Deepda Darwaza Massacre Judgement

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Sessions Case Nos.180/2002, 28/2004, 77/2005, 143/2008 & 56/2009.
SessionsCaseNo.180/2002 Filedon Registeredon

Decided on Duration 12/08/2002 12/08/2002 30/07/2012 Years-Months-Days 09----11----18

Decided on Duration 03/01/2004 03/01/2004 30/07/2012 Years-Months-Days 08----06-----27


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COMMONJUDGEMENT
Passedin SessionsCaseNos.180/2002 28/2004,77/2005,143/2008&56/2009 INTHECOURTOFSESSIONSJUDGE
At:Mahesana. DESIGNATEDCOURTFOR VISNAGARPOLICESTATIONI.CR.NO.60/2002 [CORAM:KUM.S.C.SRIVASTAVA,ESQUIRE]
Exh.No.:1386 Complainant : THESTATEOFGUJARAT ::VERSUS:: Accused :
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Sr. No.
NameofAccused
Age
Address
U.T.P./ OnBail/ Expired
SESSIONSCASENO.180/2002
1 PatelVishnukumarShivrambhai 16 KalkaMataPara, DipraDarwaja, Visnagar. Ganji, GanpatiSheri, Visnagar. BethakNoMadh, DipraDarwaja, Visnagar. BethakNoMadh, DipraDarwaja, Visnagar. BethakNoMadh, DipraDarwaja, Visnagar.
OnBail/ Juvenile
PatelBipinkumarBabubhai
23
OnBail
PatelBhikhabhaiNarayandas
21
OnBail
PatelVipulkumarNaranbhai
21
OnBail
PatelRajeshkumarRanchhoddas 27
OnBail
PatelChimanlalKacharabhai
47
RandalMataMadh, OnBail DipraDarwaja, Visnagar. DipraDarwaja, Visnagar. OnBail
7 8
PatelDhirubhaiBhikhabhai PatelParimal@JethoBabulal
30 19
RandalMataMadh, OnBail DipraDarwaja, Visnagar. 7B,Arbudanagar Society,M.N. CollegeRoad, Visnagar. BethakNoMadh, DipraDarwaja, Visnagar. VankarVas, DipraDarwaja, Visnagar OnBail
PatelJayeshkumar@Bhuriyo Dahyalal
28
10
PatelChandubhaiKuberdas
35
OnBail
11
ParmarAshokkumar@Senting Shankarlal
33
OnBail
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Sr. No. 12
NameofAccused
Age
Address
PatelBharatkumar@Pado Narayanbhai PatelRakeshkumar@Rako AkhadiyanDahyalal
28
RandalMataMadh, OnBail DipraDarwaja, Visnagar. BethakNoMadh, VachaliOle, DipraDarwaja, Visnagar. BethakNoMadh, Para, DipraDarwaja, Visnagar. OnBail
13
30
14
PatelSatishkumar@Marshal Shantilal
25
OnBail
15
PatelRanjitkumar@Lalo Rambhai PatelVijaykumar@Bhano Chandrakantbhai PatelRagneshkumar@Lalo Kantilal PatelNikeshkumr@Niko Kacharabhai PatelAnandkumar@Bako Bhogilal PatelJayeshkumarBabulal
33
RandalMataMadh, OnBail DipraDarwaja, Visnagar. NearMaleriaOffice DipraDarwaja, Visnagar. OnBail
16
35
17
25
RandalMataMadh, OnBail DipraDarwaja, Visnagar. RandalMataMadh, OnBail DipraDarwaja, Visnagar. RandalMataMadh, OnBail DipraDarwaja, Visnagar. RandalMataMadh, OnBail DipraDarwaja, Visnagar. RandalMataMadh, OnBail DipraDarwaja, Visnagar. RandalMataMadh, OnBail DipraDarwaja, Visnagar.
18
24
19
23
20
23
21
PatelHirenkumar@LaloBabulal 25
22
PatelJayeshkumarKantilal
23
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Sr. No. 23
NameofAccused
Age
Address
U.T.P./ OnBail/ Expired OnBail
PatelNitinkumar@Salman Vishnubhai PatelNileshkumarVishnubhai
28
KotvaliSheri, KadaDarwaja, Visnagar. Para, KadaDarwaja, Visnagar. KhajuriMaholla, KadaDarwaja, Visnagar. KhajuriMaholla, KadaDarwaja, Visnagar.
24
25
OnBail
25
PatelYogeshkumar@Choksi@ LuckyChimanlal PatelNikeshkumarDahyalal
32
OnBail
26
25
OnBail
27
PatelDevanshukumar@Kako Babulal PatelShaileshkumar Shivrambhai PatelHemandrakumar Alkeshbhai PatelPravinbhaiDahyabhai
20
RandalMataMadh, OnBail DipraDarwaja, Visnagar. PaheliSheri,Para, KadaDarwaja, Visnagar. PaheliSheri,Para, KadaDarwaja, Visnagar. OnBail
28
32
29
20
OnBail
30
25
RandalMataMadh, OnBail DipraDarwaja, Visnagar. KhajuriMaholla, KadaDarwaja, Visnagar. Opp.Aashapura Temple,Dipra Darwaja,Visnagar OnBail
31
PatelSanjaykumarChimanlal Choksi PatelBhavinkumar@Bapu Amrutlal
20
32
33
OnBail
33
PatelKaushalkumarRameshbhai 20
RandalMataMadh, OnBail DipraDarwaja, Visnagar. Nr.MahakaliDairy, DipraDarwaja, Visnagar. OnBail
34
PatelTarunkumar@Lalo Gunvantlal
28
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Sr. No. 35
NameofAccused
Age
Address
PatelRohitkumarShantilal
32
BethakNoMadh, DipraDarwaja, Visnagar.
36
PatelSureshkumarJethalal
38
RandalMataMadh, OnBail DipraDarwaja, Visnagar. UbhiSheri, DipraDarwaja, Visnagar. OnBail
37
PatelViralkumar@Badshah Natvarlal PatelRohitkumar@Madho Shankarlal PatelMiteshkumar@Mel Narandas PatelAshokkumar@Khataro Gokaldas PatelNitinkumarDahyalal
25
38
33
RandalMataMadh, OnBail DipraDarwaja, Visnagar. RandalMataMadh, OnBail DipraDarwaja, Visnagar. RandalMataMadh, OnBail DipraDarwaja, Visnagar. RandalMataMadh, OnBail DipraDarwaja, Visnagar. KhajuriMaholla, KadaDarwaja, Visnagar. KhajuriMaholla, KadaDarwaja, Visnagar. Para, KadaDarwaja, Visnagar. ShamalSheri, DarbarRoad, Visnagar. Para,Outside KadaDarwaja, Visnagar. OnBail
39
25
40
24
41
28
42
PatelJitendrakumar HasmukhabhaiAsobiya PatelAmrutlalNanalal
20
43
44
OnBail
44
PatelDasharathkumarShivabhai 27
OnBail
45
PatelAmrutbhaiLilachand
62
OnBail
46
PatelYogeshkumarVitthalbhai
30
OnBail
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Sr. No. 47
NameofAccused
Age
Address
PatelSurendrakumar@Madho Babulal
21
RandalMataMadh, OnBail DipraDarwaja, Visnagar. KotvaliSheri,Para, OutsideKada Darwaja,Visnagar. OnBail
48
PatelAlkeshkumarSankalchand 39
49
PatelVijaykumarBhogilal
32
43,Karshannagar OnBail Society,Dipra Darwaja,Visnagar RandalMataMadh, OnBail DipraDarwaja, Visnagar.
50
PatelJitubhaiBharatbhai
32
Sr. No. 51 52 NameofAccused Age Address U.T.P./ OnBail/ Expired OnBail OnBail
PatelDahyabhaiParshottamdas PatelBharatbhaiIshwarbhai
57 62
DipraDarwaja, Visnagar. Ishvarkrupa Society, Visnagar. DipraDarwaja, Visnagar. DipraDarwaja, Visnagar. OutSideKada Darwaja, Visnagar.
53 54 55
PatelRameshkumarMadhavlal
49
OnBail OnBail OnBail
PatelJitendrakumar@Jitubhai 52 Shivrambhai@Shivabhai PatelParshottambhaiJoitaram 54
56
PatelDahyabhaiMadhavlal
51
RandalMataMadh, OnBail DipraDarwaja, Visnagar. KadaDarwaja, Visnagar. OnBail
57
PatelSankalchandKacharabhai
69
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Sr. No. 58
NameofAccused
Age
Address
PatelHasmukhbhaiSankalchand 41
KhajuriMaholla, KadaDarwaja, Visnagar. Nr.Aashapura Temple, DipraDarwaja, Visnagar.
59
PatelAmrutbhaiMadhavlal
60
OnBail
60
PatelBabubhaiParshottamdas
53
RandalMataMadh, OnBail DipraDarwaja, Visnagar. DipraDarwaja, Visnagar. 21,Karshannagar Society, Visnagar. BethakNoMadh, DipraDarwaja, Visnagar. ModasiChopata, DipraDarwaja, Visnagar. KhajuriMaholla, KadaDarwaja, Visnagar. OnBail OnBail
61 62
PatelNikeshkumarJitendrabhai 28 @Jitubhai PatelMahendrakumar@Mukari 50 Madhavlal PatelMunnabhaiShantilal 29
63
OnBail
64
PatelKamleshkumar Ranchhodbhai PatelJigeshkumar@Jago Kantilal
22
OnBail
65
29
OnBail
66
PatelHareshkumarNarottamdas 36
RandalMataMadh, OnBail DipraDarwaja, Visnagar. BhesiyaPole, Visnagar. OnBail
67 68
PatelSatishkumarParshottadas (StampVendor) PatelPankajkumarKantilal
42 31
IndrapuriSociety, OnBail Opp.MaheshPetrol Pump,Visnagar. KhajuriMaholla, KadaDarwaja, Visnagar. OnBail
69
PatelChamanlal@Choksi Ramchanddas
62
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Sr. No. 70
NameofAccused
Age
Address
PatelManilalBajidas
60
Opp.JainDerasar, DipraDarwaja, Visnagar. MiyaVas, DipraDarwaja, Visnagar. Para, KadaDarwaja, Visnagar.
71
PatelGeetaben W/o.BabulalIshwarlal PatelMadhuben W/o.AjitkumarAmrutlal PatelManjulaben W/o.RameshbhaiMadhavlal
30
OnBail
72
26
OnBail
73
46
RandalMataMadh, OnBail DipraDarwaja, Visnagar.
Sr. No. 74 NameofAccused Age Address U.T.P./ OnBail/ Expired
Died duringthe pendency ofTrial
PatelDahyabhaiNanalal
48
KhajuriMaholla, KadaDarwaja, Visnagar. 7,JayJalaram Society,Nr.Ambar Cinema,Visnagar. ShravanSheri, Visnagar. KhajuriMaholla, KadaDarwaja, Visnagar.
75
PatelYogeshkumarBabulal Kacharabhai PatelGandabhaiMadhavlal Gokaldas
42
OnBail
76 77
32
OnBail OnBail
PatelNarendrabhai@Kanjibhai 31 Ramaniklal@Ramanbhai PatelBabubhaiIshwarbhai 40
78
RandalMataMadh, OnBail DipraDarwaja, Visnagar. KhajuriMaholla, KadaDarwaja, Visnagar. OnBail
79
PatelRamanbhaiGirdharbhai
47
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Sr. No. 80 NameofAccused Age Address U.T.P./ OnBail/ Expired
PatelVishnubhaiIshwarbhai
40
RandalMataMadh, OnBail DipraDarwaja, Visnagar. Opp.Karshannagar OnBail Society,KadaRoad, Visnagar. BethakNoMadh, DipraDarwaja, Visnagar. OnBail
81
PatelAmitbhaiRamabhai
25
82
PatelDipakkumarGangaram
37
Sr. No. 83 NameofAccused Age Address U.T.P./ OnBail/ Expired OnBail
PatelManubhaiKarshanbhai
62
5,TripadaSociety, Kalikund, Dholka.
Following accused are joined as Accused Nos.84 and 85 in pursuance of order passed below Exh.656, preferred under Section 319 of Criminal Procedure Code in Sessions Case No.180/2002.
84 PatelPrahladbhaiMohanbhai Gosa 54 TownHall, VijayPara, Visnagar. A/41,Tirupati Township, DharoiColony Road,Visnagar OnBail
85
PatelDahyabhaiTribhovandas
60
OnBail
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ShriM.K.Brahmbhatt LearnedSpecialProsecutorAppearingonbehalf oftheprosecution ShriS.G.Thakur ShriAyazK.Shaikh LearnedAdditionalProsecutorAppearingon behalfoftheprosecution LearnedAdvocate,appearingonbehalfof Originalcomplainant.
ShriG.N.Brahmbhatt Learnedadvocateappearingonbehalfof accusedNo.1to82andaccusedNo.84. ShriB.G.Patel ShriC.K.Shah Learnedadvocateappearingonbehalfofthe accusedNo.83. Learnedadvocateappearingonbehalfofthe accusedNo.85.
CHARGEAGAINSTACCUSEDNOS.1TO85:
OffenceunderSection143,147,148ofI.P.C. OffenceunderSection302,readwith149ofI.P.C. OffenceunderSection201readwith149ofI.P.C OffenceunderSection307readwith149ofI.P.C. OffenceunderSection337readwith149ofI.P.C. OffenceunderSection427,436readwith149ofI.P.C. OffenceunderSection504,506(2)readwith149ofI.P.C. OffenceunderSection120BofI.P.C. OffenceunderSection188ofI.P.C.&135(1)ofB.P.Act.
OVER & ABOVE CHARGES, ADDITIONAL CHARGE AGAINSTACCUSEDNO.83:
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OffenceunderSection217,218and222ofI.P.C.
OVER & ABOVE CHARGES, ADDITIONAL CHARGE AGAINSTACCUSEDNOS.84&85:

OffenceunderSection182,186,187ofI.P.C.readwith Section114,117ofI.P.C.
COMMONJUDGEMENT
[1] SessionsCaseNo.180/2002,28/2004,77/2005,143/2008 and 56/2009 arise out of one incident bearing I.CR.No.60/2002 of Visnagar Police Station of Mahesana DistrictcommittedbeforethisCourtfortrial.Itappeared desirable to try all the above five Sessions Cases all together therefore, all the five cases were ordered to be consolidated and tried together as per order dated 03.07.2009andtherefore,alltheproceedingsareorderedto becarriedin SessionsCaseNo.180/2002beingthemain Sessions. [2] Theshortfactsgivingrisetotheprosecution'scaseareas under: CondemningtheGodhraRailwayCarnageincidenta Bandhwascalledon28.02.2002intheStateofGujarat.In thelateeveningonthatday,amobofaround200peopleof
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Patel Community formed an unlawful assembly carrying, deadly weapons viz. Swords, iron pipes etc. attacked the housesofMuslimfamiliesintheareaofChudivas,Dipra Darwaja of Visnagar Town of Mahesana District. In the attack 21 houses were burnt down to cinders and 11 persons were killed. On receiving information of the incidentpoliceofficialsincludingtheS.P.,Dy.S.P.andP.I. rushedtothespotalongwithsubordinatestaff.ThePolice lobbed8teargasshells,alsofired15roundsanddispersed the violent mob. Seven persons of the mob were apprehendedbythepoliceonthespotwithweapons.Police rescuedtheMuslimsfamiliesandshiftedthemtothePolice Station, which is situated Km. away from the place of incident.TherescuedMuslimfamilieswereshiftedtothe safe locality of their relatives and injured persons were shiftedtothelocalCivilHospitalinthepolicevehicle.The complainant remained at the police station and his complaintwasregisteredat22.15Hours. Actuallytheplaceofoffenceiscalledandmentioned everywhereintherecordofthiscaseasDipdaDarwaja but in fact as per Government record it is described as DIPRA DARWAJA and therefore, I will described the placeofoffenceasDipraDarwajathoughitiseverywhere mentionedbyprosecutionaswellasaccusedsideasDipda Darwaja.
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TheF.I.R.waslodgedbytheComplainantbeforePolice Inspector M.K.Patel, in Visnagar Police Station. The complainantnamednineaccusedinhisF.I.R.inclusiveof7 accused apprehended from the place of incident. The investigation was taken up by the Police Inspector M.K.Patel,whowasinchargeofthePoliceStation,followed by Police Inspector Shri H.B.Rajput and Shri D.S.Asari respectivelyonthetransferoftheformer.ShriB.V.Jadeja, Dy. S.P. Visnagar Division (at present retired) was the Visitation Officer in this case, who supervised the investigation. On01.03.2002,Panchnamawasdrawnoftheplaceof offenceasshownbythecomplainantinwhichdamagedone by the mob to the houses and vehicles belonging to the Muslim families were described. The I.O. recorded the statements of the witnesses and gathered information about 11 Muslim persons either missing or killed. Seven accusedarrestedweresenttojudicialcustody. On 06.03.2002 again Panchnama of the place of offence in the presence of F.S.L., Finger Print Expert, SupervisoryPoliceOfficer,ExecutiveMagistrate,victimcum witness Saiyed Nazirmiya Kalumiya and Panch witnesses wasdrawn.Inthepresenceoftheaboveofficersandwith thehelpofsweepersfromlocalmunicipality,thedebrisof the houses were removed and various burnt items viz.
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Charredbones,burntclothes,flesh,ornamentsandother articles including blood stains etc. were found out. From these burnt remains, 5 of the missing Muslims were identified by the witness Nazirmiya in the presence of panchwitnesses.Necessarysampleswerepickedupwith thehelpofF.S.L.Officer. On07.03.2002againdetailedsearchwasdone,atthe place of offence, with the help of Sweepers from local municipality.On09.03.2002ananonymousphonecallto the PoliceStationinformedthepoliceaboutdeadbodies, lyinginburntconditionnearMalavTalav.I.O.,Supervisory OfficerandF.S.L.OfficervisitedMalavlake,whereremains ofcharredbonesofhumandeadbodiesinburntandsemi burnt condition were found near the lake. The witness Yusufkhan Muradkhan identified remaining 6 of the missing Muslims on the basis of these remains. The detailedPanchnamaofthiseventwasdrawnbytheI.O.in thepresenceofthepanchwitnessesandnecessarysamples werealsopickedupwiththehelpofF.S.L.Officer. Thus,identificationofallthedeceasedwasdonefrom the remains as well as articles of the deceased viz. Ornamentsandburntpiecesofthebodiesbytherelatives ofthedeceased,duringtwodifferentPanchnamaprepared on 06.03.2002 and 09.03.2002. Since bodies of the deceased persons were not recovered but only charred
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pieces of flesh and bones were recovered, no P.M. was performed.Section302,201and120BofI.P.C.wasadded during the investigation by the I.O. Total number of 153 witnesses inclusive of eyewitnesses, police witnesses, Government witnesses and peripheral witnesses were examinedbyI.O. During the investigation, names of 81 accused were disclosed by the complainant and the witnesses. One of them was named by mistake because no person of such namewasinexistenceinVisnagartown.Anotheronewas the same person named twice by alias name and thus duringtheearlierinvestigationonly79accusedinfactwere arrestedandchargesheetedinthreechargesheets.Noneof theaccusedremainedabsconding.Sevenaccusedthatwere named in the F.I.R. werereleased on bail by the Hon'ble HighCourtofGujaratandremainingaccusedwerebailed outbytheSessionsCourt,Mahesana,fromtimetotime.No appealwasfiledbyanyI.O.againstthebailorders.Misc. Criminal Application Nos.4518/2002, 4520/2002, 3807/2004(withNos.9580/2004and9785/2004)filedby the Complainant in the Hon'ble High Court of Gujarat, againstthegrantofbailwererejectedbytheHon'bleCourt. The Complainant approached the Hon'ble Apex Court of India by filing Criminal Appeal Nos.423/2004 and 424/2004whereintheorderoftheHon'bleHighCourtwas quashed and the matter was referred back for
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reconsideration,butwasrejectedbytheHon'bleHighCourt afterreconsideration. The I.O. collectedvarioussamplesfrom theplaceof offenceandMalavTalav.Alsocollectedbloodsamplesofthe relativesofthedeceasedwerecollected(forDNATest)and weapons were seized from the accused arrested from the spot as well as from accused, who surrendered before Police. Nine F.S.L. Reports were received. DNA Report of charredbonesandfleshsuggestthat,AsExh.C&Exh.N stated were completely charred, DNA could not be extractedfromtheseexhibits.SeverelydegradedDNAwas extractedfromExhibitE.TheDNAextractedfromexhibitE couldnotbeamplifiedbyPCRduetoseveredegradation. Therefore, no STR pattern was obtained from these samples.AsnoSTRpatternwasobtainedfromExhibitC, noconclusioncouldbemadeonitscomparisonwiththose of control blood samples exhibits 1, 2,3 and 4 of Case No.02/DNA/34. On the basis of Chargesheet, submitted on 23.05.2002, charges were framed against 50 accused personsandtrialwasstartedand52witnesseshadbeen examinedbytheFastTrackCourt,Mahesana.Butduring thependencyoftrial,conductedbytheFastTrackCourt, Mahesana,StayorderwaspassedbytheHon'bleSupreme Court of India in SLP (Cri.) No.4409/2003 and WP (Crl.)
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No.216/2003 both tagged with Writ Petition (Crl.) No.109/2003on19.12.2003. Various petitions were filed by petitioner Yusufkhan Muradkhan Pathan, being the victim and eyewitness, in theHon'bleHighCourtofGujaratandbeforetheHon'ble SupremeCourtofIndia,inconnectionwiththeseoffences viz. Special Civil Application No.700/2002 in the Hon'ble High Court of Gujarat, SLP (Crl.) No.4409/2003 and WP (Crl.)No.216/2003intheHon'bleSupremeCourtofIndia. TheNationalHumanRightsCommissionalsofiledpetition beforetheHon'bleSupremeCourtofIndia,invariouscases ofpostGodhraCarnageinGujarat.InWP(Crl.)No.109/03 andTPNo.194,202,326320of2003,theHon'bleSupreme CourtofIndiahaspassedorderon26.03.2008forforming ofSpecialInvestigationTeam(S.I.T.)fortheinvestigationof nineimportantcasesofpostGodhraCarnage,inclusiveof thiscase. [3] InpursuanceoftheorderoftheHon'bleSupremeCourtof India, the Special Investigation Team has taken over the further investigation of this case u/s.173(8) of Cr.P.C. on 11.04.2008 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 the investigation by S.I.T. an advertisement was published in
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leadingdailynewspapersofGujaratState,invitingpeople tocontactS.I.T.inperson,orthroughwrittenapplicationto give any relevant information or evidence in connection withthecaseundertheinvestigationbyS.I.T.asaresultof which,applicationsinthiscasewerealsoreceivedbythe S.I.T.DuringtheirInvestigation,FurtherStatementsof67 witnesses, including complainant, petitioner and eye witnesses,havebeenrecordedbyS.I.T.S.I.T.hasrecorded fresh statements of 42 new witnesses, which includes 9 eyewitnesses, 11 Police Personnels, 3 Government Servantsand19Peripheralwitnesses. [4] Further, place of incident was visited by S.I.T. with the complainantandpetitionertostudythesceneofincident and surrounding geographical situation and fresh sketch hasbeenpreparedwiththehelpofpresentRevenueCircle InspectorofVisnagar.Further,somephotographsarealso takenbytheS.I.T.andduringtheirinvestigation,3persons are named by the witnesses as accused and S.I.T. has arrestedaccusedNo.1to3ofSessionsCaseNo.143/2008, on 06.06.2008. They were remanded to police custody subsequently, sent to judicial custody on 11.06.2008 and subsequently enlarged on bail by the Sessions Court, Mahesana and supplementary Chargesheet is filed on 01.09.2008andallthecaseshavebeencommittedtothe SessionsCourtfortrial.Thus,totalnumberoftheaccused beforetheSessionsCourtwere82underallthefourCases.
