respect of incident dated 28.02.2002 of closing of cabins
// 979 //
but has not identified the accused in the Court though sufficientopportunitiesweregiven.beforeidentification,it wasverifiedandsatisfiedwhetherthewitnesscouldseethe personssittingintheCourtroom.Hetook15minutestime for identifying the accused and in 15 minutes he has identified9accused.Hehasnotstatedtheincidentinhis statement dated 10.03.2002 and 10.05.2008. P.W.70 PathanMunsufkhanYasinkhanhasstatedthat,hesawthe accused at the time of stone throwing at his old house situatedinPathanMahollaincidentdated01.03.2002.He hasidentifiedtheaccusedintheCourt.Hetook7minutes time for identification of accused. In his affidavit dated 31.03.2004hehasnotnamedtheaccused.Inhisstatement beforeS.I.T.dated11.06.2008fromwhere,howhehasseen theaccusediscontradictory.InhisstatementbeforeS.I.T. dated14.07.2008hehasnotstatedthenameofthepresent accused.Considering theevidence of above all witnesses, P.W.46andP.W.70havesupportedthecaseofprosecution involvingthepresentaccusedintheincidentwhileP.W.47 though named in the complaint has not identified the accusedintheCourt.Therefore,namingtheaccusedinthe complaint can simply be considered as corroboration but thecomplainanthimselfhasnotstatedinhisdeposition.
// 980 //
Evidence of P.W.52 and P.W.62 are not satisfactory to supportthecaseofprosecution.Sofarasinvolvementof this accused by P.W. 70 is concerned, he was a police employee,wellconversantwiththelawandprocedureeven thoughhehasnotstatedthenameofpresentaccusedin hisaffidavit.Further,hisstatementiscontradictoryabout from where, how he has seen the accused with weapon. Whileheisstatinginhisdepositioninvolvementofaccused withstone.Consideringthestandardofthiswitnesswecan not involve the accused on the basis of evidence of this witnessalone.Wehavetoconsidertheotherevidencealso. Whether there is other evidence to involve the present accused in the incident. Thus, considering the appreciationofevidenceasdiscussedwhilediscussingthe evidenceofwitnessesthepresenceofthisaccusedinthe mobissatisfactorilyprovedbytheProsecutionandthathe was in the mob. Thus, it is proved by the prosecution beyond reasonable doubt that, present accused was the memberofunlawfulassembly. Itisnotindisputethat,theaccusedistheresidentof VillageSardarpurandwitnessesarealsoresidentofVillage Sardarpur.Theyareknowntoeachothersincepreviously hence evidence of witnesses can safely be accepted as
// 981 //
regardstotheinvolvementofthisaccusedandevidenceof witnessesasdiscussedearlierhavingseentheaccusedin the mob cannot be doubted at all. Once it is established and accepted that, witness and accused are resident of same locality, well known to each other, only question requires about falsely implication of the accused. The question of making any mistake in that regard does not arise. It does not possible to hold false implication of accused. Here, in the present case entering in Shaikh Mahollaatthetimeofincidentitselfsuggestthecommon objectofthemobaswellasspecificroleattributedtothe accused.TherewasnoreasontoenterinShaikhMahollaat that time. Therefore by becoming a member of unlawful assemblyaccusedenteredinShaikhMahollaandincident ofburningofcabins,housesinShaikhMahollaaswellas incidentinMahemudmiya'shouseoccurred.Furtherthere was incident of pelting of stones also occurred. This fact itselfsuggestovertactinconnectionwithcommonobject ofthemob.Meaningtherebyaccusedhadparticipatedin furtherance of common object of the mob. Therefore involvementofaccusediswellestablishedfromtheabove circumstances. But no weapon is connected with the offenceintheevidenceofwitnesses.Butmuchimportance
// 982 //
cannot be given to this aspect as the evidence of identification of accused is established. This accused has addedinhisFurtherStatementthat,MunsufkhanPathan hasnotgivenhisnameinanyofhisstatementbutjustto involvehimintheincident,heisidentifiedbyMunsufkhan Pathanforthefirsttime.Therefore,thebasicdefenceofthe accusedinhisexaminationunderSection313 ofCr.P.C. thathehasfalselybeenimplicatedandheisinnocentand that he was not present at the time of incident is not acceptable.Simplywitnessesandaccusedknoweachother is not sufficient to accept the false implication on this ground.Thereisnopreviousenmitybetweenthem.Thereis noreason to falsely implicate the accused. No one would falsely involve an innocent person, keeping aside the real culprit. Therefore, the defence of the accused is not acceptable. 98. AccusedNo.36PATELDASHRATHBHAIAMBALAL (SessionsCaseNo.275/2002) P.W.47ShaikhIbrahimbhaiRasulbhaicomplainant has deposed on oath the name of present accused in respectofincidentdated01.03.2002.Thiswitnesshasnot identifiedtheaccusedintheCourtbuthastakenthename ofthepresentaccusedintheComplaintdated02.03.2002
// 983 //
and not stated the name of the present accused in his statementdated10.03.2002,01.06.2002,applicationdated 01.06.2002 and affidavit dated 06.11.2003, Statement beforeS.I.T.dated11.06.2008andalsonotstatedthename of the present accused in the application to S.I.T. dated 09.05.2008 and statement dated 09.05.2008. P.W.64 Shaikh Rafikmiya Babumiya has deposed on oath the name of present accused in respect of incident dated 01.03.2002.HehasidentifiedtheaccusedintheCourt.He took10minutestimeforidentification.Hehasidentified4 accusedintheCourt.beforeidentification,itwasverified by the Court whether the witness could see the persons sittingintheCourtandafterduesatisfactionthewitness has identified the accused. For identifying 4 accused he took 15 minutes time, which can be considered as reasonabletimeforidentification.Fromwhereandhowhe has seen the accused there is contradiction in his statement dated 27.03.2002, which is already discussed and decided in this Judgement at the relevant time. Further,thereiscontradictioninrespectoftimeas11.30in thestatementdated22.05.2008,whichisalsodecidedat the relevant time in this judgement. P.W.79 Shaikh SamimbanuMahmadmiyahas notnamed accused inher
// 984 //
depositionbutidentifiedtheaccusedintheCourtforthe firsttimebyface.Shehasnotstatedinherstatementdated 06.03.2002 and 22.05.2008 that she can identify the accused by face. P.W.80 Shaikh Rusksanabanu Ibrahimmiyahasnotnamedtheaccusedinherdeposition but identified the accused by face in respect of incident dated01.03.2002.Shetook7minutesforidentificationof accused. She has not stated in her statement dated 10.03.2002thatshecanidentifytheaccusedbyface.She hasnotstatedthenameofthisaccusedinherstatement dated 22.05.2005. Thus P.W.79 and P.W.80 are simply identifyingtheaccusedbyfacebutwhetherhewasinthe mob or not, it is not stated by them. Therefore, simply identificationintheCourt,withoutanyinvolvementofthe accusedintheincidentisnotsufficientforinvolvementof accused. Considering the above evidence, P.W.47 though namedindepositionaswellasincomplaint,notidentifying therefore, accused cannot be involved on the strength of depositionofthiswitness.SofarasP.W.64isconcerned, thiswitnesstakes10minutestimeandin10minutesheis identifyingonly4persons and thereisnootherevidence supporting the say of this witness involving the present accusedintheincidenttherefore,consideringtheevidence
// 985 //
asawholeonthestrengthofevidenceofP.W.64onlyitis ratherriskytoconcludetheinvolvementofpresentaccused in the incident. Thus, considering the appreciation of evidence as discussed while discussing the evidence of witnessesthepresenceofthisaccusedinthemobisnot satisfactorilyprovedbytheProsecutionandthathewasnot in the mob. Thus, it is not proved by the prosecution beyond reasonable doubt that, present accused was the memberofunlawfulassembly.
Itisnotindisputethat,theaccusedistheresidentof Village Sardarpur and witness is also resident of Village Sardarpur. No specific role has been attributed to the accusedbyanywitness.Furtheraccusednotidentifiedby thewitness.Therefore,thefactsremainsthat,itisnotsafe toholdaccusedguiltyonthebasisofgeneralallegations. There is no other material on record against the present accusedtoshowhisinvolvementintheallegedoffence.It would be hazardous to base a conviction only on the evidenceofgeneralallegations.Itwouldbeappropriateto givebenefitofdoubtandacquittheaccused.Inmyopinion thoughtheirexiststrongsuspicionagainsttheaccuseditis notpossibletoholdthat,hisinvolvementintheoffenceis
// 986 //
establishedintheabsenceofanybodypointingouttowards himintheCourtasapersonwhowasinthemobrequires acquittal.
99.
AccusedNo.37PATELVISHNUBHAIPRAHLADBHAI (SessionsCaseNo.275/2002)
P.W.47ShaikhIbrahimbhaiRasulbhaicomplainant has deposed on oath the name of present accused in respectofincidentdated01.03.2002.Thiswitnesshasnot identifiedtheaccusedintheCourtbuthastakenthename ofthepresentaccusedintheComplaintdated02.03.2002 and not stated the name of the present accused in his statementdated10.03.2002,01.06.2002,applicationdated 01.06.2002 and affidavit dated 06.11.2003, Statement beforeS.I.T.dated11.06.2008andalsonotstatedthename of the present accused in the application to S.I.T. dated 09.05.2008 and statement dated 09.05.2008.P.W.51 ShaikhNazirmohnmadAkbarmiyahasdeposedaboutthe presenceofthisaccusedinthemobintheincidentdated 01.03.2002anddeposedthat,thepresentaccusedwasin themobwithDhariya.Hehasidentifiedtheaccusedinthe Court.Hehasnotstatedthenameofthepresentaccused inhisaffidavitdated06.11.2003buthasstatedthenameof
// 987 //
present accused in the statement dated 10.03.2002 and statementdated19.05.2008beforeS.I.T.P.W.64Shaikh Rafikmiya Babumiya has deposed on oath the name of presentaccusedinrespectofincidentdated01.03.2002.He hasidentifiedtheaccusedintheCourt.Hetook10minutes timeforidentification. hehasidentified 4accused inthe Court. before identification, it was verified by the Court whether the witness could see the persons sitting in the Courtandafterduesatisfactionthewitnesshasidentified theaccused.Foridentifying4accusedhetook10minutes time, which can be considered as reasonable time for identification. From where and how he has seen the accused there is contradiction in his statement dated 27.03.2002,whichisalreadydiscussedanddecidedinthis Judgement at the relevant time. Further, there is contradictioninrespectoftimeas11.30inthestatement dated22.05.2008,whichisalreadydecidedattherelevant timeinthisjudgement.Consideringtheevidenceofabove allwitnesses,P.W.51andP.W.64havesupportedthecaseof prosecutioninvolving the presentaccused in the incident while P.W.47 though named in the complaint has not identifiedtheaccusedintheCourt.Therefore,namingthe accused in the complaint can simply be considered as
// 988 //
corroborationbutthecomplainanthimselfhasnotstatedin his deposition. Thus, evidence of P.W.51 and P.W.64 supporting the prosecution case involving the present accusedinrespectofincidentdated01.03.2002,thename of present accused is also mentioned in the complaint whichalsosupportsthedepositionofthesetwowitnesses. Thus,consideringtheappreciationofevidenceasdiscussed whilediscussingtheevidenceofwitnesses,thepresenceof this accused in the mob is satisfactorily proved by the Prosecutionandthathewasinthemob.Thus,itisproved bytheprosecutionbeyondreasonabledoubtthat,present accusedwasthememberofunlawfulassembly.
// 989 //
requires about falsely implication of the accused. The question of making any mistake in that regard does not arise. It does not possible to hold false implication of accused. Here, in the present case entering in Shaikh Mahollaatthetimeofincidentitselfsuggestthecommon objectofthemobaswellasspecificroleattributedtothe accused.TherewasnoreasontoenterinShaikhMahollaat that time. Therefore by becoming a member of unlawful assemblyaccusedenteredinShaikhMahollaandincident ofburningofcabins,housesinShaikhMahollaaswellas incidentinMahemudmiya'shouseoccurred.Furtherthere was incident of pelting of stones also occurred. This fact itselfsuggestovertactinconnectionwithcommonobject ofthemob.Meaningtherebyaccusedhadparticipatedin furtherance of common object of the mob. Therefore involvementofaccusediswellestablishedfromtheabove circumstances. Witnesses have stated in their evidence that,thisaccusedwashavingDhariainhishandsatthe timeofincident.Therefore,thebasicdefenceoftheaccused inhisexaminationunderSection313ofCr.P.C.thathehas falselybeenimplicatedandheisinnocentandthathewas notpresentatthetimeofincidentisnotacceptable.Simply witnessesandaccusedknoweachotherisnotsufficientto
// 990 //
accept the false implication on this ground. There is no previousenmitybetweenthem.Thereisnoreasontofalsely implicate the accused. No one would falsely involve an innocentperson,keepingasidetherealculprit.Therefore, thedefenceoftheaccusedisnotacceptable.
100.
Accused No.38 PATEL RAJENDRAKUMAR ALIAS RAJESHPUNJABHAITRIBHOVANDAS (SessionsCaseNo.275/2002) P.W.47ShaikhIbrahimbhaiRasulbhaicomplainant has deposed on oath the name of present accused in respect of incident dated 28.02.2002 putting burning rag under his cabin and incident dated 01.03.2002 stating thereinthat,presentaccusedwasverymuchpresentinthe mob.ThiswitnesshasidentifiedtheaccusedintheCourt. Hehasnotnarratedtheincidentdated28.02.2002inthe complaint dated 02.03.2002. While he has narrated the incident dated 01.03.2002 in the complaint dated 02.03.2002 but not stated the name of the present accused in his statement dated 10.03.2002, 01.06.2002, application dated 01.06.2002 and affidavit dated 06.11.2003, Statement before S.I.T. dated 11.06.2008. P.W.49ShaikhIqbalmiyaRasulmiyahasdeposedonoath namingthepresentaccusedwithDhariyainthemob.He
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has identified present accused as Babubhai Kanabhai. P.W.56 Shaikh Ayubmiya Rasulmiya has deposed the nameofthepresentaccusedwithDhariyainthemobin respectofincidentdated01.03.2002.Thereiscontradiction about from where and how this witness has seen the accusedinhisstatementdated10.03.2002and19.05.2008 beforeS.I.T.Sofarascontradictionsinthestatementsare concerned that is discussed and decided at the time of appreciation of evidence. But he has not named the accusedinhisaffidavitdated06.11.2003.P.W.59Shaikh Mohmad Sattar Bachumiya has named in his deposition the accused in respect of incident dated 01.03.2002 in respect of cabin fire incident at about 09.30 PM and incident during 11.30 to 12.00 PM. As per his deposition present accused was in the mob with Lathi. He has identifiedtheaccusedbeforetheCourt.Hetook15minutes foridentifyingtheaccusedintheCourt.Hehasidentified thepresentaccusedaftersatisfyingbytheCourtthat,heis abletoseeeachandeverypersonsittingintheCourt.He has not stated the name of the present accused in the statement dated 02.03.2002. As per his statement dated 19.05.2008nameofthepresentaccusedwaswrittenbythe Police.Inhisaffidavit dated06.11.2003thiswitnesshas
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notstatedthenameofpresentaccused.Inhisstatement before S.I.T. dated 19.05.2008 he has stated that, in his statement dated 02.03.2002 name of this accused is written by the Police. P.W.60 Shaikh Bachumiya Imammiyahasstatedthenameofthepresentaccusedin hisdepositioninrespectofdated01.03.2002.Firstincident about09.30P.M.inrespectofsettingonfirethecabinsand theaccusedwaspresentinthemobatabout11.00PMwith burningragandhehadthrownburningragontheJeep. Hehas notidentifiedtheaccusedandhasnotstatedthe incident dated 28.02.2002 in respect of closing cabins in hisstatementdated03.03.2002andhasalsonotstatedthe name of the accused in 09.30 cabins incident while in respectofincidentatabout11.00PMthereiscontradiction from where and how he has seen the accused which is alreadydiscussedanddecidedattherelevanttimeinthis Judgement.Hehasstatedthenameofpresentaccusedin the application dated 09.05.2008 as well as statement beforeS.I.T.dated10.05.2008.P.W.62ShaikhRafikmiya Mahmadhusenhasnamedthisaccusedinhisdepositionin respectofincidentdated01.03.2002andhasidentifiedthe accused in the Court. He took 15 minutes time for identifyingtheaccused.Hehasnotstatedthenameofthe
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present accused in his statement dated 10.03.2002 and 10.05.2008. Identification was carried out after due satisfaction that witness could see the persons sitting in theCourtandin15minutes,hehasidentified9accused. P.W.65 Shaikh Akbarmiya Nathumiya has stated the name of this accused in his deposition in respect of incident dated 01.03.2002 and as per his deposition this accused was present in the mob with Lathi. He has identified the accused in the Court. He took 10 minutes time in identification and identification was carried out afterdueverificationwhetherthewitnessisabletoseethe personssittingintheCourt.Duringsaid10minuteshehas identified 10 accused. There is contradiction about from whereandhowhehasseentheaccusedinhisstatement dated10.03.2002,application,statementdated10.05.2008, whichisalreadydiscussedanddecidedintheJudgement attherelevanttime.P.W.66ShaikhAkbarmiyaRasulmiya hasdeposedthenameofthepresentaccusedinrespectof incident dated 01.03.2002. As per his deposition accused waspresentinthemobwithLathi.This witnesshasnot identifiedtheaccusedintheCourt.Hetook10Minutesfor identifying the accused in the Court. He has identified 8 accusedintheCourt.beforeidentification,itwassatisfied
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bytheCourtthat,witnesscanseeeachandeverypersonin theCourt.Inhisapplicationdated09.05.2008hehasnot stated that, accused was with weapon and he has also stated the same before S.I.T. in his statement dated 09.05.2008andapplicationdated09.05.2008beforeS.I.T. while there is contradiction in his statement dated 10.03.2002inrespectoffromwhereandhowhehasseen the accused, which is already discussed and decided. P.W.67 Shaikh Imtiyazbhai Mahmadhusen has deposed the name of the present accused in his deposition in respectofincidentdated01.03.2002.Hehasidentifiedthe presentaccusedintheCourt.Itwasverifiedandsatisfied bytheCourtwhetherwitnesscouldseethepersonssitting intheCourtandthereafteridentificationwascarriedon. Hetookfiveminutestimeforidentificationoftheaccused and has identified three persons. This witness has not stated the name of the present accused in his statement dated 17.04.2002 and 22.05.2008. P.W.68 Shaikh GulamaliAkbarmiyahasdeposedthenameofthepresent accused in respect of incident dated 01.03.2002 stating thereinthat,theaccusedwaspresentinthemob.Hehas identified the present accused in the Court. 12 minutes time has been taken by him for identification of the
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accused.beforeidentification,itwasverifiedbytheCourt whetherthiswitnessisabletoseethepersonssittingin theCourt.Heightofthewitnessis5'2. Fromwhereand howhehasseentheaccusedthereiscontradictionabout in his application dated 10.05.2008 which is already discussedattheearlierstage.Hehasnotstatedthename ofthepresentaccusedinhisstatementdated10.03.2002 and09.05.2008andhasnotstatedthewholeincidentin his statement dated 11.04.2008 while in his application dated 10.05.2008 there is contradiction from where and howhehasseentheaccusedwhichisalreadydiscussedat the relevant time in the Judgement. P.W.69 Shaikh MahemudmiyaHusenmiyahasdeposedonoaththat,this accusedwas verymuchpresentinthemobandhewas breakingceilingwithbighammer.Hehasnotidentifiedthe accusedintheCourt.20minutestimehasbeentakenby himforidentificationoftheaccused.beforeidentification,it wasverifiedbytheCourtwhetherthiswitnessisabletosee the persons sitting in the Court. He has identified 5 accused. He took 20 minutes time for identification but could not identify the accused in the Court though the accusedwasverymuchpresentintheCourt.Thiswitness has not stated the name of present accused in his
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statementdated06.03.2002.P.W.70PathanMunsufkhan Yasinkhanhasstatedthat,hesawtheaccusedatthetime of stone throwing on his old house situated in Pathan Maholla incident dated 01.03.2002. As per his deposition thepresentaccusedwaspresentwithLathiinthemob.He hasidentifiedtheaccusedintheCourt.Hetook7minutes time for identification of accused. In his affidavit dated 31.03.2004, he has not named the accused. In his statementbeforeS.I.T.dated11.06.2008fromwhere,how hehasseentheaccusediscontradictory.Inhisstatement beforeS.I.T.dated14.07.2008hehasnotstatedthename of the present accused. P.W.78 Shaikh Basirabibi Bachumiya has deposed on oathstatingthe name of the present accused in the mob in respect of incident dated 01.03.2002. As per her deposition she has identified the accusedintheCourt.beforeidentification,itwasverified bythecourtwhethershecouldseethepersonssittingin theCourt.Shehasidentifiedthepresentaccusedandshe took 12 minutes time for identification of accused and duringsaid12minutesshehasidentified8accused.She has not stated the name of the present accused in her statement dated 17.04.2002 and statement dated 11.06.2008andthereiscontradictionfromwhereandhow
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she has seen the accused in the mob in her statement dated 22.05.2008. Considering the evidence of above all witnesses, P.W.47 fully supports the case of prosecution involvingthepresentaccusedintheincidentwhichisalso corroborated by the complaint. P.W.56, P.W.59, P.W.62, P.W.65, P.W.67, P.W.68, P.W.70 and P.W.78 also supports theprosecutioncasewhileP.W.49,P.W.60,P.W.66,P.W.68 andP.W.69arenotthesufficientevidenceestablishingthe guilt of present accused. So far as involvement of this accusedbyP.W.70isconcerned,hewasapoliceemployee, wellconversantwiththelawandprocedureeventhoughhe hasnotstatedthenameofpresentaccusedinhisaffidavit. Considering the standard of this witness, we can not involvetheaccusedonthebasisofevidenceofthiswitness alone.Wehavetoconsidertheotherevidencealso.Whether thereisotherevidencetoinvolvethepresentaccusedinthe incident.Thus,consideringtheappreciationofevidenceas discussed while discussing the evidence of witnesses the presenceofthisaccusedinthemobissatisfactorilyproved bytheProsecutionandthathewasinthemob.Thus,itis proved by the prosecution beyond reasonable doubt that, presentaccusedwasthememberofunlawfulassembly.
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Itisnotindisputethat,theaccusedistheresidentof VillageSardarpurandwitnessesarealsoresidentofVillage Sardarpur.Theyareknowntoeachothersincepreviously hence evidence of witnesses can safely be accepted as regardstotheinvolvementofthisaccusedandevidenceof witnessesasdiscussedearlierhavingseentheaccusedin the mob cannot be doubted at all. Once it is established and accepted that, witness and accused are resident of same locality, well known to each other, only question requires about falsely implication of the accused. The question of making any mistake in that regard does not arise. It does not possible to hold false implication of accused. Here, in the present case entering in Shaikh Mahollaatthetimeofincidentitselfsuggestthecommon objectofthemobaswellasspecificroleattributedtothe accused.TherewasnoreasontoenterinShaikhMahollaat that time. Therefore by becoming a member of unlawful assemblyaccusedenteredinShaikhMahollaandincident ofburningofcabins,housesinShaikhMahollaaswellas incidentinMahemudmiya'shouseoccurred.Furtherthere was incident of pelting of stones also occurred. This fact itselfsuggestovertactinconnectionwithcommonobject ofthemob.Meaningtherebyaccusedhadparticipatedin
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furtherance of common object of the mob. Therefore involvementofaccusediswellestablishedfromtheabove circumstances. Witnesses have stated in their evidence that,thisaccusedwashavingLathi,Pipe,Dharia,Hammer andburningraginhishandsatthetimeofincident.This accused has added in his Further Statement that, he is residinginSardarpurVillageandwitnesseswereknowing himwellandhehasfalselybeeninvolvedintheincident. Therefore, the basic defence of the accused in his examination under Section 313 of Cr.P.C. that he has falselybeenimplicatedandheisinnocentandthathewas notpresentatthetimeofincidentisnotacceptable.Simply witnessesandaccusedknoweachotherisnotsufficientto accept the false implication on this ground. There is no previousenmitybetweenthem.Thereisnoreasontofalsely implicate the accused. No one would falsely involve an innocentperson,keepingasidetherealculprit.Therefore, thedefenceoftheaccusedisnotacceptable.
101.
AccusedNo.39PATELBALDEVBHAIRANCHHODBHAI (SessionsCaseNo.275/2002) P.W.46PathanSabirmiyaAkumiyahasdeposedon oath the name of present accused in respect of incident
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dated 01.03.2002 as well as in respect of incident dated 28.02.2002 near water works and incident dated 28.02.2002morningincident.Thiswitnesshasidentified the accused in the Court. In his application dated 06.05.2008hehasstatedthenameofthepresentaccused butnotstatedthenameinhisstatementdated20.05.2008. P.W.47ShaikhIbrahimbhaiRasulbhai hasdeposed in respect of incident dated 01.03.2002 and has named the presentaccused.Hehasnotidentifiedtheaccusedinthe Courtthoughsufficienttimewasgiventohimanditwas verifiedwhetherheisabletoseeallthepersonssittingin theCourtroomornot.Hehasnamedthepresentaccused in his complaint but not named in his statement dated 10.03.2002, 01.06.2002, application dated 01.06.2002, affidavitdated06.11.2003andstatementbeforeS.I.T.dated 11.06.2008 and in the application and statement before S.I.T. dated 09.05.2008. P.W.52 Shaikh Hizbulmiya Husenmiya has named the present accused in his depositioninrespectofincidentdated01.03.2002.Asper hisdepositionpresentaccusedwasinthemobwithSword. HehasnotidentifiedtheaccusedintheCourt.Hetook15 minutes time for identification of accused. Before identification, it was verified and satisfied whether the
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witness could see the persons sitting in the Court room. During15minuteshehasidentified5accusedpersons.He has not stated the name of present accused in his statement dated 11.06.2008, 05.08.2008, 19.05.2008 and affidavitdated06.11.2003buthasstatedthenameofthe presentaccusedinhisstatementdated10.03.2002.P.W.68 ShaikhGulamaliAkbarmiyahasdeposedthenameofthe present accused in respect of incident dated 01.03.2002 that, this accused was present in the mob. This witness has not identified the present accused in the Court. He took12minutestimeforidentificationandhasidentified19 accusedin12minutes.Hisheightisabout52anditwas verified whether he could see the persons sitting in the Courtandafterduesatisfactionidentificationwascarried out. This witness has not stated the name of present accused in his statement dated 10.03.2002, application dated 09.05.2008 and statement dated 10.05.2008. Considering above all P.W.46 is identifying the present accusedwhilecomplainanthasgivennameofthisaccused inhiscomplaintandP.W.52hasnamedthisaccusedwith Swordbutnonehasidentifiedthepresentaccusedexcept P.W.46,whohasnotstatedthenameofthisaccusedinany ofhisearlierstatements.Nodoubtincomplaintthename
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ofpresentaccusedismentionedbutconsideringaboveall evidence of P.W.46 as discussed earlier is required some corroborationfromotherevidencebuthertheevidenceis notsatisfactorytocorroboratethesayofwitnessNo.46and therefore, considering the appreciation of evidence as discussed while discussing the evidence of witnesses the presence of this accused in the mob is not satisfactorily provedbytheProsecutionandthathewasnotinthemob. Thus,itisnotprovedbytheprosecutionbeyondreasonable doubtthat,presentaccusedwas thememberofunlawful assembly.
Itisnotindisputethat,theaccusedistheresidentof Village Sardarpur and witness is also resident of Village Sardarpur. No specific role has been attributed to the accused by any witness, however it is deposed by the witnessthat,hewashavingSwordinhishands. Further accusedisnotidentifiedbythewitness.Thisaccusedhas added in his Further Statement that, he is an acting memberofSevaSahakariMandaliandUmiyaKisanDairy sincelast15years.Therefore,justtocausedamagetohis image, he has falsely been involved. Therefore, the facts remainsthat,itisnotsafetoholdaccusedguiltyonthe
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basisofgeneralallegations.Thereisnoothermaterialon recordagainstthepresentaccusedtoshowhisinvolvement in the alleged offence. It would be hazardous to base a conviction only on the evidence of general allegations. It wouldbeappropriatetogivebenefitofdoubtandacquitthe accused.Inmyopinionthoughtheirexiststrongsuspicion against the accused it is not possible to hold that, his involvementintheoffenceisestablishedintheabsenceof anybodypointingouttowardshimintheCourtasaperson whowasinthemobrequiresacquittal.
102.
AccusedNo.40PATELPRAHLADBHAIJAGABHAI (SessionsCaseNo.275/2002) P.W.47ShaikhIbrahimbhaiRasulbhaihasdeposed inrespectofincidentdated01.03.2002andhasnamedthe present accused in the mob. He has not identified the accusedintheCourtthoughsufficienttimewasgivento him and it was verified whether he is able to see all the personssittingintheCourtroomornot.Hehasnamedthe presentaccusedinhiscomplaintbuthasnotnamedinhis statementdated10.03.2002,01.06.2002,applicationdated 01.06.2002,affidavitdated06.11.2003andstatementbefore S.I.T. dated 11.06.2008 and statement before S.I.T. dated
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09.05.2008. P.W.52 Shaikh Hizbulmiya Husenmiya has namedthepresentaccusedinhisdepositioninrespectof incidentdated01.03.2002. Asperhisdepositionpresent accusedwasinthemob.Hehasnotidentifiedtheaccused intheCourt.Hetook15minutestimeforidentificationof accused.beforeidentification,itwasverifiedandsatisfied whether the witness could see the persons sitting in the Court room. During 15 minutes he has identified 5 accused persons. He has not stated the name of present accused in his statement dated 11.06.2008, 05.08.2008, 19.05.2008 and affidavitdated 06.11.2003 but has stated the name of the present accused in his statement dated 10.03.2002. P.W.54 Shaikh Sharifmiya Bhikhumiya has deposedonoaththename ofthe present accused inthe mob in respect of incident dated 01.03.2002. He has identified the present accused in the Court. In his statement dated 06.03.2002 from where and how he has seentheaccusedthereiscontradictionaboutit.Butthis contradiction is already discussed at the time of appreciation of evidence. This witness has not stated the nameofthisaccusedinhisaffidavitdated06.11.2003and statementbeforeS.I.T.dated22.05.2008.P.W.56Shaikh AyubmiyaRasulmiyahasdeposedthenameofthepresent
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accusedinthemobinrespectofincidentdated01.03.2002. He has not identified the accused in the Court. In his statementdated10.03.2002hehasnotstatedthenameof the present accused in the mob while in affidavit dated 06.11.2003hehasmentionedthenameofpresentaccused. InhisstatementbeforeS.I.T.thereiscontradictionabout fromwhereandhowthiswitnesshasseentheaccused.So farascontradictionsinthestatementsareconcernedthat is discussed and decided at the time of appreciation of evidence.P.W.59ShaikhMohmadSattarBachumiyahas deposed in his deposition in respect of incident dated 01.03.2002 naming the present accused in the mob. He took15minutestimeforidentificationofaccusedandhas identified about 20 accused in the Court. before identification,itwasverifiedwhethertheaccusedcouldsee the persons sitting in the Court room and after due satisfaction the identification was carried out. In his affidavit dated 06.11.2003 and statements dated 02.03.2002,19.05.2008witnesshasnotstatedthenameof present accused. P.W.69 Shaikh Mahemudmiya Husenmiya has deposed on oath that, this accused was very much present in the mob with burning rag. He has identifiedtheaccusedintheCourt.20minutestimehas
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beentakenbyhimforidentificationoftheaccused.before identification, it was verified by the Court whether this witnessisabletoseethepersonssittingintheCourt.He hasidentified5accused.Thereiscontradictionfromwhere and how he has seen the accused in the mob in his statementdated06.03.2002whilehehasstatedthat,his statementwasnotrecordedon22.05.2008.P.W.70Pathan Munsufkhan Yasinkhan has stated that, he saw the accusedwithburningragatthetimeofstonethrowingon his old house situated in Pathan Maholla incident dated 01.03.2002.Asperhisdepositionthepresentaccusedwas presentwithburningraginthemob.Hehasidentifiedthe accused in the Court. He took 7 minutes time for identificationofaccused.Inhisaffidavitdated31.03.2004 he has not named the accused. In his statement before S.I.T. dated 11.06.2008 and statement dated 06.03.2002 fromwhere,howhehasseentheaccusediscontradictory. InhisstatementbeforeS.I.T.dated14.07.2008andaffidavit dated31.03.2004hehasnotstatedthenameofthepresent accused. Consideringtheevidenceofaboveallwitnesses, P.W.47, P.W.52, P.W.56 have not identified the accused thoughcomplainanthasgivenhisnameinthecomplaint. P.W.54,P.W.59,P.W.69andP.W.70havesupportedthecase
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of prosecution. No doubt there is contradiction in their statementaboutfromwhereandhowtheyhaveseenthe accused but as discussed earlier while appreciating the evidencepresenceofthisaccusedinthemobissupported bythesewitnesses. Sofarasinvolvementofthisaccused by P.W. 70 is concerned, he was a police employee, well conversantwiththelawandprocedureeventhoughhehas not stated the name of present accused in his affidavit. Consideringthestandardofthiswitnesswecannotinvolve theaccusedonthebasisofevidenceofthiswitnessalone. Wehavetoconsidertheotherevidencealso.Whetherthere is other evidence to involve the present accused in the incident.Thus,consideringtheappreciationofevidenceas discussed while discussing the evidence of witnesses the presenceofthisaccusedinthemobissatisfactorilyproved bytheProsecutionandthathewasinthemob.Thus,itis proved by the prosecution beyond reasonable doubt that, presentaccusedwasthememberofunlawfulassembly.
Itisnotindisputethat,theaccusedistheresidentof VillageSardarpurandwitnessesarealsoresidentofVillage Sardarpur.Theyareknowntoeachothersincepreviously hence evidence of witnesses can safely be accepted as
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regardstotheinvolvementofthisaccusedandevidenceof witnessesasdiscussedearlierhavingseentheaccusedin the mob cannot be doubted at all. Once it is established and accepted that, witness and accused are resident of same locality, well known to each other, only question requires about falsely implication of the accused. The question of making any mistake in that regard does not arise. It does not possible to hold false implication of accused. Here, in the present case entering in Shaikh Mahollaatthetimeofincidentitselfsuggestthecommon objectofthemobaswellasspecificroleattributedtothe accused.TherewasnoreasontoenterinShaikhMahollaat that time. Therefore by becoming a member of unlawful assemblyaccusedenteredinShaikhMahollaandincident ofburningofcabins,housesinShaikhMahollaaswellas incidentinMahemudmiya'shouseoccurred.Furtherthere was incident of pelting of stones also occurred. This fact itselfsuggestovertactinconnectionwithcommonobject ofthemob.Meaningtherebyaccusedhadparticipatedin furtherance of common object of the mob. Therefore involvementofaccusediswellestablishedfromtheabove circumstances. Witnesses have stated in their evidence that,thisaccusedwashavingburningraginhishandsat
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thetimeofincident.ThisaccusedhasaddedinhisFurther Statement that, he is residing in Sardarpur Village and witnesseswereknowinghimwellandhehasfalselybeen involved in the incident. This accused has added in his FurtherStatementthat,ShriRamParlourwhichwasrun by himand hisbrotherwassetonfireandRs.2000/is paidbytheGovernmenttowardsthedamages.Since1996 to 2002 they were running the business in the name of DiaryparlourandCandyparlourtherefore,theyareknown bythevillagepersonstherefore,heisfalselybeeninvolved. Therefore, the basic defence of the accused in his examination under Section 313 of Cr.P.C. that he has falselybeenimplicatedandheisinnocentandthathewas notpresentatthetimeofincidentisnotacceptable.Simply witnessesandaccusedknoweachotherisnotsufficientto accept the false implication on this ground. There is no previousenmitybetweenthem.Thereisnoreasontofalsely implicate the accused. No one would falsely involve an innocentperson,keepingasidetherealculprit.Therefore, thedefenceoftheaccusedisnotacceptable. 103. AccusedNo.41PATELRAMESHBHAIRAMABHAI (SessionsCaseNo.275/2002) P.W.47ShaikhIbrahimbhaiRasulbhaihasdeposed
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inrespectofincidentdated01.03.2002andhasnamedthe present accused in the mob. He has not identified the accusedintheCourtthoughsufficienttimewasgivento him and it was verified whether he is able to see all the personssittingintheCourtroomornot.Hehasnamedthe presentaccusedinhiscomplaintbuthasnotnamedinhis statementdated10.03.2002,01.06.2002,applicationdated 01.06.2002,affidavitdated06.11.2003andstatementbefore S.I.T. dated 11.06.2008 and statement before S.I.T. dated 09.05.2008. P.W.48 Shaikh Sabirhusen Kadarmiya has deposed in his deposition about the presence of this accusedinthemobintheincidentdated01.03.2002.He has identified the accused in the Court as
RameshbhaiRamabhaiGangavat.Inhisstatementdated 06.03.2002fromwhereandhowhehasseentheaccusedis not stated. This contradiction is already discussed at the relevant time in this Judgement. He has not stated the nameofthepresentaccusedbeforetheS.I.T.instatement dated10.05.2008.P.W.51ShaikhNazirmohmadAkbarmiya has deposed the name of present accused in respect of incident dated 01.03.2002 that the present accused was presentinthemobwithDhariyabuthasnotidentifiedthe accused in the Court and has stated the name of the
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presentaccusedinhisstatementdated10.03.2002.Hehas notstatedthenameofpresentaccusedinaffidavitdated 06.11.2003buthasstatedthenameoftheaccusedinhis statementdated19.05.2008 before S.I.T.P.W.58 Shaikh SabirhusenImamshahas stated thenameof thepresent accusedinrespectofincidentdated01.03.2002.Hehasnot identified the accused before the Court. As per his say accusedisnotpresentinthecourtbutinfactaccusedwas very much present in the Court. From where, how and whenhehasseentheaccusedthereiscontradictioninthis regardinhisstateddated03.03.2002andstatementbefore S.I.T. dated 22.05.2008 in this regard. P.W.63 Shaikh BhikhumiyaKalumiyahasdeposedthenameofthepresent accused in respect of incident dated 01.03.2002. He has identifiedtheaccusedintheCourt.Hehasnotstatedthe name of the present accused in the statements dated 10.03.2002 and 10.05.2008 before S.I.T. and applications dated10.05.2008.P.W.65ShaikhAkbarmiyaNathumiya hasnamedtheaccusedinhisdepositionthataccusedwas present in the mob with Dhariya in the incident dated 01.03.2002.HehasidentifiedtheaccusedRameshRama Gangavat as Ramesh Gangavat. As per his statement dated10.05.2008inhisstatementdated10.03.2002hehas
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not stated the name of the present accused while in his statement dated 10.03.2002 as well as in his application from where how he has seen the accused there is contradiction about it. This contradiction is already discussedintherelevanttimeinthisJudgement. Inhis statementdated10.05.2008hehasstatedthat,hehasnot statedthenameofpresentaccusedinhisstatementdated 10.03.2002.Thereiscontradictioninhisstatementdated 10.05.2008beforeS.I.T.fromwherehowhehasseenthe accusedthereiscontradictionaboutit.Thiscontradiction isalreadydiscussedintherelevanttimeinthisJudgement. P.W.66 Akbarmiya Rasulmiya Shaikh has named this accused in his deposition about the incident dated 01.03.2002.Asperhisdepositionaccusedwaspresentin themobwithweapon.Hehashasidentifiedtheaccusedin the Court. He took 10 minutes time for identifying the accusedintheCourt.Heightofthiswitnessisabout5Ft. Itwasverifiedthat,thiswitnesscouldseeeachandevery personsittingintheCourtandthereafter,hehasidentified eight accused in the Court. In above circumstances if he took 10 minutes timethat is reasonable one. Hehas not named the present accused in his statement dated 10.03.2002whileinhisapplicationdated09.05.2008and
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statementbeforeS.I.T.dated09.05.2008hehasnotstated that said accused was present in the mob with weapon. P.W.68ShaikhGulamaliAkbarmiyahasstatedthename ofpresentaccusedinhisdepositioninrespectofincident dated01.03.2002thataccusedwaspresentinthemobwith Dhariya.Asperhisdepositionaccusedwasinstigatingthe mobbytalkinginthevillageasBandiyanekapinakho, mari nakho. He has identified the accused in the Court andhetook12minutestimeinidentifyingtheaccused.It was verified and after full satisfaction identification was carried out and the witness has identified 19 accused within12minutesandthatcanbesaidreasonabletime.He has not stated the name of present accused in his statementdated10.03.2002,applicationdated09.05.2008 and statement before S.I.T. dated 09.05.2008 but has stated the name of Ramesh Rama but there is contradictioninhisstatement10.03.2002and10.05.2008 fromwhereandhowhehasseentheaccusedwithDhariya whileinapplication09.05.2008hehasnotstatedaboutthe presenceofthisaccusedinthemobwithDhariya.P.W.70 Pathan Munsufkhan Yasinkhan has stated that, he saw RameshRamaGangavatwithDhariyaatthetimeofstone throwing at his old house situated in Pathan Maholla
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incidentdated01.03.2002. Hehasidentifiedtheaccused intheCourt.Hetook7minutestimeforidentificationof accused. Inhisaffidavitdated31.03.2004 andstatement dated 06.03.2002 and statement dated 11.06.2008 before S.I.T. there is contradiction from where and howhe has seentheaccusedwithweaponwhileinhisstatementdated 14.07.2008beforeS.I.T.incidentwiththenameofaccused isnotstated.P.W.76ShaikhHamidabibiAkbarmiyahas deposedonoathaboutthepresenceofthisaccusedinthe mobinrespectofincidentdated01.03.2002.Shehasstated that,shecannotidentifythepersonfromthemob.Shehas identified the accused in the Court. As per her say, her statement was not recorded on 21.06.2002. There is contradiction from where and how she has seen the accused is already discussed. P.W.82 Fakir Sabirabibi Sabirhusen has stated the name of Ramesh Rama in respectofincidentdated01.03.2002.Asperherdeposition Ramesh Rama was present in the mob. She has not identifiedRameshRamaintheCourtandhasnotstated the name of Ramesh Rama in her statement dated 03.03.2002inrespectofincidentabout2.30night.Inher statementdated22.05.2008shehasnotstatedthenameof present accused. P.W.47, P.W.51, P.W.58 and P.W.82 not
// 1015 //
identifyingbeforetheCourtwhileP.W.48,P.W.63,P.W.65, P.W.66, P.W.68, P.W.70 and P.W.76 have identified him in the Court and his name has been mentioned in the complaint.
Itisnotindisputethat,theaccusedistheresidentof VillageSardarpurandwitnessesarealsoresidentofVillage Sardarpur.Theyareknowntoeachothersincepreviously hence evidence of witnesses can safely be accepted as regardstotheinvolvementofthisaccusedandevidenceof witnessesasdiscussedearlierhavingseentheaccusedin the mob cannot be doubted at all. Once it is established and accepted that, witness and accused are resident of same locality, well known to each other, only question requires about falsely implication of the accused. The question of making any mistake in that regard does not arise. It does not possible to hold false implication of accused. Here, in the present case entering in Shaikh Mahollaatthetimeofincidentitselfsuggestthecommon objectofthemobaswellasspecificroleattributedtothe accused.TherewasnoreasontoenterinShaikhMahollaat that time. Therefore by becoming a member of unlawful assemblyaccusedenteredinShaikhMahollaandincident
// 1016 //
ofburningofcabins,housesinShaikhMahollaaswellas incidentinMahemudmiya'shouseoccurred.Furtherthere was incident of pelting of stones also occurred. This fact itselfsuggestovertactinconnectionwithcommonobject ofthemob.Meaningtherebyaccusedhadparticipatedin furtherance of common object of the mob. Therefore involvementofaccusediswellestablishedfromtheabove circumstances. Witnesses have stated in their evidence that,thisaccusedwashavingDhariainhishandsatthe time of incident. This accused has added in his Further Statement that, he was member of Gram Panchayat and duringtheyear19982002hewasSecretaryofSarvodaya KelvaniMandal.HewasworkingasSarpanchandMember ofTalukaPanchayatandjusttocausedamagetohisimage, hehasfalselybeeninvolved.Therefore,thebasicdefenceof the accused in his examination under Section 313 of Cr.P.C. that he has falsely been implicated and he is innocent and that he was not present at the time of incident is not acceptable. Simply witnesses and accused know each other is not sufficient to accept the false implication on this ground. There is no previous enmity betweenthem.Thereisnoreasontofalselyimplicatethe accused.Noonewouldfalselyinvolveaninnocentperson,
// 1017 //
keepingasidetherealculprit.Therefore,thedefenceofthe accusedisnotacceptable.
104.
AccusedNo.42PATELPARSOTTAMBHAIALIAS PASHABHAIMOHANBHAI (SessionsCaseNo.275/2002) P.W.47ShaikhIbrahimbhaiRasulbhaihasdeposed inrespectofincidentdated01.03.2002andhasnamedthe present accused in the mob. He has not identified the accusedintheCourtthoughsufficienttimewasgivento him and it was verified whether he is able to see all the personssittingintheCourtroomornot.Hehasnamedthe presentaccusedinhiscomplaintbuthasnotnamedinhis statementdated10.03.2002,01.06.2002,applicationdated 01.06.2002,affidavitdated06.11.2003andstatementbefore S.I.T. dated 11.06.2008. P.W.54 Shaikh Sharifmiya Bhikhumiyahasdeposedonoaththenameofthepresent accused in the mob with Tin. As per his deposition said accusedwasnotpresentinthecourtinfactaccusedwas present at the time of identification before the Court. He has not identified the present accused though sufficient timewasgiventohim.beforeidentification,itwasverified and satisfied whether the witness could see the persons sitting in the Court room. In his statement dated
// 1018 //
06.03.2002fromwhereandhowhehasseentheaccused there is contradiction about it. But this contradiction is alreadydiscussedatthetimeofappreciationofevidence. Thiswitnesshasnotstatedthenameofthisaccusedinhis affidavitdated06.11.2003andstatementbeforeS.I.T.dated 22.05.2008.P.W.55ShaikhAashiqhusenBachumiyahas namedthepresentaccusedinhisdepositioninrespectof incident dated 01.03.2002. As per his deposition the presentaccusedwaswithTininthemob.Hehasidentified PashaMohanasParshottamMohan.Hetook15minutes foridentification.Inhisstatementdated02.03.2002from where,howhehasseentheaccusedisnotmentioned.In his affidavit 06.11.2003 he has not stated the name of presentaccusedwhileinhisstatementbeforeS.I.T.dated 19.05.2008 he has stated the name of present accused. P.W.61 Shaikh Safikmiya Bachumiya has deposed the name ofthepresent accusedinrespect ofincidentdated 01.03.2002.Hehasdeposedthat,thisaccusedwasinmob with weapon. He has identified Parshottambhai as Pashabhai Mohanbhai. He took 15 minutes in identifying theaccused.Hehasidentified6accusedinthecourt.After duesatisfactionbytheCourtthatthewitnesscanseeeach and every person in the Court. This witness is having
// 1019 //
height of 4'11. He has not stated the name of present accusedinhisstatementdated10.03.2002,03.05.2002but has statedthenameof presentaccusedinhisstatement dated 10.05.2008. P.W.62 Shaikh Rafikmiya
Mahmadhusenhasnamedthisaccusedinhisdepositionin respectofincidentdated01.03.2002withweapon.Hehas notidentifiedtheaccusedthoughsufficienttimewasgiven tohim.Hetook15minutestimeforidentifyingtheaccused. Identification was carried out after due satisfaction that witnesscouldseethepersonssittingintheCourtandin15 minuteshehasidentified9accused.Thereiscontradiction in his statement dated 10.03.2002 and 10.05.2008 from whereandhowhehasseentheaccused.Thiscontradiction isalreadydiscussedattherelevanttimeinthisJudgement. P.W.66 Akbarmiya Rasulmiya has deposed the name of the present accused in respect of incident dated 01.03.2002.Asperhisdepositionaccusedwaspresentin the mob with Weapon. This witness has identified the Parshottambhai as Pasabhai in the Court. He took 10 Minutes for identifying the accused in the Court. He has identified 8 accused in the Court. before identification, it wassatisfiedbytheCourtthat,witnesscanseeeachand every person in the Court. In his application dated
// 1020 //
09.05.2008andstatementbeforeS.I.T. dated09.05.2008. P.W.67ShaikhImtiyazbhaiMahmadhusenhasdeposed onoathaboutthepresenceofthisaccusedinthemobin respectofincidentdated01.03.2002.Hehasnotidentified the accused in the Court though sufficient opportunities weregiventohim.Hetook5minutesforidentification.He hasidentified2personsintheCourt.beforeidentification, itwasverifiedandsatisfiedwhetherthewitnesscouldsee the persons sitting in the Court room. There is contradiction in his statement dated 17.04.2002 and 22.05.2008fromwhereandhowhehasseentheaccused. Contradiction is already discussed at the time of appreciation of evidence. P.W.68 Shaikh Gulamali Akbarmiyahasstatedthenameofpresentaccusedinhis depositioninrespectofincidentdated01.03.2002.Hehas not identified the accused in the Court though sufficient opportunitiesweregiventohim.Hetook12minutestime in identifying the accused. It was verified and after full satisfactionidentificationwascarriedoutandthewitness hasidentified19accusedwithin12minutesandthatcan be said reasonable time. He has not stated the name of present accused in his statement dated 10.03.2002, application dated 09.05.2008 and statement dated
// 1021 //
10.05.2008. P.W. 69 Shaikh Mahemudmiya Husenmiya hasdeposedonoathabouttheinvolvementofthisaccused in respect of incident dated 01.03.2002. As per his depositionsaidaccusedwaspresentinthemobwithTinof Kerosene.HehasnotidentifiedtheaccusedintheCourt thoughsufficientopportunitiesweregiventohim.Hetook 20minutesforidentifyingtheaccused.Hehasidentified5 accusedintheCourt.Courthadverifiedfromthewitness whether,hecouldseethepersonspresentintheCourtand after due satisfaction identification was performed. No doubt witness is handicapped but in the Court it was properlyarrangedsothat,thewitnesscanseetheperson sittingintheCourt.Hehasstatedthenameofthepresent accused in his statement dated 06.03.2002 but there is contradiction about from where how he had seen the accused, which is already discussed at relevant point of time.Thiswitnesshasstatedthat,hisstatementwasnot recorded on 22.05.2008. P.W.70 Pathan Munsufkhan Yasinkhanhasstatedthat,hesawtheaccusedatthetime of stone throwing at his old house situated in Pathan Mahollaincidentdated01.03.2002withgallon.Hehasnot identifiedtheaccusedintheCourt.Hetook7minutestime for identification of accused. In his statement dated
// 1022 //
06.03.2002 andstatementdated11.06.2008beforeS.I.T. thereiscontradictionfromwhereandhowhehasseenthe accused with weapon, which is already discussed at relevantpointoftime.Inhisaffidavitdated31.03.2004he hasnotnamedtheaccused.InhisstatementbeforeS.I.T. dated14.07.2008hehasnotstatedthenameofthepresent accused. P.W.77 Shaikh Badrunnisha Akbarmiya has deposedinherdepositionnamingthepresentaccusedin theincidentdated01.03.2002.She hasnotidentifiedthe presentaccused. Asperherstatementdated06.03.2002 shesawtheaccusedfromtheFieldside.Inherstatement dated 06.03.2002 and 22.05.2008 there is contradiction fromwhereandhowshehasseentheaccused.Thisfactis already discussed while appreciating the evidence in this regard. P.W. 78 Shaikh Basirabibi Bachumiya has deposed the name of the present accused in the mob in respectofincidentdated01.03.2002.Shehasnotidentified the accused in the Court though sufficient opportunities were given. She took 12 minutes for identification of the accused. She has identified 8 accused. before identification, it was verified by the Court whether the witnesscanseethepersonssittinginthecourtandafter duesatisfactionidentificationwasperformedintheCourt.
// 1023 //
Shehasnotnamedthepresentaccusedinherstatement dated 17.04.2002 and 11.06.2008 while in her statement dated 22.05.2008 there is contradiction from where and how she has seen the accused. P.W.81 Shaikh DilavarkhanAbbasmiyahasnotnamedthisaccusedinhis depositionbutidentifiedtheaccusedintheCourtbyface only and he has not named the present accused in his statement dated 22.05.2008. Considering the above all evidenceagainstthepresentaccusedcomplainantP.W.47, P.W.54, P.W.62, P.W.67, P.W.68, P.W.69, P.W.70, P.W.77, P.W.78 have not identified the accused in the Court therefore,noreliancecanbeplacedupontheirevidencein respectofpresentaccused.FurtherP.W.81identifyingthe accusedbyfacebutthereisnootherevidencesupporting thesayofP.W.81inrespectofidentifyingtheaccusedby facebutP.W.55,P.W.61,P.W.66haveidentifiedtheaccused intheCourtandintheirearlierstatementsalsonameof presentaccusedismentioned.Sofarasthedisputeraised by the accused in respect of name of Pasha Mohan or Parshottam Moahn is concerned, he is the one and the sameperson.Itisnotthesayoftheaccusedthat,thereare two different persons. Therefore, it is proved from the evidence of these three witnesses that, said accused was
// 1024 //
present in the mob with gallon. Thus, considering the appreciationofevidenceasdiscussedwhilediscussingthe evidenceofwitnessesthepresenceofthisaccusedinthe mobissatisfactorilyprovedbytheProsecutionandthathe was in the mob. Thus, it is proved by the prosecution beyond reasonable doubt that, present accused was the memberofunlawfulassembly.
Itisnotindisputethat,theaccusedistheresidentof VillageSardarpurandwitnessesarealsoresidentofVillage Sardarpur.Theyareknowntoeachothersincepreviously hence evidence of witnesses can safely be accepted as regardstotheinvolvementofthisaccusedandevidenceof witnessesasdiscussedearlierhavingseentheaccusedin the mob cannot be doubted at all. Once it is established and accepted that, witness and accused are resident of same locality, well known to each other, only question requires about falsely implication of the accused. The question of making any mistake in that regard does not arise. It does not possible to hold false implication of accused. Here, in the present case entering in Shaikh Mahollaatthetimeofincidentitselfsuggestthecommon objectofthemobaswellasspecificroleattributedtothe
// 1025 //
accused.TherewasnoreasontoenterinShaikhMahollaat that time. Therefore by becoming a member of unlawful assemblyaccusedenteredinShaikhMahollaandincident ofburningofcabins,housesinShaikhMahollaaswellas incidentinMahemudmiya'shouseoccurred.Furtherthere was incident of pelting of stones also occurred. This fact itselfsuggestovertactinconnectionwithcommonobject ofthemob.Meaningtherebyaccusedhadparticipatedin furtherance of common object of the mob. Therefore involvementofaccusediswellestablishedfromtheabove circumstances. Witnesses have stated in their evidence that,thisaccusedwashavingKerosenegallonandweapon in his hands at the time of incident. This accused has added in his Further Statement that, so as to cause financiallossanddamagetohisimage,hehasfalselybeen involvedintheincident.Therefore,thebasicdefenceofthe accusedinhisexaminationunderSection313 ofCr.P.C. thathehasfalselybeenimplicatedandheisinnocentand that he was not present at the time of incident is not acceptable.Simplywitnessesandaccusedknoweachother is not sufficient to accept the false implication on this ground.Thereisnopreviousenmitybetweenthem.Thereis noreason to falsely implicate the accused. No one would
// 1026 //
falsely involve an innocent person, keeping aside the real culprit. Therefore, the defence of the accused is not acceptable.
105.
AccusedNo.43PATELASHWINBHAIJAGABHAI (SessionsCaseNo.275/2002) P.W.47ShaikhIbrahimbhaiRasulbhaihasdeposed inrespectofincidentdated01.03.2002andhasnamedthe present accused in the mob. He has not identified the accusedintheCourtthoughsufficienttimewasgivento him and it was verified whether he is able to see all the personssittingintheCourtroomornot.Hehasnamedthe presentaccusedinhiscomplaintbuthasnotnamedinhis statementdated10.03.2002,01.06.2002,applicationdated 01.06.2002,affidavitdated06.11.2003andstatementbefore S.I.T. dated 11.06.2008. P.W.52 Shaikh Hizbulmiya Husenmiya has named the present accused in his depositioninrespectofincidentdated01.03.2002.Hehas identifiedtheaccusedasJayeshJagainsteadofAshwin Jagaandthushasnotidentified.Hetook15minutestime for identification of accused. During 15 minutes, he has identified5accusedpersons.Hehasnotstatedthenameof present accused in his statement dated 11.06.2008,
// 1027 //
05.08.2008,19.05.2008andaffidavitdated06.11.2003but has statedthenameof presentaccusedinhisstatement dated 10.03.2002. P.W.54 Shaikh Sharifmiya
Bhikhumiyahasdeposedonoaththenameofthepresent accused in the mob. He has stated that accused is not present in the court though accused was present in the Court.Inhisstatementdated06.03.2002fromwhereand howhehasseentheaccused,thereiscontradictionabout it.Butthiscontradictionisalreadydiscussedatthetimeof appreciation of evidence. This witness has not stated the nameofthisaccusedinhisaffidavitdated06.11.2003and statementbeforeS.I.T.dated22.05.2008.P.W.59Shaikh Mohmadsattar Bachumiya has deposed in respect of incident dated 01.03.2002. He has deposed that, the present accused was present in the mob during the incident at 11.30 to 12.00 PM. He has identified the accused in the Court. As per his statement dated 02.03.2002 he has not narrated the name of the present accusedwhileinaffidavitdated06.11.2003andstatement beforeS.I.T.dated19.05.2008hehasnotstatedthename of the present accused. P.W.62 Shaikh Rafikmiya Mahmadhusen has named this accused in his deposition withlathiandpipe.Hehasidentifiedtheaccused.Hetook
// 1028 //
15minutestimeforidentifyingtheaccused.Identification was carried out after due satisfaction that witness could seethepersonssittingintheCourtandin15minuteshe has identified 9 accused. He has stated the name of the present accused in his statement dated 10.03.2002 and 10.05.2008butthereiscontradictionregardingfromwhere andhowhehasseentheaccused.Butthiscontradictionis alreadydiscussedattherelevanttimeinthisJudgement. P.W.65ShaikhAkbarmiyaNathumiyahasnotstatedthe nameofpresentaccusedwithTininhisdepositionbuthas notidentifiedtheaccusedintheCourt.Hetook10minutes time in identification and identification was carried out afterdueverificationwhetherthewitnessisabletoseethe personssittingintheCourt.Duringsaid10minuteshehas identified 10 accused. He has not stated the name of present accused in his application while has stated the nameofpresentaccusedinhisstatementdated10.03.2002 and10.05.2008but thereiscontradictionregardingfrom where and how he has seen the accused. But this contradiction is already discussed at the relevant time in this Judgement. P.W.69 Shaikh Mahemudmiya Husenmiya has deposed on oath that, this accused was very much present in the mob with burning rag. He has
// 1029 //
identifiedtheaccusedintheCourt.20minutestimehas beentakenbyhimforidentificationoftheaccused.before identification, it was verified by the Court whether this witnessisabletoseethepersonssittingintheCourt.He hasidentified5accused.Thiswitnesshasstatedthename ofpresentaccusedinhisstatementdated06.03.2002but thereiscontradictionregardingfromwhereandhowhehas seen the accused. But this contradiction is already discussedattherelevanttimeinthisJudgement.P.W.75 ShaikhFirozabanuBachumiyahasnotnamedthepresent accused in respect of incident dated 01.03.2002 but identified the accused by face only. She has taken 15 minutes time for identification of accused. During 15 minutesshehasidentified7accused.Herheightisabout 5'meaningtherebysheisabletoseethepersonsittingin thecourt.Shehasnotstatedthenameofpresentaccused in her statement dated 02.03.2002. She has stated the name of present accused in her statement dated 22.05.2008. Considering above all evidence complainant thoughnamedincomplaintnotidentifyingP.W.52,P.W.54, P.W.65 the accused while P.W.59, P.W.62, P.W.69 and P.W.75haveidentifiedtheaccusedintheCourtandsome ofthewitnesseshavestatedthenameofpresentaccusedin
// 1030 //
theirstatementsandincomplaintalsonameofthepresent accusedandthusthereissufficientevidenceregardingthe involvement of present accused in the mob. Thus, considering the appreciation of evidence as discussed whilediscussingtheevidenceofwitnessesthepresenceof this accused in the mob is satisfactorily proved by the Prosecutionandthathewasinthemob.Thus,itisproved bytheprosecutionbeyondreasonabledoubtthat,present accusedwasthememberofunlawfulassembly.
Itisnotindisputethat,theaccusedistheresidentof VillageSardarpurandwitnessesarealsoresidentofVillage Sardarpur.Theyareknowntoeachothersincepreviously hence evidence of witnesses can safely be accepted as regardstotheinvolvementofthisaccusedandevidenceof witnessesasdiscussedearlierhavingseentheaccusedin the mob cannot be doubted at all. Once it is established and accepted that, witness and accused are resident of same locality, well known to each other, only question requires about falsely implication of the accused. The question of making any mistake in that regard does not arise. It does not possible to hold false implication of accused. Here, in the present case entering in Shaikh
// 1031 //
Mahollaatthetimeofincidentitselfsuggestthecommon objectofthemobaswellasspecificroleattributedtothe accused.TherewasnoreasontoenterinShaikhMahollaat that time. Therefore by becoming a member of unlawful assemblyaccusedenteredinShaikhMahollaandincident ofburningofcabins,housesinShaikhMahollaaswellas incidentinMahemudmiya'shouseoccurred.Furtherthere was incident of pelting of stones also occurred. This fact itselfsuggestovertactinconnectionwithcommonobject ofthemob.Meaningtherebyaccusedhadparticipatedin furtherance of common object of the mob. Therefore involvementofaccusediswellestablishedfromtheabove circumstances. Witnesses have stated in their evidence that, this accused was having Lathi, Pipe, gallon and burning rag in his hands at the time of incident. This accused has added in his Further Statement that, he is residinginSardarpurVillageandwitnesseswereknowing himwellandhehasfalselybeeninvolvedintheincident. ThisaccusedhasaddedinhisFurtherStatementthat,Shri RamParlourwhichwasrunbyhimandhisbrotherwasset onfireandRs.2000/ispaidbytheGovernmenttowards the damages. Since 1996 to 2002 they were running the businessinthenameofDiaryparlourandCandyparlour
// 1032 //
therefore,theyareknownbythevillagepersonstherefore, heisfalselybeeninvolved.Therefore,thebasicdefenceof the accused in his examination under Section 313 of Cr.P.C. that he has falsely been implicated and he is innocent and that he was not present at the time of incident is not acceptable. Simply witnesses and accused know each other is not sufficient to accept the false implication on this ground. There is no previous enmity betweenthem.Thereisnoreasontofalselyimplicatethe accused.Noonewouldfalselyinvolveaninnocentperson, keepingasidetherealculprit.Therefore,thedefenceofthe accusedisnotacceptable. 106. AccusedNo.44PATELAMBALALMAGANBHAIKAPOOR (SessionsCaseNo.275/2002) P.W.46PathanSabirmiyaAkumiyahasdeposedon oath the name of present accused in respect of incident dated01.03.2002.Thiswitnesshasidentifiedtheaccused intheCourt.Inhisapplicationdated06.05.2008hehas statedthenameofthepresentaccusedbuthasnotstated thenameandincidentinhisstatementdated20.05.2008. P.W.47ShaikhIbrahimbhaiRasulbhaicomplainanthas deposedonoaththenameofpresentaccusedinrespectof incidentdated01.03.2002.Thiswitnesshasidentifiedthe
// 1033 //
accused in the Court and has taken the name of the present accused in the Complaint dated 02.03.2002 and has not stated the name of the present accused in his statementdated10.03.2002,01.06.2002,applicationdated 01.06.2002 and affidavit dated 06.11.2003, Statement beforeS.I.T.dated11.06.2008buthasstatedthenameof the present accused in the application to S.I.T. dated 09.05.2008 and statement dated 09.05.2008. P.W.48 Shaikh SabirhusenKadarmiyahasdeposed thenameof thepresentaccusedinrespectofincidentdated01.03.2002 andhasalsotakenthenameofpresentaccusedinrespect ofconnectingdirectlight.Hehasidentifiedtheaccusedin theCourt.Hehasstatedthenameofthepresentaccused in his statement dated 06.03.2002 but there is contradictionfromwhereandhowhehasseentheaccused andhasnotstatedaboutthefactsofLightinhisstatement dated06.03.2002.Hehasalsostatedthenameofpresent accused in his statement before S.I.T. dated 10.05.2008. This witness has identified the accused before the court afterverifyingthatheisabletoseeallthepersonssitting intheCourt.P.W.54ShaikhSharifmiyaBhikhumiyahas deposedonoaththename ofthe present accused inthe mobwithDhariya.Hehasidentifiedthepresentaccusedin
// 1034 //
theCourt.Hehasstatedthenameofthepresentaccused inhisstatementdated06.03.2002butfromwhereandhow hehasseentheaccusedthereiscontradictionaboutit.But this contradiction is already discussed at the time of appreciation of evidence. This witness has not stated the nameofthisaccusedinhisaffidavitdated06.11.2003and statementbeforeS.I.T.dated22.05.2008.P.W.55Shaikh Aashiqhusen Bachumiya has named this accused during hisdepositioninrespectofincidentdated01.03.2002that this accused was in the mob and he has set on fire his Jeep.HehasidentifiedtheaccusedintheCourt.Hetook 15 minutes time for identification. he has identified 17 accusedintheCourt.Beforeidentification,itwasverified by the Court whether the witness could see the persons sittingintheCourtandafterduesatisfaction,thewitness has identified the accused. For identifying 17 accused he took 15 minutes time, which can be considered as reasonable time for identification. He has not stated the nameofthisaccusedinhisaffidavitdated06.11.2003.He has not stated in his statement dated 02.03.2002 about settingonfiretheJeepbythisaccused.Hehasstatedthe name of the present accused in his statement dated 19.05.2008. P.W.58 Fakir Sabirhusen Imamsha has
// 1035 //
deposed in his deposition about the incident dated 01.03.2002.Asperhisdepositionthepresentaccusedwas presentinthemob.Hehasidentifiedtheaccusedinthe Court. There is contradiction in his statement dated 03.03.2002and22.05.2008inrespectoffromwhere,when and how he has seen the accused. P.W.59 Shaikh Mohmadsattar Bachumiya has deposed in respect of incident dated 01.03.2002. He has deposed that, the presentaccusedwaspresentinthemobwithDhariya.He has identified the accused in the Court. before identification, it was verified and satisfied whether the witnesscouldseethepersonssittingintheCourtroom.As per his statement dated 02.03.2002 he has not narrated the name of the present accused while in affidavit dated 06.11.2003 he has not stated the name of the present accused.InhisstatementbeforeS.I.T.dated19.05.2008he hasstatedthat,inthestatementdated02.03.2002Police has written the name of the accused. P.W.60 Shaikh BachumiyaImammiyahasdeposed onoaththenameof presentaccusedinrespectofincidentdated01.03.2002at about9.30PMinrespectofsettingonfirethecabinsbut hasnotstatedhisnameinrespectofthisincidentinhis statementdated03.03.2002whilehehasstatedthename
// 1036 //
of the present accused in respect of incident dated 01.03.2002 atabout11.00 PM andas perhis deposition, thisaccusedhaspouredthekeroseneonhisJeep.Hehas identified the accused in the Court. He took 12 minutes timeforidentificationoftheaccused.beforeidentification, itwasverifiedandsatisfiedwhetherthewitnesscouldsee thepersonssittingintheCourtroom.Buthasnotstated the name of present accused in the statement dated 03.03.2002buthasstatedthenameofthepresentaccused inhisapplicationdated09.05.2008andstatementbefore S.I.T. dated 10.05.2008. P.W.61 Shaikh Safikmiya Babumiyahasdeposedonoaththat,presentaccusedwas present in the mob in the incident dated 01.03.2002. He washavingweaponwithhim.Hehasidentifiedthepresent accused in the Court and took 15 minutes time for identifying the accused. He has identified six accused during15minutes.beforeidentification,itwasverifiedand properarrangementwasmadesothatthe,witnesscansee thepersonsintheCourt.Heightofthewitnessis4'11.He has not stated the name of the present accused in his statement dated 10.03.2002, 03.05.2002 while he has statedthenameofpresentaccusedinhisstatementdated 10.05.2008.P.W.62ShaikhRafikmiyaMohmadhusenhas
// 1037 //