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ShriP.R.AgrawalwasappointedasSpecialProsecutorwhile Ms.HansabenK. JainwasappointedasAssistant Public Prosecutor. Subsequently,duringthecourseoftrial,Shri P.R.Agrawal as well as Ms.Hansaben K. Jain replaced by appointingShriM.K.BrahmbhattandShriS.G.Thakur,as Special Prosecutor and Additional Public Prosecutor to conduct the trial of this case, by the Government of Gujarat. [5] The charge against the accused Nos.1 to 50 of Sessions Case No.180/2002 was initially framed by my learned predecessor AdditionalSessionsJudge,FastTrackCourt, Mahesana Smt.S.V.Shah on 30.08.2002 vide Exh.5. Duringthependencyofthesaidcase,thetrialwasstayed by the Hon'ble Supreme Court of India. Subsequently, Hon'bleSupremeCourtofIndiahaspassedanorderdated 01.05.2009 in Writ Petition (Criminal) No.109/2003 directing the Special Investigation Team (S.I.T.) to make further investigation and to submit the Supplementary Chargesheet and the stay from the trial was vacated. In pursuance of said order the trial was to be further conducted and in pursuance of said directions of the Hon'bleSupreme CourtofIndia,theInvestigating Agency has submitted Supplementary Chargesheets, which are numbered as Sessions Case Nos.28/2004, 77/2005, 143/2008and56/2009andChargeagainstaccusedNos.1 to50ofSessionsCaseNo.180/2002,accusedNos.1to23of
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SessionsCaseNo.28/2004,accusedNos.1to6ofSessions Case No.77/2005, accused Nos.1 to 3 of Sessions Case No.143/2008 and accused of Sessions Case No.56/2009 hasbeenframedvideExh.391againon14.07.2009,bythe then Principal Sessions Judge, Mahesana Mr.B.N.Karia and in the Charge framed at Exh.391 all the accused persons were given continuous number and therefore, henceforth accused Nos.1 to 23 of Sessions Case No.28/2004 are considered as accused Nos.51 to 73, accused Nos.1 to 6 of Sessions Case No.28/2004 are consideredasaccusedNos.74to79,accusedNos.1to3of Sessions Case No.143/2008 are considered as accused Nos.80to82andaccusedofSessionsCaseNo.56/2009is considered as accused No.83 in this Judgement for convenienceandbrevity.Duringthependencyofsaidcase, the original complainant Baloch Mahmad Iqbal Ahmedkhan has submitted one application at Exh.656, under Section 319 of Criminal Procedure Code to join PrahladbhaiMohanbhaiGosaandDahyabhaiTribhovandas Patel, as accused and by passing reasoned order, my learnedpredecessorPrincipalSessionsJudge,Mahesana Mr.B.N.Karia has ordered to join both these persons as accused and therefore, Prahladbhai Mohanbhai Gosa is joinedasaccusedNo.84andPatelDahyabhaiTribhovandas is joined as an accused No.85 and charge against both theseaccusedwasframedbythisCourton07.09.2010.
// 22 //
[6]
TheaccusedNos.1to83arechargedinthiscaseu/s.147, 148,149ofI.P.C.,u/s.302,149,120(B)ofI.P.C.,u/s.201, 149,120(B)ofI.P.C.,u/s.307,149,120(B)ofI.P.C.,u/s.337, 149, 120(B) of I.P.C., u/s.427, 436, 149, 120(B) of I.P.C., u/s.504,506(2),149,120(B)ofI.P.C.,u/s.188ofI.P.C.& 135(1)ofB.P.Act.,u/s.217,218,22ofI.P.C.,u/s.120(B),147, 148,149,302,307,436,427,337,504,506(2),201,188of I.P.C.&135(1)ofB.P.Act,readwithSection114ofI.P.C.for formingunlawfulassembly,committingriotingarmedwith deadly weapons like iron pipes, sticks, swords etc. and voluntarily causing grievous hurt in furtherance of commonobjectofunlawfulassemblyorinfurtheranceof theircommonintentioninVisnagaron28.02.2002,during 16.30Hoursto20.30HourswhereasaccusedNos.84and 85arechargedfortheoffencepunishableu/s.182,186,187 readwithSec.114and117oftheI.P.C.forgivingsupportto accused Nos.1 to 82, in the capacity of President of VisnagarMunicipalityandM.L.A.,whilesettingonfirethe houseofAkbarmiyaKalumiya,situatedoutsidetheRandal MataMadhon28.02.2002during02.30P.M.to3.00P.M. and for pressurizing and utilizing influence on Police InspectorM.K.Patel,asaresultofwhichhewasnotina position to investigate the case independently while Accused No.83 is charged for being a public servant knowinglyfullywelldisobeyedthedirectionofthelawasto thewayinwhichheistoconducthimselfassuchpublic
// 23 //
servantintendingtherebytosave,orknowingittobelikely that he will thereby save, any person from legal punishment,orsubjecthimtoalesspunishmentthanthat to which he is liable has committed the crime in discharginghisdutiesasPoliceInspectorofVisnagarTown and First Information Report regarding said offence No. 60/2002 was lodged before the accused No.83 by the complainant Mahmad Iqbal Ahmedkhan Baloch and said offence was investigated by the accused No.83 Police Inspector and in the said investigation, he has shown criminal negligence and has intentionally not investigated thecrimesothatvictimsmaynotgetjusticeandbeingas suchpublic servant,chargedwiththepreparationofany recordorotherwriting,framesthatrecordorwritingina manner which he know to be incorrect, with intent to cause,orknowingittobelikelythathewilltherebycause, lossorinjurytothepublicortoanyperson,orwithintent hereby to save, or knowing it to be likely that he will therebysave,anypersonfromlegalpunishmentboundas public servant to apprehend or lawfully committed to custody, intentionally omits to apprehend such person therebycommittedcrimeundersection217,218and222of I.P.C. [7] Accused No.74 of Sessions Case No.77/2005 Patel DahyabhaiNanalaldiedandtherefore,theordertoabate thetrialagainsthimhasbeenpassed.Duringthecourseof
// 24 //
recordingofFurtherStatementoftheaccused,itcameto thenoticeoftheCourtthat,theaccusedNo.1ofSessions Case No.180/2002 Patel Vishnukumar Shivarambhai is juvenileandtherefore,ordervideExh.1154hasbeenpassed droppinghimfromframingofchargefromthepresentcase anditisorderedtosendhiscasetotheJuvenileJustice Board.Accordinglyalltheaboveaccusedarefacingtrialfor thevariousoffencesbeforethisCourt. [8] In the charge vide Exh. 5 and Exh. 391 accused are chargedundersection147,148,149ofI.P.C.,undersection 302,149,12(B)ofI.P.C.,undersection337, 149,12(B)of I.P.C., under section 147,136,149, 12(B) of I.P.C., under section504,506(2),149,12(B)ofI.P.C.,undersection188 ofI.P.C.,section135(1)ofB.P.Act,undersection217,218, 22ofI.P.C.,undersection12(B),147,148,149,302,307, 436,427,337,504,506(2),201,188ofI.P.C.and135(1)of BPAct.,readwithsectionof114ofI.P.C.Duetoresetting theChargenoprejudiceisgoingtobecausedtoanyparty as all of them are given sufficient opportunity during conducting the trialhenceIherebyresenttheChargeas under: AccusedNos.1to82hadassembledforcausing
hurt, formed an unlawful assembly for causing, grievous hurt, assault, burning and decoying the property of Chudivas Dipra Darwaja Muslims, on
// 25 //
thebasisofnationvideStrikeduetotheincidentof burning almost 100 Hindu pilgrims in Sabarmati Express Train at Godhra on 28.02.2002 at Dipra Darwaja,Chudivas,Visnagarandtherebycommitted offenceundersection143ofI.P.C.. AccusedNos.1to82hadassembledforcausing
hurt, formed an unlawful assembly for causing, grievous hurt, assault, on the same day and same place and were members of an unlawful of 200 personsinprosecutionofthecommonobjectofsuch assembly for overt act committed the offence of riotingandtherebytheyhavecommittedanoffence punishableunderSection147oftheI.P.C.. That,accusedNos.1to82onthesamedayand
sameplace,whereintheaccusedNos.2,7,15,32,33, 37, 38 and 39 armed with deadly weapon Dhariya, accused Nos.3 and 18 armed with deadly weapon IronPipe,accusedNos.4and12armedwithdeadly weaponStick,accusedNos.5,8,9,11,13,16,20,21, 22,23,24,25,27,34,35,41,43,44,45,46and47 armed with deadly weapon Sword, accused No.6 armedwithdeadlyweaponIronRod,accusedNo.19 armed with deadly weapon Trishul, accused No.30 armedwithdeadlyweaponAxe,accusedNos.40,49 and 50 armed with deadly weapon Short Spear,
// 26 //
accused Nos.10, 14,26, 28, 36,42 and 48 armed with deadlyweaponPlasticgallonweremembersof an unlawful assembly of 200300 persons and in prosecutionofthecommonobjectofsuchassembly, for overt act, committed the offence of rioting with deadly weapon and thereby committed an offence punishable under Section 148 of the Indian Penal Code. OnthesamedayandsameplaceAccusedNos.1
to 82 formedan unlawfulassembly of 200persons and in prosecution of the common object of such assembly, for overt act of burning alive and murdering by intentionally causing the death of (1) PathanHusenabibiMuradkhan,Age:35Years, (2) Pathan Afsanabanu Yusufkhan,Age : 19 Years, (3) Khilji Munafkhan Jabirbhai, Age : 02 Years, (4) Pathan Zinnatbibi Muradkhan, Age : 65 Years, (5) PathanBanubibiYusufkhan,Age:46Years, (6) PathanAmaullakhanYusufkhan,Age:09Years,(7) PathanAttaullakhanYusufkhan,Age:04Years,(8) Pathan Yakubkhan Muradkhan, Age : 35 Years, (9) Pathan Asifkhan Yakubkhan, Age : 14 Years, (10) Pathan Abidkhan Yakubkhan, Age : 11 Years and (11)PathanSohanabibiJabirbhai,Age:25Yearsand thereby, committed the offence punishable under section302,readwithSection149oftheI.P.C..
// 27 //
OnthesamedayandsameplaceAccusedNos.1
to82formedanunlawfulassemblyof200persons, and in prosecution of the common object of such assembly and did an act of burning alive and assaulting Muslim women, men and children with such intention (or knowledge) and under such circumstances,thatifthesaidacthadcauseddeath, theaccusedwouldhavebeenguiltyofmurderunder Section 302, and thereby, committed the offence punishableunderSection307readwithSection149 oftheI.P.C. Moreover, all the accused persons have at the
sametime,dateandplace,accusedNos.1to82have withintentiontodisposeoftheevidencebydisposing dead bodies of thedeceasedpersons,broughtdead bodiestoMalavPond,situatedatthedistanceof2 Kms. from the Chudivas and set on fire and destroyed the evidence and helped each other and therebycommittedoffencepunishableundersection 201,readwithsection149oftheIndianPenalCode, withinthejurisdictionofthisCourt. Moreover, the accused Nos.1 to 82 have at the
same time, date and place while committing above mentioned offences, uttered unparliamentary words
// 28 //
with intention to instigate the women, men and childrenoftheminoritysothattheymaybreachthe peace and harmony and have threatened to cause murder and serious results by showing the deadly weaponsarmedbythemandhavehelpedeachother and thereby committed offence punishable under Section 504, 506(2) read with Section 149 of the Indian Penal Code, within the jurisdiction of this Court. Onthesamedayandsameplace,theAccused
Nos.1 to 82 formed an unlawful assembly of 200 persons andcommittedmischiefbythefire(or any inflammable substance) intending thereby to cause damagetothepropertyofMuslimPersonsalongwith thedestructionofHousesinChudivas,andthereby committedoffencepunishableundersection427,436 readwithSection149ofI.P.C. Onthesamedayandsameplace,theAccused
Nos.1 to 82 formed an unlawful assembly of 200 personshavecausedhurtandgrievoushurttothe witness so rashly (or negligently) as to endanger human life (or the personal safety of others) and therebycommittedoffencepunishableundersection 337readwithsection149oftheI.P.C.
// 29 //
Onthesamedayandsameplace,theAccused
Nos.1to82armedwithdeadlyweaponsknowingfully abouttheNotificationinexistence,issuedbyDistrict Magistrate and thereby committed offence under section135oftheB.P.Act. Onthesamedayandsameplace,theAccused
No.84and85voluntarilyobstructedShriM.K.Patel in discharging his public function and have also suppressedtheriotaffray,apprehendingthepersons chargedwithorguiltyofanoffence. Furtherbeing bond by law to render or furnish assistance to M.K.Patelinexecutionofhispublicdutyintentionally omittedtogivesuchassistanceandtherebyabetted theCrimeandknowingfullywellthatitislikelyto causeinjuryorannoyanceofanyperson,haveused theirpowersbeingpublicservantwithanintentionto cause injury totheperson and theproperty of the Muslim and thereby abated the crime and has committed offence under section 186, 187, 182 of I.P.C.readwithsection114,117ofI.P.C. Onthesamedayandsameplace,AccusedNos.1
to85hadagreedtocauseharmtothepersonand propertyoftheMuslimbyillegalactsandaccordingly set on fire properties of Muslim, pelted stones, caused injury to the person and properties of
// 30 //
MuslimsinChudivasandtherebycommittedcrimeof conspiracy and thereby committed offence under section120(B)ofI.P.C. Onthesamedayandsameplace,Accusedno.1
to 83 were fully aware about the commission of offence and by forming unlawful assembly of 200 persons,andinprosecutionofthecommonobjectof such assembly, they caused the evidence of commissionofoffencetodisappearwiththeintention ofscreeningtheoffenderfromlegalpunishmentand therebycommittedoffenceundersection201ofI.P.C. readwith149ofI.P.C.. On the sameday andsameplace,Accusedno.
83 being a public servant knowingly fully well disobeyed thedirectionofthelawastothewayin whichheistoconducthimselfassuchpublicservant intendingtherebytosave,orknowingittobelikely that he will thereby save, any person from legal punishment, or subject him to a less punishment than that to which he is liable has committed the crimeindischarginghisdutiesasPoliceInspectorof Visnagar Town and First Information Report regardingsaidoffenceNo.60/2002waslodgedbefore theaccusedNo.83bythecomplainantMahmadIqbal AhmedkhanBalochandsaidoffencewasinvestigated
// 31 //
bytheaccusedNo.83PoliceInspectorandinthesaid investigation,hehasshowncriminalnegligenceand has intentionally not investigated the crime so that victimsmaynotgetjusticeandbeingassuchpublic servant,chargedwiththepreparationofanyrecord or other writing,framesthat recordor writing in a mannerwhichheknowtobeincorrect,withintentto cause,orknowingittobelikelythathewillthereby cause,lossorinjurytothepublicortoanyperson, or with intent hereby to save, or knowing it to be likelythathewilltherebysave,anypersonfromlegal punishmentboundaspublicservanttoapprehendor lawfullycommittedtocustody,intentionallyomitsto apprehend such person thereby committed crime undersection217,218and222ofI.P.C. [9] Insupportoftheircaseprosecutionhasexaminedfollowing witnesses: ORALEVIDENCEOFMEDICALWITNESSES:
P.W. No. NameoftheWitness Exh. No. P.W.No.&Exh. No.ofdeposition recordedformore thanonetime P.W.No. Exh.No.
42 43 94 95
Dr.BhaveshVrajlalNayak Dr.BharatkumarBabubhaiSolanki Dr.NileshJayantibhaiDixit Dr.KiritbhaiDahyabhaiPatel
185 212 607 608
53 93 121
485 603 668
// 32 //
119 146
Dr.AbdulrahimmiyaUsmanAkhumji SulemanbhaiNoormahmadMansuri
664 771
ORALEVIDENCEOFINJUREDWITNESSES:
1 2 3 4 5 6 7 8 9 10 11 21 23 24 25 26 27 28 29 30 31 32 33
FatehkhanBadarkhanBaloch MahmadIqbalAhmedkhanBaloch GulabkhanaliasGulubhaiKayamkhan Sindhi AabidbhaiGulabkhanSindhi ZubedabibiMahebubkhanBaloch MahmadkhanBadarkhanBaloch AmzadkhanMahmadkhanBaloch ReshmabenSattarbhaiBaloch ReshmabibiAarifkhanKureshi RashidabibiSattarbhaiBaloch SugrabibiMahmadkhanBaloch AnvarhusenShabbirhusenPathan ShabbirkhanIbrahimkhan AhmedmiyaHasumiyaBelim ShermahmadDalubhaiSindhi MohmadHanifAhmedkhanBaloch HusenkhanBadarkhanBaloch AbdulkarimMahmadbhaiMansuri HanifabibiAbdulkarimMansuri HanifabibiShabbirbhaiPathan ShabbirmiyaHasumiyaBelim AarifkhanYakubkhanPathan MahmadhanifDalubhaiSindhi AnvarkhanBasirkhanBaloch
61 66 70 71 84 85 86 87 88 90 91 108 128 132 134 137 140 141 144 146 147 150 166
64 81 84 116 62 63 120 124 137 59 98 104 113 99 138 54 136 89 60 97
516 568 574 654 511 514 666 675 726 505 616 630 645 617 730 490 725 585 506 613
// 33 //
50 51 52 58 96 125 127 135 149 150 162 180 181
SaidabibiMahmadhanifSindhi AminabibiAhmedkhanBaloch FaridabanuAhmedkhanBaloch KarishmabanuYusufkhanPathan IbrahimkhanUmarkhanBaloch SabanabibiAnvarhusenPathan ImrankhanSabirhusenPathan BashirnbibiGulmahmadSindhi ArbazAnvarhusenPathan AslambhaiKadarbhai SohilMahmadHanif PathanShabnoorbanualiasSayanora Yakubkhan ShamimbanuAniskhanPathan
302 303 306 502 610 678 681 724 778 779 825 1345 1350
61 131
510 695
ORALEVIDENCEOFOTHERWITNESSES:
18 22 57 68 69 70 71 72 73 74 75 76
SaiyedNazirmiyaKalumiya YusufkhanMuradkhanPathan BarkatbhaiAadambhaiMansuri SavitabenDahyalalPatel DahibenKantilalPatel MadhavlalRanchhoddasPatel NaranbhaiAmthabhaiPatel ChiragkumarSureshbhaiPatel KantibhaiShivrambhaiPatel ShantabenBhogilal NitabenJageshkumarPatel KantibhaiKacharabhaiPatel
103 112 497 533 534 535 536 541 542 543 544 550
129 133
689 699
// 34 //
77 78 79 80 85 86 87 88 101 102 108 109 110 111 152 154 160 163
BhikhibenBabulalPatel RevabenRanchhodbhaiPatel TarabenKacharabhaiPatel MangubenAmratbhaiPatel KantabenKantilalPatel ManibenBabulalPatel HasumatibenVinodkumarPatel TarabenKaushikkumar KapilabenNarayanbhaiPatel NitabenRohitkumarPatel SavitabenHareshbhaiPatel SushmabenJitendrakumarPatel KailasbenYogeshkumarPatel KapilabenBabubhai DahyabhaiMafatlalPatel JayantibhaiSankalchandbhaiPatel ChandrakantbhaiRamchanddasPatel AmrutbhaiShivrambhaiPatel
551 557 558 559 579 580 581 582 622 623 636 637 638 639 787 793 815 826
ORALEVIDENCEOFPANCHWITNESSES:
34 35 36 37 38 39
PatelVinubhaiGokaldas BabubhaiIshvarbhaiPatel AmratlalTribhovandasPatel NatvarbhaiBhagvandasPatel DineshkumarKantilalPatel VishnubhaiLilachandPatel
167 170 172 174 176 177
114 117 112 105 106 103 122 165
649 659 643 632 634 624 671 833
// 35 //
40 41 66 90 91 92 115 164 166 167 170
MahendrakumarRamabhaiPatel KirtikumarRamniklalDave ShankarlalMaganlalPatel MahmadIqbalGulamhusenValamiya ImranAbdulRasulMemon YunusbhaiAlibhaiMansuri RameshkumarMadhavlalPatel RajendrabhaiChhaganlalPatel GomtibenJayantilalPatel GandajiSomajiThakor AkbarkhanUmarkhanPathan
178 179 521 590 594 599 650 830 839 840 864
118 100 168
661 620 854
ORALEVIDENCEOFPHOTOGRAPHERWITNESSES:
P.W. No.
NameoftheWitness
Exh. No.
P.W.No.&Exh. No.ofdeposition recordedformore thanonetime P.W.No. Exh.No.
172 177
NitinkumarChhotubhaiLimbachiya PriteshkumarGaneshbhaiPatel
869 1156
ORALEVIDENCEOFMUNICIPALITYWITNESSES:
P.W. No.
NameoftheWitness
Exh. No.
P.W.No.&Exh. No.ofdeposition recordedformore thanonetime P.W.No. Exh.No.
14 15
PankajbhaiMangaldasParmar KantibhaiBalabhaiMakwana
99 100
107
635
// 36 //
16 17 19 20 55 56 132 176 178
ParshottambhaiPunjabhaiMakwana (Bhangi) RajubhaiMaganbhaiSolanki RajubhaiDahyabhaiBhangi BabubhaiSomabhaiBhangi VasantbhaiParshottambhaiMakwana HareshbhaiRanchhodbhaiMakwana NareshbhaiDashrathbhai SudhirbhaiHansrajKansara DolatjiGalbajiThakor
101 102 106 107 495 496 698 1019 1158
126 128
679 682
ORALEVIDENCEOFGOVERNMENTWITNESSES:
45 134 141 145 153 155 161 179
KamleshkumarJethabhaiRathod IshvarbhaiBababhaiChaudhari VirambhaiRamjibhaiDesai VirsangjiHirajiThakor BipinchandraMohanlalGohil KirtikumarVitthalbhaiPatel LaxmiprasadKantilalBarot PravinkumarChetanlalJani
219 722 736 768 788 794 823 1161
130 156
694 800
ORALEVIDENCEOFSCIENTIFICWITNESSE:
49
HasmukhlalThakorlalModi
232
142
743
// 37 //
ORALEVIDENCEOFPOLICEWITNESSES:
12 13 44 46 47 48 65 83 144 147 148 151 157 158 159 171 173 174 175
BijendrasinhRampratapsinh RameshjiRajuji RameshchandraPopatlalSharma AnupamsinhJaysinhGehlot BachubhaVesaljiJadeja ManubhaiKarshanbhaiPatel MahendrasinhBhairavsinh DashrathsinhAmthaji AmrutbhaiBhikhabhaiBhimavat BabubhaiMansangbhaiChaudhari VirajiVarvajiThakor MahendrasinhLalsinhRathod VarvajiShankarjiChavada NazirMahmadSuleman MaheshkumarHiralalNayi RanjitsinhPituji HimmatsinhBhupatsinhRajput DoljibhaiSavjibhaiAsari GautamkumarVishnubhaiBarot
96 97 218 226 227 228 518 572 767 772 773 780 811 812 814 865 870 875 912
82 67 123 140 139 143 169
571 524 674 735 731 747 860
[10]
Insupportoftheircaseprosecutionhasproducedfollowing documentaryevidence:
// 38 //
Sr. No. 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25.
Detailsofdocument Complaint,lodgedbyMahmadIqbalAhemadkhan Baloch,Dated28.02.2002 DeputeOrder PanchnamaoffiredcartridgesDated04.03.2002 AnalysisreportDated18.08.2002 SerologicalanalysisreportDated13.08.2002 Analysisreport,No.2002/B/168 SerologicalanalysisreportDated02.05.2002 AnalysisreportDated23.07.2002 AnalysisreportDated17.04.2002 Notificationregardingprohibitiontocarryarms
Exh. No. 67 72 73 74 75 76 77 78 79 82
Panchnamaplaceofincident,preparedbyF.S.L.Van 151 Dated06.03.2002 Panchnamaofplaceofburialofdeadbodies,drawn bytheF.S.L.VanDated09.03.2002 F.S.L.DispatchnoteDated20.05.2002 MuddamalReceiptDated21.05.2002 ForwardingletterDated23.08.2002 Dispatchnote,Dated10.03.2002 MuddamalReceiptDated13.03.2002 MuddamalReceiptDated13.03.2002 ForwardingletterDated07.06.2002 MuddamalReceiptDated21.05.2002 ForwardingletterDated23.07.2002 ForwardingletterDated18.04.2002 MapofplaceofincidentDated01.03.2002 Panchnamaofplaceofincident 152 153 154 155 156 157 158 159 160 161 162 164 168
PanchnamaofdeadlyweaponsproducedbyAccused, 171 Dated07.05.2002
// 39 //
Sr. No. 26. 27. 28 29. 30. 31. 32. 33. 34. 35. 36. 37. 38. 39. 40. 41. 42. 43 44. 45. 46. 47. 48.
Detailsofdocument PanchnamaofdeadlyweaponproducedbyAccused Dated15.05.2002 PanchnamaofdeadlyweaponproducedbyAccused 06.05.2002 PanchnamaofArrestofaccusedfromtheplaceof incidentDated28.02.2002
Exh. No. 173 175 180
PanchnamaofplaceofincidentdrawnbyF.S.L.team 182 Dated07.03.2002 MedicalCertificateofHusenkhanBadarkhanBaloch MedicalCertificateofFatekhanBadarkhanBaloch MedicalCertificateofKarishmabibiYusufkhan Pathan MedicalCertificateofAslamkhanKadarkhanSindhi MedicalCertificateofSaidabibiMohamadaliSindhi MedicalCertificateofSohelMahmadSindhi MedicalCertificateofAmajadkhanMahmadkhan Baloch 186 187 188 189 191 192 193
MedicalCertificateofAminabibiJhangirkhanPathan 190
MedicalCertificateofFaridabenAhemadkhanBaloch 194 MedicalCertificateofAminabibiAhemadkhanBaloch 195 MedicalCertificateofAnvarhusenSabirhusenPathan 196 MedicalCertificateofSabanabibiAnvarhusenPathan197 MedicalCertificateofAnvarkhanBasarkhanBaloch MedicalCertificateofArbazAnvarkhanBaloch MedicalCertificateofHanifabibiSabirhusenBaloch MedicalCertificateofSugarabibiMahmadkhan Baloch MedicalCertificateofImrankhanSabirhusenBaloch 198 200 201 202 MedicalCertificateofShermahmadDalukhanSindhi 199
MedicalCertificateofAarifkhanYunushkhanPathan 203 204
// 40 //
Sr. No. 49. 50. 51. 52. 53. 54. 55. 56. 57. 58. 59. 60. 61. 62. 63. 64. 65. 66. 67. 68. 69. 70. 71. 72. 73. 74.
Detailsofdocument
Exh. No. 206 208 209 210
MedicalCertificateofReshmabanuSattarkhanBaloch 205 MedicalCertificateofRasidaSattarkhanBaloch ReportofF.S.LDated06.03.2002 ReportofF.S.LDated09.03.2002 LettersentbythePoliceAuthoritytotheJ.M.F.C., VisnagarforAddingofSec.120B,302ofCr.P.C. CasepapersofIbrahimkhanUmarkhanBaloch TransferformofIbrahimkhanUmarkhanBaloch DNAreportDated12.06.2003 F.S.L.reportDated15.01.2003 F.S.L.reportDated04.01.2003 MapofplaceofincidentdrawnbyCircleOfficer. Photographsofplaceofincident(totalNos.7) Photographsofplaceofincident(totalNos.4) DispatchnoteDated15.12.2008 ReceiptofMuddamalbyF.S.L.Dated15.12.2008 F.S.L.ForwardingLetter F.S.L.reportDated16.01.2009 MedicalCertificateofHanifabibiAbdulbhai MedicalCertificateofAbdulkarimMahmadbhai Mansuri Photographsofplaceofincident(totalNos.4) Slipdulysignedbypanchas Slipdulysignedbypanchas Slipdulysignedbypanchas Slipdulysignedbypanchas MedicalCertificateofIbrahimkhanUmarkhanBaloch 207
MedicalCertificateofIbrahimkhanUmarkhanBaloch 213 214 215 245 246 247 477 478 479 480 481 482 483 486 487 494 522 523 591 596to 598
// 41 //
Sr. No. 75. 76. 77. 78. 79. 80. 81. 82 81. 82. 83. 84. 85. 86. 87. 88. 89. 90. 91. 92. 93. 94. 95.
Detailsofdocument MedicalCertificateofSamimBaloch Slipdulysignedbypanchas Slipdulysignedbypanchas Slipdulysignedbypanchas Slipdulysignedbypanchas MedicalCertificateofBasirabenGulabkhan DeathCertificateofZinnatbibiMuradkhanPathan DeathCertificateofBanubibiYusufkhanPathan DeathCertificateofYakubkhanMuradkhanPathan DeathCertificateofHusenabibiYakubkhanPathan DeathCertificateofAtaullakhanYusufkhanPathan DeathCertificateofAmanullakhanYusufkhan Pathan DeathCertificateofAsifkhanYakubkhanPathan DeathCertificateofAbidkhanYakubkhanPathan DeathCertificateofAfsanabanuIbrahimbhaiBelim DeathCertificateofSuhanbanuJabirbhai Usmankhilji
Exh. No. 605 621 633 644 660 665 701 702 703 704 705 706 707 708 709 710
MedicalCertificateofSayonarbibiYakubkhanPathan 606
DeathCertificateofMunafbhaiJabirbhaiUsmanbhai 711 Pathan Notificationregardingprohibitiontocarryarms PropertyCardsofResidentialhousessituatedinthe ChudivasofVisnagar(TotalNos.16) CopyofmessagesentbyVisnagarPoliceStationfor availabilityofF.S.L.Vanattheplaceofincident. InformationofI.Cr.R.No.60/2002oftheVisnagar PoliceStation. ApplicationsentbyYusufkhanMuradkhantoP.I., Visnagar 723 737 744 745 759
// 42 //
Sr. No. 96. 97. 98. 99.
Detailsofdocument ApplicationsentbyYusufkhanMuradkhanto J.M.F.C.,Visnagar ApplicationsentbyBalochMahmadHaniftoP.I., Visnagar
Exh. No. 760 761
ApplicationsentbyAhemadmiyaHasumiyaBelimto 762 P.I.,Visnagar ApplicationsentbyShermahmadDalumiyaSindhito 763 P.I.,Visnagar
100. ApplicationsentbyMahmadhanifDalubhaiSindhito 764 P.I.,Visnagar 101. ApplicationsentbyNazirmiyaKalumiyatoP.I., Visnagar 102. SlipdulysignedbyPanchas 765 783
103. LetterwrittenbyP.S.I.Visnagar,totheP.S.O.Visnagar 784 PoliceStationformakingentryinthestationdiary aboutthearrestofaccusedperson. 104. LetterwrittenbyP.I.,VisnagartoJ.M.F.C.,Visnagar fortakingoverthecustodyofaccusedperson. 785
105. LetterwrittenbyS.I.TtoVisnagar,Talatiforpedigree 789 ofBabulalSankalchandAsobiya 106. PedigreeofAccusedYogeshbhaiBabubhai 790 107. LetterwrittenbyTalatiVisnagar,totheAssistant 791 DirectorDated18.07.2008aboutpedigreeofaccused YogeshbhaiBabulal 108. ApplicationwrittenbyPatelSankalchand KacharabhaitoTalati,Visnagarforcopyofpedigree. 109. LetterwrittenbytheMamlatdar,Visnagartothe Collector,Mahesanaregardingcashdollpaidtothe Legalheirsofthevictimsofcommunalriots. 110. Statementshowingthecashdollpaidtothevictims ofcommunalriots. 792 795
796
// 43 //
Sr. No.
Detailsofdocument
Exh. No.
111. StatementcumReceiptofamountpaidtotheowners 797 ofthehousesofvictimsofcommunalriots. 112. LetterwrittenbyS.I.TtoCollectoraboutthe informationofI.Cr.R.No.60/02,Visnagar. 801
113. InformationsentbyDistrictMagistrate,Mahesana 802to regardingI.Cr.R.No.60/02,VisnagartotheAssistant 810 DirectorSIT 114. Statementshowingtheaccusedpersonsregarding involvementinothercrimes. 115. CopyofNotificationofAnnouncementofcurfew 116. PanchnamaofArrestof23accusedpersonsand recoveryofMuddamalDated23.10.2002 117. Slipdulysignedbypanchas 118. PanchnamaofArrestandrecoveryofMuddamal Dated11.07.2004 119. PanchnamaofarrestandrecoveryofMuddamal 120. Slipdulysignedbypanchas 121. PanchnamaofArrestandrecoveryofMuddamal Dated23.01.2004 122. Slipdulysignedbypanchas 123. PanchnamaofArrestandrecoveryofMuddamal Dated05.03.2004 124. Slipdulysignedbypanchas 125. PanchnamaofArrestandrecoveryofMuddamal Dated17.03.2004 126. Slipdulysignedbypanchas 127. PanchnamaofarrestandrecoveryofMuddamal Dated06.06.2008 128. PanchnamaoftheMuddamalcollectedbytheSIT fromtheSessionsCourt,Mahesanaforsendingitto theF.S.L. 813 824 831 832 834 841 842 843 844 845 846 855 856 857 858
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Sr. No. 130. VideoCassette
Detailsofdocument
Exh. No. 899 900 915 916
129. VideoCassetteofrecordingofincident 131. LetterwrittenbyinvestigationofficertoDSPfor providingF.S.L.Van. 132. LetterwrittenbyinvestigationofficertoF.S.L.for inspectionofVehicle.
133. PanchnamaofrecoveryofvehicleTATASUMObythe 917 PoliceAuthority 134. F.S.L.ReportDated11.05.2010 135. LetterwrittenbyS.I.T.toJ.M.F.C.,Visnagarfor amendmentinF.I.R. 918 921
136. LetterwrittenbyP.I.,VisnagartoS.I.T.regardingnon 922 availabilityofweeklydiaryofM.K.Patel,P.I.,Visnagar. 137. Certificateregardingnonavailabilityofweeklydiary ofM.K.Patel,P.I.,VisnagarissuedbyDeputy SuperintendentofPolice,Visnagar. 138. ProsecutionSanction,grantedbytheDirector GeneralofPolice,toprosecuteM.K.Patel,P.I., Visnagar. 139. TruecopyofF.I.R,lodgedwiththeUnjha,Police StationagainstM.K.PatelP.I.,Visnagar. 140. CopyofcounterpartofChargesheetfiledagainst M.K.Patel,thethenP.I.Unjha,beforetheJ.M.F.C., Unjha 141. F.S.L.report 142. ReportofNarcoTest 143. PanchnamaofArrestM.K.Patel,M.K.Patel,P.I., Visnagar,Dated16.02.2009. 144. LetterwrittenbyDeputyDistrictMagistratetoSIT abouttheI.CR.No.60/2002 923
924
926 927
928 929 930 931
145. LetterwrittenbySITtoDirectorGeneralofPolicefor 936 takingactionsagainstShriV.V.Thakor,P.S.I.
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Sr. No.
Detailsofdocument
Exh. No.
146. LetterwrittenbySITtoDirectorGeneralofPolicefor 937 takingactionsagainstShriL.M.Rathod,P.S.I. 147. LetterwrittenbySITtoDirectorGeneralofPolicefor 938 takingactionsagainstShriD.S.Asari,P.I. 148. LetterwrittenbySITtoDirectorGeneralofPolicefor 939 takingactionsagainstShriH.B.Rajput,P.I. 149. LetterwrittenbyChiefOfficer,VisnagartoSIT 1021 regardingdesignationofAccusedNo.85ShriD.T.Patel 150. GazetteshowingaccusedNo.85ShriD.T.Patel,as winnerinVisnagarMunicipalityElection. 1022
151. MinutesabouttheResolutionpassedregarding 1023 electionofPresidentandVicePresidentofVisnagar, Municipality. 152. InformationregardingM.L.A.,accusedNo.84 PrahladbhaiGosa 153. CertificateregardingM.L.A.,ofaccusedNo.84 PrahladbhaiGosa 154. DeathCertificateof AnvarkhanBaserkhanBaloch 155. DeathCertificateof AbdulkarimMahmadbhaiMansuri 156. DeathCertificateof IbrahimmiyaUmarkhanBaloch 157. DeathCertificateof HanifabenAbdulkarimMansuri 158. DeathCertificateof GulubhaiKayamkhanSindhi 159. CopyofRegister,showingtheEntryNo.179to189, madeintheBirthandDeathRegister 160. Statementshowingthecashdollpaidtothevictims ofcommunalriots. 161. F.I.R.ofI.CR.No.60/2002. 1035 1036 1084 1085 1086 1087 1088 1159 1163 1338
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Sr. No.
Detailsofdocument
Exh. No. 1340 1352
162. StationDiaryDated28.02.2002. 163. F.S.L.DispatchNote,Dated27.10.2002. [11]
Prosecution has passed closing Pursis vide Exh.1169 on 05.08.2011.
[12]
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 MuslimcommunityinChudivasnorweretheyarmedwith deadly weapons, nor ransacked anybody or set on fire houses vehicles etc., as alleged. Further, they have submittedthattheyareresidingintheDipraDarwajaand theMuslimsinthevillage:Chudivasarealsoresidingin thevillagesincetheirbirth.Theyhavenopreviousenmity with any community. Muslim persons of Chudivas were safe.Earliertherewerenocommunalriotsintheirarea.As theGodhratrainincidentoccurred, inmanypartsofthe
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Gujarat,riotstookplacebutinDipraDarwajaarea,there were no untoward incident occurred, no complaint was lodgedforanysuchincident. [13] Inadditiontothat,theaccusedNo.2hasstatedthat,on the date of incident he was returning from his place of profession and at that time on Station Road, he was arrestedforthebreachofCurfewandheisinnocentandhe isfalselyimplicatedinthecase.AccusedNo.3hasstated that,onthedateofincidenthewasarrestedat12.00Noon from Visnagar Bus Stand for the breach of Curfew and falselyimplicatedinthecase.AccusedNo.4hasstatedthat, heisinnocentandonthedateofincidentatabout1245 P.M. he was arrested near his Society known as Karshannagar for the breach of Curfew and he has not played any role in the incident and he was falsely implicated in the case. Accused No.5 has stated that, he hasnotproducedanyweaponorhehasnotplayedanyrole intheoffence,hehadnotgonetotheDipraDarwajaand PolicehasarrestedhimforthebreachofCurfewandfalsely involvedhimintheincident.AccusedNo.6hasstatedthat, onthedateofincidenthewasreturningfromhisfieldand at that time police had arrested him for the breach of curfewandsincethenheisintheCustodyandthus,heis falselyimplicatedinthecase.AccusedNo.7hasstatedthat, heisinnocentandon28.02.2002hehadgonetoGozaria for his profession of Photography and at about 06.30 he
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wasreturningtowardshishomeandwhenhewaspassing onVisnagarKadaRoad,hewasarrestedbythePolicefor the breach of Curfew. In support of his say, he has produced copy of Order Form for Photography and Certificate Dated 25.10.2002, issued by the Amarpura Gram Panchayat, stating therein that, he was doing videography and photography on the date of incident in Village Amarpura of Gozaria Taluka. Accused No.29 has statedthat,onthedateofincidenttheShoprunninginthe name of Jansangh and other shops were set on fire and ransackedandhisshopwasalsosetonfireandransacked and therefore, he has lodged the complaint at I.CR.No. 72/2002withtheVisnagarPoliceStation.Insupportofhis say, he has produced copy of F.I.R. of I.CR.No.72/2002. TheaccusedNo.31hasstatedthat,heisinnocentandon the date of incident he was in Field and he was falsely implicated in the incident.TheaccusedNo.34has stated that,onthedateofincidenthewasarrestedbythePolice forthebreachofCurfewnearDosabhaiBaugandCriminal Case No.1963/2002 was lodged against him and in that case,hehasdepositedamountofFineRs.100/.Insupport ofhissay,hehasproducedtheReceiptofFine,issuedby theCourt.AccusedNo.42hasstatedthat,heisinnocent, heisfalselyimplicatedinthecase,hedoesnotknowabout theincident,onthedateofincident,hisshoprunningin the name of Jansangh and other two shops, which are situatedintheMainmarketofVisnagarweresetonfireand
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theirshopsaresituatedintheMuslimareaandthemobof Muslimshavesetonfireandransackedandrobbedtheir shopsandhealongwithmalemembersofhisfamilystayed in the shop for two days and Police has recorded their complainton28.02.2002at05.00P.M.atI.CR.No.72/2002 andPanchnamaoftheirshopwaspreparedbythePolice and their shops damaged worth Rs.11,00,000/. Accused No.45 has stated that, he is politically, economically and sociallyleadingandtherefore,heisfalselyimplicatedinthe offence. Accused No.46 has stated that, on the date of incidenttherewasBandhandtherefore,byclosinghisPan Shop, he along with his family members was doing agricultural work in their Field as there was season of WheatandasheisrunningthePanShop,manyMuslims knowshimandtherefore,theyhavefalselyimplicatedhis nameasanaccused.AccusedNo.48hasstatedthat,heis innocent and he is falsely implicated in the incident, his shop running in the name of Jansangh and other two shops,whicharesituatedintheMainmarketofVisnagar weresetonfireandtheirshopsaresituatedintheMuslim area and the mob of Muslims have set on fire and ransackedandrobbedtheirshopsandhealongwithmale membersofhisfamilystayedintheshopfortwodaysand PolicehasrecordedtheircomplaintandPanchnamaoftheir shopwaspreparedbythePoliceandtheirshopsdamaged worth Rs.11,00,000/. He has further stated that, the Police has lodged Criminal Case No.211/2006, under
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section307,147ofI.P.C.againsthimbutinthesaidcase his name was falsely implicated because said case was lodgedagainstAnikeshbhaiSankalchandbhaiShankarbhai whereashisnameisAlkeshbhaiSankalchandKacharabhai and thus, he is by mistake involved in the incident. AccusedNos.51and53havestatedthat,heispolitically, economically and socially leading and therefore, he is falselyimplicatedintheoffence.AccusedNo.54hasstated that,heispolitically,economicallyandsociallyleadingand therefore,withintentiontodefameheisfalselyimplicated in the offence. Accused No.55 has stated that, he is GovernmentServantandon27.02.2002and28.02.2002he was onduty and insupportofhissay,hehasproduced certified copy of Muster Roll, Certificate of the Executive Engineer, regarding his attendance, statements of all employees and peons and person who is running the Canteen.Hehasfurtherstatedthat,aftersaidincidentalso hehasworkedwiththeExecutiveEngineerasMemberof Peace Committee. Accused No.57 has stated that, he is innocent and he is falsely implicated in the incident. he doesnotknowaboutsaidincident.On28.02.2002atabout 04.00P.M.hisshop,situatedintheMarketofVisnagarwas ransackedbythemobandtherefore,healongwithhisson, withthehelpofPolicereachedattheshopandhaslodged complaint of said incident and Police has recorded their Complaint at I.CR.No.72/2002 on 28.02.2002 at about 05.00 P.M. Moreover, he has further stated that, he is
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sociallyandreligiouslyleadingandtherefore,hisnameis subsequentlyimplicatedintheincident.Insupportofhis say he has attached separate sheet, containing therein that,heis78yearsoldandon28.02.2002theirshopwas ransackedbythemobofMuslimsandtherefore,healong withhissonsreachedattheirshop,withthehelpofPolice andhealongwithotherbusinessmenreachedatthePolice Stationforlodgingthecomplaintandcomplaintwasgiven bytheownerofoneshopandPanchnamaofalltheshops whichwerelootedandransackedwasdrawnbythePolice and as per Panchnama, their shop was damaged worth Rs.11,00,000/ and said complaint was lodged at I.CR.No.72/2002 on 28.02.2002 and on the date of incident, except their shop he had not gone to anywhere and he was not knowing what happened in the Visnagar towninotherareas.hedoesnotknowabouttheincident occurredinDipraDarwaja.Hehasfurtherstatedthat,to harass his family, names of his family members Patel Sankalchand Kacharabhai, Patel Hasmukhbhai Sankalchand, Patel Alkeshbhai Sankalchand, Patel Hemandrabhai Alkeshbhai and Patel Jitubhai Hasmukhbhai were implicated as an accused in the said incident.Hehasfurtherstatedthat,fivemalemembersof hisfamilyarefalselyinvolvedinthesaidincident.Hehas further stated that, he and his son Hasmukhbhai are involvedinthesaidincidentaftertwoyears.Hehasfurther statedthat,heisdoingbusinesssincelast55yearsandhe
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is leading in the work of Jivdaya, Panjarapole, Gaushala and he is also the President of Vepari Mahamandal and KapadMahajan,heisGeneralSecretarysincelast35years of their Societyandheisalsodoingotherreligiouswork and they have noenmitywithanyoneeventhoughwith intentiontoharasstheirfamilymembers,theyarefalsely implicatedinthiscase.Hehasfurtherstatedthat,itisnot possibleforustogoelsewherewhenourownshopswere ransackedandlootedbythemob.Insupportofhissay,he has also produced copy of F.I.R. of I.CR.No.72/2002. Accused No.58 has statedthat, he is innocent and he is falselyimplicatedintheincident,hisshoprunninginthe nameofJansanghandothertwoshops,whicharesituated intheMainmarketofVisnagarweresetonfireandtheir shops are situated in the Muslim area and the mob of Muslimshavesetonfireandransackedandrobbedtheir shopsandhealongwithmalemembersofhisfamilystayed in the shop for two days and Police has recorded their complaintandPanchnamaoftheirshopwaspreparedby thePoliceandtheirshopsdamagedworthRs.11,00,000/. In support of his say, he has produced the F.I.R. of I.CR.No.72/2002,underSection436,427,143ofI.P.C.and Sec.135 of the B.P.Act. and Panchnama, drawn by the Police. Accused No.59 has stated that, on the date of incident he was present in the Court of Principal Civil Judge at Porbandar and in support of his say, he has producedcopyofCertificate,issuedbytheCourt.Hehas