deposedonoaththenameofpresentaccusedinrespectof incidentdated01.03.2002withDhariya.Hehasidentified the accused in the court. before identification, it was verified and satisfied whether the witness could see the personssittingintheCourtroom.Heightofthiswitnessif 5'3. He has stated the name of present accused in his statement dated 10.03.2002 and 10.05.2008 but from where and how he has seen the accused there is contradiction about it. This contradictions is already discussedattherelevantpointoftimeinthisJudgement. P.W.63 Shaikh Bhikhumiya Kalumiya has deposed the name ofthepresent accusedinrespect ofincidentdated 01.03.2002.HehasidentifiedtheaccusedintheCourt.He has not stated the name of the present accused in the statementsdated10.03.2002and10.05.2008beforeS.I.T. but thereiscontradictionregardingfromwhereandhow hehasseentheaccused.Butthiscontradictionisalready discussedattherelevanttimeinthisJudgement.Hehas statedthenameofpresentaccusedinhisapplicationdated 10.05.2008. P.W.64 Shaikh Rafikmiya Babumiya has deposedonoaththenameofpresentaccusedinrespectof incidentdated01.03.2002.Hehasidentifiedtheaccusedin the Court. He took 10 minutes time for identification. he
// 1038 //
hasidentified4accusedintheCourt.beforeidentification, itwasverifiedbytheCourtwhetherthewitnesscouldsee thepersonssittingintheCourtandafterduesatisfaction the witness has identified the accused. For identifying 4 accusedhetook15minutestime,whichcanbeconsidered asreasonabletimeforidentification.Hehasnotstatedthe nameofpresentaccusedinhisstatementdated27.03.2002 and 22.05.2008. P.W.65 Shaikh Akbarmiya Nathumiya has not stated the name of this accused in the mob in respectofincidentdated01.03.2002inhisdepositionbut identified the accused in the Court. He took 10 minutes time in identification and identification was carried out afterdueverificationwhetherthewitnessisabletoseethe personssittingintheCourt.Duringsaid10minuteshehas identified10accused.Hehasstatedthenameofpresent accused in his statement dated 10.03.2002, 10.05.2008 and application. P.W.66ShaikhAkbarmiyaRasulmiya hasdeposedonoathinhisdepositionnamingthepresent accused in respect of incident dated 01.03.2002 with Dhariya.Asperhisdepositionpresentaccusedwaspresent in the mob with weapon. This witness has dentified the presentaccusedintheCourt.Hehas statedthenameof thepresentaccusedinhisstatementdated10.03.2002but
// 1039 //
thereiscontradictionregardingfromwhereandhowhehas seen the accused. But this contradiction is already discussedattherelevanttimeinthisJudgement.Hehas notstatedthenameofthepresentaccusedwithweaponin his application dated 09.05.2008 and statement before S.I.T. dated 09.05.2008. P.W.68 Shaikh Gulamali Akbarmiyahas namedthepresentaccusedintheCourt andhasalsonarratedabouttheincidentdated27.02.2002 about4.00P.M.thataccusedwastalkingbandiyanekapi nakho but this incident is not stated in any of his statement or application but has named the accused in respect of incident dated 01.03.2002 that accused was presentinthemobwithDhariyaandinstigatingthemob andhasidentifiedtheaccused.Hetook12minutestimefor identifyingtheaccusedintheCourt.beforeidentification, itwasverifiedandsatisfiedwhetherthewitnesscouldsee thepersonssittingintheCourtroom.Thiswitnesshasnot stated the name of the present accused in his statement dated 10.03.2002, 10.05.2008 while in his application dated 09.05.2008 he has stated the name of present accused.Sofarasincidentdated01.03.2002isconcerned, thiswitnesshasstatedthenameofpresentaccusedinhis statement dated 10.03.2002 and 10.05.2008 but there is
// 1040 //
contradiction regarding from where and how he has seen theaccused.Butthiscontradictionisalreadydiscussedat the relevant time in this Judgement. In his application dated09.05.2008hehasnotstatedthat,accusedwasin the mob having Dhariya with him. P.W.69 Shaikh MahemudmiyaHusenmiyahasdeposedonoaththat,this accusedwasverymuchpresentinthemobwithDhariya. He has identified the accused in the Court. 20 minutes time has been taken by him for identification of the accused.beforeidentification,itwasverifiedbytheCourt whetherthiswitnessisabletoseethepersonssittingin the Court. He has identified 5 accused. He took 20 minutestimeforidentificationThiswitnesshasstatedthe nameofpresentaccusedinhisstatementdated06.03.2002 butthereiscontradictionregardingfromwhereandhowhe has seen the accused. But this contradiction is already discussedattherelevanttimeinthisJudgement.Further, he has stated that, his statement was not recorded on 22.05.2008. P.W.70 Pathan Munsufkhan Yasinkhan has stated that, he saw the accused at the time of stone throwing on his old house situated in Pathan Maholla incident dated 01.03.2002. As per his deposition the presentaccusedwaspresentinthemob.Hehasidentified
// 1041 //
the accused in the Court. He took 7 minutes time for identification of accused. before identification, it was verified and satisfied whether the witness could see the persons sitting in the Court room. In his affidavit dated 31.03.2004andstatementbeforeS.I.T.dated11.06.2008he has stated the name of present accused but there is contradiction regarding from where and how he has seen theaccused.Butthiscontradictionisalreadydiscussedat therelevanttimeinthisJudgement.Hehasnotstatedthe incident with name in his statement dated 14.07.2008 before S.I.T. P.W.75 Shaikh Firozabanu Bachumiya has deposed the name of the present accused in respect of incidentdated01.03.2002.Asperherdepositionshesaw theaccusedatthetimeoffiringofJeep.Shehasidentified the accused before the Court. She has taken 15 minutes timeforidentificationof accused.During15minutes she has identified 7 accused. Her height is about 5' meaning therebysheisabletoseethepersonsittinginthecourt. before identification, it was verified and satisfied whether thewitnesscouldseethepersonssittingintheCourtroom. She has stated the name of present accused in her statement dated 02.03.2002, 22.05.2008 but there is contradiction regarding from where and how he has seen
// 1042 //
theaccused.Butthiscontradictionisalreadydiscussedat the relevant time in this Judgement. P.W.76 Shaikh Hamidabibi Akbarmiya has deposed on oath about the presenceofthisaccusedinthemobinrespectofincident dated 01.03.2002 but she has stated that, she cannot identifythepersonfromthemobbutshehasidentifiedthe accusedintheCourt.beforeidentification,itwasverified and satisfied whether the witness could see the persons sitting in the Court room. As per say of this witness her statementwasnotrecordedon21.06.2002and22.05.2008. P.W.77ShaikhBadrunishaAkbarmiyahasdeposed the name ofthepresent accusedinrespect ofincidentdated 01.03.2002.She hasidentifiedtheaccusedintheCourt. before identification, it was verified and satisfied whether thewitnesscouldseethepersonssittingintheCourtroom. She has stated the name of the present accused in her statementdated06.03.2002andasperhersayshesawthe mobfromFieldbut thereiscontradictionregardingfrom where and how he has seen the accused. But this contradiction is already discussed at the relevant time in this Judgement. Further, she has stated the name of present accused in her statement dated 22.05.2008 but from where and how she has seen the accused there is
// 1043 //
contradiction about it but this contradiction is already discussedattherelevanttimeinthisJudgement.P.W.82 FakirSabirabibiSabirhusenhasnamedpresentaccusedin herdepositioninrespectofincidentdated01.03.2002.She hasnotidentifiedpresentaccusedbeforetheCourtthough sufficient opportunities were given to her. before identification, it was verified and satisfied whether the witness could see the persons sitting in the Court room. Sheishavingheightabout5'.Butinherstatementsdated 22.05.2008 she has stated the name of this accused but thereiscontradictionregardingfromwhereandhowhehas seen the accused. But this contradiction is already discussedattherelevanttimeinthisJudgement.Shehas statedthenameofpresentaccusedinherstatementdated 03.03.2002. P.W.83 Fakir Sharifabanu Sabirhusen has namedthepresentaccusedinherdepositioninrespectof incident dated 01.03.2002 but has not identified the accusedintheCourtthoughsufficientopportunitieswere given to her. before identification, it was verified and satisfiedwhetherthewitnesscouldseethepersonssitting intheCourtroom.Shehasnotstatedthenameofpresent accused in her statements dated 03.03.2002 and 24.06.2008.ConsideringaboveallevidenceP.W.46,P.W.47,
// 1044 //
P.W.48, P.W.54, P.W.55, P.W.58, P.W.59, P.W.60, P.W.61, P.W.62, P.W.63, P.W.64, P.W.65, P.W.66, P.W.68, P.W.69, P.W.70, P.W.75, P.W.76 and P.W.77 have identified the accusedintheCourtandnameofthepresentaccusedis also mentioned in the statements of the some of the witnesses and in the complaint by the complainant. Complaintispromptinthepresentcase.Thus,considering theappreciationofevidenceasdiscussedwhilediscussing theevidenceofwitnessesthepresenceofthisaccusedin themobissatisfactorilyprovedbytheProsecutionandthat hewas inthemob.Thus,itisprovedbytheprosecution beyond reasonable doubt that, present accused was the memberofunlawfulassembly.
// 1045 //
requires about falsely implication of the accused. The question of making any mistake in that regard does not arise. It does not possible to hold false implication of accused. Here, in the present case entering in Shaikh Mahollaatthetimeofincidentitselfsuggestthecommon objectofthemobaswellasspecificroleattributedtothe accused.TherewasnoreasontoenterinShaikhMahollaat that time. Therefore by becoming a member of unlawful assemblyaccusedenteredinShaikhMahollaandincident ofburningofcabins,housesinShaikhMahollaaswellas incidentinMahemudmiya'shouseoccurred.Furtherthere was incident of pelting of stones also occurred. This fact itselfsuggestovertactinconnectionwithcommonobject ofthemob.Meaningtherebyaccusedhadparticipatedin furtherance of common object of the mob. Therefore involvementofaccusediswellestablishedfromtheabove circumstances. Witnesses have stated in their evidence that,thisaccusedwashavingDhariainhishandsatthe timeofincidentandhepouredkeroseneontheJeepand firedtheJeep.Furtherhewasinstigatingthemobtocut, beatbandiyas.Thus,overactagainstthepresentaccused iswellestablished.ThisaccusedhasaddedinhisFurther Statementthat,hewasactiveinpublicserviceinthepublic
// 1046 //
institutions such as Gram Panchayat, Seva Sahakari Mandali, Vijapur Taluka Market Committee, Sarvodaya Kelvani Mandal and he was also working as President, Secretary, Member etc. in the above institutions, he has furthernarratedthat,hehasrenderedhisservicesinthe above institutions since last 25 years and therefore, the personsofvillageknowhimwellandduetopoliticalenmity Munsufkhan has falsely involved him as accused. Therefore, the basic defence of the accused in his examination under Section 313 of Cr.P.C. that he has falselybeenimplicatedandheisinnocentandthathewas notpresentatthetimeofincidentisnotacceptable.Simply witnessesandaccusedknoweachotherisnotsufficientto accept the false implication on this ground. There is no previousenmitybetweenthem.Thereisnoreasontofalsely implicate the accused. No one would falsely involve an innocentperson,keepingasidetherealculprit.Therefore, thedefenceoftheaccusedisnotacceptable.
107.
Accused No.45 PATEL KALABHAIALIASKANAIYALAL NATHABHAI. (SessionsCaseNo.275/2002) Itisnotindisputethat,theaccusedistheresidentof Village Sardarpur and witness is also resident of Village
// 1047 //
Sardarpur. No specific role has been attributed to the accusedbyanywitness.Furtheraccusednotidentifiedby thewitness.Therefore,thefactsremainsthat,itisnotsafe toholdaccusedguiltyonthebasisofgeneralallegations. There is no other material on record against the present accusedtoshowhisinvolvementintheallegedoffence.It would be hazardous to base a conviction only on the evidenceofgeneralallegations.Itwouldbeappropriateto givebenefitofdoubtandacquittheaccused.Inmyopinion thoughtheirexiststrongsuspicionagainsttheaccuseditis notpossibletoholdthat,hisinvolvementintheoffenceis establishedintheabsenceofanybodypointingouttowards himintheCourtasapersonwhowasinthemobrequires acquittal.
108.
AccusedNo.46PATELRAMESHBHAIPRABHABHAI (SessionsCaseNo.275/2002) P.W.47ShaikhIbrahimbhaiRasulbhaihasdeposed inrespectofincidentdated01.03.2002andhasnamedthe present accused in the mob. He has not identified the accusedintheCourtthoughsufficienttimewasgivento him and it was verified whether he is able to see all the personssittingintheCourtroomornot.Hehasnamedthe
// 1048 //
presentaccusedinhiscomplaintbuthasnotnamedinhis statementdated10.03.2002,01.06.2002,applicationdated 01.06.2002and09.05.2008,affidavitdated06.11.2003and statement before S.I.T. dated 09.05.2008 and 11.06.2008. P.W.55 Shaikh Aashiqhusen Bachumiyahas named the present accused in his deposition in respect of incident dated 01.03.2002. As per his deposition the present accusedwaswithDhariyainthemob.Hehasidentifiedthe accused. He took 15 minutes for identification. before identification, it was verified and satisfied whether the witness could see the persons sitting in the Court room. Hehasidentified17accusedinsaid15minutesanditcan beconsideredasreasonabletimeforidentification.Hehas stated the name of present accused but there is contradiction regarding from where and how he has seen theaccused.Butthiscontradictionisalreadydiscussedat the relevant time in this Judgement. In his affidavit 06.11.2003hehasnotstatedthenameofpresentaccused whileinhisstatementbeforeS.I.T.dated19.05.2008hehas stated the name of present accused. Considering the evidence of both these witnesses, evidence of P.W.55 is supportedbythecomplaintgivenbyP.W.47inwhichname ofpresentaccusedismentionedandP.W.55hasalsostated
// 1049 //
the name of present accused as well as statement dated 02.03.2002 and 19.05.2008. Thus, considering the appreciationofevidenceasdiscussedwhilediscussingthe evidenceofwitnessesthepresenceofthisaccusedinthe mobissatisfactorilyprovedbytheProsecutionandthathe was in the mob. Thus, it is proved by the prosecution beyond reasonable doubt that, present accused was the memberofunlawfulassembly.
Itisnotindisputethat,theaccusedistheresidentof VillageSardarpurandwitnessesarealsoresidentofVillage Sardarpur.Theyareknowntoeachothersincepreviously hence evidence of witnesses can safely be accepted as regardstotheinvolvementofthisaccusedandevidenceof witnessesasdiscussedearlierhavingseentheaccusedin the mob cannot be doubted at all. Once it is established and accepted that, witness and accused are resident of same locality, well known to each other, only question requires about falsely implication of the accused. The question of making any mistake in that regard does not arise. It does not possible to hold false implication of accused. Here, in the present case entering in Shaikh Mahollaatthetimeofincidentitselfsuggestthecommon
// 1050 //
objectofthemobaswellasspecificroleattributedtothe accused.TherewasnoreasontoenterinShaikhMahollaat that time. Therefore by becoming a member of unlawful assemblyaccusedenteredinShaikhMahollaandincident ofburningofcabins,housesinShaikhMahollaaswellas incidentinMahemudmiya'shouseoccurred.Furtherthere was incident of pelting of stones also occurred. This fact itselfsuggestovertactinconnectionwithcommonobject ofthemob.Meaningtherebyaccusedhadparticipatedin furtherance of common object of the mob. Therefore involvementofaccusediswellestablishedfromtheabove circumstances. The witnesses have stated that, said accused was having Dharia in his hands at the time of incident. But much importance cannot be given to this aspect as the evidence of identification of accused is established.Therefore,thebasicdefenceoftheaccusedin hisexaminationunderSection313 ofCr.P.C.thathehas falselybeenimplicatedandheisinnocentandthathewas notpresentatthetimeofincidentisnotacceptable.Simply witnessesandaccusedknoweachotherisnotsufficientto accept the false implication on this ground. There is no previousenmitybetweenthem.Thereisnoreasontofalsely implicate the accused. No one would falsely involve an
// 1051 //
innocentperson,keepingasidetherealculprit.Therefore, thedefenceoftheaccusedisnotacceptable.
109.
AccusedNo.47PATELJIVANBHAIDHWARKADAS (SessionsCaseNo.275/2002) P.W.79 Shaikh Samimbanu Mohmadmiya has not namedtheaccusedintheCourtbutidentifiedtheaccused in the Courtforthe firsttime by face. In her statement dated06.03.2002and22.05.2008shehasnotstatedthat, she can identify the accused by face. P.W.81 Shaikh Dilavarkhan Abbasmiya has not stated the name of the present accused in his deposition in respect of incident dated01.03.2002butidentifiedtheaccusedinthecourtfor first time by face and in his statement dated 22.05.2008 before S.I.T. he has not stated the name of the present accused. Thus considering above evidence there is no evidence at all involving the present accused. Thus, consideringtheappreciationofevidenceasdiscussedwhile discussing the evidence of witnesses the presence of this accused in the mob is not satisfactorily proved by the Prosecution and he was not in the mob. Thus, it is not proved by the prosecution beyond reasonable doubt that, presentaccusedwasthememberofunlawfulassembly.
// 1052 //
Itisnotindisputethat,theaccusedistheresidentof Village Sardarpur and witness is also resident of Village Sardarpur. No specific role has been attributed to the accusedbyanywitness.Furtheraccusednotidentifiedby thewitness.Therefore,thefactsremainsthat,itisnotsafe toholdaccusedguiltyonthebasisofgeneralallegations. There is no other material on record against the present accusedtoshowhisinvolvementintheallegedoffence.It would be hazardous to base a conviction only on the evidenceofgeneralallegations.Itwouldbeappropriateto givebenefitofdoubtandacquittheaccused.Inmyopinion thoughtheirexiststrongsuspicionagainsttheaccuseditis notpossibletoholdthat,hisinvolvementintheoffenceis establishedintheabsenceofanybodypointingouttowards himintheCourtasapersonwhowasinthemobrequires acquittal. 110. AccusedNo.48PATELJAYANTIBHAIAMBALAL (SessionsCaseNo.275/2002) P.W.46PathanSabirmiyaAkumiyahasdeposedon oath the name of present accused in respect of incident dated01.03.2002.Thiswitnesshasidentifiedtheaccused intheCourt.Inhisapplicationdated06.05.2008hehas
// 1053 //
statedthenameofthepresentaccusedbuthasnotstated the name in his statement dated 20.05.2008. P.W.47 ShaikhIbrahimbhaiRasulbhaicomplainanthasdeposed onoaththenameofpresentaccusedinrespectofincident dated 01.03.2002. This witness has not identified the accused in the Court but has taken the name of the present accused in the Complaint dated 02.03.2002 and has not stated the name of the present accused in his statementdated10.03.2002,01.06.2002,applicationdated 01.06.2002 and affidavit dated 06.11.2003, Statement beforeS.I.T.dated11.06.2008whilehasstatedthenameof the present accused in the application to S.I.T. dated 09.05.2008 and statement dated 09.05.2008. P.W.48 Shaikh SabirhusenKadarmiyahasdeposed thenameof the present accused in respect of incident dated 01.03.2002.HehasidentifiedtheaccusedintheCourt.He has stated the name of the present accused in his statement dated 06.03.2002 but there is contradiction regarding from where and how he has seen the accused. Butthiscontradictionisalreadydiscussedattherelevant time in this Judgement. He has not stated the name of present accused in his statement before S.I.T. dated 10.05.2008.Thiswitnesshasidentifiedtheaccusedbefore
// 1054 //
the court after verifying that he is able to see all the personssittingintheCourt.P.W.55ShaikhAashiqhusen Bachumiyahasdeposedthenameofthepresentaccused in his depositioninrespectof incidentdated 01.03.2002. Lookingtohisdepositionaccusedwaspresentinthemob and was throwing stone. He has identified the present accusedintheCourt.Hetook15minutestimeandduring 15 minutes he has identified 4 accused. before identification, it was verified and satisfied whether the witnesscouldseethepersonssittingintheCourtroom.He hasnotstatedthenameofpresentaccusedinhisaffidavit dated 06.11.2003 and statement dated 02.03.2002 and statementdated19.05.2008beforeS.I.T. P.W.59Shaikh MohmadSattarBachumiyahasdeposedinhisdeposition, inrespectofincidentdated01.03.2002atabout11.30to 12.00P.M.,namingthepresentaccusedinthemob.Hehas identifiedthepresentaccused.Hetook15minutestimefor identification of accused and has identified about 20 accusedintheCourt.beforeidentification,itwasverified whether theaccused could see the persons sitting inthe Courtroomandafterduesatisfactiontheidentificationwas carriedout.Hehasnotstatedthenameofpresentaccused in his statement dated 02.03.2002, 19.05.2008 and
// 1055 //
affidavit dated 06.11.2003. P.W.60 Shaikh Bachumiya Imammiyahasstatedthenameofthepresentaccusedin hisdepositioninrespectofincidentdated01.03.2002.First incidentabout09.30P.M.inrespectofsettingonfirethe cabins. He has not stated the name of present accused about the cabin incident of 09.30 PM in the statement dated 03.03.2002. He has stated the name of present accusedinrespectofincidentdated01.03.2002. Hehas not identified the accused. He has stated the name of present accused in the application dated 09.05.2008 as wellasstatementbeforeS.I.T.dated10.05.2008.P.W.65 Shaikh Akbarmiya Nathumiya has stated the name of present accused in his deposition in respect of incident dated 01.03.2002 and as per his deposition this accused waspresentinthemobwithLathi.Hehasidentifiedthe accused in the Court. He took 10 minutes time in identification and identification was carried out after due verificationwhetherthewitnessisabletoseethepersons sitting in the Court. During said 10 minutes he has identified 10 accused. There is contradiction about from whereandhowhehasseentheaccusedinhisstatement dated10.03.2002,application,statementdated10.05.2008, whichisalreadydiscussedanddecidedintheJudgement
// 1056 //
attherelevanttime.Hehasnotstatedthenameofpresent accused in his application. P.W.66 Shaikh Akbarmiya Rasulmiyahasnotnamedthepresentaccusedinrespectof incident dated 01.03.2002 but identified the accused for first time in the Court. This witness has identified the accused in the Court. He took 10 Minutes for identifying theaccusedintheCourt.Hehasidentified8accusedin the Court. before identification, it was satisfied by the Courtthat,witnesscanseeeachandeverypersoninthe Court.Inhisapplicationdated09.05.2008hasstatedthe nameofpresentaccusedandhehasalsostatedthesame before S.I.T. in his statement dated 09.05.2008 and applicationdated09.05.2008beforeS.I.T.whilehehasnot statedthenameofpresentaccusedinthestatementdated 10.03.2002. P.W.68 Shaikh Gulamali Akbarmiya has deposed the name of the present accused in respect of incident dated 01.03.2002 stating therein that, the accused was present in the mob. He has identified the present accused in the Court. 12 minutes time has been taken by him for identification of the accused. before identification, it was verified by the Court whether this witness is able to see the persons sitting in the Court. Heightofthewitnessis5'2.Hehasnotstatedthenameof
// 1057 //
present accused in his statement dated 10.03.2002, application dated 09.05.2008 and statement dated 1005.2008. P.W.70 Pathan Munsafkhan Yasinkhan has deposedthat,thisaccusedwaspresentatthetimeofstone throwing.Atthattimethiswitnesswasinhisoldhouse.He hasidentifiedtheaccusedandforidentificationhetook7 minutes and in 7 minutes he has identified 14 accused. before identification, it was verified and satisfied whether thewitnesscouldseethepersonssittingintheCourtroom. He has not stated the name of this accused in his statementdated06.03.2002,affidavitdated31.03.2004but has statedthenameof presentaccusedinhisstatement dated 11.06.2008 but there is contradiction regarding from where and how he has seen the accused. But this contradiction is already discussed at the relevant time in thisJudgement.InstatementbeforeS.I.T.dated14.07.2008 incident with name not stated by this witness. P.W.71 Rawal Mangabhai Ramabhai has stated the name of the presentaccusedinrespectofincidentdated01.03.2002.He hasidentifiedtheaccusedintheCourt.Hetook7minutes timeforidentificationoftheaccusedintheCourtandin7 minutes he has identified four accused. This witness is having5'HeightanditwassatisfiedbytheCourtandhe
// 1058 //
could see the persons sitting in the Court. He has not statedthenameofpresentaccusedinthestatementdated 20.05.2008. This witness is regarding the collection of Kerosene from Tractor on 01.03.2002 at 09.00 PM. He is not the eye witness of the incident of Shaikh Maholla. P.W.78 Shaikh Basirabibi Bachumiya has deposed the name of this accused in her deposition and she has identifiedtheaccusedintheCourt.Shehasdeposedthe name ofthepresent accusedinrespect ofincidentdated 28.02.2002 and has deposed about Bore Account Book taken by this accused and has also deposed about the presence of this accused in the night incident dated 01.03.2002.Shehasidentified present accused.Shetook 12minutestimeforidentificationandshehasidentified8 accusedintheCourt.beforeidentification,itwassatisfied by verifying by the Court that the witness can see the persons inthe Court. She is having 5' height but as per depositionofthiswitnesssheisagedabout50yearsand hereyesightisweakandasperhersaysheisabletosee personssittingintwolinesonlybutshehasidentifiedthe present accused who was sitting in the last line on the stage in the Court. She has identified the accused after steppingdownfromthewitnessboxwiththepermissionof
// 1059 //
theCourt.Shehasnotstatedthenameofthisaccusedin her statement dated 22.05.2008 and 11.06.2008. Thus, consideringaboveevidenceP.W.46,P.W.48,P.W.55,P.W.59, P.W.65, P.W.67, P.W.68, P.W.70, P.W.71, P.W.78 have identified the accused in the Court and the complainant though not identified but named the accused in the complaint. Complaint was given within time which corroboratesthesayofwitnessesthat,presentaccusedwas verymuchpresentinthemobandwaspeltingthestonein the mob. Thus,thereissufficientevidenceinvolving the present accused. Thus, considering the appreciation of evidence as discussed while discussing the evidence of witnesses the presence of this accused in the mob is satisfactorilyprovedbytheProsecutionandthathewasin the mob. Thus, it is proved by the prosecution beyond reasonabledoubtthat,presentaccusedwasthememberof unlawfulassembly.
Itisnotindisputethat,theaccusedistheresidentof VillageSardarpurandwitnessesarealsoresidentofVillage Sardarpur.Theyareknowntoeachothersincepreviously hence evidence of witnesses can safely be accepted as regardstotheinvolvementofthisaccusedandevidenceof
// 1060 //
witnessesasdiscussedearlierhavingseentheaccusedin the mob cannot be doubted at all. Once it is established and accepted that, witness and accused are resident of same locality, well known to each other, only question requires about falsely implication of the accused. The question of making any mistake in that regard does not arise. It does not possible to hold false implication of accused. Here, in the present case entering in Shaikh Mahollaatthetimeofincidentitselfsuggestthecommon objectofthemobaswellasspecificroleattributedtothe accused.TherewasnoreasontoenterinShaikhMahollaat that time. Therefore by becoming a member of unlawful assemblyaccusedenteredinShaikhMahollaandincident ofburningofcabins,housesinShaikhMahollaaswellas incidentinMahemudmiya'shouseoccurred.Furtherthere was incident of pelting of stones also occurred. This fact itselfsuggestovertactinconnectionwithcommonobject ofthemob.Meaningtherebyaccusedhadparticipatedin furtherance of common object of the mob. Therefore involvementofaccusediswellestablishedfromtheabove circumstances. The witnesses have stated that, said accused was having Lathi in his hands at the time of incident. But much importance cannot be given to this
// 1061 //
aspect as the evidence of identification of accused is established.Therefore,thebasicdefenceoftheaccusedin hisexaminationunderSection313ofCr.P.C.that,hewas also an acting member in Seva Sahakari Mandali for the periodfrom2005to2010.Heiswellacquaintedwiththe officeofKisanDiaryandhewasaGovernmentemployee and at the time of incident, he was in his office for Programme. On 28.02.2002 he was at Karanpur and on 01.03.2002 he was at Aithor for billing programme. In support of his this say, he has produced Certificate of UmiyaKisanDiary,Sardarpur,CertificatefromSarvodaya Kelvani Mandal and Certificate from Gujarat Vidhyut Board, SubDivision Office, Patan. From the above explanationitdoesnottranspiresthat,theaccusedwasat Aithor orKaranpurforbillingprogrammeas theincident took place during late night hours. It is possible that, duringdaytimetheaccusedmighthavebeenatAithorfor billingprogramme buttheexplanationabouthis absence givenbyhimisnotsatisfactoryforaprudentpersonhence not accepted. Simply witnesses and accused know each otherisnotsufficienttoacceptthefalseimplicationonthis ground.Thereisnopreviousenmitybetweenthem.Thereis noreason to falsely implicate the accused. No one would
// 1062 //
falsely involve an innocent person, keeping aside the real culprit. Therefore, the defence of the accused is not acceptable.
111.
AccusedNo.49PATELKANUBHAIJOITARAM (SessionsCaseNo.275/2002) P.W.46PathanSabirmiyaAkumiyahasdeposedon oath the name of present accused in respect of incident dated 01.03.2002 and 28.02.2002 morning incident and WaterWorksKeytakenincident.Thiswitnesshasidentified the accused in the Court. In his application dated 06.05.2008hehasstatedthenameofthepresentaccused but has not stated the name in his statement dated 20.05.2008. P.W.47 Shaikh Ibrahimbhai Rasulbhai complainant has deposed on oath the name of present accused in respect of incident dated 01.03.2002. This witness has not identified the accused in the Court and also not stated the name of the present accused in the Complaintdated02.03.2002andhasalso notstatedthe name of the present accused in his statement dated 10.03.2002, 01.06.2002, application dated 01.06.2002 StatementbeforeS.I.T.dated11.06.2008andapplicationto S.I.T.dated09.05.2008whilehasstatedthenameofthe
// 1063 //
present accused in the affidavit dated 06.11.2003 and statementdated09.05.2008.P.W.48ShaikhSabirhusen Kadarmiyahasdeposed thenameofthepresentaccused inrespectofincidentdated01.03.2002.Hehasidentified theaccusedintheCourt.Hehasnotstatedthenameof thepresentaccusedinhisstatementdated06.03.2002but hasstatedthenameofpresentaccusedinthestatement dated10.05.2008.Thiswitnesshasidentifiedtheaccused beforethecourtafterverifyingthatheisabletoseeallthe persons sitting in the Court. P.W.56 Shaikh Ayubmiya Rasulmiyahasdeposedthenameofthepresentaccusedin the mob in respect of incident dated 01.03.2002. He has identifiedtheaccusedintheCourt.Inhisstatementdated 10.03.2002 and affidavit dated 06.11.2003 he has not statedthenameofthepresentaccusedinthemob.Inhis statement before S.I.T. there is contradiction about from whereandhowthiswitnesshasseentheaccused.Sofaras contradictions in the statements are concerned that is discussed and decided at the time of appreciation of evidence.Thiswitnesshasalsostatedthenameofpresent accusedinrespectofincidentof01.03.2002eveningtime Halogen Lamp on Street Light Pole but this fact is not statedinhisstatementdated10.03.2002.P.W.58Shaikh
// 1064 //
SabirhusenImamshahas stated thenameof thepresent accused in respect of incident dated 01.03.2002. He has identifiedtheaccusedbeforetheCourt.Hehasnotstated the name of the present accused in the statement dated 03.03.2002.Hehasstatedthenameofpresentaccusedin hisstatementdated22.05.2008butthereiscontradiction from where and how he has seen the accused. This contradiction is already discussed and decided at the relevant point of time. P.W.59 Shaikh Mohmad Sattar Bachumiya has named in his deposition the accused in respectofincidentdated01.03.2002.Hehasidentifiedthe accused before the Court. He took 15 minutes for identifyingtheaccusedintheCourt.Hehasidentifiedthe present accused after satisfying by the Court that, he is abletoseeeachandeverypersonsittingintheCourt.He has not stated the name of the present accused in the statement dated 02.03.2002 and 19.05.2008. In his affidavitdated06.11.2003alsothiswitnesshasnotstated thenameofpresentaccused.P.W.60ShaikhBachumiya Imammiyahasstatedthenameofthepresentaccusedin his deposition in respect of incident of Direct Line on ElectricPolenearShaikhMahollaandalsoaboutsettingon fireofcabinsatabout09.30PM butthefactofLighton
// 1065 //
Poleisnotstatedinthestatementdated03.03.2002and nameoftheaccusedisnotstatedin09.30cabinsincident inhisstatementdated03.03.2002whilethiswitnesshas stated the name of the present accused in respect of incidentdated01.03.2002. Hehasidentifiedtheaccused beforetheCourt.Hetook12minutesforidentificationof accused. During 12 minutes he has identified about 21 accused. He has not stated the name of this accused in respect of incident occurred at about 09.30 P.M. before identification, it was verified and satisfied whether the witnesscouldseethepersonssittingintheCourtroom.He has not stated the name of present accused in his statementdated03.03.2002buthasnamedtheaccusedin the application dated 09.05.2008 and statement dated 10.05.2008. P.W.63 Shaikh Bhikhumiya Kalumiya has deposed the name of the present accused in respect of incidentdated01.03.2002.Hehasidentifiedtheaccusedin the Court. He has not stated the name of the present accused in the statements dated 10.03.2002 and 10.05.2008 and application dated 10.05.2008. P.W.64 Shaikh Rafikmiya Babumiya has deposed on oath the name of present accused in respect of incident dated 01.03.2002.HehasidentifiedtheaccusedintheCourt.He
// 1066 //
took10minutestimeforidentification.hehasidentified4 accusedintheCourt.beforeidentification,itwasverified by the Court whether the witness could see the persons sittingintheCourtandafterduesatisfactionthewitness has identified the accused. For identifying 4 accused he took 15 minutes time, which can be considered as reasonabletimeforidentification.Hehasstatedthename ofpresentaccusedinhisstatementdated27.03.2002but thereiscontradictionregardingfromwhereandhowhehas seen the accused. But this contradiction is already discussedattherelevanttimeinthisJudgement.Further there is contradiction about the time as 11.30 in his statement dated 22.05.2008, which is already discussed. P.W.65 Shaikh Akbarmiya Nathumiya has stated the name of this accused in the mob in respect of incident dated 01.03.2002 at about 4.00 to 5.00 PM street light focus near House but this fact is not stated in the statementdated10.03.2002whilehehasstatedthename ofpresentaccusedinrespectofincidentdated10.03.2002. Hehasidentifiedtheaccused.Hetook10minutestimein identification and identification was carried out after due verificationwhetherthewitnessisabletoseethepersons sitting in the Court. During said 10 minutes he has
// 1067 //