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furtherstatedthat,heissociallyandeconomicallyleading and as he is functioning as President of Vepari Maha Mandal, with intention to defame him, he was falsely implicatedasanaccusedintheincident. AccusedNo.60 hasstatedthat,heissociallyandeconomicallyleadingand therefore, he is falsely implicated in the incident as an accused.AccusedNo.61hasstatedthat,heissociallyand economicallyleadingandtherefore,heisfalselyimplicated in the incident asanaccused.AccusedNo.65hasstated that,hedoesnotknowabouttheincident.Onthedateof incidenthewasintheFieldandonreceivingnewsabout thecommunalriots,hestayedintheFieldduringthenight hours.AccusedNos.66and67havestatedthat,atthetime of incident they were Corporator of the Visnagar Municipality and as they are socially and economically leading,theyarefalselyimplicatedintheoffence.Theydo not know about the incident and with political grievance they are falsely implicatedasanaccused.AccusedNo.68 hasstatedthat,heissociallyandeconomicallyleadingand therefore, he is falsely implicated in the incident as an accused.AccusedNo.69hasstatedthat,heissociallyand politicallyleadingandhewastheMemberofMunicipality andtherefore,hewasfalselyimplicatedintheincident.He hadnotgoneanywhereandhasnotseenanythingandat thetimeofincident,hewasdoingagriculturalworkinthe Field. Accused No.70 has stated that, at the place of incidenthehadnotseenanything,hehadnotgonethere
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andheisretiredPrincipalandSocialWorkerandtherefore, he is falsely implicated as an accused in the alleged incident. Accused No.72 has stated that, on the date of incident,shewasattheresidenceofherHusbandatKada Darwajaandshedoesnotknowabouttheincidentandshe is falsely implicated as an accused and she is innocent. AccusedNo.79hasstatedthat,onthedateofincident,he wasdischarginghisresponsibledutiesasManagerofThe MehsanaUrbanCo.Op.BankLtd.Andon28.02.2002he wasatMahesanaandaftercompletinghisservicehours,at 06.00P.M.hereachedVisnagarat08.00P.M.bytraveling intheTankerofMilk,asthetransportfacilitiesofS.T.Bus was closed and thus, though he was not present in Visnagaronthedateofincident,hewasfalselyimplicated as an accused. In support of his say, he has produced Certificate,issuedbytheGeneralManagerofTheMehsana UrbanCo.Op.BankLtd.,andMusterRolloftheBank. [14] TheaccusedNo.83hasstatedthat,hehasnotcommitted anyoffence,forwhichheischarged.Hehasfurtherstated that, on 18.02.2002 he was transferred at Visnagar and hasjoinedhisdutyon22.02.2002.Insupportofhissay,he has produced the Copy of Transfer Order and Report of joiningdutyisproduced.Hehasfurtherstatedthat,after joining his duties, within six days the said incident had taken place. Visnagar Taluka is consisting of 65 Villages andmostofvillagesarehavingHinduandMuslimpeople
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andthatvillagesaresensitiveanditwasverydifficultfor him to aware with the geographical situation of all these villages.Hehasfurtherstatedthat,assoonashereceived the information about the incident of Dipra Darwaja, he immediately rushed to Dipra Darwaja along with Police forceandarrestedsevenpersonsfromtheplaceofincident and65Muslimpersonsweresavedbyusingforceand10 Muslim persons who were trapped in the fire were also savedandhehasshiftedallthevictimsatthesaferplace and for discharging his duties with full commitment and honestly,theD.S.P.ofMahesanahasawardedhimwiththe prize of Rs.1000/ and said document is produced in support of his say. He has further stated that, during 28.02.2002to25.03.2002tocontrolthecommunaltense, hehasregistered97CasesunderSection107and151,77 casesunderSec.110and99casesforthebreachofCurfew and that cases were registered to control the communal riotsandforthat,theD.S.P.ofMahesanahasgivenhim CreditNote,whichisproducedintherecord,insupportof hissay.Hehasfurtherstatedthat,consideringthesteps takenbyhimtocontrolthecommunalriots,theD.S.P.of Mahesana has sent Fax Message to Shri K. Chakravarty, DirectorGeneralofPolice,Gandhinagar,fornottransferring him from Visnagar. He has produced copy of said Fax Messageinsupportofhissay.Hehasfurtherstatedthat, during said tenure 30 offences of communal riots were registeredwiththeVisnagarPoliceStationandalongwith
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maintainingtheLawandOrderhehastodoinvestigationof thoseseriouscasesandconsideringtheentirerecordand evidence,nooffencemadeagainsthimunderSection302, 303,201,120B,147,148,149,436,427,337,504,506(2), 188,217,218,221ofI.P.C.andSec.135oftheB.P.Act.He has further stated that, the Confidential Report of the relevantperiod wasfiledbytheD.S.P.,Mahesanaandin thatreport,inCol.No.5hehasmentionedthat,thepowers whichwereassignedtohimwereperfectlyutilizedandin Col.No.8 of Special work, he has mentioned that, the incident of Stabbing, registered with the Visnagar Police Station were properly investigated and real accused were implicated and was remained success in stopping the occurrenceofcrime.Insupportofhissayhehasproduced thecopyofsaidC.R.Hehasfurtherstatedthat,afterhis transferfromtheVisnagarPoliceStation,PoliceInspector Rajput and Police Inspector Shri Asari were posted and during their investigation they have not noted any thing against him and they have only arrested the accused persons, who were shown absconding by him. He has furtherstatedthat,onthedateofincident,aftersometime of incident, Dy.S.P. Shri Jadeja has made visitation and verifiedthestatementsofallwitnessesandhaswrittenthe CrimeMemoofsaidcaseandinthatdocumentalsohehas not mentioned any defect. He has produced copy of said CrimeMemo,insupportofhiscase.Hehasfurtherstated that,aftersometimeofincident,theD.S.P.,MahesanaShri
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AnupamsinhGehlothadvisitedtheplaceofincidentand he has periodically sent the copies of Case Diary and ProgressReportofsaidCasetohimandthus,hehasnot committed any offence to protect any person from lawful actionortocreateanyfalserecordorhasnotallowedany person to abscond and he has not made any such note against him or not asked for any explanation in this respect.Hehasfurtherstatedthat,inrespectofCommunal riots occurred at Visnagar, the 16 persons of Muslim community have executed and produced affidavits before the Investigation TribunalofHon'bleJusticeG.T.Nanavati (Retired) and Hon'ble Justice K.G.Shah (Retired) at Bungalow No.33, Opp. Police Stadium, Shahibaug, Ahmedabad380004,inwhichtheyhavespecificallystated that,Policehadprovidedsufficientprotectiontothemand their community and Police had done good job. He has furtherstatedthat,hehasmadechargesheetagainst50 accusedpersonsandoutofthem31accusedwereshown asabscondingandcopyofsaidChargesheetisproducedin support of his say. He has further stated that, as per provisions of Law, as per requirement he has demanded remand of the accused persons and he has made note accordinglyintheCaseDiaryandcopyofsaidCaseDiary isproducedonrecordinsupportofhissayandlastlyhe hasstatedthat,hehasnotcommittedanyoffenceandheis innocent.
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[15]
The accused No.85 has added in his Further Statement that,hewasnotpresentattheplaceofincidentontheday of incident and after passing of long time, he was intentionally implicated as an accused and he became victimoftheresultofconspiracyandhehasnotcommitted anyoffenceasallegedandheisinnocent.
[16]
I have heard the arguments advanced by Shri M.K.Brahmbhatt, learned Special Prosecutor, who is assistedbyAdditionalSpecialProsecutorShriS.G.Thakur, appearing on behalf of the Prosecution as well as I have also heard the learned advocates Shri G.N.Brahmbhatt, ShriB.G.PatelandShriC.K.Shah,appearingonbehalfof theaccusedpersons.IhavealsogonethroughtheWritten ArgumentsproducedvideExh.1325bytheLearnedSpecial Prosecutor Shri M.K.Brahmbhatt and Written Arguments submitted by Learned Advocate Shri Ayaz K. Shaikh, appearing on behalf of the original complainant. I have also gone through the Written Arguments submitted vide Exh.1374, by the learned advocate Shri B.S.Patel, appearingonbehalfofaccusedNos.1to82and84andalso gone through the Written Arguments produced vide Exh.1307, by the learned advocate Shri B.G.Patel, appearingonbehalfofaccusedNo.83. This court has paid sufficient attention towards the oral as well as written arguments advanced and/or
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submittedbythelearnedadvocates,appearingonbehalfof both the sides and they are discussed hereunder, at the relevantpointinthisJudgementandtherefore,atthecost ofrepetitionitisnotproducedhere. [17] In this case, the Special Prosecutor Mr.M.K.Brahmbhatt andAdditionalSpecialProsecutorMr.S.G.Thakuraswellas learned advocates appearing on behalf of the original complainant Mr.Ayaz K. Shaikh, have cited following authorities, in support of their case. On the other hand learned advocates appearing on behalf of the accused Shri G.N.Brahmbhatt, Shri B.G.Patel and Shri C.K.Shah havealsocitedfollowingauthorities.Thiscourtrespectfully owes down with the law laid down by the Hon'ble Apex Court of India as well as by the Hon'ble High Court of GujaratandotherHon'bleHighCourtsandallthecitations are discussed at the relevant point in this Judgement, hereunderforthesakeofconvenience.
[18]
LearnedSpecialPublicProsecutorShriM.K.Brahmbhatt, appearingonbehalfoftheProsecutionhascitedfollowing authoritiesinsupportoftheircase: (1) 2004SupremeCourtCases(Cri.)999 ZAHIRAHABIBULLAH.SHEIKHANDANR. VERSUS STATEOFGUJARATANDORS.
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Wherein it is held by the Honourable Supreme Court of Indiathat, Itisfurthersubmittedthatthefreshinvestigationshould bedirectedasinvestigationalreadyconductedwasnotdone inafairmannerandtheprosecutordidnotactfairly.Ifthe Statesmachineryfailstoprotectcitizenslife,libertiesand propertyandtheinvestigationisconductedinamannerto help the accused persons, it is but appropriate that this Court should step in to prevent undue miscarriage of justicethatisperpetrateduponthevictimsandtheirfamily members.(Para22) Itisdesirablethattherequirementoffairnessbeseparately identified since it transcends the content of more particularisedlegalrulesandprinciplesandprovidesthe ultimaterationaleandtouchstoneoftherulesandpractice which the common law requires to be observed in the administrationofthesubstantivecriminallaw. This Court has often emphasizedthatinacriminal case thefateoftheproceedingscannotalwaysbeleftentirelyin the hands of the parties, crimes being public wrongs in breach and violation of public rights and duties, which affectthewholecommunityasacommunityandharmful to the society in general. The concept of fair trial entails familiartriangulationofinterestsoftheaccused,thevictim andthesocietyanditisthecommunitythatactsthrough
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theStateandprosecutingagencies.Interestsofsocietyis notbetreatedcompletelywithdisdainandaspersonanon Grata.Courtshavealwaysbeenconsideredtohaveanover riding duty to maintain public confidence in the administration of justice often referred to as the duty to vindicate and uphold the majesty of the law. Due administration of justice has always been viewed as a continuous process, not confined to determination of the particularcase,protectingitsabilitytofunctionasaCourt oflawinthefutureasinthecasebeforeit.Ifacriminal Courtistobeaneffectiveinstrumentindispensingjustice, the Presiding Judge must cease to be a spectator and a morerecordingmachinebybecomingaparticipantinthe trial evincing intelligence, active interest and elicit all relevant materials necessary for reaching the correct conclusion, to find out the truth, and administer justice withfairnessandimpartialitybothtothepartiesandtothe communityitserves.Courtsadministeringcriminaljustice cannotturnablindeyetovexatiousoroppressiveconduct thathasoccurredinrelationtoproceedings,evenifafair trialisstillpossible,exceptattheriskofunderminingthe fair name and standing of the Judges as impartial and independentadjudicators. Though,justiceisdepictedtobeblindfolded,aspopularly said,itisonlyaveilnottoseewhothepartybeforeitis whilepronouncingjudgmentonthecausebroughtbeforeit
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byenforcinglawandadministerjusticeandnottoignoreor turnthemind/attentionoftheCourtawayfromthetruth of the cause or lie before it, in disregard of its duty to prevent miscarriage of justice. When an ordinary citizen makesagrievanceagainstthemightyadministration,any indifference, inaction or lethargy shown in protecting his right guaranteed in law will tend to paralyse by such inactionorlethargicactionofCourtsanderodeinstages faith inbuilt in judicial system ultimately destroying the very justice delivery system of the country itself. Doing justice is the paramount consideration and that duty cannot be abdicated or diluted and diverted by manipulativeredherrings. AspithilystatedinJennisonv.Backer,1972(1)AllER997 (1006), Thelawshouldnotbeseentositlimply,whilethosewho defyitgofree,andthosewhoseekitsprotectionlosehope. Courtshavetoensurethataccusedpersonsarepunished andthatthemightorauthorityoftheStatearenotusedto shieldthemselvesortheirmen.Itshouldbeensuredthat they do not wield such powers which under the Constitutionhastobeheldonlyintrustforthepublicand societyatlarge.Ifdeficiencyininvestigationorprosecution isvisibleorcanbeperceivedbyliftingtheveiltryingtohide
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the realities or covering the obvious deficiencies. Court havetodealwiththesamewithanironhandappropriately withintheframeworkoflaw.Itisasmuchthedutyofthe prosecutorasoftheCourttoensurethatfullandmaterial facts are brought on record so that there might not be miscarriage of justice. (See : Shakila Abdul Gafar Khan (Smt.)v.VasantRaghunathDhoble&Anr.,2003(7)SCC 749.)(Para56) Criminaltrialsshouldnotbereducedtobethemocktrials or shadow boxing of fixed trials. Judicial Criminal AdministrationSystemmustbekeptcleanandbeyondthe reachofwhimsicalpoliticalwillsoragendasandproperly insulated from discriminatory standards or yardsticks of thetypeprohibitedbythemandateoftheConstitution. Thosewhoareresponsibleforprotectinglifeandproperties andensuringthatinvestigationisfairandproperseemto have shown no realanxiety.Large number of peoplehad lost their lives. Whether the accused persons were really assailantsornotcouldhavebeenestablishedbyafairand impartialinvestigation.ThemoderndayNeroswerelooking elsewhere when Best Bakery and innocent children and womenwereburning,andwereprobablydeliberatinghow the perpetrators of the crime can be saved or protected. Lawandjusticebecomefliesinthehandsofthesewanton boys.Whenfencesstarttoswallowthecrops,noscopewill
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beleftforsurvivaloflawandorderortruthandjustice. Publicorderaswellaspublicinterestbecomemartyrsand monuments. (2) (2009)10SupremeCourtCases477 VISHNUANDOTHERS VERSUS STATEOFRAJASTHAN Wherein it is held by the Honourable Supreme Court of Indiathat, Section 149 of the Penal Code provides for vicarious liability.Ifanoffenceiscommittedbyanymemberofan unlawful assembly in prosecution of a common object thereof or such as the members of that, assembly knew thattheoffencetobelikelytobecommittedinprosecution ofthatobject,everypersonwhoatthetimeofcommitting that offence was member would be guilty of the offence committed.Thecommonobjectmybecommissionofone offencewhiletheremaybelikelihoodofcommissionofyet anotheroffence,theknowledgewhereofiscapableofbeing safely attributable to the members of the unlawful assembly. Whether a member of such unlawful assembly wasawareasregardslikelihoodofcommissionofanother offence or not would depend upon the facts and circumstances of each case. Background of the incident, themotive,thenatureoftheassembly,thenatureofthe arms carried by the members of the assembly, their
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common object and the behavior of the members soon before, at or after the actual commission of the crime wouldberelevantfactorsfordrawinganinferenceinthat behalf. TherecordunmistakenlyindicatesthataccusedLatawho isnowacquittedbytheHighCourt,hadgonetotheplace wherethefirstinformantandhisrelativeswerewatching sport event, to inform appellant Bhanwar Lal and others thatJatavaswereplyingtractorinthedisputedland.The evidence of complainant shows that moment the said informationwasconveyedbyLata,kanhaiyaLali.e.father ofappellantBhanwarLalhadloudlyshoutedthatwhereall theirpeoplehadgone,uponwhichBabuDevta,mahesh, Brahma Nand, Kanta, Vishnu, Din dayal, Kailash, BhagwanLal,BhanwarLal,lataetc.hadarmedthemselves with different weapons including axes and started proceedingtowardsthedisputedland. Theappellantswereknowingfullywellthatthelandwas allottedtoJatavasandtheywereentitledtocultivatethe same,butwithaviewtopreventingthemfromcultivating the land, the appellants with others had gone to the disputedlandwithweaponsandstartedattackingthefirst informantandhisrelatives.Havingregardtothedefinition oftheword'unlawfulassembly'asgiveninSection141IPC there is no manner of doubt that the appellants were
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membersofunlawfulassembly,commonintentionofwhich wastomountattackandcauseinjuriestojatavas. Theevidenceoftheinformantprovesthatfirstofallhewas assaultedafterwhichhiswifewasassaultedandthereafter his brother Ram Khiladi was assaulted. His evidence further establishes that his father harmukh, his mother Sua Bai, his wife Birma bai were also assaulted by the appellants and others. His evidence further shows that deceased Sukh Lal with his wife was running towards housetosavehimselfbuttheappellantshadchasedhim andafterovertakinghim,deliveredblowswithdangerous weaponsandsticksasaresultofwhichhelosthislifeon the spot. The appellants and others who had come in a grouphadlefttheplaceofincidenttogether.(Para48) Thecumulativeeffectofthecircumstancesprovedbythe prosecution is suchisthat theintention of theunlawful assembly was to cause death of Sukh Lal and to cause injuriestotheinjuredwitnesses.Thustheconvictionofthe appellantsunderSection302readwith149cannotbesaid to be erroneous at all and no ground is made out to interfere with the same in the instant appeal. For the foregoingreasonstheappealfailsandisdismissed. (3) AIR1999SUPREMECOURT382 KISHORI VERSUS
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STATEOFDELHI Wherein it is held by the Honourable Supreme Court of Indiathat, (A) Penal Code (45 of 1860), S.300, S.149 MURDER WITNESSMurderRiotsAccusedpersonsmembersof mob alleged to have attacked and killed three deceased persons belonging to particular community No discrepancy in testimony of eyewitnesses about death of deceasedandinidentifyingpresenceofaccusedpersonsin mob Details as to role attributed to several persons in mobornarrationastosuccessionofeventstakingplace, notrelevantGuiltofaccusedpersonsasmembersofmob establishedTheirconviction,proper. (4) AIR1997SUPREMECOURT1654 STATEOFU.P. VERSUS DANSINGH Wherein it is held by the Honourable Supreme Court of Indiathat, (A) PenalCode(45of1860),S.300,S.147,S.149,S.436 MURDER RIOTS WITNESS Multiple murder CommunalriotMembersofmarriagepartyofScheduled CasteAssaultedbyvillagersbysticksandstonesSome ofthemburntaliveinsidethehouseofScheduledCaste Reliable testimony by four eyewitnessesAccused persons identified by them, held liable to be convicted under,
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Sections147,302/149,436/149,323/149and301/149. (C) Penal Code (45of1860),S.147RIOTSWITNESS RiotTestimonyofeyewitnessesCannotberejectedonly because of some inconsequential contradiction or exaggeration. (5) 2003(1)G.L.H.699 STATEOFGUJARAT VERSUS RAGHUVASHRAMBHAI WhereinitisheldbytheHonourableHighCourtofGujarat that, (C) Indian Penal Code, 1860 S.302 Criminal Trial
AppreciationofevidencesPasthistoryofthewitnessesno ground to discard his evidence Evidence of friends or relativescannotbediscardedonthegroundthattheyare interested witnesses Minor contradictions and insignificantanddiscrepancyinevidence,sometimesgives guaranteeofthetruth. (6) (2003)8SUPREMECOURTCASES461 NAZIRKHANANDOTHERS VERSUS STATEOFDELHI Wherein it is held by the Honourable Supreme Court of Indiathat, Penal Code, 1860 Ss. 120B and 120A Criminal
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Conspiracy Ingredients and proof Held, essential ingredient of criminal conspiracy is the agreement to commit an offence Such an agreement can be proved eitherbydirectevidenceorbycircumstantialevidenceor bybothThus,conspiracycanbeestablishedbydirector circumstantial evidence Where the said agreement proved,held,proofofanovertactnotessentialTerrorist and Disruptive Activities (Prevention) Act,1987,Ss.3(1),(4)and(5)EvidenceAct,1872,S.10 (7) AIR1980SUPREMECOURT1382 STATE(DELHIADMINISTRATION) VERSUS V.C.SHUKLA Wherein it is held by the Honourable Supreme Court of Indiathat, Itistruethatinmostcasesitwillbedifficulttogetdirect evidenceofanagreementconspirebutaconspiracycanbe inferredevenfromcircumstancesgivingrisetoaconclusive or irresistible inference of an agreement between two or morepersonstocommitanoffence. (8) AIR1980SUPREMECOURT439 SHIVANARAYANLAXMINARAYANJOSHI VERSUS STATEOFMAHARASHTRA Wherein it is held by the Honourable Supreme Court of Indiathat,
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A conspiracy is always hatched in secrecy and it is impossible to adduce direct evidence of the same. The offence can be only proved largely from the inferences drawn from acts or illegal omission committed by the conspiratorsinpursuanceofacommondesign. (9) AIR1996SUPREMECOURT1744 STATEOFMAHARASHTRA VERSUS SOMNATHTHAPA Wherein it is held by the Honourable Supreme Court of Indiathat, (A) Penal Code (45 of 1860), S.120A CRIMINAL
CONSPIRACY Criminal conspiracy Ingredients Knowledgeofindulgenceinillegalactorlegalactbyillegal means Has to be established Goods or servicein questionnot capableoflegaluse Factthatparticular unlawfulusewasintendedNeednotbeestablished. (10) AIR2009SUPREMECOURT2292 HIMMATSUKHADEOWAHURWAGH VERSUS STATEOFMAHARASHTRA Wherein it is held by the Honourable Supreme Court of Indiathat, (C) Penal Code (45 of 1860), S.300 Evidence Act (1 of 1872), S.3, S.118 MURDER EVIDENCE WITNESS Murder Eyewitness, child of 13 years Unnatural
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conduct Incident leading to death of 3 persons taking place in two phases Child witnessing assault on two deceased Escaping from scene, reporting matter to his family and then hiding till next morning Accused by killing3personshadsetlooseareignofterrorinvillage ConductofchildofhidinghimselfNotunnaturalChild withstandingstiffcrossexaminationHistestimonycannot berejected. (D)PenalCode(45of1860),S.300MURDEREVIDENCE MurderAppreciationofevidenceAccusedarmedwith axesandsticksAllegedtohavekilled3membersoffamily Medical evidence as to injuries found on deceased supporting prosecution case Prosecution story further fortifiedbyrecoveriesofaxesandsticksmadefromsome accusedWeaponsrecoveredstainedwithhumanbloodof bloodgroupsthatwereofdeceased (11) AIR2004SUPREMECOURT4570 DANISINGH VERSUS STATEOFBIHAR Wherein it is held by the Honourable Supreme Court of Indiathat, (A)EvidenceAct(1of1872),S.3MURDERWITNESS Appreciation of evidence Murder Witnesses related or friendlywithdeceasedEvidenceof,cannotbediscarded
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onthatgroundCourtisrequiredtocarefullyscrutinize evidenceandfindoutifthereisscopefortakingviewabout falseimplication.PenalCode(45of1860),S.300. (B)PenalCode(45of1860),S.149UNLAWFULASSEMBLY UnlawfulassemblyConvictionforDefiniterolesneed notbeascribedtoaccusedpersons. (C)PenalCode(45of1860),S.149UNLAWFULASSEMBLY Unlawful assembly Proof No proof that some of accuseddissuadedotheraccusedpersonsfromcommitting criminalactorwithdrewduringcourseofincidentWould constitutebyitselfstepinfurtheranceofultimateoffence Pleathatthoseaccusedpersonsdidnotcommitanyovert actNotofanyconsequence. (D) Penal Code (45 of 1860), S.149, S.300 UNLAWFUL ASSEMBLYMURDERUnlawfulassemblyandmurder Proof Eyewitnesses identifying accused persons No discrepancy so far as identification was concerned and about weapons carried by identified accused persons Targeted victims were deceased persons with whom animosity was admitted Objective findings recorded by Investigation Officer on spot verification also in line with evidenceofeyewitnessesVillagebeingfactionriddenno independent witnesses could be examined Nothing comingoutinlengthycrossexaminationofeyewitnesses
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whichwouldbelietheircredibilityConvictionofaccused Notliabletobesetaside. (12) 2000(2)G.L.H.572 RAMANBHAINARANBHAIPATEL VERSUS STATEOFGUJARAT Wherein it is held by the Honourable Supreme Court of Indiathat, (B)IndianPenalCode,1860Ss.149,302,307and326 Evidence of injured eyewitness Identifying accused for thefirsttimeinCourtNoidentificationparadewasheld Evidencenottotallyirrelevantorinadmissible. (13) AIR1993SUPREMECOURT1544 PARESHKALYANDASBHAVSAR VERSUS SADIQYAKUBBHAIJAMADAR Wherein it is held by the Honourable Supreme Court of Indiathat, (A)EvidenceAct(1of1872),S.3EVIDENCEWITNESS Interested witness Credibility Interestredness Not a groundtorejectevidenceMoresowhenwitnessisinjured witness. (B) Evidence Act (1 of 1872), S.3 EVIDENCE Partisan witnessCredibilityCriminal riotsMurderEyewitness injured in occurrenceHis presence at scene cannot be
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doubtedFactthathisbrotherfiguredaspanchwitnessand someofhisrelationswereaccusedinearliercasesCannot beagroundtodoubthisveracity. (14) AIR2002SC3325 DANAYADAV VERSUS STATEOFBIHAR Wherein it is held by the Honourable Supreme Court of Indiathat, IndianPenalCode,1860S.302/149,307/149and436 offencesundermurderdeathoftwopersonsaccused appellants along withothersattackedagroupofpersons stagingstreetmarchagainsttheterrorspreadbyNaxalites and killing two persons and injuring others test identification parade identification of an accused relevancyofappellants1,2,4,6and7convictedunderby Courtsbelowaccusedidentifiedbywitnessfirsttimein Courtwithoutpreviousidentificationparadeexamination ofaccusedbywitnessafteralapseof2yearswhetherthe factthatprayerforholdingTestIdentificationParadewas rejectedorifgrantednosuchparadewasheldismaterial and would in any manner affect the evidence of identificationofanaccusedinCourtbyawitnessTrial CourtconvictedappellantsandHighCourtconfirmedthe convictionwithsentenceoflifeimprisonmentheld,failure to make test identification parade does not make the
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evidenceofidentificationincourtinadmissible. (15) 2002(1)G.L.H.684 ALLARAKHAK.MANSURI VERSUS STATEOFGUJARAT Wherein it is held by the Honourable Supreme Court of Indiathat, Indian Penal Code, 1860 Ss. 302 and 114 Murder AcquittalbyTrialCourtContradictionsintheevidenceof witness pointed out by Trial Court being minor did not undermineprosecutioncaseViewstakenbyTrialCourt based on conjectures, imagination and hypothesis View taken by Trial Court being not based on facts of case or legal evidence Paramount consideration of the Court should be to avoid miscarriage of justice It cannot be urgedthatbecauseTrialCourtacquitted,HighCourtunder allcircumstancesshouldnotdisturbsuchafindingFIR recordedwithin15minutesofincidentNopossibilityof manipulation High Court was justified in reexamining the whole evidence High Court rightly held that conclusionofTrialCourtisfactuallyandlegallyincorrect No interference called for in the decision of High Court convictingtheaccused. (16) AIR2009SUPREMECOURT2163 SATBIRSINGH VERSUS STATEOFU.P.
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Wherein it is held by the Honourable Supreme Court of Indiathat, (A)PenalCode(45of1860),S.300MURDERWITNESS MurderEyewitnessesPresenceatplaceofoccurrence Witnesses injured His presence at spot cannot be doubted. (B)PenalCode(45of1860),S.300MURDERWITNESS EVIDENCEMurderEyewitnessesReliabilityIncident taking place while deceased was sitting in his house PresenceofwifeofdeceasedatspotwasnaturalOthereye witnesseslivingnearhouseofdeceasedEvidenceofeye witnessesCannotbedoubted.
(C)PenalCode(45of1860),S.300MURDERWITNESS Murder Non examination of independent witnesses Incident taking place out of long enmity between two branches of family Other villagers would not come to depose in such cases Non examination of independent witnessesinconsequential.
(D)PenalCode(45of1860),S.300MURDEREVIDENCE Murder Contradiction between medical and ocular evidenceEvidenceofwitnessesthatincidenttookplaceat 11a.m.Anddeceasedhadtakenmeals1hoursbefore incidentMedicalreporthowevershowingpresenceofsemi
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digestedfoodinstomachNogroundtodisbelieveocular evidenceastotimeofincidentDigestiveprocessdepends on nature of food Time of filing F.I.R., considering situation of police station and fact that two members of familyweremurdered,alsosupportsprosecutioncase. (17) 2007(1)G.L.H.325 DHIRUBHAIBABUBHAICHAUHANANDORS. VERSUS STATEOFGUJARAT WhereinitisheldbytheHonourableHighCourtofGujarat that, Indian Penal Code, 1860 S.302 Deceased received seriousinjuriesincludingvitalpartsofthebodyAllthe accusedarmedwithdeadlyweaponsandcausedinjuriesto thedeceasedEvidenceofinjuredeyewitnesseswhoare relativessupportsprosecutioncaseTestimonyofawitness inspiringconfidencecannotbediscardedonthegroundof hebeingrelatedorinterestedwitnessOnfactsheldthatit was a preplanned incident and intention was to kill the deceasedContentionthattheincidenthadtakenplacein a spur of moment not accepted by the Court No contradictionfoundatallonmaterialpointsDelayof4/5 hoursinlodgingtheF.I.R.wasnotfoundfatalinviewofthe natureoftheincidentConvictionupheld. (18) 2004(2)G.L.H.651 MAINPAL VERSUS
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STATEOFHARYANA Wherein it is held by the Honourable Supreme Court of Indiathat, (B) Indian Evidence Act,1872 S.3 Related witness Courts to critically analyze his evidence with caution Becauseheisrelatedorhisconductsomewhatunnatural, doesnotaffectcredibility. (C)IndianEvidenceAct,1872S.45MurderEyewitness isrelatedHisevidencefoundtobetruthfulandcredible Opinion of doctor regarding firearm injury Opinion contradictorywiththeeyewitnesses'accountOpinionof doctorcannothavebindingforceDoctor'sevidencecannot wipeoutevidenceofeyewitness. (19) 2002(1)G.L.H.176 VINUGIRIMOTIGIRI VERSUS STATEOFGUJARAT WhereinitisheldbytheHonourableHighCourtofGujarat that, Every person who witnesses a murder reacts in his own waydifferentthanothersOnfacts,heldthatevidenceof witnessesexaminedwasreliableOrderofconvictionheld properAppealsdismissed.
(B)IndianEvidenceAct,1872S.45IndianPenalCode,
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1860S.302r.w.149MedicalevidenceOtherevidence ConflictbetweenMinorinconsistencywithreferenceto possibilities suggested to the medical expert Where the evidenceofeyewitnessisfoundcredibleandtrustworthy, medicalopinionpointingtoalternativepossibilitiescannot beacceptedasconclusiveTheopinionofdoctorastohow aninjurywascausedcannotoverruleunimpeachabletesti monyofeyewitnessesOnfacts,heldthattheaccountgiv enbyeyewitnessesisinherentlyconsistentandprobable Convictionofaccusedupheld.
Importanceandprimacyisrequiredtobegiventotheorali tyofthetrialprocessandwheretheevidenceofeyewit ness is found credible and trustworthy, medical opinion pointingtoalternativepossibilitiescannotbeacceptedas conclusive.Theevidenceoftheeyewitnessinthepresent caseisinherentlyconsistentandtheirversionisinherently probable.Wefindthattheaccountthattheyhavegivenis consistent with other evidence and is credit worthy and cannotbesetatnaughtbysomeminorinconsistencywith referencetopossibilitiessuggestedtothemedicalexpert.
(C)IndianEvidenceAct,1872Ss.27and114IndianPe nalCode,1860Ss.302and149Discoveryofweapon PanchawitnessesturninghostileWhetherevidenceofre coverycanberelieduponRecoveryofanobjectpursuant totheinformationsuppliedbyanaccusedincustodyisdif
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ferentfromthesearchingendeavourenvisagedinChapter VIIofCRPCWhenapoliceofficergivesevidenceincourt [@page178]thataCertainarticlewasrecoveredbyhimon the strength of the statement made by the version to be correctifitisnototherwiseshowntobeunreliableOn facts,heldthatthoughwitnesseshaveturnedhostile,even withoutthediscoveryPanchnamas,theevidencefoundon recordisreliabletoconnectalltheaccusedwiththecrime AppealsdismissedConvictionconfirmed. (20) (2011)3SUPREMECOURTCASES(CRI.)341 STATEOFRAJASTHANTH.SECY.HOMEDEPT. VERSUS ABDULMANNANRESPONDENT WhereinitisheldbytheHonourableHighCourtofGujarat that, 35. Learnedcounselfortheaccusedhadplacedreliance upon the judgment of this Court in Shivalingappa Kallayanappa v. State of Karnataka7 [1994 Supp 3 SCC 235]tocontendthattherewasnocommonobjecttocom mitmurder.Theappellantscannotderivemuchadvantage from the judgment of this Court in that case: First, the facts of that case are entirely different from those of the caseinhand.Inthatcase,itwasestablishedbytheprose cutionthatA1toA5formedanunlawfulassemblywhere in A1 and A2 werearmedwith axesand A3,A4andA5 with sticks in order to assault thetwodeceased persons amongstothers.WhileA3didnotparticipate,A4andA5
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onlydealtblowsonlegsandarmswiththeirsticksbutA1 andA2dealtblowstotheheadwiththebuttendoftheir axeswhichprovedtobefatal.ConvictingA1andA2under S. 302/149, IPC and A35 under S. 326/149, the Court heldthattakingallthecircumstancesofthecaseintocon sideration,thecommonobjectcanbeheldtobetocause grievoushurtonlyandnottocommitmurder.However,in the present case, common object to commit murder has beenfullyproved.
36. Second,thecaseoftheprosecutionisnotthattheen tiremobhadenteredthehouseofthedeceased.Outofthe mobof5060personsonly7to10personshadbrokenthe doorofthehouseandsomeofthemhadclimbedthewall to enter the house of the deceased. These persons had raisedthesloganmaro!maro!andthereafterhadinflicted theinjuriesuponthebodyofthedeceased.Thecommon intention could even develop at the spur of the moment whenthethreeaccused,asdulyidentified,wereactivelyin flictinginjuriesonthebodyofthedeceased.They,there fore,notonlycausedinjuriestothevitalbodypartsofthe deceased,includingheadinjury,butkeptoninflictingin juriesevenafterthedeceasedhadfallentotheground.The efforts of Satyanarain to save them were in vain and he himselfsufferedcertaininjuries.
37.
Thus,inthepresentcase,ithasbeenestablishedthat
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morethanfivepersonsconstitutedanunlawfulassembly andinfurtherancetotheircommonobjectandintent,as saultedandcausedinjuriestovitalpartsofthebodiesof thedeceased,ultimatelyresultingintheirdeath.We,there fore,havenohesitationinholdingthatthereisnomeritin thiscontentionoftheaccusedandthetrialCourtapplied thelawcorrectly.
38. Section149consistsoftwoparts;thefirstdealswith thecommissionofanoffencebyanymemberofanunlaw fulassemblyinprosecutionofthecommonobjectofthat assembly;thesecondpartdealswithcommissionofanof fencebyanymemberofanunlawfulassemblyinasitua tionwhereothermembersofthatassemblyknowthelikeli hoodoftheoffencebeingcommittedinprosecutionofthat object. In either case, every member of that assembly is guiltyofthesameoffence,whichothermembershavecom mittedinprosecutionofthecommonobject.
39. The final point is the common object. The case of LokemanShahv.StateofW.B.8[(2001)5SCC235]onthis pointwouldfurthersubstantiatethecaseoftheStateand diminishtheworthofthedefence.Accusedhaveinflicted theinjuriesafterraisingsloganandhavecommonlypartic ipatedincommittingoffencewhichresultedinthedeathof thedeceased.
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[19]
Learned Advocate ShriAyaz K.Shaikh,appearing with Prosecutiononbehalfoforiginalcomplainanthascitedfol lowingauthoritiesinsupportoftheircase:
(1)
2011CRI.L.J.283 RANJITSINGH VERSUS STATEOFMADHYAPRADESH Wherein it is held by the Honourable Supreme Court of Indiathat, (B)EvidenceAct(1of1872),S.3EVIDENCEMAXIMS WITNESSMaxim'Falsusinuno,falsusinomnibusIs notapplicableinIndiaCourthastoassesstowhatextent depositionofawitnesscanberelieduponCourthasto separatefalsehoodfromtruthWholeevidenceofsucha witnesscanbediscardedonlyinexceptionalcircumstances whenitisnotpossibletoseparategrainfromchaffbecause theyareinextricablymixedup.
(C)EvidenceAct(1of1872),S.3,S.134PenalCode(45of 1860), S.149 EVIDENCE UNLAWFUL ASSEMBLY WITNESS Conviction on testimony of sole eyewitness Offencebyunlawfulassemblycomposedoflargenumberof persons Testimony of sole eyewitness making specific referencetoidentityofindividualaccusedandhisspecific overtactsinincidentCanbereliedupon.
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(2)
2011CRI.L.J.306 BRAHMSWAROOP VERSUS STATEOFU.P. Wherein it is held by the Honourable Supreme Court of Indiathat, (C)EvidenceAct(1of1872),S.3EVIDENCEWITNESS Related witness Credibility Merely because witnesses werecloselyrelatedtodeceasedpersons,theirtestimonies cannotbediscardedArelationwouldnotconcealactual culpritandmakeallegationsagainstaninnocentperson Party has to lay down factual foundation and prove by leading impeccable evidence in respect of its false implicationHowever,insuchcases,Courthastoadopta carefulapproachandanalyseevidencetofindoutwhether itiscogentandcredibleevidence. (D)EvidenceAct(1of1872),S.3EVIDENCEWITNESS FIR Witness to occurrence Credibility Witnesses to occurrence himself injured in incident His testimony cannot be discarded as his presence on spot cannot be doubtedParticularly,whenimmediatelyafterlodgingFIR he was put through gruelling crossexamination but nothingcanbeelicitedtodiscredithistestimony. (H) Evidence Act (1 of 1872), S.8, S.3 EVIDENCE MOTIVE WITNESS Motive Evidence of eyewitness trustworthyandbelievedbyCourtMotiveisirrelevant.
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37. We have, ourselves appreciated the evidence and reachedconclusionssimilartotheHighCourt: (i) Iftheevidenceoftheeyewitnessesistrustworthyand believedbythecourt,thequestionofmotivebecomes totally,irrelevant.
(ii) Merely becausethewitnesseswerecloserelativesto thedeceased,thatcannotbeagroundtodiscardtheir evidence. (iii) Prosecution examined an injured witness. His presence on the spot cannot be doubted and his depositionistobegivendueweightage. (iv) Inthefactsandcircumstancesofthecasetherewas no conflict between the direct evidence and medical evidence. Even if deceased were having some minor abrasions and contusions for the reason that they might have reacted to the assault and tried to save themselves,cannotcreateadoubtintheprosecution caseaboutthepresenceofthewitnesses. (v)Theeyewitnesseshavebeencrossexaminedthoroughly, but nothing useful to the accused could be elicited from them. The testimony of the eye witnesses is credibleandworthyofconfidence. (3) 2011CRI.L.J.439 OMPALSINGH VERSUS STATEOFU.P. Wherein it is held by the Honourable Supreme Court of Indiathat, (C)PenalCode(45of1860),S.300MURDEREVIDENCE WITNESS Murder Appreciation of evidence Clear
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evidence of rivalry between accused and deceased Incident of accused firing from his double barreled gun witnessedbyeyewitnesseswhowereonly15to20paces behinddeceasedattimewhenhewasshotdownEntire incidentofshootinghasbeengraphicallydescribedbytwo witnessesDirecttestimonyofthesewitnesseshavebeen corroborated bymedicalevidenceanddying declaration Conviction,proper. 22.Inouropinion,thetrialcourtaswellastheHighCourt correctly accepted that the dying declaration was an acceptable piece of evidence. Merely because,it is not in question and answer form would not render the dying declaration unreliable. The absence of a certificate of fitnessbytheDoctorwouldnotbesufficienttodiscardthe dyingdeclaration.Thecertificationbythedoctorisaruleof caution, which has been duly observed by the Tehsildar/Magistrate,Bisauli,whorecordedthestatement. Thestatementmadebytheinjurediscandid,coherentand consistent. We seeno reasontodisbelievethesame.We, therefore, see no reason to differ with the conclusions arrivedatbythetrialcourtandtheHighCourtwithregard tothedyingdeclarationalso.WemustalsonoticethatPW2 and PW3 have given clear and consistent eyewitness account. They have narrated the previous incident of disharmonybetweentheappellantandthedeceased.They have also adverted to the previous attempts by the
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appellant to harm the deceased. The entire incident of shooting has been graphically described by the two witnesses.Thedirecttestimonyofthesetwowitnesseshave beencorroboratedbythemedicalevidenceandthedying declaration. (4) AIR2010SUPREMECOURT1378 DHARAMVEER VERSUS STATEOFU.P. Wherein it is held by the Honourable Supreme Court of Indiathat, (B) Penal Code (45 of 1860), S.300 Criminal P.C. (2 of 1974),S.157MURDERINVESTIGATIONMAGISTRATE FIRMurdercaseDelayindispatchofspecialreportto Magistrate Information of incident given immediately Incidenttakingplaceat4p.m.FIRlodgedat8.20p.m.on same day Investigation started without delay Special reportsentbypostIncircumstancesmeredelayinreceipt ofspecialreportDoesnotcastdoubtonprosecutioncase. (C)EvidenceAct(1of1872),S.3EVIDENCEWITNESS Eyewitness Enmity with accused Cannot by itself be ground to reject testimony Eyewitnesses withstanding crossexaminationTestimonycannotberejected. (D)PenalCode(45of1860),S.300MURDERWITNESS EVIDENCE Murder Eyewitnesses few steps behind
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deceasedAccusedallegedtohavefiredatdeceasedFact that witnesses did not suffer any injury, does not make theirevidenceuntrustworthy. (Paras17,18) (5) (2007)2SUPREMECOURTCASES(CRI)390 STATEOFMADHYAPRADESH VERSUS MANSINGHANDORS. Wherein it is held by the Honourable Supreme Court of Indiathat, A.Criminal Procedure Code, 1973 S.164 Evidence of witnesses cannot be discarded merely because their statementswererecordedunderSection164oftheCode. All that is required as a matter of caution is a careful analysisoftheevidence. B.CriminalTrialWitnessesInjuredwitnessEvidence ofValueofHeld,hasgreaterevidentiaryvalueNottobe discardedlightlyunlesscompellingreasonsexist. C. Criminal Procedure, 1973 S.154 F.I.R. Discrepancies/Omissions in F.I.R. Nonmention of weapon (Knife) in F.I.R. effect on testimony of injured witness. Merelybecausetherewasnomentionofaknifeinthe F.I.R.,thatdoesnotwashawaytheeffectoftheevidence tenderedbytheinjuredwitnesses.