identified 10 accused. He has not stated the name of presentaccusedinhisstatementdated10.03.2002buthas statedthenameofpresentaccusedinthestatementdated 10.05.2008 and application. P.W.66 Shaikh Akbarmiya Rasulmiyahasdeposedonoathinhisdepositionnaming thepresentaccusedinrespectofincidentdated01.03.2002 with Weapon. As per his deposition present accused was present in the mob with weapon. This witness has identified the present accused in the Court. He has not stated the name of the present accused in his statement dated 10.03.2002 He has not stated the name of the present accused with weapon in his application dated 09.05.2008andstatementbeforeS.I.T.dated09.05.2008. P.W.68 Shaikh Gulamali Akbarmiya has named the presentaccusedintheCourtinrespectofincidentdated 01.03.2002thataccusedwaspresentinthemob.Hetook 12minutestimeforidentifyingtheaccusedintheCourt. before identification, it was verified and satisfied whether thewitnesscouldseethepersonssittingintheCourtroom. This witness has not stated the name of the present accused in his statement dated 10.03.2002, 10.05.2008 whileinhisapplicationdated09.05.2008.P.W.70Pathan Munsufkhan Yasinkhan has stated that, he saw the
// 1068 //
accused at the time of stone throwing at his old house situatedinPathanMahollaincidentdated01.03.2002.As perhisdepositionthepresentaccusedwaspresentinthe mob.FurthertherewasaShantiSamitiMeetingandKanu Joita was present in that Meeting. He has identified the accused in the Court. He took 7 minutes time for identification of accused. before identification, it was verified and satisfied whether the witness could see the persons sitting in the Court room. In his affidavit dated 31.03.2004andstatementbeforeS.I.T.dated11.06.2008he has stated the name of present accused but there is contradiction regarding from where and how he has seen theaccused.Butthiscontradictionisalreadydiscussedat therelevanttimeinthisJudgement.Hehasnotstatedthe name of accused in his statement dated 06.03.2002 and has also not stated the incident with name in his statementdated14.07.2008beforeS.I.T. P.W.74Shaikh Sikandarmiya Rasulmiya has stated the name of the present accused regarding incident dated 27.02.2002 at Baldevbhai Vanzara for involving Kanubhai Joitabhai for not giving Kuber (Gutkha) but identified the accused but thiswitnessisnottheeyewitnessandthiswitnesshasnot named the present accused in the application and
// 1069 //
statementdated22.05.2008butitisstatedbythiswitness that,IshvarbhaisaynoforKubertothiswitness.P.W.79 ShaikhSamimbanuMahmadmiyahasnotnamedaccused inherdepositionbutidentifiedtheaccusedintheCourtfor thefirsttimebyface.Shehasnotstatedinherstatement dated06.03.2002and22.05.2008thatshecanidentifythe accusedbyface.P.W.82FakirSabirabibiSabirhusenhas named present accused in her deposition in respect of incidentdated01.03.2002.Shehasnotidentifiedpresent accused before the Court though sufficient opportunities weregiventoher.beforeidentification,itwasverifiedand satisfiedwhetherthewitnesscouldseethepersonssitting intheCourtroom.Sheishavingheightabout5'.Butinher statementsdated22.05.2008and03.03.2002shehasnot stated the name of this accused. P.W.83 Fakir SharifabanuSabirhusenhasnamedthepresentaccusedin herdepositioninrespectofincidentdated01.03.2002but has not identified the accused in the Court though sufficient opportunities were given to her. before identification, it was verified and satisfied whether the witness could see the persons sitting in the Court room. She has not stated the name of present accused in her statementsdated03.03.2002and24.06.2008.Considering
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aboveallevidenceP.W.46,P.W.48,P.W.56,P.W.58,P.W.59, P.W.60, P.W.63, P.W.64, P.W.65, P.W.66, P.W.68, P.W.70, P.W.74 have identified the present accused while P.W.47 though deposed the name of present accused in his depositionbuthasnotnamedthepresentaccusedinthe Complaint. In this regard when we consider the say of accused side, it is the say of accused that the present accused was the Sarpanch of Village Sardarpur, he has beeninvolvedbythewitnessassigningaroleofinstigating themobinthedeposition.Theaccusedisidentifiedbyso many witnesses and have also named in depositions. In theirdepositionstheyhavedeposedthat,theaccusedwas verymuchpresentinthemobandwasinstigatingthemob andthereaftertheyhavestartedsettingonfirethehouses inShaikhMahollaandpeltingstones.Simplybecausethis accused was Sarpanch, it cannot be said that, he has falselybeeninvolvedasanaccusedintheincident,whythe witnesses will involve innocentpersonleaving real culprit free. Nothing has come out from crossexamination from whichwecaninfertheabsenceofthisaccusedinthemob. Specificrolehasbeenattributedtothisaccusedthat,he wasverymuchinvolvedintheincidentandinstigatingthe mob. Thus, considering the appreciation of evidence as
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discussed while discussing the evidence of witnesses the presenceofthisaccusedinthemobissatisfactorilyproved bytheProsecutionandthathewasinthemob.Thus,itis proved by the prosecution beyond reasonable doubt that, presentaccusedwasthememberofunlawfulassembly. Itisnotindisputethat,theaccusedistheresidentof VillageSardarpurandwitnessesarealsoresidentofVillage Sardarpur.Theyareknowntoeachothersincepreviously hence evidence of witnesses can safely be accepted as regardstotheinvolvementofthisaccusedandevidenceof witnessesasdiscussedearlierhavingseentheaccusedin the mob cannot be doubted at all. Once it is established and accepted that, witness and accused are resident of same locality, well known to each other, only question requires about falsely implication of the accused. The question of making any mistake in that regard does not arise. It does not possible to hold false implication of accused. Here, in the present case entering in Shaikh Mahollaatthetimeofincidentitselfsuggestthecommon objectofthemobaswellasspecificroleattributedtothe accused.TherewasnoreasontoenterinShaikhMahollaat that time. Therefore by becoming a member of unlawful assemblyaccusedenteredinShaikhMahollaandincident
// 1072 //
ofburningofcabins,housesinShaikhMahollaaswellas incidentinMahemudmiya'shouseoccurred.Furtherthere was incident of pelting of stones also occurred. This fact itselfsuggestovertactinconnectionwithcommonobject ofthemob.Meaningtherebyaccusedhadparticipatedin furtherance of common object of the mob and has instigatedthemob. Therefore involvementofaccusedis wellestablishedfromtheabovecircumstances.Onperusal ofF.S.L.Report,noweaponisconnectedwiththeoffencein theevidenceofwitnesses.Butmuchimportancecannotbe given to this aspect as the evidence of identification of accusedisestablished. This accusedhasaddedthat,he was Sarpanch of the village in the year 2002. MahemudmiyaHusenmiyaandotherpersonsoftheShaikh Maholla had applied under Sardar Avas Yojna for free house. Application of Mahemudmiya was granted while applications of other persons were rejected and withthat political enmity, the Muslims and Munusfkhan have involved him as accused and false applications and affidavitsarefiledbythewitnesses.Apeacecommitteemet inthehouseofMunsufkhanPathanandinthepresenceof P.S.I.ShriG.K.Parmar,healongwithother4Patelpersons werepresentinthemeetingattherelevanttime.Hecame
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to know the fact that, Muslims from Sundarpur were broughttoSardarpur.Hehasfurtherstatedthat,peopleof theVillagewereagreedtomaintainpeaceinthevillage.On 28.02.2002,duringnight,hewasatKhedhbrahmatemple asheusedtogothereonthatdaysincelast25years.And onthatdayhissonBhaveshandothertwopersonswere there alongwith him at Khedhbrahma. On 01.03.2002 at about10.00A.M.hecameinthevillageandcametoknow abouttheincident.On02.03.2002atabout6.00A.M.,he was called byMamlatdar,Talati, P.I. etc. He went tothat placeandhisstatementwasrecorded.Heofferedtolodgea complaint but the Police Inspector refused to take the complaint as the complaint was already lodged and in complaint, his name was not there. He was assisting Government officers. On 04.03.2002, Bachumiya ImammiyaShaikhandothertwopersonsoftheirMaholla came to Sardarpur and at that time Munsufkhan and P.S.I. Parmar were with them. At that time, he came to know about the names mentioned in the complaint. Munsufkhantoldthat,hedidknowthepersonswhocame fromoutsidebuttheyhavetotakethenamesofthevillage personswhethertheywereinvolvedornot,iftheywantedto savethemselvestheyshouldgivethenamesofthepersons
// 1074 //
whocamefromoutside.Hehasrefusedtogivethenames of the village persons as the village persons were not involvedintheincident.Munsufkhanwasthememberof Panchayat and he has political rivalry with the accused, therefore,nameoftheaccusedhasfalselybeeninvolvedby the complainant in the application and affidavit before S.I.T. and witnesses have falsely taken his name as an accused.Sofarasexplanationgivenbytheaccusedabout rendering his services is concerned, it cannot be denied that being a Sarpanch he was rendering his services in differentfields. Sofarasdenialofhousetootherpersons inShaikhMahollaisconcernedthisgroundisnotsuchfor whichthepersonsfromthevillagewillindulgetheaccused falsely, specially when as per his say he was rendering servicesforthewelfareofVillageSardarpur.Sofarashis plearegardingalibithatonthedayofincidenthewasat KhedbrahmaTempleisconcerned,exceptbarewordsthere isnototherevidencetoprovethesaidalibionthebasisof preponderance of probabilities. Thus, this plea is not acceptable. So far as offering for lodging of complaint is concerned,thisisalsobarewords,whyaPoliceInspector will refuse to the Sarpanch to lodge a complaint. As the complaint was already lodged in that circumstances, if
// 1075 //
PoliceInspectorisrestrainingforthesamethereisnothing wrong. So far as involvement of this accused by MunsufkhanBachumiyaShaikhandothersareconcerned the explanation which is submitted by this accused that thereispoliticalrivalrywithMunsufkhanforthatnothing hasbeensubmittedbywayofevidence.Therefore,except bare words of political rivalry there is no evidence to supportthisfact.InthecrossexaminationofMunsufkhan noquestionhasbeenaskedbytheaccusedinrespectof politicalrivalry.Therefore,alsohisthisapplicationcannot beacceptedandthesayoftheaccusedthathehasfalsely been involved is not accepted in the eye of law and fact. Therefore, the basic defence of the accused in his examination under Section 313 of Cr.P.C. that he has falselybeenimplicatedandheisinnocentandthathewas notpresentatthetimeofincidentisnotacceptable.Simply witnessesandaccusedknoweachotherisnotsufficientto accept the false implication on this ground. There is no previousenmitybetweenthem.Thereisnoreasontofalsely implicate the accused. No one would falsely involve an innocentperson,keepingasidetherealculprit.Therefore, thedefenceoftheaccusedisnotacceptable.
// 1076 //
112.
AccusedNo.50PRAJAPATIRAMANBHAIGANESHBHAI (SessionsCaseNo.275/2002) P.W.49ShaikhIqbalmiyaRasulmiyahasdeposedon oath naming the present accused in respect of incident dated01.03.2002.Hehasstatedthatthisaccusedwasin themobwithTin.Hehasidentifiedthepresentaccused. There is contradiction in his statement dated 10.03.2002 fromwhereandhowhehasseentheaccusedbutinthe statementbeforeS.I.T.dated10.05.2008hehasstatedthat, this accused was not in the mob. P.W.51 Shaikh NazirmohmadAkbarmiya hasnamed presentaccusedin respect of incident dated 01.03.2002 that accused was presentinthemobwithKeroseneTin. Thiswitnesshas identifiedtheaccusedintheCourt.beforeidentification,it wasverifiedandsatisfiedwhetherthewitnesscouldseethe personssittingintheCourtroom.Hehasstatedthename ofthepresentaccusedinhisstatementdated10.03.2002. He has not stated the name of present accused in the affidavit dated 06.11.2003. He has stated the name of presentaccusedinthestatementdated19.05.2008before S.I.T.that,RamanGaneshwasnotinthemob,whichwas statedisfalse.P.W.52ShaikhHizbulmiyaHusenmiyahas namedthepresentaccusedinhisdepositioninrespectof
// 1077 //
incidentdated01.03.2002.Hehasidentifiedtheaccusedin the Court though sufficient opportunities were given to him.Hetook15minutestimeforidentificationofaccused. During 15 minutes he has identified 5 accused persons. before identification, it was verified and satisfied whether thewitnesscouldseethepersonssittingintheCourtroom. He has not stated the name of present accused in his statement dated 10.03.2002, 11.06.2008, 05.08.2008, 19.05.2008andaffidavitdated06.11.2003.P.W.55Shaikh Aashiqhusen Bachumiya has named this accused during hisdepositioninrespectofincidentdated01.03.2002that thisaccusedwasinthemobandhewaspeltingstonesand firedhisJeep.HehasidentifiedtheaccusedintheCourt. Hetook15minutestimeforidentification.hehasidentified 17 accused in the Court. before identification, it was verified by the Court whether the witness could see the personssittingintheCourtandafterduesatisfactionthe witness has identified the accused. For identifying 17 accusedhetook15minutestime,whichcanbeconsidered asreasonabletimeforidentification.Hehasnotstatedthe nameofthisaccusedinhisaffidavitdated06.11.2003.In the statement dated 02.03.2002 there is contradiction regarding from where and how he has seen the accused.
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Butthiscontradictionisalreadydiscussedattherelevant timeinthisJudgement.Inhisstatementdated19.05.2008, hehasstatedthat,hehasnotgiventhenameofaccusedin hisstatementdated02.03.2002.P.W.56ShaikhAyubmiya Rasulmiyahas deposed the name of the presentaccused with pipe in the mob in respect of incident dated 01.03.2002 with Tin. In his statement dated 10.03.2002 thereiscontradictionregardingfromwhereandhowhehas seen the accused. But this contradiction is already discussedattherelevanttimeinthisJudgement.Hehas alsonotstatedthenameofpresentaccusedinhisaffidavit dated 06.11.2003. In his statement dated 19.05.2008 before S.I.T. there is contradiction regarding from where andhowhehasseentheaccused.Furtherhehasstated that,hehasnotstatedthenameofpresentaccusedinhis statement dated 10.03.2002. P.W.65 Shaikh Akbarmiya Nathumiya has deposed in his deposition naming the present accused having Tin in the mob. He has not identifiedthepresentaccused.Hetook10minutestimein identifyingtheaccusedintheCourt.In10minutes,hehas identified10accused. beforeidentification,itwasverified and satisfied whether the witness could see the persons sittingintheCourtroom.Theheightofthewitnessis4'7.
// 1079 //
In application and statement dated 10.03.2002 and 10.05.2008 there is contradiction about from where and howwitnesshasseentheaccused.Inhisstatementdated 10.05.2008 he has stated that, he has not named the accused in his statement dated 10.03.2002. P.W.75 Shaikh Firozabanu Bachumiya has named the present accusedinrespectofincidentdated01.03.2002.Shehas furtherstatedthat,shesawtheaccusedwhilesettingon firetheJeep.Shehasidentifiedthepresentaccusedinthe Court.Shehastaken15minutestimeforidentificationof accused.During15minutesshehasidentified7accused. Herheightisabout5'meaningtherebysheisabletosee the person sitting in the court. She has not stated the name of present accused in her statement dated 02.03.2002 and 22.05.2008. P.W.82 Fakir Sabirabibi Sabirhusen has not named the accused in the mob in respectofincidentdated01.03.2002.Shehasidentifiedthe presentaccusedinthemob.Shehas statedthenameof present accused in the statement dated 03.03.2002 and 22.05.2008. Considering the above all P.W.49, P.W.51, P.W.52, P.W.55, P.W.75 and P.W.82 have identified the present accused in the Court as well as they have attributedthespecificroletothepresentaccused.Asthe
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presentaccusedwasinvolvedinsettingonfiretheJeep.As discussedearlier thereiscontradictionaboutfromwhere and how the witness Nos.P.W.49, P.W.55, P.W.56, and P.W.65 had seen the accused but this point is already discussed in the Judgement at the relevant time in this Judgement. The fact that, witnesses were very much presentintheShaikhMahollaandcouldseetheaccused andtherefore,presenceofwitnesses cannotbediscarded and the say of the witnesses about the presence of this accusedwithspecificroleistobereliedupon.Thus,there issufficientevidenceinvolvingthepresentaccused.Thus, consideringtheappreciationofevidenceasdiscussedwhile discussing the evidence of witnesses the presence of this accused in the mob is satisfactorily proved by the Prosecutionandthathewasinthemob.Thus,itisproved bytheprosecutionbeyondreasonabledoubtthat,present accusedwasthememberofunlawfulassembly.
Itisnotindisputethat,theaccusedistheresidentof VillageSardarpurandwitnessesarealsoresidentofVillage Sardarpur.Theyareknowntoeachothersincepreviously hence evidence of witnesses can safely be accepted as regardstotheinvolvementofthisaccusedandevidenceof
// 1081 //
witnessesasdiscussedearlierhavingseentheaccusedin the mob cannot be doubted at all. Once it is established and accepted that, witness and accused are resident of same locality, well known to each other, only question requires about falsely implication of the accused. The question of making any mistake in that regard does not arise. It does not possible to hold false implication of accused. Here, in the present case entering in Shaikh Mahollaatthetimeofincidentitselfsuggestthecommon objectofthemobaswellasspecificroleattributedtothe accused.TherewasnoreasontoenterinShaikhMahollaat that time. Therefore by becoming a member of unlawful assemblyaccusedenteredinShaikhMahollaandincident ofburningofcabins,housesinShaikhMahollaaswellas incidentinMahemudmiya'shouseoccurred.Furtherthere was incident of pelting of stones also occurred. This fact itselfsuggestovertactinconnectionwithcommonobject ofthemob.Meaningtherebyaccusedhadparticipatedin furtherance of common object of the mob. Therefore involvementofaccusediswellestablishedfromtheabove circumstances. But no weapon is connected with the offenceintheevidenceofwitnesses.Butmuchimportance cannot be given to this aspect as the evidence of
// 1082 //
identificationofaccusedisestablished.Thewitnesseshave statedthat,thisaccusedwasseenwithgallonofkerosene and he is involved in firing of Jeep, instigating the mob, pouring of kerosene on Jeep. This accused added in his FurtherStatementthat,hewasGovernmentServantand hehasfalselybeeninvolved.Therefore,thebasicdefenceof the accused in his examination under Section 313 of Cr.P.C. that he has falsely been implicated and he is innocent and that he was not present at the time of incident is not acceptable. Simply witnesses and accused know each other is not sufficient to accept the false implication on this ground. There is no previous enmity betweenthem.Thereisnoreasontofalselyimplicatethe accused.Noonewouldfalselyinvolveaninnocentperson, keepingasidetherealculprit.Therefore,thedefenceofthe accusedisnotacceptable.
113.
AccusedNo.51MARVADIAASHUTOSHALIAS PAVANKUMARMURLIDHAR (SessionsCaseNo.275/2002) P.W.49ShaikhIqbalmiyaRasulmiyahasdeposedon oath naming the present accused in respect of incident dated01.03.2002.Hehasstatedthatthisaccusedwasin
// 1083 //
themobwithPipe.Hehasidentifiedthepresentaccused. There is contradiction in his statement dated 10.03.2002 fromwhereandhowhehasseentheaccusedbutinthe statementbeforeS.I.T.dated10.05.2008and10.06.2008he has stated that, this accused was in the mob. P.W.65 Shaikh Akbarmiya Nathumiya has deposed in his deposition naming the present accused instigating the mob.Hehasnotidentifiedthepresentaccused.Hetook10 minutestimeinidentifyingtheaccusedintheCourt.In10 minutes he has identified 10 accused. before identification, it was verified and satisfied whether the witness could see the persons sitting in the Court room. The height of the witness is 4'7. In application and statement dated 10.03.2002 and 10.05.2008 there is contradictionaboutfromwhereandhowwitnesshasseen theaccused.Inhisapplicationhehasnotstatedthename ofpresentaccused.Consideringtheaboveevidenceagainst thepresentaccused,oneofthewitnesshasidentifiedthe accused while other has not identified. One witness is attributingpipewithhimwhileotherisattributingtherole ofinstigationofpresentaccused.Thus,theevidenceisnot tothatsatisfactionsothat,itcanbeconcludedaboutthe involvementofthisaccusedinpositivebeyondreasonable
// 1084 //
doubt. Thus,consideringtheappreciationofevidenceas discussed while discussing the evidence of witnesses the presenceofthisaccusedinthemobisnotprovedbythe Prosecutionsatisfactorilyandhewasnotinthemob.Thus, it is not proved by the prosecution beyond reasonable doubtthat,presentaccusedwas thememberofunlawful assembly.
Itisnotindisputethat,theaccusedistheresidentof Village Sardarpur and witness is also resident of Village Sardarpur. No specific role has been attributed to the accusedbyanywitness.Furtheraccusednotidentifiedby thewitness.Therefore,thefactsremainsthat,itisnotsafe toholdaccusedguiltyonthebasisofgeneralallegations. There is no other material on record against the present accusedtoshowhisinvolvementintheallegedoffence.It would be hazardous to base a conviction only on the evidenceofgeneralallegations.Itwouldbeappropriateto givebenefitofdoubtandacquittheaccused.Inmyopinion thoughtheirexiststrongsuspicionagainsttheaccuseditis notpossibletoholdthat,hisinvolvementintheoffenceis establishedintheabsenceofanybodypointingouttowards himintheCourtasapersonwhowasinthemobrequires
// 1085 //
acquittal.
114.
AccusedNo.52PATELDAHYABHAIKACHARABHAI (SessionsCaseNo.275/2002)
P.W.46PathanSabirmiyaAkumiyahasdeposedon oath the name of present accused in respect of incident dated01.03.2002.Thiswitnesshasidentifiedtheaccused intheCourt.Inhisapplicationdated06.05.2008hehas statedthenameofthepresentaccusedbuthasnotstated the name in his statement dated 20.05.2008. P.W.49 ShaikhIqbalmiyaRasulmiyahasdeposedonoathnaming the present accused in respect of incident dated 01.03.2002. He has stated that this accused was in the mob with Pipe and was instigating the mob that no Muslimsshouldbeleftalive.Hehasidentifiedthepresent accused. There is contradiction in his statement dated 10.03.2002fromwhereandhowhehasseentheaccused but in the statement before S.I.T. dated 10.05.2008 and 10.06.2008, he has stated that, this accused was in the mob. P.W.51 Shaikh Nazirmohmad Akbarmiya has named present accused in respect of incident dated 01.03.2002 that accused was present in the mob with Stone. This witness has identified the accused in the
// 1086 //
Court. before identification, it was verified and satisfied whether the witness could see the persons sitting in the Court room. He has stated the name of the present accused in his statement dated 10.03.2002. He has not statedthenameofpresentaccusedintheaffidavitdated 06.11.2003.Hehasstatedthenameofpresentaccusedin the statement dated 19.05.2008 before S.I.T. P.W.56 ShaikhAyubmiyaRasulmiyahasdeposedthenameofthe present accused in the mob in respect of incident dated 01.03.2002withPipe.Hehasidentifiedtheaccusedinthe Court.Inhisstatementdated10.03.2002and19.05.2008 there is contradiction about from where and how this witnesshasseentheaccused.Sofarascontradictioninthe statementsareconcernedthatisdiscussedanddecidedat thetimeofappreciationofevidence. Thiswitnesshasnot statedthenameofpresentaccusedintheaffidavitdated 06.11.2003.P.W.72RawalPrahladbhaiNathabhaihasnot statedthenameofpresentaccusedinthemobinrespectof incidentdated01.03.2002.Hehasidentifiedtheaccusedin theCourtandstatedthenameofpresentaccusedinhis application before S.I.T. and statement dated 20.05.2008. P.W.80ShaikhRuksanabanuIbrahimmiyahasnotnamed presentaccusedbutidentifiedtheaccusedfirsttimeinthe
// 1087 //
courtbyfaceonly.Shetook7minutestimeforidentifying the accused in the Court. In her statement dated 10.03.2002shehasnamedotheraccusedstatingthat,she saw them but she has not stated that, she can identify thembyface.Shehasnotstatedthenameoftheaccused inherstatementdated22.05.2005.Thusconsideringabove evidence P.W.46, P.W.49, P.W.51, P.W.56 and P.W.72 have identified the accused in the Court and in their earlier statementP.W.49,P.W.56havestatedthenameofaccused though thereiscontradictionaboutfromwhereandhow they had seen the accused but as discussed earlier presenceofthesewitnessesinShaikhMahollaatthetime of incident cannot be doubted and therefore, say of this witnesses that, they had seen the accused in the mob cannot be discarded. No doubt two of the witnesses are attributingtheroleofpresentaccusedinstigatingthemob as well as having Pipe in his hand. Thus involvement of presentaccusedintheincidentissatisfactorilyestablished bytheprosecution.Simplythereisdifferencebetweenthe factthat,whetherhewashavingstoneorpipeinhishand. The very fact that, he was present in the mob and instigatingthemobcannotbediscarded.Thus,considering theappreciationofevidenceasdiscussedwhilediscussing
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theevidenceofwitnessesthepresenceofthisaccusedin themobissatisfactorilyprovedbytheProsecutionandthat he was present in the mob. Thus, it is proved by the prosecutionbeyondreasonabledoubtthat,presentaccused wasthememberofunlawfulassembly.
Itisnotindisputethat,theaccusedistheresidentof VillageSardarpurandwitnessesarealsoresidentofVillage Sardarpur.Theyareknowntoeachothersincepreviously hence evidence of witnesses can safely be accepted as regardstotheinvolvementofthisaccusedandevidenceof witnessesasdiscussedearlierhavingseentheaccusedin the mob cannot be doubted at all. Once it is established and accepted that, witness and accused are resident of same locality, well known to each other, only question requires about falsely implication of the accused. The question of making any mistake in that regard does not arise. It does not possible to hold false implication of accused. Here, in the present case entering in Shaikh Mahollaatthetimeofincidentitselfsuggestthecommon objectofthemobaswellasspecificroleattributedtothe accused.TherewasnoreasontoenterinShaikhMahollaat that time. Therefore by becoming a member of unlawful
// 1089 //
assemblyaccusedenteredinShaikhMahollaandincident ofburningofcabins,housesinShaikhMahollaaswellas incidentinMahemudmiya'shouseoccurred.Furtherthere was incident of pelting of stones also occurred. This fact itselfsuggestovertactinconnectionwithcommonobject ofthemob.Meaningtherebyaccusedhadparticipatedin furtherance of common object of the mob. Therefore involvementofaccusediswellestablishedfromtheabove circumstances. The witnesses have stated that, this accusedwasverymuchpresentinthemobhavingPipein his hands but the use of said Muddamal article is not established. Witnesses have have also stated that, this accused was instigating the mob at the time of incident. Butmuchimportancecannotbegiventothisaspectasthe evidence of identification of accused is established. This accusedhasaddedinhisFurtherStatementthat, during the incident he was bedridden due to accident and in supportofhissay,hehasproducedDisabilityCertificate, issued by the Resident Medical Officer, Civil Hospital, Ahmedabad.TheMedicalCertificates,whichareproduced by the accused are of the year 1999, 2000 and 2001. Disability Certificate is dated 30.08.2000, in which disability is assessed as 60%. While in the Disability
// 1090 //
Certificate dated 19.12.2005 also shows 60% disability. Looking to all Medical Certificates, it is not shown that accused cannot walk and he is bedridden. None of the documentshowsthat,atthetimeofincident,thisaccused was bedridden. No doubt he is having disability but disabilityisnotsuchwhichcansupporthimfromgetting outfromhisinvolvementintheincident.Therefore,histhis explanationisnotacceptable.Therefore,thebasicdefence of the accused in his examination under Section 313 of Cr.P.C. that he has falsely been implicated and he is innocent and that he was not present at the time of incident is not acceptable. Simply witnesses and accused know each other is not sufficient to accept the false implication on this ground. There is no previous enmity betweenthem.Thereisnoreasontofalselyimplicatethe accused.Noonewouldfalselyinvolveaninnocentperson, keepingasidetherealculprit.Therefore,thedefenceofthe accusedisnotacceptable. 115. AccusedNo.53PATELRAMESHBHAIBALDEVBHAI (SessionsCaseNo.275/2002) P.W.73 Faridabibi Aashiqhusen Shaikh has not statedthenamebutidentifiedtheaccusedintheCourtfor thefirsttimeandthatistoobyface.Hehasnotstatedthe
// 1091 //
name of the accused in his statement dated 02.03.2002 and also not stated the name in the statement dated 11.06.2008.P.W.81 ShaikhDilavarkhanAbbasmiyahas not stated the name of the present accused in his deposition in respect of incident dated 01.03.2002 but identifiedtheaccusedinthecourtforfirsttimebyfaceand inhisstatementdated22.05.2008beforeS.I.T.hehasnot statedthenameofthepresentaccused.Consideringabove boththeevidence,thenameofthepresentaccusedwasnot namedinanyofthestatementbyanywitnessandboththe witnessesareidentifyingtheaccusedintheCourtbutnot attributingtheroletopresentaccusedinthemob.Thus, the evidence is not to that satisfaction so that, it canbe concluded about the involvement of this accused in positive.Thus,consideringtheappreciationofevidenceas discussed while discussing the evidence of witnesses the presence of this accused in the mob is not satisfactorily provedbytheProsecutionandthathewasnotinthemob. Thus,itisnotprovedbytheprosecutionbeyondreasonable doubtthat,presentaccusedwas thememberofunlawful assembly.
// 1092 //
Village Sardarpur and witness is also resident of Village Sardarpur. No specific role has been attributed to the accusedbyanywitness.Furtheraccusednotidentifiedby thewitness.Therefore,thefactsremainsthat,itisnotsafe toholdaccusedguiltyonthebasisofgeneralallegations. There is no other material on record against the present accusedtoshowhisinvolvementintheallegedoffence.It would be hazardous to base a conviction only on the evidenceofgeneralallegations.Itwouldbeappropriateto givebenefitofdoubtandacquittheaccused.Inmyopinion thoughtheirexiststrongsuspicionagainsttheaccuseditis notpossibletoholdthat,hisinvolvementintheoffenceis establishedintheabsenceofanybodypointingouttowards himintheCourtasapersonwhowasinthemobrequires acquittal. 116. AccusedNo.54PATELMATHURBHAITRIKAMDAS (SessionsCaseNo.275/2002) P.W.46 Shaikh Sabirmiya Akumiya has deposed the nameofpresent accusedinrespect ofincidentdated 01.03.2002thatthisaccusedwaspresentinthemoband has identified the accused in the Court. Before identification it was verified and satisfied whether the witnessescouldseethepersonssittingintheCourtroom.
// 1093 //
He has not stated the name of present accused in the statement dated 20.05.2008 but has stated the name of present accused in the application dated 06.05.2008. P.W.49ShaikhIqbalmiyaRasulmiyahasdeposedonoath naming the present accused in respect of incident dated 01.03.2002. He has stated that this accused was in the mobwithDhariya.Hehasidentifiedthepresentaccused. There is contradiction in his statement dated 10.03.2002 from where and how he has seen the accused but the statementsbeforeS.I.T.dated10.05.2008and10.06.2008 supportthesayofthewitness.P.W.56ShaikhAyubmiya Rasulmiyahas deposed the name of the presentaccused in respect of incident dated 01.03.2002 evening time HalogenLamponStreetLightPoleandalsodeposedabout the presence of this accused in respect of night incident dated01.03.2002,deposingthepresenceofthisaccusedin themobwithDhariya.Hehasidentifiedtheaccusedinthe Court.Inhisstatementdated10.03.2002hehasnotstated thefactregardingHalogenLamponStreetLightPole.Inthe statement dated 10.03.2002 and 19.05.2008 before S.I.T. there is contradiction about from where and how this witnesshasseentheaccused.Sofarascontradictionsin the statements are concerned, that is already discussed
// 1094 //
anddecidedatthetimeofappreciationofevidence.Hehas not stated the name of present accused in the affidavit dated 06.11.2003. P.W.58 Shaikh Sabirhusen Imamsha hasstatedthenameofthepresentaccusedinrespectof incident dated 01.03.2002. He has identified the accused beforetheCourt. Hehasnotstatedthenameofpresent accusedinhisstatementdated03.03.2002andstatement before S.I.T. dated 22.05.2008 in this regard. P.W.60 Shaikh Bachumiya Imammiya has deposed on oath the nameofpresentaccusedinrespectofincidentofdirectline from Pole, near Shaikh Maholla and also presence of accused in the night incident dated 01.03.2002. This witnesshasnotstatedthelightincidentinthestatement dated03.03.2002.Hehasalsonotstatedthenameofthe present accused in the mob in respect of night incident dated 01.03.2002. He has identified the accused in the Court. before identification, it was verified and satisfied whether the witness could see the persons sitting in the Courtroom.Hetook12minutestimeforidentificationand has identified about five persons. P.W.63 Shaikh BhikhumiyaKalumiyahasdeposedthenameofthepresent accusedinrespectofincidentdated01.03.2002.Hehasnot identifiedtheaccusedintheCourt.Hehasnotstatedthe
// 1095 //
name of the present accused in the statements dated 10.03.2002 and 10.05.2008 before S.I.T. and application dated 10.05.2008 P.W.64 Shaikh Rafikmiya Babumiya has deposed on oath the name of present accused in respect of incident dated 01.03.2002. He has identified ParshottamMohanasMathurTrikam.Hetook10minutes timeforidentification. hehasidentified 4accused inthe Court. before identification, it was verified by the Court whether the witness could see the persons sitting in the Courtandafterduesatisfactionthewitnesshasidentified theaccused.Foridentifying4accusedhetook15minutes time, which can be considered as reasonable time for identification. There is contradiction regarding timing of incident in his statement dated 22.05.2008. So far as contradictions in the statements are concerned that is discussed and decided at the time of appreciation of evidence. P.W.65 Shaikh Akbarmiya Nathumiya has statedthenameofpresentaccusedinrespectofconnection ofstreetlightfocusnearhouseatabout4.00to5.00P.M. on01.03.2002aswellaspresenceofthisaccusedinthe night incident. In his deposition he has identified the accused in the Court. He took 10 minutes time in identification and identification was carried out after due
// 1096 //