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E. Criminal Trial Appreciation of Evidence Minor discrepancies Held,donotcorrodethecredibility ofan otherwise acceptable evidence Penal Code, 1860 Ss.302/34and323. F. Criminal Trial Infirmities/Lapses/Omissions Omission to mention name of assailants in requisition memo of injury Held, does not render the prosecution versionbrittle.G.CriminalProcedureCode,1973Ss.154 F.I.R. Discrepancies/Omissions in F.I.R. Nonmention ofnameofawitnessinF.I.R.EffectHeld,thereisno hardandfast rule that the name of all witnesses, more particularlyeyewitnessesshouldbeindicatedintheF.I.R. Onfacts,nonmentionofnameofPW8intheF.I.R.,held wasanaturalconsequenceoftheevents. H. Criminal Trial Investigation Deficiencies in investigationEffectHeld,cannotbeagroundtodiscard the prosecution version which is authentic credible and cogentCriminalProcedure,1973S.157. I. Criminal Trial appreciation of evidence Non examinationofwitnessfailuretoexamineHwhowasnot aneyewitnessHeldonfactswasofnoconsequences. K. Criminal Procedure Code, 1973 S.154 F.I.R. Manipulation in F.I.R. about the time of recording it
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allegationsofmerelybecausetherewassomechangein timeoflodgingF.I.R.,heldthatdoesnotperserenderthe prosecution version vulnerable At, the most, the requirementinsuchcasewasofacarefulanalysisofthe evidence,whichhasbeendonebythetrialCourt. L. Penal Code, 1860S.34ApplicabilitySaidsection has no requirement that all the accused must come togetherItistheircommonintention whichismaterial andnothowtheycoverageontheplaceof occurrence PenalCode,1860S.302. M. Penal Code, 1860 S.302 S.302 or S.304, Pt.II Consideringthenatureoftheinjuriesandthemannerof assaultsheldonfacts,S.302IPCclearlywasapplicable. (6) 2007(3)G.L.R.2530 KAILASHRAGHUVIR VERSUS STATEOFGUJARAT Wherein it is held by the Honourable Supreme Court of Indiathat, (A) CRIMINAL TRIAL Appreciation of evidence Indian Penal Code, 1860(XLVof1860)Sec.302Evidenceof injured witness ought to be accepted unless grave circumstanceswarrantthatsuchevidencebediscarded TrialCourtisbestJudgetodeterminecredibilityofwitness asithasopportunitytoobservedemeanourofwitness.
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(B) CRIMINAL TRIAL Appreciation of evidence Indian PenalCode,1860(XLVof1860)Sec.302Statementof witnessmadetoDoctoraboutinjuriessustainedbyhim EvidenceofwitnessbeforeCourtfoundreliableInsuch circumstances, discrepancy between statement before Doctor and evidence before Court about weapon, held, wouldnotaffecttheprosecutioncase. (C) CRIMINAL TRIAL Appreciation of evidence Indian Penal Code, 1860(XLVof1860)Sec.302Evidenceof commonprudentpersonislikelytobe"intermingledwith exaggerationandvariation"Courthastobearinmindthe realitiesoflifeandignorethediscrepanciesthatarenotof materialdimensionPrinciplesstated. (D) CRIMINAL TRIAL Appreciation of evidence Indian Penal Code, 1860 (XLV of 1860) Sec. 302 Injury on accused persons found to be minor and superficial In suchcase,"itisnotuniversalrulethatinjuriescausedby prosecutionwitnesses". (7) 2006(1)G.L.R.816 STATEOFGUJARAT VERSUS SATISH@KALU@HATHODABHIKHABHAIPATEL WhereinitisheldbytheHonourableGujaratHighCourt that,
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(F)CRIMINALTRIALAppreciationofevidenceCriminal ProcedureCode,1973(IIof1974)Sec.100EvidenceAct, 1872(Iof1872)Sec.118IndianPenalCode,1860(XLV of 1860) Sec. 302 Panchas turning hostile Case of prosecutioncannotbethrownoverboardonthisground Held further, testimony of police officer, otherwise found reliable cannot be discarded merely on the ground that deponentispoliceofficer.
(8)
AIR2002SUPREMECOURT3164 BODHRAJ VERSUS STATEOFJ.ANDK. Wherein it is held by the Honourable Supreme Court of Indiathat, (A) Evidence Act (1 of 1872), S.3 EVIDENCE CircumstantialevidenceCanbesolebasisforconviction Conditionstobesatisfied,stated. Foracrimetobeproveditisnotnecessarythatthecrime must be seen to have been committed and must, in all circumstances be proved by direct ocular evidence by examiningbeforetheCourtthosepersonswhohadseenits commission. The offencecanbeprovedbycircumstantial evidencealso.Theprincipalfactorfactumprobandummay beprovedindirectlybymeansofcertaininferencesdrawn fromfactumprobans,thatis,theevidentiaryfacts.Toput it differently circumstantial evidence is not direct to the
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pointinissuebutconsistsofevidenceofvariousotherfacts whicharesocloselyassociatedwiththefactinissuethat taken together they form a chain of circumstances from which the existence of the principal fact can be legally inferredorpresumed.Thereisnodoubtthatconvictioncan be based solely on circumstantial evidence but the conditions precedentbeforeconvictioncouldbebasedon circumstantialevidence,mustbefullyestablished.Theyare : 1) thecircumstancesfromwhichtheconclusionofguilt istobedrawnshouldbefullyestablished.Thecir cumstances concerned 'must' or 'should' and not 'may'beestablished; the facts so established should be consistent only withthehypothesisoftheguiltoftheaccused,that istosay,theyshouldnotbeexplainableonanyother hypothesisexceptthattheaccusedisguilty; thecircumstancesshouldbeofaconclusivenature andtendency; theyshouldexcludeeverypossiblehypothesisexcept theonetobeproved;and theremustbeachainofevidencesocompleteasnot to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act musthavebeendonebytheaccused.
2)
3)
4)
5)
(C)PenalCode(45of1860),S.300MURDERMurder
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Deceased running a finance company Accused heavily indebtedAccusedsuggestingdeceasedtoenterintosome financial arrangement Taking him to show a land for setting up flour mill Property dealer and his partner accompanyingthemWhilereturningdeceasedattackedby some assailants Evidence of property dealer and his partner(eyewitnesses)thataccuseddidnothelpdeceased They on contrary shouted at assailants that deceased shouldnotescapePresenceofaccusedalsospokenofby otherwitnessesEmployeesofdeceasedalsostatingthat accusedwerelastseenincompanyofdeceasedPistolof oneoftheaccusedrecoverfromoneoftheassailantsHeld evidence of eyewitnesses was reliable Conviction of accusedproper. (D) Criminal P.C. (2 of 1974), S.378 APPEAL Appeal againstacquittalInterferenceIftwoviewsarepossible, the one in favour of accused has to be preferred But whererelevantmaterialshavenotbeenconsideredtoarrive ataviewbytrialCourtHighCourthasadutytoarriveat a correctconclusiontaking aviewdifferentfromtheone adoptedbythetrialCourtMurdercaseSomeaccused acquitted by trial Court holding that evidence of witness wasnotreliablequathemNoreasongivenwhyevidence was not reliable Moreover recoveries made pursuant to disclosuremadebyacquittedaccusedHighCourtholding that evidence was reliable and reversing acquittal Not
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improper. (E)PenalCode(45of1860),S.300MURDEREVIDENCE Murder Circumstantial evidence Last seen theory ApplicabilityItapplieswhentimegapissmall. Thelastseentheorycomesintoplaywherethetimegap betweenthepointoftimewhentheaccusedanddeceased wereseenlastaliveandwhenthedeceasedisfounddeadis so small that possibility of any person other than the accusedbeingtheauthorofcrimebecomesimpossible.It wouldbedifficultinsomecasestopositivelyestablishthat thedeceasedwaslastseenwiththeaccusedwhenthereis a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidencetoconcludethataccusedanddeceasedwerelast seen together, it would be hazardous to come to a conclusionofaguiltinthosecases.
(F) Penal Code (45 of 1860), S.300 MURDER FIR MurdercaseDelayofonedayindispatchofF.I.R.Delay occasionedasroadtoplacewhereCourtwaslocatedwas closedDelayofonedayforsuchpurposecannotbesaid tobeunusual. (G)PenalCode(45of1860),S.300MURDEREVIDENCE Murder case Appreciation of evidence Delayed
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examination of witnesses Need not universally render prosecutioncasedoubtfulImportantwitnessesexamined immediatelyFurtherstatementsrecordedsubsequently Reasons for further examination indicated Prosecution casecannotbedoubted. (9) 2004(1)G.L.R.777 VAHAJIRAVAJITHAKORE VERSUS STATEOFGUJARAT Wherein it is held by the Honourable Supreme Court of Indiathat, (A)CRIMINALTRIALAppreciationofEvidenceEvidence Act,1872(Iof1872)Sec.118IndianPenalCode,1860 (XLVof1860)Sec.302Wherepresenceofeyewitnesses is not doubtful their evidence cannot be brushed aside merely because witness is related to the victim Held further, evidence to be read as a whole and not on piecemealbasis. (B)CriminalProcedureCode,1973(IIof1974)Sec.386(b) (ii) Indian PenalCode,1860(XLVof1860)Sec.302 Trial Court's finding regarding presence of witness at a particular spot found erroneous and contradictory Findingreversed. (10) AIR2002SUPREMECOURT3006 RAMANUPSINGH VERSUS
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STATEOFBIHAR Wherein it is held by the Honourable Supreme Court of Indiathat, (A)PenalCode(45of1860),S.300,S.34ArmsAct(54of 1959), S.27 LAND DISPUTE EVIDENCE WITNESS ConvictionunderAppreciationofevidenceLanddispute LandgiftedbydeceasedtohisdaughterandsoninLaw Accused brother of deceased exhorted his sons appellantsssstokillentirefamilyofdeceasedAsmanyas six eyewitnesses examined by prosecution Presence of eyewitnessesondateofoccurrencenaturalonaccountof panchayatibeingheldconcerningthelanddisputeMerely because 3 eyewitnesses are relatives of informant and other3arerelatedtoeachotherAnd,thateyewitnesses belong to another village No ground to discard their testimonyEyewitnessaccountgivenbythemisnatural aswellasconsistentTheyarenotonlynamedinFIRbut their presence is confirmed by other eyewitnesses Occurrencethoughtookplacebetween6.30and6.45a.m., no covillager examined as witness Reluctance of co villagerstodeposeagainstaccusedappreciatedonaccount ofvillagerelationshipMedicalevidencefullycorroborates prosecution case Defence case that dacoity was committed in house of deceased rejected as fake Conviction,held,justified.
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(B)EvidenceAct(1of1872),S.3PenalCode(45of1860), S.300, S.34 WITNESS Evidence of eyewitnesses Whether tutored Asmany six eyewitnesses examined Witnesses were known toeachother andthey alsoknew the appellants and the victims Occurrence took place earlyinmorningAccusedshotvictimsoneafteranother Eyewitnesses only 1015 steps behind appellants Therefore, had opportunity to notice manner in which occurrence took place and role played by appellants Statement of eyewitnesses recorded immediately after arrivalofinvestigatingofficerMerelybecausetestimonyof alleyewitnessesisconsistentIsnogroundtodisbelieve prosecution case by raising suspicion that eyewitnesses maybetutored.
(11) AIR2002SUPREMECOURT1965 KRISHNAMOCHI VERSUS STATEOFBIHAR Wherein it is held by the Honourable Supreme Court of Indiathat, (A)PenalCode(45of1860),S.300MURDEREVIDENCE Murder Conviction Validity Caste war Gruesome murderof35personsofonecommunitySeveralpersons injured Great commotion in locality People becoming panicky as accused were members of a very violent organisation Complicity of accused proved by credible evidenceofonlyoneortwowitnessesAccusedcannotbe
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acquittedonthisgroundaloneunlessprosecutioncaseis otherwisefoundtobeuntrustworthyWhatmattersinthe matterofappreciationofevidenceofwitnessesisnotthe numberofwitnesses,butthequalityoftheirevidence.(Per MajorityM.B.Shah,J.contra). (C) Criminal P.C. (2 of 1974), S.154 FIR FIR Admissibility of, in evidence Nonexamination of informantFIRthoughnotadmissibleinevidenceonthat ground,itwouldnotalsobegroundofacquittalofaccused. (PerB.N.Agrawal,J.).
(D)TerroristandDisruptiveActivities(Prevention)Act(28of 1987), S.3 TERRORIST AND DISRUPTIVE ACTIVITIES MURDER Caste war Multiple murders Investigating Officernottakingoverchargeofinvestigationofcasenor investigating same Nonexamination of No adverse inferencecanbedrawnagainstprosecutiononsuchground Moreso, when defence was not shown to have been prejudicedthereby(PerB.N.Agrawal,J.) (E) Penal Code (45 of 1860), S.300 TERRORIST AND DISRUPTIVEACTIVITIESMURDEREVIDENCEMurder EvidenceParticipationofaccusedinincidentprovedby unimpeachable ocular evidence Recovery of no incriminating material from accused Cannot alone be groundfortheiracquittal.(PerB.N.Agrawal,J.)
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(F)PenalCode(45of1860),S.300MURDEREVIDENCE MurderIdentificationofaccusedNightofoccurrence notdarkSufficientlightcomingduetofiresetbyaccused inhousesofvillagersandheapsofstrawIdentificationof accused by witnesses Cannot be doubted. (Per B. N. Agrawal,J.). (H)TerroristandDisruptiveActivities(Prevention)Act(28of 1987), S.3 TERRORIST AND DISRUPTIVE ACTIVITIES DEATHSENTENCEPRINCIPLESDeathpenaltyRarest ofrarecaseAccusedpersonsbelongingtomilitantgroup Conspiracyhatchedupbythemtomassacremembersof one particular community from village of occurrence Militants forming different groups, going into different localities in police uniforms armed with fire arms and explosives, breakingopendoorsofhousesofmembersof thatcommunity,takingthemtoparticularplaceaftertying hands and massacring them by slitting their throats, resultinginto35casualtiesandseveralpersonsinjured Accusedpersonsthereaftersettingfiretohousesofvictims Itwasthusextremelydiabolicrevoltinganddastardlyact affecting normal tempo of life in community Crime not only ghastly but also enormous as 35 persons were massacredExtremepenaltyofdeathjustifiedasspecial reasons therefor can be legitimately said to exist within meaningofS.354(2),Cr.P.C.(PerMajorityM.B.Shah,
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J.contra). (I)EvidenceAct(1of1872),S.3EVIDENCEAppreciation ofevidenceEvidenceofwitnessDeficientregardingsome accusedButsufficienttoproveguiltofotherConviction canbebasedonitFalsusinunofalsusinomnibusHas noapplicationinIndia. (J)EvidenceAct(1of1872),S.3EVIDENCEAppreciation of evidence Discrepancies in evidence Normal and materialdiscrepanciesDifference. (12) (2000)1SUPREMECOURTCASES358 RAMANBHAINARANBHAIPATEL VERSUS STATEOFGUJARAT Wherein it is held by the Honourable Supreme Court of Indiathat, ItistruethattheFIR,basedondyingdeclarationExhibit 75, does not disclose the names of all the accused. However,amerelookatthesaiddyingdeclarationshows that the deceased Ramanbhai Mohanbhai clearly stated thathewasassaultedbydeadlyweaponsbyAccusedNos. 1 and 2, amongst others, of course, he mentioned the namesofAccusedNo.5KiranbhaiGhanshyambhaiPatel andoneanotherGhanshyambhaiwhoassaultedhim.But Accused No. 5 Kiranbhai Ghanshyambhai Patel was already acquitted which Ghanshyambhai was not charge
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sheeted. However, in the same statement, he also mentionedthattherewasanassemblyof15to17persons. Consequently,thedyingdeclarationcancertainlybeheld tohaveinvolvedAccusedNos.1and2inthefatalassault ondeceasedRamanbhaiMohanbhai,amongstothers.Thus ithastobekeptinviewthatthesaiddyingdeclarationhad notonlymentionedalimitednumberofpersonswhohad attacked him but had also clearly involvedother persons whowereaccomplicesofthenamedaccused,whoallcame in a group and mounted assault on him. Consequently, nonmentioning of names of remaining accused by RamanbhaiMohanbhaiinhisdyingdeclarationpalesinto insignificance.ThatdisposesofPointNo.3. (13) AIR1988SUPREMECOURT696 APPABHAIANDANOTHER VERSUS STATEOFGUJARAT Wherein it is held by the Honourable Supreme Court of Indiathat, (B)PenalCode(45of1860),S.300MURDERMurder Failureofprosecutiontoexamineindependentwitnesses Held, prosecution case cannot be thrown out on that groundalone. (C)PenalCode(45of1860),S.300MURDEREVIDENCE MurderEvidenceContradictionsinevidenceofvictim of assault Held, that is no ground to reject his entire
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testimony. (14) AIR1983SUPREMECOURT680 RANAPARTAP VERSUS STATEOFHARYANA Wherein it is held by the Honourable Supreme Court of Indiathat, (A)PenalCode(45of1860),S.300MURDEREVIDENCE Murder trial 'Independent witnesses' Evidence of Cannotbeviewedwithsuspicionongroundthattheyare mere'chancewitnesses'. (B)PenalCode(45of1860),S.300MURDEREVIDENCE MurdertrialEvidenceEvidenceofwitnessescannotbe discardedongroundthattheydidnotreactinaparticular manner. (15) AIR1977SUPREMECOURT2433 YASHPALMITAL VERSUS STATEOFPUNJAB Wherein it is held by the Honourable Supreme Court of Indiathat, (A) Penal Code (45 of 1860), S.120A CRIMINAL CONSPIRACYCriminalconspiracyIngredient. (B) Penal Code (45 of 1860), S.419, S.417 CHEATING "Cheatingbypersonation"Nonmentionofspecificwords
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inrecitalsofchargeEffect. (C) Penal Code (45 of 1860), S.120B, S.419, S.417 CHEATING CRIMINAL CONSPIRACY Criminal conspiracyMainobjectcheatingbypersonationOneco accusednotchargedwithultimateoffenceDoesnotvitiate chargeunderS.120B. (D) Penal Code (45 of 1860), S.120B, S.419 CRIMINAL CONSPIRACY Criminal conspiracy to cheat by personation Sanction under S. 196A (2) Cr. P. C. not necessary. (16) AIR2008SUPREMECOURT1198 VIJAYSHANKARSHINDE VERSUS STATEOFMAHARASHTRA Wherein it is held by the Honourable Supreme Court of Indiathat, (A)PenalCode(45of1860),S.300MURDEREVIDENCE WITNESSMurderEvidenceofeyewitnessesWidowof deceasedandinjuredexaggeratingincidentButtestimony of other eyewitnesses clear and cogent Witnesses withstandinglengthycrossexaminationConvictionbased oneyewitnessevidenceNotliabletobeinterferedwith. (B)EvidenceAct(1of1872),S.3EVIDENCEWITNESS Injured witness Testimony of Holds more credence Normallyhewouldnotshieldrealculprit. (Para9)
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[20]
LearnedAdvocateMr.B.S.Patel,appearingonbehalfofthe accusedNos.1to82and84hascitedfollowingauthorities insupportoftheircase: (1) 1954CRIMINALLAWJOURNAL261 THAKURPRASAD VERSUS THESTATEOFM.P. Wherein it is held by the Honourable Supreme Court of Indiathat, (A)ConstitutionofIndia,Art.134APPEALCONCURRENT FINDINGS EVIDENCEPRACTICEANDPROCEDURE PracticeConcurrentfindings. (B)CriminalP.C.(5of1898),S.411AAPPEALPRACTICE ANDPROCEDUREEVIDENCEPractice. The absence of the name of the accused in the first informationreportandtheabsenceofmarksofinjuryon hispersonareonlymaterialandrelevantforthepurposeof appreciationoftheevidence.WheretheCourtsbelowhave cometoadefinitefindingontheevidencebeforethemthat theaccusedwasamemberoftheunlawfulassemblyand took some part in inflicting injuries on the deceased in prosecutionoftheircommonobject,SupremeCourtcannot gobehindtheconcurrentfinding.
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(2)
1960CRIMINALLAWJOURNAL1144 SHAMBHUNATH VERSUS STATEOFBIHAR Wherein it is held by the Honourable Supreme Court of Indiathat, (A)ConstitutionofIndia,Art.136SPECIALLEAVEAPPEAL PRACTICE AND PROCEDURE SUPREME COURT Criminal Appeal Practice of Supreme Court Normally SupremeCourtwouldnotreviewevidenceunlessthereis grossmiscarriageofjustice. ItisthesettledpracticeoftheSupremeCourtthatunless the trial is vitiated by an illegality or irregularity of procedureorthetrialisheldinamannerviolativeofthe principlesofnaturaljusticeresultinginanunfairtrial,or unlessthetrialhasresultedingrossmiscarriageofjustice, theSupremeCourt,inacriminalappeal,doesnotnormally enter upon a review of the evidence on which the conclusionofthecourtsbelowisfounded.
(B)PenalCode(45of1860),S.149andS.326UNLAWFUL ASSEMBLY GRIEVOUS HURT COMMON OBJECT UnlawfulassemblyCommonobjecttocausegrievoushurt One member only causing death Others can be convictedu/S.326/S.149eventhoughnoonememberhas causedgrievoushurt.