verificationwhetherthewitnessisabletoseethepersons sitting in the Court. During said 10 minutes he has identified 10 accused. He has not stated the name of present accused in his statement dated 10.03.2002 whereashehasstatedthenameofpresentaccusedinthe statement and application dated 10.05.2008. P.W.66 ShaikhAkbarmiyaRasulmiyahasdeposedonoathinhis deposition naming the present accused in respect of incident dated 01.03.2002 with weapon. As per his deposition present accused was present in the mob with weapon. This witness has not identified the present accused in the Court. He took 10 minutes time for identification andidentificationwascarriedoutafterdue verificationwhetherthewitnessisabletoseethepersons sitting in the Court. And during said 10 minutes he has identified10accused.Hisheightisabout4'7.Hehasnot statedinhisapplicationdated09.05.2008andstatement before S.I.T. dated 09.05.2008 about weapon. P.W.68 Shaikh Gulamali Akbarmiya has named the present accused in the Court and has also narrated about the incident dated 01.03.2002 about 2.30 P.M. in the village incidentabouttalkingbandiyonekapinakho.Furtherhe hasstatedaboutthepresenceofthisaccusedinthenight
// 1097 //
incidentwithstone.Hehasidentifiedtheaccused.Hetook 12minutestimeforidentifyingtheaccusedintheCourt. before identification, it was verified and satisfied whether thewitnesscouldseethepersonssittingintheCourtroom. This witness has not stated the name of the present accusedinhisstatementdated10.03.2002and10.05.2008 aboutincidentoftalkingBandiyonekapinakhowhilein hisapplicationdated09.05.2008 hehasstatedthename of present accused with stone. So far as incident dated 01.03.2002isconcerned,thiswitnesshasstatedthename ofpresentaccusedinhisstatementdated10.03.2002and 10.05.2008butthereiscontradictionregardingfromwhere and how he has seen the accused with stone. But this contradiction is already discussed at the relevant time in this Judgement. P.W.83 Fakir Sharifabanu Sabirhusen hasnamedthepresentaccusedinherdepositionandas perhersaythisaccusedwasverymuchpresentinthemob ShehasidentifiedtheaccusedintheCourt.Shehasnot statedthenameofpresentaccusedinherstatementsdated 03.03.2002 and 24.06.2008. So far as connection of HalogenLamponStreetLightPoleincidentisconcerned,as earlier discussed it is discussed and decided as an improvement and therefor the evidence of all these
// 1098 //
witnesses in respect of connection of Halogen Light on StreetLightPolebythisaccusedcannotbeacceptedandit istobeconsideredasanimprovement.Butfromthisfact we cannot conclude the evidence of all above witnesses untrustworthyandunreliablewholly.Asdiscussedearlier identificationofpresentaccusedbyP.W.46intheCourtas wellasdepositionofpresentwitnessregardingpresenceof this accused in the mob is much supported by other witnesseslikeP.W.49whohasalsoidentifiedtheaccusedin theCourtandnamedthepresentaccusedinhisstatement dated10.03.2002thoughthereiscontradictionfromwhere andhowhehasseentheaccusedbutthepresenceofthis witness in Shaikh Maholla is already established by the prosecutionandtherefore,asdiscussedearlierthiswitness was able to see the mob and therefore, the say of this witnessthat,thepresentaccusedwaspresentinthemob and is acceptable. P.W.56 has also supported the say of abovethosewitnessesaboutthepresenceofthisaccused inthemobwithDhariyaandhasalsoidentifiedhiminthe Court and also stated the name of present accused in earlier statements, which supports the prosecution case abouttheinvolvementofpresentaccusedintheincident. P.W.58hasalsosupportedthepresenceofsaidaccusedin
// 1099 //
themobandbyidentifyingtheaccused,hehassupported the prosecution case. P.W.60 has also supported the presenceofthisaccusedinthemobduringnightincident andidentifiedtheaccusedintheCourt,therefore,supports the prosecution case about the involvement of present accused in the incident. P.W.65 also supports the involvement ofpresentaccusedintheincidentby stating the presence of accused in the mob. P.W.68 has also supportedtheprosecutioncasebyidentifyingtheaccused andstatingthepresenceofpresentaccusedinthemoband by stating name of present accused in his statement 10.03.2002, application 09.05.2008 and statement dated 09.05.2008. P.W.83 also supports the involvement of present accused in the night incident dated 01.03.2002 while evidence of P.W.66, P.W.63 not supporting the prosecutioncaseabouttheinvolvementofpresentaccused by not identifying the accused in the Court. Thus, consideringtheappreciationofevidenceasdiscussedwhile discussing the evidence of witnesses the presence of this accused in the mob is satisfactorily proved by the Prosecutionandthathewasinthemob.Thus,itisproved bytheprosecutionbeyondreasonabledoubtthat,present accusedwasthememberofunlawfulassembly.
// 1100 //
Itisnotindisputethat,theaccusedistheresidentof VillageSardarpurandwitnessesarealsoresidentofVillage Sardarpur.Theyareknowntoeachothersincepreviously hence evidence of witnesses can safely be accepted as regardstotheinvolvementofthisaccusedandevidenceof witnessesasdiscussedearlierhavingseentheaccusedin the mob cannot be doubted at all. Once it is established and accepted that, witness and accused are resident of same locality, well known to each other, only question requires about falsely implication of the accused. The question of making any mistake in that regard does not arise. It does not possible to hold false implication of accused. Here, in the present case entering in Shaikh Mahollaatthetimeofincidentitselfsuggestthecommon objectofthemobaswellasspecificroleattributedtothe accused.TherewasnoreasontoenterinShaikhMahollaat that time. Therefore by becoming a member of unlawful assemblyaccusedenteredinShaikhMahollaandincident ofburningofcabins,housesinShaikhMahollaaswellas incidentinMahemudmiya'shouseoccurred.Furtherthere was incident of pelting of stones also occurred. This fact itselfsuggestovertactinconnectionwithcommonobject
// 1101 //
ofthemob.Meaningtherebyaccusedhadparticipatedin furtherance of common object of the mob. Therefore involvementofaccusediswellestablishedfromtheabove circumstances. The witnesses have stated that, this accused was having Dharia in his hands at the time of incident. But much importance cannot be given to this aspect as the evidence of identification of accused is established. This accused has added in his Further Statement that, he was working in GEB since the year 1999to2009andhehadworkedasVillagehelper.During theincidenttime,hewasinhisserviceandvillagepersons knowhimwell.Aftertwotothreemonthsoftheincident, his name has been added as an accused, as he is a Government Servant. His house is 1.00 Km. away from ShaikhMahollaandtherefore,hehasfalselybeeninvolved in the incident. Simply because he was in service or his name has been added after two to three months from incident, his explanation is not satisfactory at the preponderanceofprobabilities,hencecannotbeaccepted. Therefore, the basic defence of the accused in his examination under Section 313 of Cr.P.C. that he has falselybeenimplicatedandheisinnocentandthathewas notpresentatthetimeofincidentisnotacceptable.Simply
// 1102 //
witnessesandaccusedknoweachotherisnotsufficientto accept the false implication on this ground. There is no previousenmitybetweenthem.Thereisnoreasontofalsely implicate the accused. No one would falsely involve an innocentperson,keepingasidetherealculprit.Therefore, thedefenceoftheaccusedisnotacceptable.
117.
AccusedNo.55PATELASHWINBHAIBALDEVBHAI JOITABHAI (SessionsCaseNo.275/2002) The case against present accused is discussed alongwith the case discussed against Accused No.6 PATEL(NAGAR)ASHWINBHAIBALDEVBHAI ofSessions CaseNo.120/2008.
118.
AccusedNo.1PATELBABUBHAIVANABHAI (SessionsCaseNo.120/2008) P.W.47ShaikhIbrahimbhaiRasulbhaihasdeposed inrespectofincidentdated01.03.2002andhasnamedthe presentaccused.HehasidentifiedtheaccusedintheCourt Hehasnotnamedthepresentaccusedinhiscomplaintas well as in his statement dated 10.03.2002, 01.06.2002, application dated 01.06.2002, affidavit dated 06.11.2003
// 1103 //
and statement before S.I.T. dated 11.06.2008 and in the application and statement before S.I.T. dated 09.05.2008. P.W.78 Shaikh Basirabibi Bachumiya has deposed on oathstatingthenameofthepresentaccusedinthemobin respectofincidentdated01.03.2002.Asperherdeposition she has identified the accused in the Court. before identification, it was verified by the court whether she could see the persons sitting in the Court. She has identified the present accused and she took 12 minutes time for identification of accused and during said 12 minutesshehasidentified8accused.Shehasnotstated the name of the present accused in her statement dated 17.04.2002 and statement dated 11.06.2008 and there is contradiction from where and how she has seen the accused in the mob in her statement dated 22.05.2008. Consideringtheaboveevidencenodoubtcomplainanthas identified the present accused in the Court but has not namedpresentaccusedinthecomplaintnotinanyofhis statement or application and therefore, simply on identificationintheCourtitisratherriskytoconvictan accusedinabsenceofothercorroborativeevidence.P.W.78 hasidentifiedtheaccusedintheCourtbutnotstatingthe nameofpresentaccusedinearlierstatementandtherefore,
// 1104 //
it cannot be considered as sufficient evidence for concludingtheinvolvementofpresentaccusedinthemob. Thus,consideringtheappreciationofevidenceasdiscussed whilediscussingtheevidenceofwitnessesthepresenceof thisaccusedinthemobisnotsatisfactorilyprovedbythe Prosecutionandthathewasnotinthemob.Thus,itisnot proved by the prosecution beyond reasonable doubt that, presentaccusedwasthememberofunlawfulassembly.
Itisnotindisputethat,theaccusedistheresidentof Village Sardarpur and witness is also resident of Village Sardarpur. No specific role has been attributed to the accusedbyanywitness.Furtheraccusednotidentifiedby thewitness.Therefore,thefactsremainsthat,itisnotsafe toholdaccusedguiltyonthebasisofgeneralallegations. There is no other material on record against the present accusedtoshowhisinvolvementintheallegedoffence.It would be hazardous to base a conviction only on the evidenceofgeneralallegations.Itwouldbeappropriateto givebenefitofdoubtandacquittheaccused.Inmyopinion thoughtheirexiststrongsuspicionagainsttheaccuseditis notpossibletoholdthat,hisinvolvementintheoffenceis establishedintheabsenceofanybodypointingouttowards
// 1105 //
himintheCourtasapersonwhowasinthemobrequires acquittal.
119.
AccusedNo.2PATELRAMESHBHAIKACHARABHAI (SessionsCaseNo.120/2008) P.W.49ShaikhIqbalmiyaRasulmiyahasdeposedon oath naming the present accused in respect of incident dated01.03.2002.Hehasstatedthatthisaccusedwasin themobandwasinstigatingthemobtokilltheMuslims andnooneshouldleftalive.Hehasidentifiedthepresent accused.Hehasnotstatedthenameofpresentaccusedin thestatementdated10.03.2002 and11.06.2008whilehe hasstatedthenameofpresentaccusedinthestatement before S.I.T. dated 10.05.2008. P.W.81 Shaikh Dilavarkhan Abbasmiya has not stated the name of the present accused in his deposition in respect of incident dated01.03.2002butidentifiedtheaccusedinthecourtfor first time by face and in his statement dated 22.05.2008 before S.I.T. he has not stated the name of the present accused.Thusconsideringaboveevidencesimplyaccused isidentifiedandP.W.49isstatingabouttheinstigationby thisaccusedbutthisfactisnotsupportedfromhisanyof the statement nor by other evidence and therefore, it is
// 1106 //
ratherriskytoconvictpresentaccusedonthestrengthof evidenceonrecord. Thus,consideringtheappreciationof evidence as discussed while discussing the evidence of witnessesthepresenceofthisaccusedinthemobisnot satisfactorilyprovedbytheProsecutionandthathewasnot in the mob. Thus, it is not proved by the prosecution beyond reasonable doubt that, present accused was the memberofunlawfulassembly.
Itisnotindisputethat,theaccusedistheresidentof Village Sardarpur and witness is also resident of Village Sardarpur. No specific role has been attributed to the accusedbyanywitness.Furtheraccusednotidentifiedby thewitness.Therefore,thefactsremainsthat,itisnotsafe toholdaccusedguiltyonthebasisofgeneralallegations. There is no other material on record against the present accusedtoshowhisinvolvementintheallegedoffence.It would be hazardous to base a conviction only on the evidenceofgeneralallegations.Itwouldbeappropriateto givebenefitofdoubtandacquittheaccused.Inmyopinion thoughtheirexiststrongsuspicionagainsttheaccuseditis notpossibletoholdthat,hisinvolvementintheoffenceis establishedintheabsenceofanybodypointingouttowards
// 1107 //
himintheCourtasapersonwhowasinthemobrequires acquittal.
120.
AccusedNo.3PATELBABUBHAIKANJIBHAI (SessionsCaseNo.120/2008)
P.W.46PathanSabirmiyaAkumiyahasdeposedon oath the name of present accused in respect of incident dated 01.03.2002 as well as in respect of incident dated 28.02.2002morningincident.Thiswitnesshasidentified the accused in the Court. In his application dated 06.05.2008hehasstatedthenameofthepresentaccused but has not stated the name in his statement dated 20.05.2008. P.W.49 Shaikh Iqbalmiya Rasulmiya has deposedonoathnamingthepresentaccusedinrespectof incidentdated01.03.2002.Hehasstatedthatthisaccused wasinthemobandinstigatingthemobtokilltheMuslims. Hehasidentified thepresentaccused. Hehas notstated the name of present accused in the statement dated 10.03.2002 and 11.06.2008. P.W.52 Shaikh Hizbulmiya Husenmiya has named the present accused in his depositioninrespectofincidentdated01.03.2002.Hehas not identified the accused in the Court though sufficient opportunitiesweregiventohim.Hetook15minutestime
// 1108 //
for identification of accused. During 15 minutes he has identified5accusedpersons. beforeidentification,itwas verified and satisfied whether the witness could see the personssittingintheCourtroom.Hehas notstatedthe name of present accused in his statement dated 10.03.2002, 11.06.2008, 05.08.2008 but has stated the nameofpresentaccusedinhisaffidavitdated06.11.2003 and19.05.2008.P.W.73FaridabibiAashikhusenShaikh hasnotstated thenameofthisaccusedinherstatement dated 02.03.2002 and 11.06.2008 and has not named in her deposition but she has identified the accused in the Court for the first time by face only. P.W.78 Shaikh Basirabibi Bachumiya has deposed on oath stating the name of the present accused in the mob in respect of incidentdated01.03.2002.Asperherdepositionshehas notidentifiedtheaccusedintheCourt,thoughsufficient opportunities were given. before identification, it was verified by the court whether she could see the persons sittingintheCourt.Shehasidentifiedthepresentaccused andshetook12minutestimeforidentificationofaccused andduringsaid12minutesshehasidentified8accused. Shehasnotstatedthenameofthepresentaccusedinher statement dated 17.04.2002 and statement dated
// 1109 //
11.06.2008andthereiscontradictionfromwhereandhow she has seen the accused in the mob in her statement dated22.05.2008.P.W.81ShaikhDilavarkhanAbbasmiya has not stated the name of the present accused in his deposition in respect of incident dated 01.03.2002 but identifiedtheaccusedinthecourtforfirsttimebyfaceand inhisstatementdated22.05.2008beforeS.I.T.hehasnot stated the name of the present accused. Considering the aboveevidenceP.W.49,P.W.52,P.W.73,P.W.78,P.W.81have notidentifiedthepresentaccusedintheCourtwhileP.W.73 and81haveidentifiedtheaccusedbyfaceintheCourtbut innoneof thestatementthesewitnesseshavestatedthe fact that, they can identify the accused by face. In these circumstancesP.W.46whohasalsonotstatedthenameof present accused in his earlier statement, simply he has identifiedtheaccusedintheCourt,bystatingthathewas present in the mob and P.W.49 has also not stated the nameofpresentaccusedinanyofhisearlierstatementand therefore,simplyidentifyintheCourtandstatedpresence of the accused in the mob and instigating cannot be consideredassufficientevidenceforinvolvementofaccused in the incident. Thus, considering the appreciation of evidence as discussed while discussing the evidence of
// 1110 //
witnessesthepresenceofthisaccusedinthemobisnot satisfactorilyprovedbytheProsecutionandthathewasnot in the mob. Thus, it is not proved by the prosecution beyond reasonable doubt that, present accused was the memberofunlawfulassembly.
Itisnotindisputethat,theaccusedistheresidentof Village Sardarpur and witness is also resident of Village Sardarpur. No specific role has been attributed to the accusedbyanywitness.Furtheraccusednotidentifiedby thewitness.Therefore,thefactsremainsthat,itisnotsafe toholdaccusedguiltyonthebasisofgeneralallegations. There is no other material on record against the present accusedtoshowhisinvolvementintheallegedoffence.It would be hazardous to base a conviction only on the evidenceofgeneralallegations.Itwouldbeappropriateto givebenefitofdoubtandacquittheaccused.Inmyopinion thoughtheirexiststrongsuspicionagainsttheaccuseditis notpossibletoholdthat,hisinvolvementintheoffenceis establishedintheabsenceofanybodypointingouttowards himintheCourtasapersonwhowasinthemobrequires acquittal. 121. AccusedNo.4PATELKANUBHAIREVABHAI
// 1111 //
(SessionsCaseNo.120/2008) P.W.59 Shaikh Mohmadsattar Bachumiya has deposed in respect of incident dated 01.03.2002. He has deposedthat,thepresentaccusedwaspresentinthemob. He has identified the accused in the Court. He has not statedthenameofpresentaccusedinthestatementdated 02.03.2002, affidavit dated 06.11.2003 and statement beforeS.I.T.dated19.05.2008.P.W.78ShaikhBasirabibi Bachumiya has deposed on oathstatingthe name of the present accused in the mob in respect of incident dated 01.03.2002. As per her deposition she has identified the accusedintheCourt.beforeidentification,itwasverified bythecourtwhethershecouldseethepersonssittingin theCourt.Shehasidentifiedthepresentaccusedandshe took 12 minutes time for identification of accused and duringsaid12minutesshehasidentified8accused.She has not stated the name of the present accused in her statement dated 17.04.2002 and statement dated 11.06.2008andthereiscontradictionfromwhereandhow she has seen the accused in the mob in her statement dated22.05.2008.P.W.81ShaikhDilavarkhanAbbasmiya hasnotnamedthisaccusedinhisdepositionbutidentified the accused in the Court by face only and he has not
// 1112 //
named the present accused in his statement dated 22.05.2008.Thus,consideringtheaboveevidenceagainst the present accused no doubt P.W.59 and P.W. 78 have identified the accused in the Court but P.W. 59 has not statedthenameofthisaccusedinhisanyearlierstatement while P.W.78 has also not stated the name of present accusedinherearlierstatement.Itisonlythestatement dated22.05.2008inwhichshehasstatedthepresenceof present accused. As discussed earlier while appreciating the evidence of this witness there is contradiction from whereandhowhehasseentheaccusedwhiletheevidence ofP.W.81isnottothesatisfactionoftheCourtfromwhich we can conclude regarding the involvement of accused. Thus,thereisnosufficientevidencetothebestsatisfaction of the Court to consider the involvement of present accused,underabovecircumstances.Thus,consideringthe appreciationofevidenceasdiscussedwhilediscussingthe evidenceofwitnessesthepresenceofthisaccusedinthe mobisnotsatisfactorilyprovedbytheProsecutionandthat he was not in the mob. Thus, it is not proved by the prosecutionbeyondreasonabledoubtthat,presentaccused wasthememberofunlawfulassembly.
// 1113 //
Itisnotindisputethat,theaccusedistheresidentof Village Sardarpur and witness is also resident of Village Sardarpur. No specific role has been attributed to the accusedbyanywitness.Furtheraccusednotidentifiedby thewitness.Therefore,thefactsremainsthat,itisnotsafe toholdaccusedguiltyonthebasisofgeneralallegations. There is no other material on record against the present accusedtoshowhisinvolvementintheallegedoffence.It would be hazardous to base a conviction only on the evidenceofgeneralallegations.Itwouldbeappropriateto givebenefitofdoubtandacquittheaccused.Inmyopinion thoughtheirexiststrongsuspicionagainsttheaccuseditis notpossibletoholdthat,hisinvolvementintheoffenceis establishedintheabsenceofanybodypointingouttowards himintheCourtasapersonwhowasinthemobrequires acquittal.
122.
AccusedNo.5PATELNATVARBHAIKACHARABHAI (SessionsCaseNo.120/2008) P.W. 59 Shaikh Mohmad Sattar Bachumiya has stated the name of the present accused in respect of incident dated 01.03.2002. It is deposed by the witness that,accusedwaspresentinthemob.Hehasidentifiedthe
// 1114 //
accused in the Court. He took 15 minutes time for identifying the accused in the Court. He has identified about20accusedintheCourt.beforeidentification,itwas verified and satisfied whether the witness could see the persons sitting in the Court room. This witness has not stated the name of the present accused in his statement dated 02.03.2002, 19.05.2008 and affidavit dated 06.11.2003. P.W.71 Rawal Mangabhai Ramabhai has stated the name of the present accused in respect of incidentdated01.03.2002.Hehasidentifiedtheaccusedin theCourt.Hetook7minutestimeforidentificationofthe accused inthe Courtand in 7minutes he has identified fouraccused.Thiswitnessishaving5'Heightanditwas satisfiedbytheCourtandhecouldseethepersonssitting in the Court. He has not stated the name of present accusedinthestatementdated20.05.2008.Thiswitnessis regarding the collection of Kerosene from Tractor on 01.03.2002at09.00PM.Heisnottheeyewitnessofthe incident of Shaikh Maholla. Considering above evidence, evidenceofP.W.71cannotbeconsideredasinvolvementof present accused in the incident simply because this accusedwasinvolvedincollectionofKerosenefromTractor andwecannotconnectthisfactwiththeincidentoccurred
// 1115 //
in the night. This witness has tried to depose about collectionofkerosenefromtractorinrespectofconspiracy as discussed earlier conspiracy is not proved by the prosecution and therefore, on the strength of evidence of this witness and simply on identification we cannot concludeabouttheinvolvementofpresentaccusedinthe night incident dated 01.03.2002. So far as evidence of P.W.59isconcerned,hehasnotstatedthenameofpresent accused in any of his statements therefore, simply in depositionnameisdeposedandidentifiedintheCourtin the absence of any other supporting evidence it is not desirabletoconcludetheinvolvementofpresentaccusedin the incident. Thus, considering the appreciation of evidence as discussed while discussing the evidence of witnessesthepresenceofthisaccusedinthemobisnot satisfactorilyprovedbytheProsecutionbeyondreasonable doubt and that he was not in the mob. Thus, it is not proved by the prosecution beyond reasonable doubt that, presentaccusedwasthememberofunlawfulassembly.
// 1116 //
accusedbyanywitness.Furtheraccusednotidentifiedby thewitness.Therefore,thefactsremainsthat,itisnotsafe toholdaccusedguiltyonthebasisofgeneralallegations. There is no other material on record against the present accusedtoshowhisinvolvementintheallegedoffence.It would be hazardous to base a conviction only on the evidenceofgeneralallegations.Itwouldbeappropriateto givebenefitofdoubtandacquittheaccused.Inmyopinion thoughtheirexiststrongsuspicionagainsttheaccuseditis notpossibletoholdthat,hisinvolvementintheoffenceis establishedintheabsenceofanybodypointingouttowards himintheCourtasapersonwhowasinthemobrequires acquittal.
123.
BeforediscussingtheinvolvementofPatel(Nagar)(Botham) Ashwinbhai BaldevbhaiAccusedNo.6ofSessionsCase No.120/2008, it is equally necessary to discuss the involvement of Ashwinbhai Baldevbhai Joitabhai Patel Accused No.55 of sessions Case No.275/2002. Therefore, the evidence involving both the persons are hereby discussedanddecidedsimultaneouslyasunder: AccusedNo.55PATELASHWINBHAIBALDEVBHAI JOITABHAI
// 1117 //
(SessionsCaseNo.275/2002) OR AccusedNo.6PATEL(NAGAR)ASHWINBHAI BALDEVBHAI (SessionsCaseNo.120/2008)
P.W.49ShaikhIqbalmiyaRasulmiyahasdeposedon oath naming the present accused in respect of incident dated01.03.2002.Hehasstatedthatthisaccusedwasin themobwithTin.HehasidentifiedAshwinBaldevbhaias Ashwin Baldev Botham but it is not clear that, which AshwinBaldevisidentifiedbyhim.Whileinhisstatement dated10.03.2002hehasstatedthat,therearetwoAshwin Baldevinvillage.AshwinBaldevGadivalawasinthemob. Thus, from the evidence whether Ashwin Baldev Botham waspresentinthemoborAshwinBaldevJoitabhaiPatel was present, it is not clear from his evidence. P.W.56 ShaikhAyubmiyaRasulmiyahasdeposedthenameofthe presentaccusedwithTininthemobinrespectofincident dated01.03.2002.Hehasnotidentifiedtheaccusedinthe Court. In his statement dated 10.03.2002 and statement before S.I.T. there is contradiction about from where and how this witness has seen the accused. So far as
// 1118 //
contradictions in the statements are concerned that is discussed and decided at the time of appreciation of evidence. Further, he has stated in his statement dated 19.05.2008that,AshwinBaldevGadivalawasnotinthe mob while in his affidavit dated 06.11.2003 he has not stated the name of present accused. Thus, from the evidenceofthiswitnessalso,itisnotclearwhetherAshwin BaldevBothamwaspresentorAshwinBaldevGadivalawas present. P.W.49andP.W.56intersediffersonthispoint. P.W.57 Shaikh Mustufamiya Rasulmiya has named this accused in his deposition in respect of incident dated 01.03.2002.HehasidentifiedtheaccusedintheCourt.He took 15 minutes time in the Court for identification of accused.Forthispurposewhenweperusethedeposition no doubt he took 15 minutes time for identification of accused but in 15 minutes he has identified 17 accused. Before identification in the Court it was verified by the Courtthat,whetherthewitnesscanseethepersonssitting intheCourtandthereafter,accusedwasidentifiedbythe witness.Hehasnotstatedthenameofpresentaccusedin the statement dated 10.03.2002 but has stated that, AshwinBaldevJoitaGadivalawasinthemob.Hehasnot statedthenameofpresentaccusedinhis inhisaffidavit
// 1119 //
dated 06.11.2003, statement dated 19.05.2008, statement dated 05.08.2008. There is contradiction from where and how he has seen the accused in the statement dated 05.08.2008.Sofarascontradictionsinthestatementsare concernedthosearediscussedanddecidedatthetimeof appreciationofevidence.Thustheevidenceofthiswitness itselfiscontradictoryfromhisstatementanditisnotclear from the evidence of this witness whether AshwinBaldev Botham was present in the mob or Ashwin Baldev Joita Gadivalawaspresent.Onthestrengthofthiscontradictory versionwecannotconcludetheinvolvementofanyofthese twoaccusedintheincident. P.W.60ShaikhBachumiya Imammiya has deposed on oath the name of present accusedinrespectofincidentdated01.03.2002,atabout 09.30 P.M. in respect of setting on fire the cabins. This witnesshasnotstatedthisincidentinthestatementdated 03.03.2002. He has not stated the name of the present accusedin09.30cabinincident.Hehasnotidentifiedthe accusedintheCourtthoughsufficientopportunitieswere given to him. before identification, it was verified and satisfiedwhetherthewitnesscouldseethepersonssitting intheCourtroom. Thus,consideringaboveevidencethe evidenceof thiswitness isnotinvolvinganyof thesetwo
// 1120 //
accused i.e. Ashvinbhai Baldevbhai. P.W.65 Shaikh AkbarmiyaNathumiyahasstatedthenameofthisaccused with Tin in his deposition but has not identified the accused in the Court. He took 10 minutes time in identification and identification was carried out after due verificationwhetherthewitnessisabletoseethepersons sitting in the Court. During said 10 minutes he has identified 10 accused. He has not stated the name of presentaccusedintheapplication.Thereiscontradiction from where and how he has seen the accused in the statementdated10.03.2002and10.05.2008.Thiswitness has not identified any of Ashwinbhai Baldevbhai in the Court. Therefore, simply in his deposition about the presenceofAshvinBaldevBothaminthemobwecannot concludetheinvolvementofanyofboththeseaccusedin theincidentandthatistoo,inacircumstanceswherethere iscontractionsfromwhereandhowthewitnesshadseen the accused. P.W.68 Shaikh Gulamali Akbarmiya has deposedonoathnamingtheaccusedinrespectofincident dated01.03.2002thathewaspresentinthemob.Hetook 12 minutes time in identifying the accused. He has identified19accusedintheCourt.Identificationtookplace afterdueverificationwhetherwitnesscouldseethepersons
// 1121 //
sitting in the Court. He has not stated the name of this accusedinhisstatementdated10.03.2002and10.05.2008 but in his application dated 09.05.2008 from where and howhehasseentheaccusediscontradictorymentioned. Thusconsideringtheevidenceofthiswitnessnodoubthe has identified Ashvin Baldev Botham but in earlier statementsnotstatedtheinvolvementofpresentaccusedin theincidentandthatistoo,inacircumstanceswherein the application from where and how he has seen the accused,thereiscontradictionaboutit.Thus,underabove circumstances there is no sufficient evidence to the satisfactionofthecourtforinvolvementofanyofthesetwo accusedintheincident. P.W.47ShaikhIbrahimbhaiRasulbhaihasdeposed inrespectofincidentdated01.03.2002andhasnamedthe presentaccused.HehasidentifiedAshvinbhaiBaldevbhai JoitabhaiPatelintheCourtandintheComplaintnameof Ashvinbhai Baldevbhai is mentioned. In the application 01.06.2002andstatementdated01.06.2002hehasstated Ashvin Baldev Joita Gadivala. Thus from the evidence of thecomplainant,itisnotclearwhetheraccusedNo.55of SessionsCaseNo.275of2002oraccusedNo.6ofSessions Case No.120 of 2008 was involved in the incident. Thus
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fromtheevidenceofcomplainantitisnotclear.Prosecution hastoestablishtheinvolvementoftheaccusedspecifically. Thus,onthestrengthofthisevidencenooneofthesetwo accusedcanbeconsideredasinvolvedintheincidentand benefitofdoubtisrequiredtobegiventobothunderabove circumstances.P.W.48ShaikhSabirhusenKadarmiyahas deposedin hisdepositionnamingthepresentaccusedin the mob in respect of incident dated 01.03.2002. He has identified the accused in the Court. He has identified 14 accusedintheCourt.beforeidentification,itwasverified whetherhewasabletoseethepersonssittingintheCourt andaftersatisfyingidentificationwascarriedout.thereis contradictionfromwhereandhowhehasseentheaccused inhisstatementdated06.03.2002.Hehasnotstatedthe name of present accused in his statement before S.I.T. dated10.05.2008. Thusfromtheevidenceofthiswitness alsoitisnotclearwhetherAshvinBaldevBothamwasin the mob or Ashvin Baldev Joita Patel was in the mob. Therefore, both are required to be given benefit of doubt under above circumstances. P.W.54 Shaikh Sharifmiya Bhikhumiyahasdeposedonoaththenameofthepresent accusedinthemobwithTin.Hehasidentifiedtheaccused intheCourtandinhisstatementdated06.03.2002from
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where and how he has seen the accused there is contradiction. In his affidavit dated 06.11.2003 and statement dated 22.05.2008 not stated name of present accused.Thusfromtheevidenceofthiswitnessalsoitis notclearwhetherAshvinBaldevBothamwasinthemobor AshvinBaldevJoitawasinthemob.Boththeseaccused are the residents of Village Sardarpur. Witness has not madeitclearspecificallytherefore,onthestrengthofthe evidence of this witness we cannot conclude the involvementofanyofthesetwoaccused.P.W.55Shaikh Aashiqhusen Bachumiya has deposed the name of this accusedintheincidentdated01.03.2002withTin.Hehas notidentifiedtheaccusedintheCourt.Hehasidentified Gordhan Reva as Ashvin Baldev. In his statement dated 19.05.2008 before S.I.T. he has stated that, he has not given the name of this accused in statement dated 02.03.2002. He has not stated the name of present accused in his affidavit dated 06.11.2003 while in his statement dated 02.03.2002 there is contradiction from whereandhowhehasseentheaccused.Consideringthe above evidence in the circumstances whenthe witness is unabletoidentifyanyofboththeseaccused,involvementof any of these accused cannot be considered. P.W. 69
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Shaikh Mahemudmiya Husenmiya has deposed on oath abouttheinvolvementofthisaccusedinrespectofincident dated01.03.2002withKeroseneTin.Hehasidentifiedthe accused in the Court. He took 20 minutes for identifying the accused. He has identified 5 accused in the Court. Courthadverifiedfromthewitnesswhether,hecouldsee thepersonspresentintheCourtandafterduesatisfaction identification was performed. No doubt witness is handicappedbutintheCourtitwasproperlyarrangedso that,thewitnesscanseethepersonsittingintheCourt. Hehasnotstatedthenameofthepresentaccusedinhis statement dated 06.03.2002 and has stated that, his statementdated22.05.2008wasnotrecorded. Thusfrom the evidence of this witness also it is not clear which of thesetwoaccusedorbothwerepresentinthemob.P.W.73 FaridabibiAashikhusenShaikhhasnotstatedthename of this accused in her statement dated 02.03.2002 and 11.06.2008andhasnotnamedinherdepositionbutshe hasidentifiedtheaccusedintheCourtforthefirsttimeby face only. In her statement dated 02.03.2002 she has statedthat,shehasidentifiedtheaccusedbyvoice.There is contradiction from where and how she has seen the accusedandhasnotstatedthenameofpresentaccusedin
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hisstatementdated11.06.2008.Thus,fromthisevidence alsoitisnotclearwhichofthesetwoorbothaccusedwas involved in the incident. Thus, from the above evidence therearetwopossibilitiesabouttheinvolvementofeitherof the accused or innocence of the accused in that circumstancesbenefitgoesinfavourofboththeaccused. Thus,consideringtheappreciationofevidenceasdiscussed whilediscussingtheevidenceofwitnessesthepresenceof thisaccusedinthemobisnotsatisfactorilyprovedbythe Prosecutionandthathewasnotinthemob.Thus,itisnot proved by the prosecution beyond reasonable doubt that, presentaccusedwasthememberofunlawfulassembly.
Itisnotindisputethat,theaccusedaretheresident of Village Sardarpur and witnesses are also resident of Village Sardarpur. No specific role has been attributed to theaccusedbyanywitness.Furtheraccusednotidentified bythewitnesses.Therefore,thefactsremainsthat,itisnot safe to hold accused guilty on the basis of general allegations.Thereisnoothermaterialonrecordagainstthe present accused to show their involvement in the alleged offence.Itwouldbehazardoustobaseaconvictiononlyon theevidenceofgeneralallegations.Itwouldbeappropriate
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to give benefit of doubt and acquit the accused. In my opinion though their exist strong suspicion against the accuseditisnotpossibletoholdthat,theirinvolvementin the offence is established in the absence of anybody pointingouttowardsthemintheCourtasapersonwho wereinthemobrequiresacquittal.
124.
AccusedNo.7PATELDAHYABHAIVANABHAI (SessionsCaseNo.120/2008) P.W.47ShaikhIbrahimbhaiRasulbhaihasdeposed inrespectofincidentdated01.03.2002andhasnamedthe presentaccused.Hehasnotidentifiedtheaccusedinthe Courtthoughsufficienttimewasgiventohimanditwas verifiedwhetherheisabletoseeallthepersonssittingin the Court room or not. He has not named the present accusedinhiscomplaintaswellashasnotnamedinhis statementdated10.03.2002,01.06.2002,applicationdated 01.06.2002,affidavitdated06.11.2003andstatementbefore S.I.T. dated 11.06.2008 and in the application and statement before S.I.T. dated 09.05.2008. P.W.73 FaridabibiAashikhusenShaikhhasnotstatedthenameof this accused in her statement dated 02.03.2002 and 11.06.2008andhasnotnamedinherdepositionbutshe
// 1127 //
hasidentifiedtheaccusedintheCourtforthefirsttimeby face only. P.W. 78 Shaikh Basirabibi Bachumiya has deposedthenameofthepresentaccusedinthemob.She has identified the accused in the Court. She took 12 minutesforidentificationoftheaccused. Shehasstated that,abouttheinvolvementoftheaccusedintheincident and hasidentified8accused.beforeidentification,itwas verified by the Court whether the witness can see the persons sitting in the court and after due satisfaction identification was carried out in the Court. As per her deposition when she went to the Shop of Dahyabhai Vanabhai to purchase gram floor, she was told by DahyabhaiVanabhai"todayyoueatBhajiya,tomorrowwill bethelastdayforyoupeople". Thisfactisnotstated in herstatementdated17.04.2002 and 11.06.2008. She has furtherdeposedthepresenceofthepresentaccusedinthe mob in the night incident and she has identified the present accused but she has not named the present accusedinrespectofnightincidentinherstatementdated 17.04.2002and11.06.2008however,thereiscontradiction inherstatementdated22.05.2008inrespectoffromwhere and how she has seen the accused. P.W.80 Shaikh RuksanabanuIbrahimmiyahasnotnamedpresentaccused
// 1128 //
but identified the accused first time in the court by face only.Shetook7minutestimeforidentifyingtheaccusedin the Court. In her statement dated 10.03.2002 she has namedotheraccusedstatingthat,shesawthembutshe hasnotstatedthat,shecanidentifythembyface.Shehas notstatedthenameoftheaccusedinherstatementdated 22.05.2005. Considering the above evidence complainant thoughidentifyingtheaccusedintheCourtbutnotnamed in the Complaint nor in any of the statements. P.W.73 identifyingtheaccusedbyfacebutinnoneofherstatement involvementofthisaccusedisshownwhileP.W.78istelling the involvement of this accused in respect of incident of GramFloorBhajiyaandshehasstatedthepresenceofthis accusedinthemobinthenightincident.Further,present accusediswellknownbythiswitnessasshewenttohis shop in the evening and some conversation took place between them. In that circumstances if she is identifying the accused in the mob and stating this fact in her statementdated22.05.2008andidentifyinghiminCourtis sufficienttosupportthesayoftheprosecutioncasethat, present accused was present in the mob. She was very muchpresentinShaikhMaholla.HerpresenceinShaikh Maholla as discussed earlier cannot be doubted. P.W.80
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thoughnotnaminginanyofherstatementbutidentifying theaccusedbyface.EvidenceofP.W.78issupportedbythe evidenceofP.W.47andP.W.80aboutthepresenceofthis accusedinthemob.Thus,thereissufficientevidencefor believingthepresenceofthisaccusedinthenightincident. Thus,consideringtheappreciationofevidenceasdiscussed whilediscussingtheevidenceofwitnessesthepresenceof this accused in the mob is satisfactorily proved by the Prosecutionandthathewasinthemob.Thus,itisproved bytheprosecutionbeyondreasonabledoubtthat,present accusedwasthememberofunlawfulassembly.
Itisnotindisputethat,theaccusedistheresidentof VillageSardarpurandwitnessesarealsoresidentofVillage Sardarpur.Theyareknowntoeachothersincepreviously hence evidence of witnesses can safely be accepted as regardstotheinvolvementofthisaccusedandevidenceof witnessesasdiscussedearlierhavingseentheaccusedin the mob cannot be doubted at all. Once it is established and accepted that, witness and accused are resident of same locality, well known to each other, only question requires about falsely implication of the accused. The question of making any mistake in that regard does not
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arise. It does not possible to hold false implication of accused. Here, in the present case entering in Shaikh Mahollaatthetimeofincidentitselfsuggestthecommon objectofthemobaswellasspecificroleattributedtothe accused.TherewasnoreasontoenterinShaikhMahollaat that time. Therefore by becoming a member of unlawful assemblyaccusedenteredinShaikhMahollaandincident ofburningofcabins,housesinShaikhMahollaaswellas incidentinMahemudmiya'shouseoccurred.Furtherthere was incident of pelting of stones also occurred. This fact itselfsuggestovertactinconnectionwithcommonobject ofthemob.Meaningtherebyaccusedhadparticipatedin furtherance of common object of the mob. Therefore involvementofaccusediswellestablishedfromtheabove circumstances. But no weapon is connected with the offenceintheevidenceofwitnesses.Butmuchimportance cannot be given to this aspect as the evidence of identificationofaccusedisestablished.Therefore,thebasic defence of the accused in his examination under Section 313ofCr.P.C.thathehasfalselybeenimplicatedandheis innocent and that he was not present at the time of incident is not acceptable. Simply witnesses and accused know each other is not sufficient to accept the false
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implication on this ground. There is no previous enmity betweenthem.Thereisnoreasontofalselyimplicatethe accused.Noonewouldfalselyinvolveaninnocentperson, keepingasidetherealculprit.Therefore,thedefenceofthe accusedisnotacceptable. 125. AccusedNo.8PATELJOITABHAIRAMABHAI (SessionsCaseNo.120/2008) P.W.47IbrahimmiyaRasulmiyaShaikh,whoisthe complainanthasdeposedinhisdepositionthat,whenthe mobhadburnedthehousesinShaikhMahollaatthattime hesawtheaccusedinthemob.Inhisdepositionhehas identifiedtheaccusedintheCourt.Butinthecomplaint, hehasnotmentionedthenameoftheaccused.Hehasalso not mentioned the name of present accused in his statement dated 10.03.2002, 01.06.2002 and application dated01.06.2002andaffidavitdated06.11.2003andinthe Statementdated11.06.2008beforetheS.I.T.Hisnameis alsonotmentionedintheapplicationandstatementdated 09.05.2008 before S.I.T. P.W.51 Shaikh Nazirmohnmad Akbarmiyahasdeposedaboutthepresenceofthisaccused in the mob in the incident dated 01.03.2002 and has deposedthat,thepresentaccusedwasinthemob.Hehas identified the accused in the Court. P.W.58 Shaikh
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SabirhusenImamshahas stated thenameof thepresent accused in respect of incident dated 01.03.2002. He has stated that, accused is not present in the Court in fact accusedwasverymuchpresentintheCourtattherelevant pointoftime.Hehasnotstatedthenameofthepresent accused in the statement dated 03.03.2002 and 22.05.2008.P.W.62ShaikhRafikmiyaMahmadhusenhas deposed the name of this accused in his deposition in respectofincidentdated01.03.2002.Hehasdeposedthat, thiswitnesswasverymuchpresentinthemobwithTin. HehasnotidentifiedtheaccusedintheCourt.Hetook15 minutes time for identification of accused and during 15 minutes he identified 9 accused including the present accused. After due verification by the Court that, he can seeallthepersonssittingintheCourt.Astheheightofthis witnessis5'3hecouldseeallthepersonssittinginthe courtanditwasmanagedintheCourtthat,thewitness couldseethepersonstherefore,therewasnonecessityto permitthewitnesstostepdownfromthewitnessboxand toidentifytheaccusedfromverynear.Hehasnotstated the name of this accused in his statement dated 10.03.2002 and 10.05.2008. Considering above evidence, P.W.47hasnotstatedthenameofpresentaccusedinany
// 1133 //
ofhisstatementnorincomplaintbutidentifying.P.W.51is also identifying the accused but not stating the name of present accused in the mob. P.W. 58 and P.W.62 are not identifyingtheaccused.Simplynamingtheaccusedinthe mob. Thus, considering above all there is no sufficient evidence to believe the involvement of presentaccused in theincident.Thus,consideringtheappreciationofevidence asdiscussedwhilediscussingtheevidenceofwitnessesthe presence of this accused in the mob is not satisfactorily provedbytheProsecutionandthathewasnotinthemob. Thus,itisnotprovedbytheprosecutionbeyondreasonable doubtthat,presentaccusedwas thememberofunlawful assembly.
Itisnotindisputethat,theaccusedistheresidentof Village Sardarpur and witness is also resident of Village Sardarpur. No specific role has been attributed to the accusedbyanywitness.Furtheraccusednotidentifiedby thewitness.Therefore,thefactsremainsthat,itisnotsafe toholdaccusedguiltyonthebasisofgeneralallegations. There is no other material on record against the present accusedtoshowhisinvolvementintheallegedoffence.It would be hazardous to base a conviction only on the
// 1134 //
evidenceofgeneralallegations.Itwouldbeappropriateto givebenefitofdoubtandacquittheaccused.Inmyopinion thoughtheirexiststrongsuspicionagainsttheaccuseditis notpossibletoholdthat,hisinvolvementintheoffenceis establishedintheabsenceofanybodypointingouttowards himintheCourtasapersonwhowasinthemobrequires acquittal.
126.
SofarasexplanationgivenbytheaccusedNo.1,2,3,4,5, 6 and 8 of Sessions Case No.120/2008 in respect of FurtherStatementrecordedunderSection313ofCr.P.C.is concerned there is no necessity for considering the explanation as the involvement of these accused are not provedbytheprosecution.Sofarasexplanationgivenby accusedNo.7ofSessionsCaseNo.120/2008isconcerned, hehasstatedthat, heishavinghisshopjustinfrontof ShaikhMaholla,therefore,theyknowhimverywillhence, after6years,hehasfalselybeeninvolvedintheincident.It isnotsatisfactorilysatisfiedbytheaccusedbyproducingor adducing any evidence of the level of preponderance of probabilitieshencenotaccepted.
127.
AccusedNo.1PATELKANTIBHAIPRABHUDAS (SessionsCaseNo.7/2009)
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Abatedasaccuseddiedduringthependencyoftrial. 128. AccusedNo.2PATELLAXMANDHULABHAI (SessionsCaseNo.7/2009) P.W.57ShaikhMustufamiyaRasulmiyahasnamed theaccusedinhisdepositioninrespectofincidentdated 01.03.2002andhasidentifiedtheaccusedintheCourt.He took15minutestimeforidentification.Hehasnotstated the name of the accused in the statement dated 10.03.2002. In the statement dated 19.05.2008 and 05.08.2008 there is contradiction in the statements from whereandhowhasseentheaccusedandthatisalready discussed in earlier part of the judgement at the time of appreciatingtheevidence.Inhisaffidavitdated06.11.2003 he has stated that, accused was present in the mob. Exceptthiswitnessthereisnootherevidencesupporting thesayofpresentwitness.Further,inhisfirststatement this witness is silent about the presence of this accused andinotherstatementsthereiscontradictionaboutfrom wherehehasseentheaccusedandinthatcircumstances itisratherriskytoaccepttheinvolvementofthepresent accused.Thus,consideringtheappreciationofevidenceas discussed while discussing the evidence of witnesses the
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presence of this accused in the mob is not satisfactorily provedbytheProsecutionandthathewasnotinthemob. Thus,itisnotprovedbytheprosecutionbeyondreasonable doubtthat,presentaccusedwas thememberofunlawful assembly.
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129.
AccusedNo.3PATELMAHESHJIVANBHAI (SessionsCaseNo.7/2009) P.W.46PathanSabirmiyaAkumiyahasdeposedon oath the name of present accused in respect of incident dated 01.03.2002 as well as in respect of incident dated 28.02.2002.Thiswitnesshasidentifiedtheaccusedinthe Court. In his applicationdated06.05.2008 he has stated the name of the present accused but has not stated the nameinhisstatementdated20.05.2008.P.W.59Shaikh Mohmad Sattar Bachumiya has stated the name of the present accused in respect of incident dated 01.03.2002 about cabin fire incident at 09.30 PM and main incident about11.30to12.00P.M.Itisdeposedbythewitnessthat, accused was present in the mob with stone. He has identified the accused in the Court. He took 15 minutes time for identifying the accused in the Court. He has identified about 20 accused in the Court. before identification, it was verified and satisfied whether the witness could see the persons sitting in the Court room. This witness has not stated the name of the present accusedinhisstatementdated02.03.2002,affidavitdated 06.11.2003.InhisstatementbeforeS.I.T.dated19.05.2008 he has stated that, in his statement dated 02.03.2002
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Policehaswrittenthenameofthepresentaccused.P.W.60 ShaikhBachumiyaImammiyahasstatedthenameofthe present accused in his deposition in respect of incident dated01.03.2002.Hehasdeposedabouttheincidentdated 28.02.2002inrespectofclosingcabinsincidentandalso named in respect of incident dated 01.03.2002 in night. Thiswitnesshasnotstatedtheincidentofclosingofcabins inhisstatementdated02.03.2002andalsonotstatedthe latenightincidentdated01.03.2002.Hehasnotidentified thepresentaccused.Hetook12minutesforidentification ofaccused.During12minuteshehasidentifiedabout21 accused. P.W.65 Shaikh Akbarmiya Nathumiya has not named the accused in his deposition but identified the accused in the mob and has identified Ramanbhai Jivanbhai as Mahesh Jivan. P.W.68 Shaikh Gulamali Akbarmiyahasdeposedthenameofthepresentaccusedin respect of incident dated 01.03.2002 stating therein that, theaccusedwaspresentinthemob.Hehasnotidentified the present accused in the Court. 12 minutes time has beentakenbyhimforidentificationoftheaccused.before identification, it was verified by the Court whether this witness is able to see the persons sitting in the Court. Heightofthewitnessis5'2.Hehasnotstatedthenameof
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present accused in the statement dated 10.03.2002, application dated 09.05.2008 and statement dated 10.05.2008. Considering above evidence, P.W.46 is not naming the accused in any of his statement but taking nameinthecourtandidentifyingtheaccused.P.W.59not naming the present accused in any of his statement but identifying the accused in the Court and deposing the presence of accused with stone while P.W.60, P.W.65 and P.W.68 though naming the accused in the mob not identifying.Thus,simplyonidentificationbyP.W.59and46 wecannotconcludetheinvolvementofpresentaccusedin themob.Thus,consideringtheappreciationofevidenceas discussed while discussing the evidence of witnesses the presence of this accused in the mob is not satisfactorily provedbytheProsecutionandthathewasnotinthemob. Thus,itisnotprovedbytheprosecutionbeyondreasonable doubtthat,presentaccusedwas thememberofunlawful assembly.
Itisnotindisputethat,theaccusedistheresidentof Village Sardarpur and witness is also resident of Village Sardarpur. No specific role has been attributed to the accusedbyanywitness.Furtheraccusednotidentifiedby
// 1140 //
thewitness.Therefore,thefactsremainsthat,itisnotsafe toholdaccusedguiltyonthebasisofgeneralallegations. There is no other material on record against the present accusedtoshowhisinvolvementintheallegedoffence.It would be hazardous to base a conviction only on the evidenceofgeneralallegations.Itwouldbeappropriateto givebenefitofdoubtandacquittheaccused.Inmyopinion thoughtheirexiststrongsuspicionagainsttheaccuseditis notpossibletoholdthat,hisinvolvementintheoffenceis establishedintheabsenceofanybodypointingouttowards himintheCourtasapersonwhowasinthemobrequires acquittal.
130.
AccusedNo.4PATELMATHURDASDHWARKADAS (DAVABHAI)(D0CTOR) (SessionsCaseNo.7/2009) Sofarasinvolvementofthisaccusedintheincidentis concerned, none of the witness has deposed about the involvement of this accused in the incident. No role has been attributed by any witness to this accused. Nor this accused is identified by any witness. Thus, prosecution failed to establish that, this accused was involved in the incidentasallegedbytheprosecution.
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131.
AccusedNo.5PRAJAPATIPRAHADBHAIVARVABHAI (SessionsCaseNo.7/2009) P.W.52 Shaikh Hizbulmiya Husenmiya has named thepresentaccusedinhisdepositioninrespectofincident dated 01.03.2002. He has deposed that present accused wasinstigatingthemob.HehasidentifiedMathurTrikam asPrahladVarva.Hetook15minutestimeforidentification ofaccused.During15minuteshehasidentified5accused persons.Hehasnotstatedthenameofpresentaccusedin his statement dated 10.03.2002, 11.06.2008 and 05.08.2008andaffidavitdated06.11.2003.P.W.82Fakir SabirabibiSabirhusenhasnamedpresentaccusedinher depositioninrespectofincidentdated01.03.2002.Shehas not identified present accused before the Court though sufficient opportunities were given to her. before identification, it was verified and satisfied whether the witness could see the persons sitting in the Court room. Sheishavingheightabout5'.Shehasnotstatedthename ofpresentaccusedinherstatementdated03.03.2002and 22.05.2008. P.W.83 Fakir Sharifabanu Sabirhusen has namedthepresentaccusedinherdepositioninrespectof incident dated 01.03.2002 but has not identified the
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accusedintheCourtthoughsufficientopportunitieswere given to her. before identification, it was verified and satisfiedwhetherthewitnesscouldseethepersonssitting intheCourtroom.Shehasnotstatedthenameofpresent accused in her statements dated 03.03.2002 and 24.06.2008.Butthereiscontradictionfromhowandwhere she has seen the accused in the statement dated 24.06.2008. Considering the above evidence, P.W.52 has deposedthenameofthisaccusedininstigationofthemob. P.W.82andP.W.83havealsonamedthepresentaccusedin themobbutnoneofthewitnesshaveidentifiedthepresent accused.Therefore,wecannotconcludetheinvolvementof present accused in the mob. Thus, considering the appreciationofevidenceasdiscussedwhilediscussingthe evidenceofwitnessesthepresenceofthisaccusedinthe mobisnotsatisfactorilyprovedbytheProsecutionandthat he was not in the mob. Thus, it is not proved by the prosecutionbeyondreasonabledoubtthat,presentaccused wasthememberofunlawfulassembly.
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accusedbyanywitness.Furtheraccusednotidentifiedby thewitness.Therefore,thefactsremainsthat,itisnotsafe toholdaccusedguiltyonthebasisofgeneralallegations. There is no other material on record against the present accusedtoshowhisinvolvementintheallegedoffence.It would be hazardous to base a conviction only on the evidenceofgeneralallegations.Itwouldbeappropriateto givebenefitofdoubtandacquittheaccused.Inmyopinion thoughtheirexiststrongsuspicionagainsttheaccuseditis notpossibletoholdthat,hisinvolvementintheoffenceis establishedintheabsenceofanybodypointingouttowards himintheCourtasapersonwhowasinthemobrequires acquittal. 132. AccusedNo.6PATELJAGABHAIJIVANBHAI (SessionsCaseNo.7/2009) P.W.50 Shaikh Zakirhusen Kadarmiya has named thepresentaccusedinhisdepositioninrespectofincident dated 01.03.2002. As per his say this accused was instigatingthemob. Hehasnotidentifiedtheaccusedin the Court. He took 15 minutes time for identification of accused. During 15 minutes he has identified 5 accused persons.Hehasnotstatedthenameofpresentaccusedin
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hisstatementdated06.03.2002andthereiscontradiction inhisstatementdated11.06.2008fromwhereandhowhe has seen the accused. P.W.52 Shaikh Hizbulmiya Husenmiya has named the present accused in his depositioninrespectofincidentdated01.03.2002.Andas perhisdepositionpresentaccusedwaspresentinthemob with Acid Bottle. He has identified Jaga Jivan as Dahya Varva, He took 15 minutes time for identification of accused. During 15 minutes he has identified 5 accused persons.Hehasnotstatedthenameofpresentaccusedin hisstatementdated10.03.2002.Consideringtheevidence of above witnesses, no witness has identified the present accused. Considering the above evidence, P.W.50 and P.W.52 though involving the present accused in the instigation the mob and having Acid Bottle with him but none of both have identified the accused in the Court. Thus, simply on naming the accused in the Court, we cannot come to the conclusion about the involvement of present accused in the mob. Thus, considering the appreciationofevidenceasdiscussedwhilediscussingthe evidenceofwitnessesthepresenceofthisaccusedinthe mobisnotsatisfactorilyprovedbytheProsecutionandthat he was not in the mob. Thus, it is not proved by the
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prosecutionbeyondreasonabledoubtthat,presentaccused wasthememberofunlawfulassembly.
133.
AccusedNo.7PATELUPENDRAMANILAL (SessionsCaseNo.7/2009) P.W.48ShaikhSabirhusenKadarmiyahasdeposed
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thenameofthisaccusedintheincidentdated01.03.2002. He has identified the accused in the Court. He has not stated the name of this accused in his statement dated 06.03.2002. P.W.50 Shaikh Zakirhusen Kadarmiya has namedthepresentaccusedinhisdepositioninrespectof incidentdated01.03.2002.Asperhissaythisaccusedwas instigatingthemob. Hehasnotidentifiedtheaccusedin the Court. He took 15 minutes time for identification of accused. During 15 minutes he has identified 5 accused persons.Hehasnotstatedthenameofpresentaccusedin hisstatementdated06.03.2002andthereiscontradiction inhisstatementdated11.06.2008fromwhereandhowhe has seen the accused. Considering the above evidence, P.W.48andP.W.50havetakenthenameofpresentaccused intheirrespectivedeposition.P.W.50isnotidentifyingthe accused while P.W.48 has identified the accused in the Courtbuthasnotstatedthenameofthisaccusedinanyof hisstatement.Therefore,simplyonidentificationbeforethe Court we cannot conclude the involvement of present accused.Thus,consideringtheappreciationofevidenceas discussed while discussing the evidence of witnesses the presence of this accused in the mob is not satisfactorily provedbytheProsecutionandthathewasnotinthemob.
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Thus,itisnotprovedbytheprosecutionbeyondreasonable doubtthat,presentaccusedwas thememberofunlawful assembly. Itisnotindisputethat,theaccusedistheresidentof Village Sardarpur and witness is also resident of Village Sardarpur. No specific role has been attributed to the accusedbyanywitness.Furtheraccusednotidentifiedby thewitness.Therefore,thefactsremainsthat,itisnotsafe toholdaccusedguiltyonthebasisofgeneralallegations. There is no other material on record against the present accusedtoshowhisinvolvementintheallegedoffence.It would be hazardous to base a conviction only on the evidenceofgeneralallegations.Itwouldbeappropriateto givebenefitofdoubtandacquittheaccused.Inmyopinion thoughtheirexiststrongsuspicionagainsttheaccuseditis notpossibletoholdthat,hisinvolvementintheoffenceis establishedintheabsenceofanybodypointingouttowards himintheCourtasapersonwhowasinthemobrequires acquittal. 134. AccusedNo.8PATELSANJAYAMBALAL (SessionsCaseNo.7/2009) P.W.46PathanSabirmiyaAkumiyahasdeposedon oath the name of present accused in respect of incident
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dated 01.03.2002 as well as in respect of incident dated 28.02.2002.Thiswitnesshasidentifiedtheaccusedinthe Court. In his applicationdated06.05.2008 he has stated the name of the present accused but has not stated the nameinhisstatementdated20.05.2008.P.W.48Shaikh Sabirhusen Kadarmiya has deposed the name of this accused in respect of incident dated 01.03.2002. He has identifiedtheaccusedintheCourt.Hehasnotstatedthe nameofthisaccusedinhisstatementdated06.03.2002. Considering the above evidence, P.W.46 and P.W.48 both haveidentifiedtheaccusedintheCourtandhavedeposed abouttheinvolvementofaccusedinthemobinrespectof incidentdated01.03.2002butinnoneoftheirstatements theyhavestatedthenameofpresentaccused. Thus,itis ratherriskytoaccepttheinvolvementofpresentaccusedin the incident simply on identification before the Court. Thus,consideringtheappreciationofevidenceasdiscussed whilediscussingtheevidenceofwitnessesthepresenceof thisaccusedinthemobisnotsatisfactorilyprovedbythe Prosecutionandthathewasnotinthemob.Thus,itisnot proved by the prosecution beyond reasonable doubt that, presentaccusedwasthememberofunlawfulassembly.
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135.
AccusedNo.9PATELKALABHAIBHIKHABHAI (SessionsCaseNo.7/2009) P.W.46PathanSabirmiyaAkumiyahasdeposedon oath the name of present accused in respect of incident dated 01.03.2002 as well as in respect of incident dated 28.02.2002.Thiswitnesshasidentifiedtheaccusedinthe
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Court. In his applicationdated06.05.2008 he has stated the name of the present accused but has not stated the nameinhisstatementdated20.05.2008.P.W.48Shaikh Sabirhusen Kadarmiya has not named this accused in respectofincidentdated01.03.2002.Hehasidentifiedthe accusedintheCourt.Thereiscontradictioninrespectof statement dated 06.03.2002 from where and how he has seen the accused. P.W.55 Shaikh Aashiqhusen Bachumiya has named the present accused in his depositioninrespectofincidentdated01.03.2002.Asper hisdepositionthepresentaccusedwasthrowingStonein the mob. He has identified the accused in the Court. He took 15 minutes for identification. He has not stated the name of present accused in the statement dated 02.03.2002,affidavit06.11.2003andstatementbeforeS.I.T. dated 19.05.2008. P.W.62 Shaikh Rafikmiya Mahmadhusenhasnamedthisaccusedinhisdepositionin respectofincidentdated01.03.2002andhasidentifiedthe accused in the Court. He took 15 minutes time for identifyingtheaccused.Hehasnotstatedthenameofthe present accused in his statement dated 10.03.2002 and 10.05.2008. Identification was carried out after due satisfaction that witness could see the persons sitting in
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theCourtandin15minutes,hehasidentified9accused. He has not stated the name of present accused in the statement dated 10.03.2002 and 10.05.2008. P.W.68 ShaikhGulamaliAkbarmiyahasdeposedthenameofthe present accused in respect of incident dated 01.03.2002 that, this accused was present in the mob. This witness hasidentifiedthepresentaccusedintheCourt.Hetook12 minutes time for identification and he has identified 19 accusedin12minutes.Hisheightisabout52anditwas verified whether he could see the persons sitting in the Courtandafterduesatisfactionidentificationwascarried out. This witness has not stated the name of present accused in his statement dated 10.03.2002, application dated09.05.2008andstatementdated10.05.2008.P.W.71 RawalMangabhaiRamabhaihasstatedthenameofthe presentaccusedinrespectofincidentdated01.03.2002.He has not identified the accused in the Court. He took 7 minutestimeforidentificationoftheaccusedintheCourt and in 7 minutes he has identified four accused. This witnessishaving5'HeightanditwassatisfiedbytheCourt andhecouldseethepersonssittingintheCourt.Hehas not stated the name of present accused in the statement dated20.05.2008.Thiswitnessisregardingthecollection
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ofKerosenefromTractoron01.03.2002at09.00PM.Heis not the eye witness of the incident of Shaikh Maholla. Considering the above evidence P.W.46, P.W.48, P.W.55, P.W.62andP.W.68haveidentifiedtheaccusedintheCourt aswellasnamedtheaccusedinrespectofhisinvolvement in the incident. Further, P.W.48, P.W.68 have stated the name of present accused in their statement dated 06.03.2002andapplicationdated09.05.2008respectively, whichsupportsthepresenceofthisaccusedinthemob. Thus,consideringtheappreciationofevidenceasdiscussed whilediscussingtheevidenceofwitnessesthepresenceof this accused in the mob is satisfactorily proved by the Prosecutionandhewasinthemob.Thus,itisprovedby the prosecution beyond reasonable doubt that, present accusedwasthememberofunlawfulassembly.
Itisnotindisputethat,theaccusedistheresidentof VillageSardarpurandwitnessesarealsoresidentofVillage Sardarpur.Theyareknowntoeachothersincepreviously hence evidence of witnesses can safely be accepted as regardstotheinvolvementofthisaccusedandevidenceof witnessesasdiscussedearlierhavingseentheaccusedin the mob cannot be doubted at all. Once it is established
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and accepted that, witness and accused are resident of same locality, well known to each other, only question requires about falsely implication of the accused. The question of making any mistake in that regard does not arise. It does not possible to hold false implication of accused. Here, in the present case entering in Shaikh Mahollaatthetimeofincidentitselfsuggestthecommon objectofthemobaswellasspecificroleattributedtothe accused.TherewasnoreasontoenterinShaikhMahollaat that time. Therefore by becoming a member of unlawful assemblyaccusedenteredinShaikhMahollaandincident ofburningofcabins,housesinShaikhMahollaaswellas incidentinMahemudmiya'shouseoccurred.Furtherthere was incident of pelting of stones also occurred. This fact itselfsuggestovertactinconnectionwithcommonobject ofthemob.Meaningtherebyaccusedhadparticipatedin furtherance of common object of the mob. Therefore involvementofaccusediswellestablishedfromtheabove circumstances. But no weapon is connected with the offenceintheevidenceofwitnesses.Butmuchimportance cannot be given to this aspect as the evidence of identificationofaccusedisestablished.Therefore,thebasic defence of the accused in his examination under Section
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313ofCr.P.C.thathehasfalselybeenimplicatedandheis innocent and that he was not present at the time of incident is not acceptable. Simply witnesses and accused know each other is not sufficient to accept the false implication on this ground. There is no previous enmity betweenthem.Thereisnoreasontofalselyimplicatethe accused.Noonewouldfalselyinvolveaninnocentperson, keepingasidetherealculprit.Therefore,thedefenceofthe accusedisnotacceptable.
136.
AccusedNo.10PATELGOVINDBHAIMOHANBHAI (SessionsCaseNo.7/2009) P.W.46PathanSabirmiyaAkumiyahasdeposedon oath the name of present accused in respect of incident dated 01.03.2002 as well as in respect of incident dated 28.02.2002.Thiswitnesshasidentifiedtheaccusedinthe Court. In his applicationdated06.05.2008 he has stated the name of the present accused but has not stated the nameinhisstatementdated20.05.2008.P.W.62Shaikh Rafikmiya Mahmadhusen has named this accused in his depositioninrespectofincidentdated01.03.2002andhas identified the accused in the Court. He took 15 minutes time for identifying the accused. He has not stated the
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name of the present accused in his statement dated 10.03.2002and10.05.2008.Identificationwascarriedout after due satisfaction that witness could see the persons sittingintheCourtandin15minuteshehasidentified9 accused.P.W.68ShaikhGulamaliAkbarmiyahasdeposed the name of the present accused in respect of incident dated 01.03.2002 that, this accused was present in the mob.Thiswitnesshasidentifiedthepresentaccusedinthe Court. He took 12 minutes time for identification and he has identified 19 accused in 12 minutes. His height is about 52 and it was verified whether he could see the persons sitting in the Court and after due satisfaction identificationwascarriedout.Thiswitnesshasnotstated the name of present accused in his statement dated 10.03.2002, application dated 09.05.2008 and statement dated 10.05.2008. P.W.80 Shaikh Ruksanabanu Ibrahimmiyahasnotnamedpresentaccusedbutidentified theaccusedfirsttimeinthecourtbyfaceonly.Shetook7 minutestimeforidentifyingtheaccusedin theCourt.In her statement dated 10.03.2002 she has named other accusedstatingthat,shesawthembutshehasnotstated that,shecanidentifythembyface.Shehasnotstatedthe name of the accused in her statement dated 22.05.2005.
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Considering the above evidence, P.W.46, P.W.62, P.W.68 stating about the involvement of present accused in the mob and have identified the accused but none of the witnesshavestatedintheirstatementsaboutthepresence of this accused and therefore, simply by naming and identifying the accused, it cannot be concluded that the accused was involved in the mob. Thus, considering the appreciationofevidenceasdiscussedwhilediscussingthe evidenceofwitnessesthepresenceofthisaccusedinthe mobisnotsatisfactorilyprovedbytheProsecutionandthat he was not in the mob. Thus, it is not proved by the prosecutionbeyondreasonabledoubtthat,presentaccused wasthememberofunlawfulassembly.
Itisnotindisputethat,theaccusedistheresidentof Village Sardarpur and witness is also resident of Village Sardarpur. No specific role has been attributed to the accusedbyanywitness.Furtheraccusednotidentifiedby thewitness.Therefore,thefactsremainsthat,itisnotsafe toholdaccusedguiltyonthebasisofgeneralallegations. There is no other material on record against the present accusedtoshowhisinvolvementintheallegedoffence.It would be hazardous to base a conviction only on the
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evidenceofgeneralallegations.Itwouldbeappropriateto givebenefitofdoubtandacquittheaccused.Inmyopinion thoughtheirexiststrongsuspicionagainsttheaccuseditis notpossibletoholdthat,hisinvolvementintheoffenceis establishedintheabsenceofanybodypointingouttowards himintheCourtasapersonwhowasinthemobrequires acquittal. 137. AccusedNo.11PATELBABUBHAIGOKALDAS (SessionsCaseNo.7/2009) P.W.49ShaikhIqbalmiyaRasulmiyahasdeposedon oathnamingthepresentaccused inthemobinstigating themob.Hehasidentifiedthepresentaccused.Hehasnot statedthenameofpresentaccusedinthestatementdated 10.03.2002 and statement before S.I.T. dated 11.06.2008. Consideringtheaboveevidence,onlyP.W.49isidentifying anddeposingabouttheaccusedinhisdepositionbuthas not stated the name of present accused in any of his statement.Thereisnootherevidencetosupportthesayof presentwitnessabouttheinvolvementofpresentaccused in the incident. Thus, considering the appreciation of evidence as discussed while discussing the evidence of witnessesthepresenceofthisaccusedinthemobisnot
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satisfactorilyprovedbytheProsecutionandthathewasnot in the mob. Thus, it is not proved by the prosecution beyond reasonable doubt that, present accused was the memberofunlawfulassembly.