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Section149oftheIndianPenalCodeisdeclaratoryofthe vicariousliabilityofthemembersofanunlawfulassembly foractsdoneinprosecutionofthecommonobjectofthat assembly or for such offences as the members of the unlawful assembly knew to be likely to be committed in prosecution of that object. But "members of an unlawful assemblymayhaveacommunityofobjectuptoacertain point, beyondwhichtheymaydifferintheirobjects, and theknowledgepossessedbyeachmemberofwhatislikely to be committed in prosecution of their common, object may vary not only according to the information at his command, but also according to the extent to which he sharesthecommunityofobjectandasaconsequenceof thistheeffectofSection149oftheIndianPenalCodemay be different on different members of the same unlawful assembly:"ILR22Cal306,Ref.to. Where the common object of the assembly was to cause grievous hurt and death was caused by only one of the members of the assembly for which the other members werenotresponsible,theconvictionoftheothermembers underS.326readwithS.149cannotbeheldillegalmerely because no member of the assembly was proved to have causedgrievoushurttothevictims,TheoffenceunderS. 326 is in its relation to the offence of murder a minor offenceandthelanguageusedinS.149doesnotprevent the court from convicting for that minor offence merely
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becauseanaggravatedoffenceiscommitted. (3) AIR1994SUPREMECOURT79 JAMNA VERSUS STATEOFU.P. Wherein it is held by the Honourable Supreme Court of Indiathat, PenalCode(45of1860),S.300,S.326,S.34MURDER EVIDENCE WITNESS COMMON INTENTION GRIEVOUS HURT Murder Appreciation of evidence EvidenceofinjuredwitnessesSimpleandstraightforward withreferencetoattackondeceasedandonthemselves Common object of unlawful assembly was only to cause grievoushurtandnottocommitmurderHoweversomeof theaccusedattackingdeceasedwithballamas(spear)and causingnumberoffatalinjuriesTheirconvictionunder Ss.302/34confirmedHoweverotheraccusedarmedonly withlathiconvictedforcausinggrievoushurt. (4) AIR1997SUPREMECOURT1654 STATEOFU.P. VERSUS DANSINGH Wherein it is held by the Honourable Supreme Court of Indiathat, (A) Penal Code (45 of 1860),S.300, S.147,S.149, S.436 MURDER RIOTS WITNESS Multiple murder CommunalriotMembersofmarriagepartyofScheduled
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CasteAssaultedbyvillagersbysticksandstonesSome ofthemburntaliveinsidethehouseofScheduledCaste Reliable testimony by four eyewitnessesAccused persons identified by them, held liable to be convicted under, Sections147,302/149,436/149,323/149and301/149. (B) Criminal P.C. (2 of1974),S.392APPEAL Appeal DifferenceofopinionamongstJudgesofDivisionBench TheiropinionslaidbeforethirdJudgeOrderofDivision Bench becomes non est Order which follows opinion of thirdJudgeisthefinalorder. (C) Penal Code (45of1860),S.147RIOTSWITNESS RiotTestimonyofeyewitnessesCannotberejectedonly because of some inconsequential contradiction or exaggeration. (D)PenalCode(45of1860),S.300MURDEREVIDENCE RIOTSMultiplemurderCommunalriotPleaofalibi by one of the accused Conflicting state of evidence as regardshispresenceatplaceofoccurrenceWhilehearing appealagainstacquittal,benefitofdoubtcouldbegivento him. (5)
AIR2006SUPREMECOURT3555 MUNNACHANDA VERSUS STATEOFASSAM
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Wherein it is held by the Honourable Supreme Court of Indiathat, (A)PenalCode(45of1860),S.149UNLAWFULASSEMBLY COMMON OBJECT COMMON INTENTION Common objectDifferentfromcommonintentionPriorconcertis not required Common object can develop at spur of moment. (B) Penal Code (45 of 1860), S.300, S.149 UNLAWFUL ASSEMBLY MURDER COMMON OBJECT Murder UnlawfulassemblyCommonobjectAccusedappellants notarmedExceptone,otherswerenotpartytoallstages ofdisputeAppellantsgotagitatedoverdeceasedpicking up quarrel with one of them and asked for apologies Deceasedwasassaultedbyoneofthembutitcannotbe said that they had common object of killing deceased Deceased while being assaulted fled from scene AppellantsandmanyotherschasedhimWhoassaulted deceasedwasnotknownWhetheroneorallofappellants werepresent,whenlastblowwasgivennotknownTwoof theappellantsneithernamedinFIRnoridentifiedindock No overt act alleged against them No evidence to show thattheychaseddeceasedTheirmembershipofassembly notprovedCouldnothavebeenconvictedforcommission ofanoffenceunderS.302/149.
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(6)
AIR2009SC(Supp)1638 AKBARSHEIKH VERSUS STATEOFWESTBENGAL Wherein it is held by the Honourable Supreme Court of Indiathat, (A) Penal Code (45 of 1860), S.300, S.149 MURDER UNLAWFUL ASSEMBLY Murder Unlawful assembly PresenceofaccusedwhileoffencewascommittedIssine qua non to find him guilty of being member of unlawful assembly Discrepancies in statements of prosecution witnesseswithregardtopresenceofsomeofaccusedSaid accusedwouldnotbeliabletobeconvicted. (B) Penal Code (45 of 1860), S.300, S.149 MURDER UNLAWFUL ASSEMBLY Murder Unlawful assembly EnmitybetweentwogroupsinvillageIncidenttookplace at dead of night Presence of some of accused persons and/orsharingcommonobjectbythemwasdoubtfulNo overtactattributedtothemNoclinchingevidenceagainst themAccusednotliabletobeconvicted. (C) Penal Code (45 of 1860), S.300, S.149 MURDER UNLAWFULASSEMBLYEVIDENCEMultiplemurders Appreciation of evidence Unlawful assembly Accused personsmostofwhomwerearmedwithdeadlyweapons InimicallydisposedtowardsfamilyofdeceasedPossibility oftheirformingcommonobjectcannotberuledoutDelay
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in filing of F.I.R. found not fatal Prosecution witnesses specificallyattributedroletohimConvictionofaccused Held,notliabletobeinterferedwith. (D)JuvenileJustice(CareandProtectionofChildren)Act (56 of 2000), S.2(k) JUVENILE JUSTICE Juvenile DeterminationStatementbyoneofaccusedastoageof accusedclaimedtobejuvenileNotdecisiveVoters'list preparedlongafterincidentoccurredIsalsonotdecisive. (7) AIR2010SC(Supp)204 PANDURANGCHANDRAKANTMHATRE VERSUS STATEOFMAHARASHTRA Wherein it is held by the Honourable Supreme Court of Indiathat, (A)CriminalP.C.(2of1974),S.154,S.162PenalCode(45 of1860),S.300FIRPOLICEOFFICERSEVIDENCE MURDER FIR Registration of Murder case Information about incident regarding assault by large numberofaccusedonmembersoftheirpartyregisteredin General diary of Police Station IO left for scene of occurrenceonbasisofsuchinformationSaidinformation cannot be treatedasFIRIOvisitedplaceofoccurrence and thereafter proceeds to police station along with informantandregistersFIRSameisnothitbyS.162. (B)CriminalP.C.(2of1974),S.157INVESTIGATIONFIR
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EVIDENCEWITNESSFIRDelayinreceiptofcopyof FIRValidityIfevidenceofeyewitnessesisfoundcogent, convincingandcredibleDelayinreceiptofcopyofFIRby concernedCourtwouldnotbefatal. (C)EvidenceAct(1of1872),S.3EVIDENCEWITNESS MURDER Interested witness Murder case Eye witnessesbelongtorivalpoliticalpartiesinafactionridden villageandarerelatedtoeachotheraswellasdeceased Evidenceofsuchwitnesseshastobeexaminedwithgreat careandcautiontoobviatepossibilityoffalseimplication oroverimplication.PenalCode(45of1860),S.300 (D)PenalCode(45of1860),S.149UNLAWFULASSEMBLY COMMONOBJECTUnlawfulassemblyDetermination of common object Conduct of each of members of unlawful assembly before and at time of attack is of relevantconsideration.
(E) Penal Code (45 of 1860), S.300, S.149 MURDER UNLAWFULASSEMBLYEVIDENCEWITNESSMurder Unlawful assembly Proof Incident took place between two rival political parties Evidence of witnesses that appellant accused armed with sword while others were armedwithironbarsandallofthemstartedattackingthe deceasedwiththeirrespectiveweaponsintheirhandsIs truthfulandcorroboratedfrommedicalevidenceAccused personswhosepresenceasmembersofpartyofassailants
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is consistently mentioned and their overtacts inchasing and assaulting deceasedareclearlyprovedLiabletobe convicted under S. 302 r. w. S. 149 Other accused personsentitledtobenefitofdoubtHoweverallaccused personsareguiltyofoffencespunishableunderS.148and S.326readwithS.149. (F) Evidence Act (1 of 1872), S.11 EVIDENCE PLEA MURDER WITNESS Plea of alibi Murder case Presenceofaccusedinincidentestablishedbyevidenceof eyewitnesses Accused had been identified holding iron barDefencepleaofalibinottenable. (8) AIR1971SUPREMECOURT953 KESHAVGANGARAMNAVGE VERSUS STATEOFMAHARASHTRA Wherein it is held by the Honourable Supreme Court of Indiathat, Inviewofthiswecannotrelyonthisdyingdeclarationalso. Our own conclusion on a reappraisal of the evidence is thattheeyewitnessesaccountofwheretheincidenttook placeandhowittookplaceisnotreliablenoristhereany corroboration of any of their statements in material particulars. In this view it is unnecessary to determine whether the version given by the accused as to what actuallytookplaceandwhereittookplaceiscredible.The probabilitythatitdidnottakeplaceatthebusstandbutit
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took place elsewhere and in a manner different to that spokentobytheeyewitnesseswhichdoesnotexcludethe possibilityofthedeceasedandtheeyewitnessesbeingthe aggressorsortheincidenttakingplaceasallegedtobythe accused,cannotberuledout. (9) AIR1972SUPREMECOURT1309 SATYANARAIN VERSUS STATEOFM.P. Wherein it is held by the Honourable Supreme Court of Indiathat, Evidence Act (1 of 1872), S.3 MURDER EVIDENCE 'Proved'AppreciationofevidenceMurderchargeunder.S 302/149PenalCodePartisaneyewitnessesItisnotsafe tobaseconvictionofaccusedontheirevidenceunlesssome corroborationisfoundintheotherevidenceormaterialon record (10) AIR1973SUPREMECOURT2773 KALIRAM VERSUS STATEOFH.P. Wherein it is held by the Honourable Supreme Court of Indiathat, (A) The restriction placed by Section 162 on the use of statement made during the course of investigation is in generalterms.Thereisnothinginthesectiontoshowthat the investigation must relate to any particular accused
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beforeastatementtothepolicepertainingtothataccused canbeheldtobeinadmissible. The prohibition contained in the section relates to all statementsmadeduringthecourseofaninvestigation.In the instant case the letter which was addressed by the constable to Station House Officer was in the nature of narrationofwhathehadbeentoldbytheaccused.Sucha letterwouldconstitutestatementforthepurposeofSection 162 of the Code of Criminal Procedure. The prohibition relatingtotheuseofastatementmadetoapoliceofficer during the course of an investigation cannot be set at naught by the police officer not himself recording the statement of a person but having it in the form of a communicationaddressedbythepersonconcernedtothe policeofficer.Ifastatementmadebyapersontoapolice officer in the course of an investigation is inadmissible, exceptforthepurposesmentionedinSection162,thesame would be true of a letter containing narration of facts addressedbyapersontoapoliceofficerduringthecourse ofaninvestigation.Itisnotpermissibletocircumventthe prohibition contained in Section 162 by the investigating officerobtainingawrittenstatementofapersoninsteadof theinvestigatingofficerhimselfrecordingthatstatement. (B)ConstitutionofIndia,Art.136SPECIALLEAVEAPPEAL FindingsbasedonappreciationofevidenceInterference
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with not permissible unless valid grounds are there to disturbthem. (C)Inacriminaltrialtheonusisupontheprosecutionto provethedifferentingredientsoftheoffenceandunlessit dischargesthatonusitcannotsucceed.Thecourtmay,of course, presume' as mentioned in section 114 of the Evidence Act. The existence of any fact which it thinks likelytohavehappened,regardbeinghadtothecommon courseofnaturalevents,humanconductandpublicand private business, in their relation to the facts of the particularcase. Anothergoldenthreadwhichrunsthroughthewebofthe administration of justice in criminal cases is that if two viewsarepossibleontheevidenceadducedinthecase,one pointing to the guiltof theaccusedand theother tohis innocence, the view which is favourable to the accused shouldbeadopted.Thisprinciplehasaspecialrelevancein cases wherein the guilt of the accused is sought to be established by circumstantial evidence. Rule has accordingly been laid down that unless the evidence adducedinthecaseisconsistentonlywiththehypothesis oftheguiltoftheaccusedandisinconsistentwiththatof his innocence the court should refrain from recording a findingofguiltoftheaccused.Itisalsoanacceptedrule that in case the court entertains reasonable doubt
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regardingtheguiltoftheaccused,theaccusedmusthave thebenefitofthatdoubt.Theruleregardingthebenefitof doubt also does not warrant acquittal of the accused by resorttosurmises,conjecturesorfancifulconsiderations. Althoughthebenefitofeveryreasonabledoubtshouldbe given to the accused, thecourts should not at thesame time reject evidence which is ex facie trustworthy on groundswhicharefancifulorinthenatureofConjectures. Theguiltoftheaccusedhastobeadjudgednotbythefact thatavastnumberofpeoplebelievehimtobeguiltybut whether his guilt has been established by the evidence brought on record. Indeed, the courts have hardly any other yardstick or material to adjudge the guilt of the personarraignedasaccused.Referenceissometimesmade to the clash of public interest and that of the individual accused. The conflict in this respect, however is more apparentthanreal. Itisnodoubttruethatwrongfulacquittalsareundesirable and shake the confidence of the people in the judicial system,muchworse,however,isthewrongfulconvictionof aninnocentperson.Theconsequencesoftheconvictionof an innocent person are far more serious and its reverberationscannotbutbefeltinacivilisedsociety.All this highlights the importance of ensuring, as far as possible,thatthereshouldbenowrongfulconvictionofan
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innocent person. Some risk of the conviction of the innocent, of course,isalwaysthereinany systemofthe administration of criminal justice. Such a risk can be minimisedbutnotruledoutaltogether. (11) AIR1983SUPREMECOURT491 SONIABAHERA VERSUS STATEOFORISSA Wherein it is held by the Honourable Supreme Court of Indiathat, PenalCode(45of1860),S.299,S.300CriminalP.C.(2of 1974), S.386 MURDER EVIDENCE CONFESSION Murder Appreciation of evidence Extra judicial confessionmadebyaccusedrejectedbySessionsJudge EvidenceofwitnessesrejectedbySessionsJudgeasitwas discrepant Sessions Court acquitting accused as other material before it was not sufficient to hold him guilty Held,thatitwasnotacaseinwhichitcouldbesaidthat the appreciation of evidence by the Sessions Judge was eitherperverseorthatonlyoneopinion,namely,thatthe appellantwasguiltyoftheoffencewaspossible.Inthese circumstances,theHighCourtwasinerrorinreversingthe judgmentofacquittalrecordedbytheTrialCourt. (12) AIR1986SUPREMECOURT593 PALANISAMY VERSUS STATEOFT.N.
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Wherein it is held by the Honourable Supreme Court of Indiathat, Penal Code (45 of 1860), S.300, S.436 MURDER EVIDENCEMISCHIEFOffencesunderAppreciationof evidenceEvidenceofprosecutionwitnessesnotfreefrom reasonabledoubtRetractedconfessionbyaccusedfound to be tainted and not supported by independent corroborationBenefitofdoubtcanbeextendedtoaccused Convictionofaccusedheld,wasnotproper. (13) AIR1990SUPREMECOURT1709 STATEOFU.P. VERSUS MOTIRAM Wherein it is held by the Honourable Supreme Court of Indiathat, (A) Penal Code (45 of 1860), S.300, S.109, S.120(B) MURDERCRIMINALCONSPIRACYMurderConspiracy Animosity between accused party and deceased party Some of accused arrested and imprisoned for ticketless travel just few days before incident Creates strong suspicionthattheyvoluntarilygotarrestedtoserveasplea ofalibiNoevidencehoweverthattheseaccusedpersons talkedamongstthemselvestocommittheoffenceCannot beconvictedforconspiracytocommitmurder. (B)PenalCode(45of1860),S.300MURDERWITNESS
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Murder case Interested and inimical witness appreciation of evidence Rivalry between accused and deceased party Massacre of 13 persons Eye witness close relative of some of deceased Enemically disposed towardsaccusedpartyNoinjuryfoundonpersonofeye witnessWitnessfalselyimplicatingpersonswhowerein prisonattimeofoffencePossibilityofwitnessingincident while he was fleeing for life doubtful Writtencomplaint filed by eye witnessdoubtfulin viewofcorrectionsmade thereinHeld,evidenceofeyewitnesswasnotreliable. (C)PenalCode(45of1860),S.300MURDERWITNESS MurderInjuredeyewitnessCredibilityStatementby eyewitnessesthattheywereexaminedbyPolicejustafter incident and sent for medical examination Medical examination however held after delay of 21 hours No explanation for delay General Diary indicating that statementsofeyewitnessesweretakenonnextdayafter incident Admission by one of witnesses that his vision was impaired No blood found at place where witnesses were allegedly lying at time of occurrence Witnesses indisputablypartisanwitnessesEvidenceofeyewitness unreliable. (D)PenalCode(45of1860),S.300MURDERMurder Multiplicity of victims Duty of Court Massacre of 13 personsinbroaddaylightProsecutionevidencenotonly
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unworthyofcredence,butalsomanifestlyandinextricably mixedupwithfalsehoodAccusedentitledtobeacquitted Factofmultiplicityofvictimwouldmakenodifference. (14) AIR1991SUPREMECOURT2246 SHEREY VERSUS STATEOFU.P. Wherein it is held by the Honourable Supreme Court of Indiathat, PenalCode(45of1860),S.149,S.300MURDERMurder ConstructiveliabilityLargenumberofaccusedcharged Evidenceofwitnessesistobesubjectedtoclosescrutinyin lightoftheirformerstatementsF.I.R.i.e.earliestreport has to be examined carefully Witness lodging F.I.R. thoughgivinglonglistofnamesofaccused,chargingonly nine withovertactsHeimprovingversionindeposition andnamingfiveothersasparticipantsinattackVariation warrantsconvictionofonlythoseagainstwhomovertacts wereattributedinF.I.R. (15) AIR1992SUPREMECOURT674 STATEOFKARNATAKA VERSUS VENKATESH Wherein it is held by the Honourable Supreme Court of Indiathat, Penal Code (45 of 1860), S.300 MURDER MOTIVE Murder Proof Evidence of prosecution witnesses not
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inspiring confidence Motive as alleged not proved Ace prosecution witness not disclosing information to anyone tilltwodaysaftteroccurrencePoliceOfficeradmittingnot tohavevisitedhouseofaccusedtoarrestthemInference of guilt of accused cannot be drawn on ground of non appearance of accused before police Order of acquital sustained. (16) AIR1996SUPREMECOURT3471 ALILMOLLAH VERSUS STATEOFW.B. Wherein it is held by the Honourable Supreme Court of Indiathat, PenalCode(45of1860),S.300MURDEREVIDENCE Appreciation of evidence Murder of employer of eye witnessAdmissionsbyeyewitnessincrossexamination thathedidnottellanyoneabout occurrencetoevenhis coemployeesthoughnextdayhewentatworkplaceNo explantionabouthissilenceDelayedstatementbyhimto policeNocorroborationtohistestimonyfromindependent sourceSuchadmissionsofwitnessincrossexamination whichmateriallydetractedfromhisreliability,notnoticed byCourtsAppreciationofevidencebyCourtsresultingin miscarriageofjusticeConvictionofaccusedonlyonbasis oftestimonyofsoleeyewitnessLiabletobesetaside.
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(17) 1990(2)G.L.H.540 DILAWARHUSSAINMOHAMMADBHAILALIWALA VERSUS STATEOFGUJARAT Wherein it is held by the Honourable Supreme Court of Indiathat, (A)TerroristAndDisruptiveActivities(Prevention)Act,1985 S. 3(2) (i) Indian Penal Code, 1860 Ss. 34, 302, 436/149, 449, 113 and 148 Criminal Trial Indian Evidence Act, 1872 S.3 Appreciation of evidence Credibility of witness has to be measured with same yardstick, whether it is an ordinary crime or crime emanatingduetocommunalfrenzyLawdoesnotmakeany distinctioneitherinleadingofevidenceorinitsassessment Rule is one andonlyone,namely,whetherdispositions are honest and true To bring home the guilt the prosecution was required to prove the presence of witnesses, possibility of seeing the incident by them and identification of the accused persons Held that in the presentcase,failureoftheprosecutiontobringonrecord evidence which could establish the possibility or even probability of the witnesses seeing the occurrence demolishes the whole structureoftheprosecution case The prosecution failed to prove beyond shadow of doubt thatthedreadfulcrimewascommittedbytheappellants.