Itisnotindisputethat,theaccusedistheresidentof Village Sardarpur and witness is also resident of Village Sardarpur. No specific role has been attributed to the accusedbyanywitness.Furtheraccusednotidentifiedby thewitness.Therefore,thefactsremainsthat,itisnotsafe toholdaccusedguiltyonthebasisofgeneralallegations. There is no other material on record against the present accusedtoshowhisinvolvementintheallegedoffence.It would be hazardous to base a conviction only on the evidenceofgeneralallegations.Itwouldbeappropriateto givebenefitofdoubtandacquittheaccused.Inmyopinion thoughtheirexiststrongsuspicionagainsttheaccuseditis notpossibletoholdthat,hisinvolvementintheoffenceis establishedintheabsenceofanybodypointingouttowards himintheCourtasapersonwhowasinthemobrequires acquittal. 138. AccusedNo.12PATELRAMESHBHAITRIBHOVANDAS (SessionsCaseNo.7/2009)
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Sofarasinvolvementofthisaccusedintheincidentis concerned, none of the witness has deposed about the involvement of this accused in the incident. No role has been attributed by any witness to this accused. Nor this accused is identified by any witness. Thus, prosecution failed to establish that, this accused was involved in the incidentasallegedbytheprosecution.
139.
SofarasexplanationgivenbytheaccusedNo.2,3,4,5,6, 7, 8 and 10 of Sessions Case No.7/2009 in respect of FurtherStatementrecordedunderSection313ofCr.P.C.is concerned there is no necessity for considering the explanation as the involvement of these accused are not provedbytheprosecution.Sofarasexplanationgivenby accusedNo.9ofSessionsCaseNo.7/2009hasstatedthat, hishouseisjustadjacenttoShaikhMahollatherefore,the witnessesknowhimwellhencehehasfalselybeenadded as an accused after 7 years. His father is also taken as accusedfromtheverybeginning.Heisveryeminentperson of the village and connected with different societies and being son of Ambalal Maganbhai, he has falsely been implicated as an accused after 7 years. It is not
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satisfactorily satisfied by the accused by producing or adducing any evidence of the level of preponderance of probabilitieshencenotaccepted. 140. AccusedPATELARVINDBHAIKASHIRAM (SessionsCaseNo.72/2010) Sofarasinvolvementofthisaccusedintheincidentis concerned, none of the witness has deposed about the involvement of this accused in the incident. No role has been attributed by any witness to this accused. Nor this accused is identified by any witness. Thus, prosecution failed to establish that, this accused was involved in the incidentasallegedbytheprosecution.
141.
Inordertoascertainwhatoffenceshavebeencommittedby theaccusedwhoarefoundtohavebeenthemembersofan unlawful assembly at the time when the offences were committed,theaccusedwouldbeguiltyinrespectofthose offencesbyvirtueoftheprovisionsofSection149ofI.P.C. Here those accused who are held guilty had formed an unlawfulassemblyforcausinghurt,grievoushurt,burning andtherebycausingdamagetothepropertiesofMuslimof Shaikh Maholla in Sardarpur during the night between 21.30hoursto02.30hoursandtherebycommittedoffence
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falling under section 143 of I.P.C. Further, those accused havealsocommittedanoffencebeingamemberofunlawful assembly of 1000 persons and in prosecution of the common object of such assembly, for overt act. Further accusedNos.1,2,5,6,11,14,16,18,27,28,30,31,32,33, 34,35,37,38,40,41,42,43,44,46,48,49,50,52,54of Sessions Case No.275/2002, Accused No.7 of Sessions Case No.120/2008, Accused No.9 of Sessions Case No.7/2009 have committed offences by having deadly weaponslikesward,ironpipes,dharia,stoneswiththem andinfurtheranceofcommonobjectofsuchassemblyfor overtactcommittedtheoffenceofriotingpunishableunder Section144and148ofI.P.C.andtheyhavealsocommitted offence in furtherance of the common object of such assemblyforovertactofburningaliveandmurderingby intentionally causing death of Zyadabanu Ibrahimmiya Shaikh (by mistake Zyadabanu was identified as Ruksanabanu and therefore, it is subsequently rectified), Sayarabanu Abbasmiya Shaikh, Yunushusen Sherumiya Shaikh, Arifhusen Manubhai Shaikh, Sultan
Mahebubmiya Shaikh, Javedmiya Mustumiya Shaikh, Rasidabanu Jamalmiya Shaikh, Idrishbhai Akbarmiya Shaikh, Mehmudabibi Sherumiya Shaikh, Vahidabanu
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NazirbhaiShaikh,BanubibiBabumiyaShaikh,Faridabanu MahebubmiyaShaikh,MumtazbanuMakbulhusenShaikh, MumtazbanuSherumiyaShaikh,ParvinabanuIbrahimbhai Shaikh, Saminabanu Muftumiya Shaikh, Sakkarbanu Mahemubmiya Shaikh, Husenabibi Hibzulmiya Shaikh, Abbasmiya Kesarmiya Shaikh, Raziabanu Ibrahimmiya Shaikh, Bismillabanu Bhikumiya Shaikh, Ruksanabanu Abbasmiya Shaikh, Zohrabanu Manubhai Shaikh, Manubhai Husenbhai Shaikh, Rifakathusen Hizbulmiya Shaikh, Irfanhusen Mahemudmiya Shaikh, Bachumiya Nathumiya Shaikh, Sherumiya Rasulmiya Shaikh, Asiyanabanu Ashikhusen Bachumiya Shaikh, Firoz Makbulhusen Shaikh, Rafik Manubhai Shaikh,
Abedabanu Manubhai Shaikh, Suhanabanu Safikmiya Shaikh andtherebycommittedoffenceunderSection302 readwithSection149ofI.P.C.Further,theydidanactof burningalive,assaultingMuslimmen,womenandchildren with an intention to cause death of those persons if SuhanabanuAyubbhai,BasirbhaiandIliyasbhaidieddue toinjuries.Thesaidactofaccusedwouldhavebeenguilty of murder under Section 302 of I.P.C. as they received immediatemedicaltreatmenttheyweresurvived.Thus,by causingsuchoffencetheaccusedhavecommittedoffence
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punishable under Section 307 read with Section 149 of I.P.C. Further, the accused who are held liable for the offencesbyforminganunlawfulassemblyof1000persons andinfurtheranceofthecommonobjectofsuchassembly voluntarily caused hurt and grievous hurt to Faridabanu Ashiqhusen Shaikh, Imtiyaz Mahmadhusen Shaikh, Bhikhumiya Kalumiya Shaikh, Shayanabanu Ayubmiya, Aminabanu Achhumiya, Mustufamiya Rasulmiya, Hizbulmiya Husenmiya, Iqbalmiya Rasulmiya, Akbarmiya Rasulmiya,NazirmahmadAkbarmiya,GulamaliAkbarmiya, Ruksanabanu Ibrahimmiya, Maqbulmiya Kesarmiya, Rafikmiya Mahmadhusen, Hamidabibi Akbarmiya, Basirabibi Bachumiya, Khatijabibi Dosmahmad Shaikh, Shayanabanu Aashiqhusen, Saidabibi Hizbulmiya Shaikh and thereby committed the offence punishable under section 323, 324 and 325 read with Section 149 of the Indian Penal Code. While offences as alleged by the prosecution in respect of dacoity with deadly weapons, pelting stones, causing hurt and grievous hurt to the complainant as well as Faridabanu Ashiqhusen Shaikh, Imtiyaz Mahmadhusen Shaikh, Bhikhumiya Kalumiya Shaikh, Shayanabanu Ayubmiya, Aminabanu Achhumiya, MustufamiyaRasulmiya,HizbulmiyaHusenmiya,Iqbalmiya
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Rasulmiya, Akbarmiya Rasulmiya, Nazirmahmad Akbarmiya, Gulamali Akbarmiya, Ruksanabanu Ibrahimmiya, Maqbulmiya Kesarmiya, Rafikmiya
Mahmadhusen, Hamidabibi Akbarmiya, Basirabibi Bachumiya, Khatijabii Dosmahmad Shaikh, Shayanabanu Aashiqhusen, Saidabibi Hizbulmiya Shaikh and thereby committedoffencepunishableunderSection395,397 of I.P.C. are not proved by the prosecution by producing cogent and reliable evidence though it is alleged that, a dacoityofornamentsworthofRs.60,000/toRs.70,000/ was caused from thehouse of BachumiyaImammiya but considering whole evidence there is no evidence to prove beyondreasonabledoubttheoffenceofcommittingdacoity. Thus,noneoftheaccusedcanbeheldliablefordacoityor robbery along with deadly weapons and pelting stones causing hurt and grievous hurt under section 395, 397, 396ofI.P.C.Sofarasoffencefallingundersection435,436 readwithSection149ofI.P.C.asallegedisconcerned,itis evidentfromtheevidenceofprosecutionsidethat,persons fromthemobofunlawfulassemblyhadcommittedmischief by fire intending thereby to cause the damage to the propertyofMuslimstotheamountofRs.85,87,500/along withthedestructionof19houses,3shops,5pavements,1
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hut,1Jeep,1Scooterandtherebyhavecommittedoffence falling under Section 435, 436 read with Section 149 of I.P.C.andforthattheyareliable.Further,itisalsoproved by the prosecution that, the accused who are held liable havecommittedtrespassbyenteringintoreligiousplaceof MuslimsaswellasgraveyardofMuslimswithanintentto commit an offence or to intimidate insults or annoy the possession of Muslim people property and thereby have committedoffencepunishableundersection447,448read with Section 149 of I.P.C. Further, they have committed offencebyforminganunlawfulassemblyof1000persons andtherebycausehurt,grievoushurttothecomplainant and witnesses so as to endanger human life and thereby committed offence punishable under section 336, 337 of I.P.C. Further, the accused whoareheld involvedin the mob have committed offence by insulting the religion of MuslimsaswellasbyinsultingthefeelingsofMuslimsby uttering"salabandiyaonemaro"andbyusingthosewords with deliberate and malicious intention to outrage the religious feelings of Muslim community and thereby have committedoffencepunishableunderSection295AofI.P.C. Further, those accused have also committed offence by prompting the feeling of enmity between Muslims and
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HinduandtherebycommittedoffencefallingunderSection 153AofI.P.C.Further,thoseaccusedhavealsocommitted offencebyenteringintothegraveyardofMuslimcommunity withanintenttohurtthefeelingsofMuslimsorinsulting thereligionofMuslimsandtherebycommittedtrespassin placeofsetapartfortheperformanceoffuneralrightsor as a depository for the remains of the dead and thereby committedoffence punishableunder Section297of I.P.C. While prosecution has failed to establish the charges against accused falling under Section 120B of I.P.C. Further,theaccusedwhowerearmedwithdeadlyweapons have committed breach of notification issued by District Magistrate and thereby committed offence punishable underSection135oftheBombayPoliceAct.Asaresultof aforesaid discussion it is clear that, the accused whose presenceintheunlawfulassemblyisproved,areliablefor the offence committed by the members of the unlawful assembly.Sofaraschargesinrespectof damagestothe Muslimspropertiesisconcerned,muchdamageshavebeen causedtothepropertiesofMuslimsbyburningthehouses in Shaikh Maholla as well as by burning the cabins of Muslims at the entrance of Shakih Maholla. Burning of housesandcabinsisprovedfromthepanchnama,mapas
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wellasfromtheevidenceofwitnesses,policewitnessesetc. and for that, the accused who are member of unlawful assemblyandhavetakenpartintheoffenceareliablefor thesaidoffences. However,foralternatechargessuchas 302,307,323,324,325,435,436,447,448,336,337none of the accused is liable independently and therefore, I answeraccordingly.
ConsideringaboveallIanswer PointNos.2,3,5,6, 8, 9,11,12,13,14,15 inthe affirmativefor Accused Nos.1,2,5,6,11,14,16,18,27,28,30,31,32,33,34,35, 37,38,40,41,42,43,44,46,48,49,50,52,54ofSessions Case No.275/2002, Accused No.7 of Sessions Case No.120/2008, Accused No.9 of Sessions Case No.7/2009. ForaccusedNos.3,7,13,15,23,24,30,45,55ofSessions CaseNo.275/2002,AccusedNos.4and12ofSessionsCase No.7/2009andAccusedofSessionsCaseNo.72/2010there isnoevidenceadducedorproducedagainstthemtherefore, theyaretobesetatlibertywhileAccusedNos.4,8,12,17, 20,21,22,25,26,29,36,39,47,51,53ofSessionsCase No.275/2002,AccusedNos.1to6and8ofSessionsCase No.120/2008, and AccusedNo.2,3,5,6,7,8,10,11of SessionsCaseNo.7/2009arerequiredtobegivenbenefitof
// 1168 //
doubtasprosecutioncouldnotestablishtheircaseagainst above accused beyond reasonable doubt and therefore, PointNos.2to16aredecidedinthenegativeagainstsaid accusedpersons.IanswerPointNo.7asindependentlyin the negative while I answer Point Nos.4 and 17 in the affirmative for accused Nos.28, 32, 33, 34, 44, 52 of SessionsCaseNo.275/2002and inthenegativeforother accused.IanswerPointNo.10and16inthenegative.
POINTNO.18&19:
142. Inviewofabovediscussionanddecision,Ipassfollowing finalorder:
-:: FINAL ORDER :-
1.
Thefollowingaccusedareacquittedforthechargesof offences punishable under Section 143, 147, 144, 148,302readwithSection149inalternateSection 302,307readwithSection149,inalternateSection 307, 323, 324, 325 read with Section 149, in alternateSection323,324,325,395,397,396,435, 436 read with Section 149, in alternate 435, 436, 447,448readwithSection149inalternate447,448,
// 1169 //
336,337readwithSection149inalternate336,337, 295A,153A,297,120BofI.P.C.andSection135of BombayPoliceAct:
Sr. No. 3 7 13 15 23 24 45 55
NameofAccused
Age Address
SESSIONSCASENO.275/2002 PatelKarshanbhaiTribhovanbhai 56 PrajapatiBabubhaiLavjibhai PatelJayantibhaiBaldevbhai PatelVishnubhaiGopalbhai PatelKanubhaiKarshanbhai PatelKalabhaialias KanaiyalalNathabhai PatelAshvinbhaiBaldevbhai Joitabhai PatelMathurdasDhwarkadas (Davabhai)(Doctor) PatelRameshbhaiTribhovandas PatelArvindKashiram 35 30 37 22 30 30 PrajapatiBharatbhaiRameshbhai 18 Sardarpur Sardarpur Sardarpur Sardarpur Sardarpur Sardarpur Sardarpur Sardarpur
SESSIONSCASENO.7/2009 4 12 1 63 42 33 Sardarpur Sardarpur Sardarpur
2.
The following accused are acquitted by giving benefit of doubt for the charges of offences punishable under Section 143, 147, 144, 148, 302 readwithSection149inalternateSection302,307
// 1170 //
readwithSection149,inalternateSection307,323, 324,325readwithSection149,inalternateSection 323, 324, 325, 395, 397, 396, 435, 436 read with Section 149, in alternate 435, 436, 447, 448 read withSection149inalternate447,448,336,337read withSection149inalternate336,337,295A,153A, 297,120BofI.P.C.andSection135ofBombayPolice Act:
Sr. No. 4 8 9 12 17 20 21 22 25 26 29 36 39
NameofAccused
Age Address
SESSIONSCASENO.275/2002 LakhvaraNarayanlalShitalmal PatelBhaveshkumarKanubhai PatelPrahladbhaiSomabhai PrajapatiGordhanbhaiRevabhai PrajapatiRavikumarAmratbhai PatelBabubhaiKantibhai PatelDineshkumarBaldevbhai PrajapatiDahyabhaiVarvabhai PatelRaghubhaiRevabhai PatelChaturbhaiKanabhai Girdharbhai PatelDashrathbhaiAmbalal Dhwarkadas PatelBaldevbhaiRanchhodbhai 18 18 32 36 18 25 22 35 51 31 26 40 Sardarpur Sardarpur Sardarpur Sardarpur Sardarpur Sardarpur Sardarpur Sardarpur Sardarpur Sardarpur Sardarpur Sardarpur Sardarpur PrajapatiRajeshkumarAmrutbhai 18
// 1171 //
Dhwarkadas 47 51 53 1 2 3 4 5 6 8 2 3 5 6 7 8 10 11 PatelJivanbhaiDhwarkadas MarvadiAashutoshalias PavankumarMurlidhar PatelRameshbhaiBaldevbhai PatelBabubhaiVanabhai PatelRameshbhaiKacharabhai PatelBabubhaiKanjibhai PatelKanubhaiRevabhai PatelNatvarbhaiKacharabhai Patel(Nagar)Ashvinbhai Baldevbhai PatelJoitaramRamabhai PatelLaxmanbhaiDhulabhai PatelMaheshbhaiJivanbhai PrajapatiPrahladbhaiVarvabhai PatelJagabhaiJivanbhai PatelUpendraManilal PatelSanjayAmbalal PatelGovindbhaiMohanbhai PatelBabubhaiGokaldas 42 21 37 45 35 35 38 50 48 48 54 33 49 42 26 28 51 47 Sardarpur Sardarpur Sardarpur Sardarpur Sardarpur Sardarpur Sardarpur Sardarpur Sardarpur Sardarpur Sardarpur Sardarpur Sardarpur Sardarpur Sardarpur Sardarpur Sardarpur Sardarpur
3.
However,theabovenamedaccusedpersonswhoare acquitted,areherebyorderedtoexecute PERSONAL BONDofRs.25,000/ (Rupeestwentyfivethousand only)with ONESOLVENTSURETY oflikeamount,
// 1172 //
byEACHONE,tothesatisfactionofthisCourt,till appealperiodisover,withaconditionthattheyshall not leave the Country without permission of this Courttilltheappealperiodisover.
TheacquittedaccusedNos.1to6and8ofSessions CaseNo.120/2008whoareinjudicialcustodybeset atlibertyforthwith,unlessrequiredtobedetainedin someothercase.
4.
Thefollowingaccusedareacquittedforthechargesof offencespunishableunderSection120B,395,397, 396 of I.P.C. while they are held guilty for the charges of offences punishable under Section 143, 147,144,148,302readwithSection149,307read with Section 149, 323, 324, 325 read with Section 149, 435, 436 read with Section 149, Section 447, 448 read with Section 149, Section 336, 337 read with Section 149, 295A, 153A, 297 of I.P.C. and Section135ofBombayPoliceAct:
Sr.
NameofAccused
Age Address
// 1173 //
No. SESSIONSCASENO.275/2002 1 2 5 6 11 14 16 18 27 28 30 31 32 33 34 35 37 38 40 41 42 43 44 PatelRameshbhaiKanjibhai PatelChaturbhaialiasBhurio Vitthalbhai PatelJayantibhaiMangalbhai PatelAmratbhaiSomabhai PatelJagabhaiDavabhai PatelKacharabhaiTribhovandas PatelMangalbhaiMathurbhai PatelBhikhabhaiJoitabhai PatelMathurbhaiRamabhai PatelSureshbhaiRanchhodbhai PatelTulsibhaiGirdharbhai PatelRamanbhaiJivanbhai Vanabhai PatelRajeshbhaiKarshanbhai PatelRameshbhaiKantibhai PatelMadhabhaiVitthalbhai PatelSureshkumarBaldevbhai PatelVishnubhaiPrahladbhai 23 28 21 25 55 55 65 50 52 22 34 29 22 24 33 20 23 Sardarpur Sardarpur Sardarpur Sardarpur Sardarpur Sardarpur Sardarpur Sardarpur Sardarpur Sardarpur Sardarpur Sardarpur Sardarpur Sardarpur Sardarpur Sardarpur Sardarpur Sardarpur Sardarpur Sardarpur Sardarpur Sardarpur Sardarpur
PatelRajendrakumaraliasRajesh 28 PunjabhaiTribhovandas PatelPrahladbhaiJagabhai PatelRameshbhaiRamabhai PatelParshottambhaialias PashabhaiMohanbhai PatelAshvinbhaiJagabhai PatelAmbalalMaganbhaiKapoor 23 35 45 21 54
// 1174 //
46 48 49 50 52 54 7 9
PatelRameshbhaiPrabhabhai Gopalbhai PatelJayantibhaiAmbalal PatelKanubhaiJoitaram PrajapatiRamanbhai Ganeshbhai PatelDahyabhaiKacharabhai PatelMathurbhaiTrikamdas PatelDahyabhaiVanabhai PatelKalabhaiBhikhabhai
36 43 43 51 36 46 51 37
Sardarpur Sardarpur Sardarpur Sardarpur Sardarpur Sardarpur Sardarpur Sardarpur
SESSIONSCASENO.120/2008 SESSIONSCASENO.7/2009
Theyshallbeheardonthepointofpunishment.
Pronounced in the open Court on this 9th Day of November,2011,atMahesana.
Place:Mahesana. Date:09.11.2011.
[Kum.S.C.Srivastava] SessionsJudge DesignatedCourt Mahesana.
143.
I have heard the arguments advanced by Shri S.C.Shah, learned Special Prosecutor, who is assisted by Additional Special Prosecutor Shri V.G.Patel, appearing on behalf of the Prosecution as well as I have also heard the learned
// 1175 //
advocate Shri Y.B.Shaikh, appearing on behalf of the original complainant. I have also heard the arguments advanced by Shri H.M.Dhruv, Shri B.C.Barot, Shri A.M.Patel,appearingonbehalfoftheaccusedpersons.
144.
Itisanadmittedfactthat,theprescribedpunishmentfor theoffencesforwhichtheconvictedaccusedpersonshave been held guilty is either the death penalty or imprisonmentforlife.Sincethisisacaseofmassmurders, itwasthoughtitfit,togivesufficientopportunityofhearing onthepointofsentence.
145.
Thiscourthasheardeachaccusedinperson.Mostofthe accused have said that, they are innocent and they have falselybeenimplicatedintheoffence.Itisthesayofmost oftheaccusedthat,eithertheyareveryyoungpersonsor theyareveryoldagedpersons,thatexceptthemthereisno earningpersonintheirfamily,theyhavelittlechildrenand consideringallthesethingstheyhaveprayedformercy.
146.
IhaveheardlearnedadvocateShriD.M.Dhruv,appearing on behalf of the accused. Mr.Dhruv has argued that, Hon'blecourthasconvictedalltheaccusedpersonsunder
// 1176 //
Section302,readwithSection149oftheI.P.C.meansthe Courthasnotfindanyevidenceagainstanyoftheaccused forcommittinganyparticularactandtherefore,insteadof held guilty individually under Section 302, Hon'ble Court hasheldguiltytheaccusedunderSection302,readwith Section 149 and when the court has held that, all the accused persons are guilty for committing offences punishable under various provisions of I.P.C. being the memberofUnlawfulAssemblyandtherefore,thisisnotthe caseinwhichcourthasfindthat,anyparticularaccused hascommittedanyparticularactandtherefore,insucha situations court should have not to impose capital punishment and should be lineant and should have to impose minimum punishment. Mr.Dhruv has further argued that, this is not the rarest of rare case in which accusedmaybeimposedcapitalpunishment.Itisfurther arguedthat,thereisnocaseinourcountryinwhichwhen accused held guilty for the offence punishable under section 302 read with Section 149, capital punishment imposed.Mr.Dhruvhasfurtherarguedthat,alltheaccused are the villagers, they are farmers and most of accused personsareilliterateandtherefore,theyshouldbeimposed minimumsentence.
// 1177 //
147.
I have also heard the arguments advanced by learned advocate Shri B.C.Barot, appearing on behalf of the accused. Shri Barot has argued that, when the accused heldguiltyforvariousoffencepunishableunderthepenal provisions of I.P.C. wherein minimum punishment is imprisonmentforlifeandmaximumpunishmentiscapital punishmentbutwhileawardingthesentenceHon'bleCourt has toconsiderthecircumstancesinwhichsaidincident tookplaceandthisisnottherarestofrarecaseinwhich capitalpunishmentbeimposed. Insupportofhissayhe hascitedthecaseof DWIJENDRASHIRISHBHAIMANEK v.STATEOFGUJARAT,reportedin2006(1)G.L.R.676, whereinitisheldbytheHon'bleGujaratHighCourthas held that, while hearing the accused on the question of sentence,Judgemustelicitinformationfromaccusedand inflict a just punishment keeping in mind age, family background,antecedentsetc.ShriBarothascitedanother caseof STATEOFGUJARATv.RAGHU@RAGHAVBHAI VASHRAMBHAI & ORS., reported in 2003 CR. L.R. (GUJ.)381,whereinitisheldbytheHon'bleHighCourtof Gujaratthat,theprovisionsofSection235(2)inCriminal ProcedureCodehasaddedamuchneededdimensionin
// 1178 //
theIndianCriminaljurisprudence.Theobjectanddesignof such provision is to give a fresh opportunity to the convicted person, to bring the notice of the concerned Court such circumstances as may be help the Court in awarding appropriate sentence, having regard to the personal, financial,social and other circumstances ofthe case. It is further held by the Hon'ble High Court that, hearingonthequestionofquantumofpunishmentisnot anemptyformality.Itisastatutoryincumbencyuponthe Courttoprovideanopportunityofhearingtotheaccused onthequestionofsentenceunlesstheCourtproposesto releasetheaccusedongoodconductorafteradmonitionas providedunderSection360oftheCr.P.C.Itisfurtherheld bytheHon'bleHighCourtthat,therighttobeheardonthe questionofsentencehasabeneficialpurpose,foravariety of facts and reasons to be heard on, the question and considerations of sentence bearing upon the sentencing process.Thesocialcompulsion,thepressureofpoverty,the retroactiveneeds,instinctoftheextralegalremedyduetoa senseofbeingwrongsthelackofmeanstobeeducatedand thedifficultareofhonestliving,theparentage,theheredity, personal and social environments. Shri Barot has also referred the object of Criminal Jurisprudence for the
// 1179 //
punishment. Lastly, Shri Barot has argued to impose minimumpunishmenttotheaccusedwhoareheldguilty bythisCourt.
148.
On the other hand Spl. Public Prosecutor Shri S.C.Shah has argued that, all the accused were the members of unlawful assembly and being the members of unlawful assembly they have committed such a henious act, in which33humanliveshavelosttheirlives.ShriShahhas arguedthat,allthevictimswereinnocent,theywerenotin a position to protect themselves and therefore, they have taken shelter of one room, in which main incident had taken place and the present accused persons have by arming themselves with deadly weapons poured the iflammableliquidinthehouseandsetonfireandinsucha situation to prevent communal riots, taking place in our country,maximumpunishmentisrequiredtobeimposed. ShriShahhasfurtherarguedthat,Hon'bleCourthasheld guilty all the 31 accused under Section 302, read with Section149andthusitistherarestofrarecaseinwhich capitalpunishmentmaybeimposed.Insupportofhissay, Shri Shah has cited the case of MAHESH AND ETC. v. STATE OF MADHYA PRADESH, reported in AIR 1987
// 1180 //
SUPREMECOURT1346,whereinitisheldbytheHon'ble SupremeCourtofIndiathat,itwillbeamockeryofjustice topermittheaccusedtoescapetheextremepenaltyoflaw whenfacedwithsuchevidenceandsuchcruelacts. Shri Shah has also cited a case of RANJEET SINGH AND ANOTHER v. STATE OF RAJASTHAN, reported in AIR 1998SUPREMECOURT672,whereinitisobservedbythe Hon'bleSupremeCourtofIndiathat,themannerinwhich theentirefamilywaseliminatedindicatesthattheoffence was deliberate and diabolical. It was predetermined and coldblooded.Itwasabsolutelydevlishanddastardly.The innocentchildrenweredonetodeathwithlethalweapons whentheywerefastasleep.Thesentenceofdeathawarded cannot,therefore,saidtobeinappropriate.ShriShahhas alsocitedacaseofC.MUNIAPPANANDOTHERv.STATE OFTAMILNADU,reportedin(2010)9SUPREMECOURT CASES567,whereinitisobservedbytheHon'bleSupreme CourtofIndiathat,deathsentenceccanbegiveninrarest ofrarestcaseifthe"collectiveconscience"ofacommunity issoshockedthatdeathpenaltyistheonlyalternative.The "rarestoftherarecase"comeswhenaconvictwouldbea menace and thereat to the harmonious and peaceful coexistence of the society, when accused deliberately
// 1181 //
indulgesinaplannedcrimewithoutanyprovocationand meticulously executes it, the death sentence may be the mostappropriatepunishment.Referringallthecitedcases Shri Shah has requested the court to impose capital punishmentconsideringthenatureofcrimeandpositionof victims.
149.
This Court has given its thoughtful consideration on the argumentsadvancedbyboththesidesandalsoconsidered thelawlaiddownbytheHon'bleSupremeCourtofIndia andHon'bleHighCourtofGujarataswellasbytheHon'ble HighCourtofTamilNadu.Thoughthisindeedisoneofthe aspectsofthematter,itcannotbeignoredthattheaccused are being convicted by virtue of the provisions of section 149oftheCode.Theexactroleplayedbyeachaccusedin theentireincidentisnotspecificallyproved.Thoughthere is no rule that the death sentence can not be awarded where the conviction of an offence punishable under Section302oftheI.P.C.,isrecordedwiththeaidofSection 149oftheI.P.C.consideringalltherelevantaspectsofthe matter, I am of the opinion that the extreme penalty of deathisnotcalledforinthiscase.
// 1182 //
150.
Itisestablishedfactthat,muchdamageswascausedtothe properties.Muchdestructionofthepropertywasdone.As such,Ithingitpropertoimposeappropriatesentencesof finealso,inadditiontothesubstantivesentences.Itwould alsobeappropriatetoawardcompensationtobepaidtothe victims, keeping in mind the provisions of Section357 of theCode.
151.
Taking into consideration all the relevant aspects of the matter,inmyopinion,thefollowingsentenceswillmeetthe endsofjustice.Intheresult,thefollowingorderispassed.
-:: ORDER :1. The accused persons named below are hereby sentences under Section 235(2) of the Criminal Procedure Code, to undergo the punishment, as mentionedhereunder,forthechargesprovedagainst them:
Sr. No. 1 2 NameofAccused Age Address
SESSIONSCASENO.275/2002 PatelRameshbhaiKanjibhai PatelChaturbhaialiasBhurio Vitthalbhai 23 28 Sardarpur Sardarpur
// 1183 //
5 6 11 14 16 18 27 28 30 31 32 33 34 35 37 38 40 41 42 43 44 46 48 49 50
PatelJayantibhaiMangalbhai PatelAmratbhaiSomabhai PatelJagabhaiDavabhai PatelKacharabhaiTribhovandas PatelMangalbhaiMathurbhai PatelBhikhabhaiJoitabhai PatelMathurbhaiRamabhai PatelSureshbhaiRanchhodbhai PatelTulsibhaiGirdharbhai PatelRamanbhaiJivanbhai Vanabhai PatelRajeshbhaiKarshanbhai PatelRameshbhaiKantibhai PatelMadhabhaiVitthalbhai PatelSureshkumarBaldevbhai PatelVishnubhaiPrahladbhai
21 25 55 55 65 50 52 22 34 29 22 24 33 20 23
Sardarpur Sardarpur Sardarpur Sardarpur Sardarpur Sardarpur Sardarpur Sardarpur Sardarpur Sardarpur Sardarpur Sardarpur Sardarpur Sardarpur Sardarpur Sardarpur Sardarpur Sardarpur Sardarpur Sardarpur Sardarpur Sardarpur Sardarpur Sardarpur Sardarpur
PatelRajendrakumaraliasRajesh 28 PunjabhaiTribhovandas PatelPrahladbhaiJagabhai PatelRameshbhaiRamabhai PatelParshottambhaialias PashabhaiMohanbhai PatelAshvinbhaiJagabhai PatelAmbalalMaganbhaiKapoor PatelRameshbhaiPrabhabhai Gopalbhai PatelJayantibhaiAmbalal PatelKanubhaiJoitaram PrajapatiRamanbhai 23 35 45 21 54 36 43 43 51
// 1184 //
Ganeshbhai 52 54 7 9 PatelDahyabhaiKacharabhai PatelMathurbhaiTrikamdas PatelDahyabhaiVanabhai PatelKalabhaiBhikhabhai 36 46 51 37 Sardarpur Sardarpur Sardarpur Sardarpur
SESSIONSCASENO.120/2008 SESSIONSCASENO.7/2009
2.
AlltheaccusedwhosenamesarementionedinPara1 of this Order are convicted for the offence punishableunderSection143oftheI.P.C.andeach ofthemissentencedtosuffersimpleimprisonment for6(Six)Months,andalsotopayafineofRs.500/ (Rupeesfivehundredonly)each,indefault,tosuffer simpleimprisonmentfor15(Fifteen)days.
3.
AlltheaccusedwhosenamesarementionedinPara1 of this Order are convicted for the offence punishableunderSection147oftheI.P.C.andeach ofthemissentencedtosuffersimpleimprisonment for1(One)Year,andalsotopayafineofRs.1000/ (Rupees one thousand only) each, in default, to suffersimpleimprisonmentfor2(Two)Months.
// 1185 //
4.
AlltheaccusedwhosenamesarementionedinPara1 of this Order are convicted for the offence punishableunderSection144and148oftheI.P.C. and each of them is sentenced to suffer simple imprisonmentfor 2(Two)Years,andalsotopaya fineofRs.2000/ (Rupeestwothousandonly)each, in default, to suffer simple imprisonment for 4 (Four)Months.
5.
AlltheaccusedwhosenamesarementionedinPara1 of this Order are convicted for the offence punishableunderSection302,r.w.Section149of the I.P.C. and each of them is sentenced to suffer rigorousimprisonmentforLifeandalsotopayafine of Rs.5000/ (Rupeesfivethousandonly)each, in default, to suffer simple imprisonment for 6 (Six) Months.
6.
AlltheaccusedwhosenamesarementionedinPara1 of this Order are convicted for the offence punishableunder Section307,r.w.Section149 of the I.P.C. and each of them is sentenced to suffer
// 1186 //
rigorousimprisonmentfor 10(Ten)Years,andalso to pay a fine of Rs.5000/ (Rupees five thousand only)each,indefault,tosuffersimpleimprisonment for5(Five)Months. 7. AlltheaccusedwhosenamesarementionedinPara1 of this Order are convicted for the offence punishableunderSection323,r.w.Section149of the I.P.C. and each of them is sentenced to suffer simple imprisonment for 1 (One) Year, and also to payafineofRs.2000/ (Rupeestwothousandonly) each,indefault,tosuffersimpleimprisonmentfor2 (Two)Months. 8. AlltheaccusedwhosenamesarementionedinPara1 of this Order are convicted for the offence punishableunderSection324,r.w.Section149of the I.P.C. and each of them is sentenced to suffer simple imprisonment for 1 (One) Year, and also to payafineofRs.2000/ (Rupeestwothousandonly) each,indefault,tosuffersimpleimprisonmentfor2 (Two)Months.
// 1187 //
9.
AlltheaccusedwhosenamesarementionedinPara1 of this Order are convicted for the offence punishableunderSection325,r.w.Section149of the I.P.C. and each of them is sentenced to suffer rigorousimprisonmentfor3(Three)Years,andalso to pay a fine of Rs.2000/ (Rupees two thousand only)each,indefault,tosuffersimpleimprisonment for6(Six)Months.
10.
AlltheaccusedwhosenamesarementionedinPara1 of this Order are convicted for the offence punishable under Section 435, r.w. Section 149 andSection436,r.w.Section149oftheI.P.C.and each of them is sentenced to suffer rigorous imprisonmentfor 10(Ten)Years,andalsotopaya fine of Rs.3000/ (Rupees three thousand only) each,indefault,tosuffersimpleimprisonmentfor6 (Six)Months.
11. AlltheaccusedwhosenamesarementionedinPara1 of this Order are convicted for the offence punishableunder Section447,r.w.Section149 of the I.P.C. and each of them is sentenced to suffer
// 1188 //
simpleimprisonmentfor1(One)Month,andalsoto pay a fine of Rs.500/ (Rupees five hundred only) each, in default, to suffer simple imprisonment for 15(Fifteen)days. 12. AlltheaccusedwhosenamesarementionedinPara1 of this Order are convicted for the offence punishableunderSection448,r.w.149oftheI.P.C. and each of them is sentenced to suffer simple imprisonmentfor 6(Six)Months,andalsotopaya fineofRs.500/(Rupeesfivehundredonly)each,in default, to suffer simple imprisonment for 15 (Fifteen)days. 13. AlltheaccusedwhosenamesarementionedinPara1 of this Order are convicted for the offence punishableunderSection336,r.w.Section149of the I.P.C. and each of them is sentenced to suffer simpleimprisonmentfor1(One)Month,andalsoto pay a fine of Rs.250/ (Rupees two hundred fifty only)each,indefault,tosuffersimpleimprisonment for15(Fifteen)days.
// 1189 //
14. AlltheaccusedwhosenamesarementionedinPara1 of this Order are convicted for the offence punishableunder Section337,r.w.Section149 of the I.P.C. and each of them is sentenced to suffer simpleimprisonmentfor3(Three)Months,andalso topayafineof Rs.250/ (Rupeestwohundredfifty only)each,indefault,tosuffersimpleimprisonment for10(ten)days. 15. AlltheaccusedwhosenamesarementionedinPara1 of this Order are convicted for the offence punishable under Section 295A of the I.P.C. and each of them is sentenced to suffer simple imprisonmentfor 2(Two)Years,andalsotopaya fineofRs.500/(Rupeesfivehundredonly)each,in default, to suffer simple imprisonment for 4(Four) Months. 16. AlltheaccusedwhosenamesarementionedinPara1 of this Order are convicted for the offence punishable under Section 153A of the I.P.C. and each of them is sentenced to suffer simple imprisonmentfor3(Three)Years,andalsotopaya
// 1190 //
fineofRs.500/(Rupeesfivehundredonly)each,in default, to suffer simple imprisonment for 6 (Six) Months. 17. AlltheaccusedwhosenamesarementionedinPara1 of this Order are convicted for the offence punishableunderSection297oftheI.P.C.andeach ofthemissentencedtosuffersimpleimprisonment for 1(One)Year,andalsotopayafineof Rs.500/ (Rupeesfivehundredonly)each,indefault,tosuffer simpleimprisonmentfor2(two)Months. 18. Noseparateorderregardingpunishmentispassedfor the offence punishable under Section 135 of the BombayPoliceAct. 19. AlltheaccusedwhosenamesarementionedinPara1 ofthisOrderareherebyorderedtodepositamountof Rs.50,000/(Rupeesfiftythousandonly)each,in thisCourtandondepositofsaidamountbyallthe accused, it will be equally paid to the complainant and other victims of this incident as compensation under Section 357(1)(c) of the Code of Criminal
// 1191 //
Procedure. 20. Allthesubstantivesentences,exceptthesentencesof imprisonmentforlife,shallrunconcurrently. 21. Theabovenamedconvictedaccusedpersonsshallbe entitledtogetbenefitofsetoff,oftheperiodoftheir respective detention as an UnderTrial Prisoner, during the investigation and trial, as provided in Section428oftheCodeofCriminalProcedure. 22. Thesentencesofimprisonmentforlifeshallrunafter the expiration of the concurrent sentences for imprisonmentforterms. 23. Allthemuddamalarticlesareorderedtobedestroyed afterappealperiodisover. 24. OriginalJudgementbekeptwiththerecordsofMain Sessions Case No.275/2002, whereas a copy of the Judgement be kept with the records of remaining eachconsolidatedSessionsCase.
25. CertifiedCopyoftheJudgementbeprovidedtoeach
// 1192 //
convicted accused person, free of cost, as expeditiouslyaspossible. Pronounced in the open Court on this 9th Day of November,2011,atMahesana.
Place:Mahesana. Date:09.11.2011.
[Kum.S.C.Srivastava] SessionsJudge DesignatedCourt Mahesana.

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Sessions Case Nos.275/2002, 120/2008, & 7/2009 & 72/2010.

SessionsCaseNo.275/2002 Filedon Registeredon

SessionsCaseNo.120/2008 Filedon Registeredon

SessionsCaseNo.7/2009 Filedon Registeredon

SessionsCaseNo.72/2010 Filedon Registeredon

Sessions Case Nos.275/2002, 120/2008, & 7/2009 & 72/2010.

Sessions Case Nos.275/2002, 120/2008, & 7/2009 & 72/2010.

LakhvaraNarayanlalShitalmal PatelJayantibhaiMangalbhai PatelAmratbhaiSomabhai PrajapatiBabubhaiLavjibhai PatelBhaveshkumarKanubhai PatelJayantibhaiJivanbhai

Sardarpur Sardarpur Sardarpur Sardarpur Sardarpur Sardarpur Sardarpur

PatelJagabhaiDavabhai PatelPrahladbhaiSomabhai PatelKacharabhaiTribhovandas PatelJayantibhaiBaldevbhai PatelMangalbhaiMathurbhai PrajapatiGordhanbhaiRevabhai PatelBhikhabhaiJoitabhai

Sardarpur Sardarpur Sardarpur Sardarpur Sardarpur Sardarpur Sardarpur Sardarpur Sardarpur

Sessions Case Nos.275/2002, 120/2008, & 7/2009 & 72/2010.

PatelRajendrakumaraliasRajesh 28 PunjabhaiTribhovandas PatelBaldevbhaiRanchhodbhai Dhwarkadas PatelPrahladbhaiJagabhai 40 23

Sessions Case Nos.275/2002, 120/2008, & 7/2009 & 72/2010.

Sardarpur Sardarpur Sardarpur Sardarpur Sardarpur

Sessions Case Nos.275/2002, 120/2008, & 7/2009 & 72/2010.

Patel(Nagar)Ashvinbhai Baldevbhai PatelDahyabhaiVanabhai PatelJoitaramRamabhai PatelKantibhaiPrabhudas

Sardarpur Sardarpur Sardarpur Sardarpur

Sardarpur Sardarpur Sardarpur Sardarpur Sardarpur Sardarpur Sardarpur Sardarpur Address

PatelGovindbhaiMohanbhai PatelBabubhaiGokaldas PatelRameshbhaiTribhovandas PatelArvindKashiram

Sardarpur Sardarpur Sardarpur Sardarpur

Shri S.C.Shah ShriV.G.Patel

Sessions Case Nos.275/2002, 120/2008, & 7/2009 & 72/2010.

Sessions Case Nos.275/2002, 120/2008, & 7/2009 & 72/2010.

Sessions Case Nos.275/2002, 120/2008, & 7/2009 & 72/2010.

Sessions Case Nos.275/2002, 120/2008, & 7/2009 & 72/2010.

Sessions Case Nos.275/2002, 120/2008, & 7/2009 & 72/2010.

Sessions Case Nos.275/2002, 120/2008, & 7/2009 & 72/2010.

police resorted to lathi charge, lobbing tear gas and ultimately,didthefiringanddisbursedthemob.

Sessions Case Nos.275/2002, 120/2008, & 7/2009 & 72/2010.

injuredpersonswereshiftedinpoliceandprivatevehicles to Mahesana Civil Hospital. In the incident, 33 Muslims fromShaikhMaholladiedand20sustainedinjuries.

Sessions Case Nos.275/2002, 120/2008, & 7/2009 & 72/2010.

Sessions Case Nos.275/2002, 120/2008, & 7/2009 & 72/2010.

Sessions Case Nos.275/2002, 120/2008, & 7/2009 & 72/2010.

Sessions Case Nos.275/2002, 120/2008, & 7/2009 & 72/2010.

Sessions Case Nos.275/2002, 120/2008, & 7/2009 & 72/2010.

Sessions Case Nos.275/2002, 120/2008, & 7/2009 & 72/2010.

Sessions Case Nos.275/2002, 120/2008, & 7/2009 & 72/2010.

Sessions Case Nos.275/2002, 120/2008, & 7/2009 & 72/2010.

Sessions Case Nos.275/2002, 120/2008, & 7/2009 & 72/2010.

Sessions Case Nos.275/2002, 120/2008, & 7/2009 & 72/2010.

Sessions Case Nos.275/2002, 120/2008, & 7/2009 & 72/2010.

Sessions Case Nos.275/2002, 120/2008, & 7/2009 & 72/2010.

Sessions Case Nos.275/2002, 120/2008, & 7/2009 & 72/2010.

Kesarmiya,RafikmiyaMahmadhusen,Hamidabibi Akbarmiya, Basirabibi Bachumiya, Khatijabibi Dosmahmad Shaikh, Shayanabanu Aashiqhusen,

Sessions Case Nos.275/2002, 120/2008, & 7/2009 & 72/2010.

Sessions Case Nos.275/2002, 120/2008, & 7/2009 & 72/2010.

Sessions Case Nos.275/2002, 120/2008, & 7/2009 & 72/2010.

Sessions Case Nos.275/2002, 120/2008, & 7/2009 & 72/2010.

Sessions Case Nos.275/2002, 120/2008, & 7/2009 & 72/2010.

Sessions Case Nos.275/2002, 120/2008, & 7/2009 & 72/2010.

Sessions Case Nos.275/2002, 120/2008, & 7/2009 & 72/2010.

Sessions Case Nos.275/2002, 120/2008, & 7/2009 & 72/2010.

Sessions Case Nos.275/2002, 120/2008, & 7/2009 & 72/2010.

Sessions Case Nos.275/2002, 120/2008, & 7/2009 & 72/2010.

Sessions Case Nos.275/2002, 120/2008, & 7/2009 & 72/2010.

Sessions Case Nos.275/2002, 120/2008, & 7/2009 & 72/2010.

Sessions Case Nos.275/2002, 120/2008, & 7/2009 & 72/2010.

Sessions Case Nos.275/2002, 120/2008, & 7/2009 & 72/2010.

Nameofthewitness ChaudhariIshvarbhaiBababhai SathwaraBabubhaiKhodidas MemonJanmahmodIsmilbhai MemonMahmodAarifJanmahmod MemonAbdulkadirIsmilbhai MemonAltafhusenValibhai

Exh. No. 405 418 438 441 444 446

Sessions Case Nos.275/2002, 120/2008, & 7/2009 & 72/2010.

Sessions Case Nos.275/2002, 120/2008, & 7/2009 & 72/2010.