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(18) AIR1976SUPREMECOURT2488 STATEOFORISSA VERSUS BRAHMANANDANANDA Wherein it is held by the Honourable Supreme Court of Indiathat, Evidence Act (1 of 1872), S.3 MURDER WITNESS MurdercaseEyewitnessnotdisclosingnameofassailant foradayandhalfCredibility. Where in a murder case the entire prosecution case dependedon the evidenceofapersonclaimingtobeeye witnessandthiswitnessdidnotdisclosethenameofthe assailant for a day and half after the incident and the explanation offered for nondisclosure was unbelievable, held that such nondisclosure was a serious infirmity which destroyed the credibility of the evidence of the witnessandthattheHighCourtwascorrectinrejectingit asuntrustworthyandacquittingtheaccused.(1971)1Cut WR351,Affirmed. (19) AIR1976SUPREMECOURT2147 RAMASRAYPANDEY VERSUS STATEOFBIHAR Wherein it is held by the Honourable Supreme Court of Indiathat, Penal Code (45 of 1860), S.299, S.300 MURDER Insufficiency of evidence of conviction Prosecution
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evidence manifestly unbelievable and contradictory Convictionsetaside. Eyewitnesses not only lying about the genesis of the occurrence and the place of the incident but also irretrievablymutilatingthetruthwithregardtothenumber ofassailantsandtheauthorofthefatalblowAllegedoral dying declaration of the deceased also hopelessly contradictory and unbelievable Held, (by the Supreme Court) that there was no credible evidence on record to bringhomethechargeofmurdertotheappellantaccused Eyewitnesseshadunscrupulouslyspokentheuntruthon all vital points which hadpollutedtheir testimony tothe coreCourtsbelowwereinerrorinconvictingtheappellant on the basis of such manifestly unbelievable evidence producedbytheprosecution:Crl.A.No.217of1968,D/ 3041971(Pat),Reversed. (20) AIR1989SUPREMECOURT1762 SHIVAJIDAYANUPATIL VERSUS STATEOFMAHARASHTRA Wherein it is held by the Honourable Supreme Court of Indiathat, PenalCode(45of1860),S.300MURDEREVIDENCE WITNESS MurderEvidenceofeyewitnessAllegedeye witness, wife of deceased not naming the assailant to anybodyafterseeingincidentAssailant'snamedisclosed
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by her only when her statement was recorded by Investigating Officer Her statement recorded during investigation different from her statement given at trial Held,conductofwifewashighlyunnaturalwhichwasnot explained in evidence and accused was liable to be acquittedaftergivingbenefitofdoubt. (21) AIR1997SUPREMECOURT3818 STATEOFBIHAR VERSUS BISHWANATHRAI Wherein it is held by the Honourable Supreme Court of Indiathat, PenalCode(45of1860),S.300MURDEREVIDENCE WITNESS Murder Proof Appeal against acquittal Testimony of eyewitnesses not consistent with medical evidence regarding injury caused to deceased Eye witnesses not giving correct account of manner in which incidenttookplaceOrderofHighCourtdiscardingtheir testimonyisproperNointerference. (22) AIR1998SUPREMECOURT2864 MOHD.IQBALM.SHAIKH VERSUS STATEOFMAHARASHTRA Wherein it is held by the Honourable Supreme Court of Indiathat, (A)TerroristandDisruptiveActivities(Prevention)Act(28of 1987), Pre. APPLICABILITY OF AN ACTApplicability
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Communal riots Locality predominently occupied by MuslimsChawlroomoccupiedbyHindussetonfireby accusedbelongingtomuslimcommunitySeveralpeople burntaliveActivitiesofaccusedfallwithinambitofTADA. (B)TerroristandDisruptiveActivities(Prevention)Act(28of 1987),S.20A(1)APPLICABILITYOFANACTApplicability Incident occurred prior to incorporation of S. 20A(1) Obtaining of prior approval of District Superintendent of PolicebeforeproceedingwithinvestigationNotnecessary. (C)TerroristandDisruptiveActivities(Prevention)Act(28of 1987), S.20A(2) SANCTION FOR PROSECUTION Sanction for prosecution Accorded on day on which sanctioning authority received all papers in course of investigation together with proposal for filing charges Cannotbesaidtobeinvalidwhenevidenceofsanctioning authority establishes that after thoroughly applying his mindrelevanttomaterialsheaccordedsanction. (D) Evidence Act (1 of 1872), S.3 EVIDENCE Appreciation of evidence Law does not make any distinctionincaseunderTerroristandDisruptiveActivities (Prevention)Act(TADA)orundernormalCriminalLaw. (E)EvidenceAct(1of1872),S.3EVIDENCEAppreciation ofevidenceSeparatingchafffromgrainCommunalriots Several people burnt alive In such case under TADA
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separatingchafffromgrainandthenactingupongrainnot proper Further when evidence consists of only chaff questionofseparatingchafffromgrainwouldnotarise. (F)TerroristandDisruptiveActivities(Prevention)Act(28of 1987), S.3 TERRORIST AND DISRUPTIVE ACTIVITIES Conviction and sentence Communal riots In ghastly incident several people belonging to one community were burntalivebysomeothersInvestigatingagencymerelyon suspicion have roped in persons belonging to other communitywhowereresidinginlocalityTriedtogetthem identified through witnesses who belong to community from where people were burnt alive Evidence of all eye witnesses suffering from infirmities and not reliable Conviction of accused recorded on mere conjectures and hypothesisLiabletobesetaside. (23) AIR2000SUPREMECOURT2207 SURESHRAI VERSUS STATEOFBIHAR Wherein it is held by the Honourable Supreme Court of Indiathat, (A)PenalCode(45of1860),S.300MURDEREVIDENCE WITNESS Murder Proof Enmity between parties Contradictionbetweenevidenceofinvestigatingofficerand eyewitnesswhoallegedtohavereportedmattertopolice Eyewitnesseswhowerescrappinggrasswithdeceaseddid
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not receive any injuries Their conduct was unnatural Circumstancesandevidenceonrecordshowingthatnone of the three eyewitnesseswaspresentatspotattimeof occurrenceAccusedpersonswereimplicatedbyinformant eyewitnessinstatementrecordedaftermakingofinquest report on account of bitter enmity between family of accused and family of deceased Investigation was also taintedConvictionofaccused,liabletobesetaside. (B) Criminal P.C. (2 of 1974), S.174 INVESTIGATION InquestreportIspreparedbyInvestigatingOfficertofind out prima facie the nature of injuries and the possible weaponusedincausingthoseinjuriesasalsothepossible cause of death Witnesses of inquest were also eye witnessesFactthattheydidnotstatenamesofassailants while describing cause of death in Inquest Report Sufficient to doubt their presence at spot at time of occurrence. (24) AIR2002SUPREMECOURT2807 TORANSINGH VERSUS STATEOFM.P. Wherein it is held by the Honourable Supreme Court of Indiathat, (A) Constitution of India, Art.134 SUPREME COURT PowersofCourtConcurrentfindingbyCourtsrecording convictionofaccusedHowever,therewasnoproperand objectiveappreciationofevidencebytrialCourtandHigh
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CourtHighCourtsimplyendorsedconclusionarrivedat by trial Court resulting in miscarriage of justice InterferencebySupremeCourtPermissible. (B)PenalCode(45of1860),S.300MURDERMOTIVE MurderAllegedmotivethatdeceasedelopedwithwifeof accusednotprovedOnlyeyewitness,thesonofdeceased was an interested witness Did not make hue and cry whenhisfatherwasassaultedDidnottrytorescuehim Accused had only onehandastheother handhadbeen mutilated Evidence of eyewitness not corroborated by otherwitnessesAxeallegedtobeusedforcommissionof offenceandrecoveredatinstanceofaccusedNotproduced beforeCourtDoctordidnotconfirmthatinjuriesfound on deceased could be caused by such axe Material contradictionsandomissionsinstatementsofwitnesses Seriousinfirmitiesandimprobabilitiesgivingrisetograve doubts as to involvement of accused in commission of offenceHigh Courtinsteadofgivingbenefitofdoubtto accused placed burden on defence and found that there was absence of plausible defence and explanation by accusedConvictionofaccusedLiabletobesetaside. (C)PenalCode(45of1860),S.300MURDEREVIDENCE WITNESS Murder Appreciation of evidence Sole testimonyofeyewitness,whowasinterestedbeingsonof deceasedNotcorroboratedbyotherindependentevidence
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ThuslightlybrushingasidebytrialCourt,theinfirmities andimprobabilitiesinprosecutioncaseNotproper. (D)EvidenceAct(1of1872),S.3EVIDENCEBurdenof proofProsecutioncaseshouldrestonitsstrengthNoton absenceofexplanationorplausibledefencebyaccused. (25) AIR2003SUPREMECOURT854 LALLUMANJHI VERSUS STATEOFJHARKHAND Wherein it is held by the Honourable Supreme Court of Indiathat, PenalCode(45of1860),S.300MURDERLANDMurder SoleeyewitnessConvictiononbasisofLanddispute Soletestimonyofeyewitnessnotwhollyreliableorwholly unreliable Eyewitness interested being brother of deceased Not fully corroborated by medical evidence Investigation defective Nonexamination of witness of localityNospecificfindingonfactumofpossessionover landindisputecouldbearrivedatHeld,noreliancecould be placed on sole testimony of witness for purpose of recordingconvictionofaccused. (26) AIR2004SUPREMECOURT124 SHINGARASINGH VERSUS STATEOFHARYANA
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Wherein it is held by the Honourable Supreme Court of Indiathat, (A) Penal Code (45 of 1860), S.300 Evidence Act (1 of 1872), S.3 MURDER Murder Prosecution case Reliability Version of incident given by eyewitnesses in F.I.R. and statement under S.161,Cr.P.C. Deliberate changeduringtrialtosuitmedicalevidenceProsecution casebecomesdoubtful. (B) Criminal P.C. (2 of 1974), S.378 APPEAL Appeal againstacquittalTwoviewsreasonablypossibleonbasis of evidence View taken by trial Court a possible reasonable view High Court would not interfere with acquittal. (C)PenalCode(45of1860),S.300MURDERPRIVATE DEFENCE Murder Right of private defence Plea of accusedthatdeceasedthrewbricksuponhimWhereupon accusedwentinsidehishousebroughtgunandfiredshots inselfdefenceHeld,therewasnooccasionfortheaccused tousegunAccusedexceededhisrightofprivatedefence LiabletobeconvictedunderS.304,Part1.
(D)CriminalP.C.(2of1974),S.401REVISIONRevision AgainstorderofacquittalFiledbyprivatepartyCould notresultinconviction.
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(E)CriminalP.C.(2of1974),S.380ConstitutionofIndia, Art.134,Art.136APPEALSpecialrightofappealHigh CourtconvictingbothfatherandsonunderS.304/S.34 SonfilingcriminalappealbeforeS.C.Whilefatherfiling SLP Held there wasnoneedfor fathertofileaSpecial Leave Petition In view of the provisions of S.380, an appealablejudgmentandorderhavingbeenpassedagainst coaccused son, father also had a right of appeal to SupremeCourt.
(27) 2006(0)GLHELSC38948 AROKIATHOMAS VERSUS STATEOFTAMILNADU Wherein it is held by the Honourable Supreme Court of Indiathat, IndianPenalCode,1860S.34,302,304PartIIappeal againstconvictionofappellantunderS.302readwithS. 34ofIPCcoaccused'D'alsoconvictedunderS.302of IPCdidnotfilefurtherappealpermissibilityofgranting benefitofacquittaltononappealingaccusedevidenceof identification of accusedpersonsby PWs reliability of sourceoflightnotmentionedinFIRnoelectriclightat theplaceofoccurrencePW1disclosinginCourtduring hisexaminationthatheidentifiedtheaccusedinlightof motorcycle another witness PW 13 claiming that he identifiedaccusedintorchlightfromadistanceof400feet held, claim of PW 13 highly improbable in its view,
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evidence of PW 1 highly doubtful specially when it was madeforfirsttimeinTrialCourttherefore,convictionof appellantonthebasisofevidenceofPW1andPW3not maintainableconvictionsetasidefurther,convictionof nonappealingcoaccused'D'alsosetasideasheisentitled toacquittalirrespectiveofthefactthatnoappealwasfiled byhimappealsallowed. (28) 2010(13)SUPREMECOURTCASES657 SUNILKUMARSAMBHUDAYALGUPTA VERSUS STATEOFMAHARASHTRA Wherein it is held by the Honourable Supreme Court of Indiathat, Whileappreciatingtheevidence,thecourthastotakeinto consideration whether the contradictions/omissions had beenofsuchmagnitudethattheymaymateriallyaffectthe trial.Minorcontradictions,inconsistencies,embellishments or improvements on trivial matters without effecting the coreoftheprosecutioncaseshouldnotbemadeaground torejecttheevidenceinitsentirety.TheTrialCourt,after going through the entire evidence, must form an opinion about the credibility of the witnesses and the appellate Courtinnormalcoursewouldnotbejustifiedinreviewing thesameagainwithoutjustifiablereasons. Wheretheomission(s)amounttoacontradiction,creating a serious doubt about the truthfulness of a witness and
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otherwitnessalsomakematerialimprovementsbeforethe courtinordertomaketheevidenceacceptable,itcannotbe safetorelyuponsuchevidence. Everyaccusedispresumedtobeinnocentunlesshisguilt isproved.Thepresumptionofinnocenceisahumanright. Subject to the statutory exceptions, the said principle forms the basis of criminal jurisprudence in India. The natureoftheoffence,itsseriousnessandgravityhastobe takenintoconsideration.Theappellatecourtshouldbear inmindthepresumptionofinnocenceoftheaccused,and further, that the trial court's acquittal bolsters the presumption of his innocence. Interference with the decisionoftheTrialCourtinacasualorcavaliermanner wheretheotherviewispossibleshouldbeavoided,unless therearegoodreasonsforsuchinterference. (29) AIR1981SUPREMECOURT173 MAYAPPADHONDANNAPADEADE VERSUS STATEOFMAHARASHTRA Wherein it is held by the Honourable Supreme Court of Indiathat, CriminalP.C.(2of1974),S.386APPEALAppealagainst acquittalComplaintnotstatingthatappellantwasarmed with spear Eye witnessesstating intrial thatappellant was armed with spear but this was not their case in statements recorded under S. 161 Cr. P. C. Medical
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evidenceshowingthattwoincisedwoundswerecausedby a cutting instrument as distinguished from a piercing weapon like a spear No specific role was assigned to accusedinF.I.R.orintrialwhentwentytwopersonswere saidtohaveparticipatedintheassaultHeldHighCourt wasnotrightinconvertingtheacquittalintoconviction. (30) 2003(12)SUPREMECOURTCASES675 STATEOFM.P. VERSUS KRIPARAM Wherein it is held by the Honourable Supreme Court of Indiathat, INDIAN PENAL CODE, 1860 S. 302 read with S. 34 offenceofmurderTrialCourtconvictedaccusedpersons andimposedthesentenceofimprisonmentforlifeHigh Court on reappreciation of the evidence came to the conclusion that the prosecution has failed to establish a case against accused hence, acquitted accused persons appealappellantsubmittedthatHighCourtshouldnotsit as a Court of appeal and interfere with judgment and findingoftheTrialCourtbyreappreciationoftheevidence andsubstitutingitsownsubjectivesatisfactioncontention ofdefencethatthepresenceofPW1and3atthetimeof incidentwasdoubtfulandincidentinquestionwhichledto thedeathofthedeceasedcouldnothavebeennoticedby thesaidwitnessesthereismuchcontradictioninregard tothedirectionandtheplaceatwhichthewitnessesran
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awayitcreatesasuspicionastotheirpresencePW1 saysthatheraninthedirectionofriverwhilePW2sayshe ranindirectionofthehillwhichaccordingtodefencearein oppositedirectionnoexplanationwhythesewitnessestill about8O'clockinthemorningdidnottrytoseekanyhelp oneofthewitnessesstatesthattheywentstraightfrom place of incident topolicestation while other states they wenttothevillagetoinformtherelativesandthenwentto police station prosecution failed to explain the delay in filing complaint recoveries made at instance of A1 i.e. smallstainofbloodonclothes,serologistinregardtothis bloodalsostatesthatitisnotpossibletofindouttheorigin ofthesamemotiveformurderdoesnotestablishheld, facts available from evidence of the prosecution is very weaknotsafetobaseaconvictionontheaccusedpersons noinfirmityinimpugnedacquittalorderofHighCourt appealdismissed. (31) AIR1953SUPREMECOURT415 MOHINDERSINGH VERSUS STATE Wherein it is held by the Honourable Supreme Court of Indiathat, On a careful reading of the judgment under appeal, it appearsthatthelearnedJudgesoftheHighCourtstrongly felt that they had no adequate explanation in the oral evidence before them for certain puzzling features of the
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injuriesonDalipSingh.Thisisexactlywhatwealsofeelin thiscase,anditseemstousthattheevidencewhichhas been adduced falls short of proof in regard to a very material part of the prosecution case. In a case where death is due to injuries or wounds caused by a lethal weapon,ithasalwaysbeenconsideredtobethedutyofthe prosecutiontoprovebyexpertevidencethatitwaslikelyor atleastpossiblefortheinjuriestohavebeencausedwith theweaponwithwhichandinthemannerinwhichthey areallegedtohavebeencaused.Itiselementarythatwhere the prosecution has a definite or positive case, it must prove the whole of that case. In the present case, it is doubtfulwhethertheinjurieswhichareattributedtothe appellant were caused by a gun or by a rifle. Indeed, it seemsmorelikelythattheywerecausedbyariflethanby a gun, and yet the case for the prosecution is that the appellantwasarmedwithagunandinhisexamination,it wasdefinitelyputtohimthathewasarmedwiththegun P16.Itisonlybytheevidenceofadulyqualifiedexpert that it could have been ascertained whether the injuries attributedtotheappellantwerecausedbyagunorbya rifleandsuchevidencealonecouldsettlethecontroversy astowhethertheycouldpossiblyhavebeencausedbya firearmbeingusedatsuchacloserangeasissuggestedin theevidence.ITisclear,anditisalsotheprosecutioncase, thatonly2shotswerefiredatDalipSinghandoneofthe crucialpointswhichtheprosecutionhadtoprovewasthat
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theseshotswerefiredbytwopersonsandnotbyoneman, and both the shots were fired in such manner and from suchdistanceasisallegedbytheeyewitnesses.Thereis, inouropinion,agapintheprosecutionevidenceonamost fundamentalpointandtheerrorwhichhasbeencommitted by the Courts below is to ignore the gap and decide the casemerelyupontheoralevidenceof3witnessestwoof whom are mere chance witnesses and not altogether independentpersons,andtheevidenceofthethirdwitness isopentocriticismonthegroundofhispartisanshipas wellastheimprobabilityofhishavingbeenabletoseethe firingathisbrotherafterhehadhimselfbeenshotatthe backoftheneck.ThelearnedJudgesoftheHighCourt, after commenting upon the entire evidence, say in their judgment;"wearethusleftwiththeevidenceofthethree witnesses of the prosecution together with the state of wounds as shown by the medical evidence and an unsatisfactory statement of Dr. Goyle. "they reject the evidenceofDr.Goyleandtheyconsiderthenatureofthe wounds to have created a serious difficulty in the case. Havingarrivedattheseconclusions,itwasaseriousthing to rest the appellants conviction wholly upon the oral testimonyinthecasewhichhasremaineduncheckedand unconfirmedbyexpertevidence.THErealpositionappears tobethattheprosecutioncasecannotbesaidtobewholly proved but only partly proved if it is permissible to use such an expression. This Court, as was pointed out in
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pritam Singh v. The State, AIR 1950 SC 169 , will not entertain a criminal appeal except in special and exceptionalcaseswhereitismanifestthatbyadisregardof theformsoflegalprocessorbyaviolationoftheprinciples of natural justice or otherwise substantial and grave injustice has been done. It seemsto us that the present case comes within the rule laid down, because the appellanthasbeenconvictednotwithstandingthefactthat the evidence is wanting on a most material part of the prosecutioncase. (32) AIR1993SUPREMECOURT300 BHUPENDRANATHPRASAD VERSUS STATEOFBIHAR Wherein it is held by the Honourable Supreme Court of Indiathat, PenalCode(45of1860),S.300MURDEREVIDENCE Murder Circumstantial evidence Poisoning Post mortem report not establishing cause of deathNoting by doctor that death was due to cardio respiratory failure eitherduetotakingexcesswineorduetopoisonAlcoholic smell coming from mouth of deceased when he was unconscious Relatives of deceased stating before doctor and investigating officer that deceased did not name accused to have given poison to himAlleged oral dying declaration thus not inspiring confidenceConviction set asideascauseofdeathwasnotestablished.
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(33) AIR2007SC(Supp)1150 KESHAV VERSUS STATEOFMAHARASHTRA Wherein it is held by the Honourable Supreme Court of Indiathat, (A)PenalCode(45of1860),S.300MURDEREVIDENCE FIRMurderCircumstantialevidenceAccusedalleged tohavekilledhisbrotherinlaw,asdeceasedwasunableto return borrowed amount Incident alleged to havetaken placewhenaccusedanddeceasedhadgonetootherplace F.I.R.filedfourdayslaterbyinformantwhonoticedhuman skeletoninfieldBodyidentifiedbyclothesandpostcard foundnearbyDeathfoundtobecausedbyinjurytohead by blunt substance Circumstances that knife was recoveredatinstanceofaccusedAccusedanddeceased werelastseentogetherondaytheyleftforotherplaceNot sufficienttobaseconviction. (34) 2004(9)SUPREMECOURTCASES186 BIHARINATHGOSWAMI VERSUS SHIVKUMARSINGHANDOTHERS. Wherein it is held by the Honourable Supreme Court of Indiathat, ThereisnoembargoontheappellateCourtreviewingthe evidence upon which an order of acquittal is based. Generally,theorderofacquittalshallnotbeinterferedwith
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because the presumption of innocence of the accused is furtherstrengthenedbyacquittal.Thegoldenthreadwhich runs through the web of administration of justice in criminal cases is that if two views are possible on the evidenceadducedinthecase,onepointingtotheguiltof theaccusedandtheothertohisinnocence,theviewwhich is favourable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriageofjusticeisprevented.Amiscarriageofjustice whichmayarisefromacquittaloftheguiltyisnolessthan from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate Court to reappreciate the evidence where the accusedhasbeenacquitted,forthepurposeofascertaining as to whether any of the accused really committed any offence or not. [See Bhagwan Singh and Ors. v. State of MadhyaPradesh(2002(2)Supreme567).Theprincipleto be followed by appellate Court considering the appeal againstthejudgmentofacquittalistointerfereonlywhen therearecompellingandsubstantialreasonsfordoingso. If the impugned judgment is clearly unreasonable and relevantandconvincingmaterialshavebeenunjustifiably eliminated in the process, it is a compelling reason for interference. (35) 2009(1)G.L.R.790 DAHYABHAIREVABHAICHAMAR VERSUS STATEOFGUJARAT
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Wherein it is held by the Honourable Supreme Court of Indiathat, (A)EvidenceAct,1872(Iof1872)Sec.27Sixaccused personsmadedisclosurebeforethepolicejointlyFurther, discoverybyeachoftheaccusedpersonswasfromanopen placeHeld,insuchacaseevidenceofdiscoverywouldnot beofanyhelptotheprosecution. [21] LearnedAdvocateMr.B.G.Patel,appearingonbehalfofthe accusedNo.83hascitedfollowingauthoritiesinsupportof theircase: (1) AIR1992SUPREMECOURT674 STATEOFKARNATAKA VERSUS VENKATESH Wherein it is held by the Honourable Supreme Court of Indiathat, Penal Code (45 of 1860), S.300 MURDER MOTIVE Murder Proof Evidence of prosecution witnesses not inspiring confidence Motive as alleged not proved Ace prosecution witness not disclosing information to anyone tilltwodaysaftteroccurrencePoliceOfficeradmittingnot tohavevisitedhouseofaccusedtoarrestthemInference of guilt of accused cannot be drawn on ground of non appearance of accused before police Order of acquital sustained.
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(2)
AIR1990SUPREMECOURT1628 B.N.SINGH VERSUS STATEOFGUJARAT Wherein it is held by the Honourable Supreme Court of Indiathat, (A) Penal Code (45 of 1860), S.300, S.34 MURDER EVIDENCEMurderAppreciationofevidenceWitnesses interested persons One of accused found to be falsely implicated by them Version of witnesses that three accused caught hold of deceased and remaining three inflictedknifeblowsImprobableinviewofinjuriesfound all over body of deceased Evidence of witnesses not trustworthyAccusedentitledtobeacquitted.
(3)
1988(2)CRIMES739 PANACHANDSOMABHAI VERSUS STATEOFGUJARAT Wherein it is held by the Honourable Supreme Court of Indiathat, Indian Penal Code, 1860 Section 306, 498A read with section 34 Petitioners, namely husband,his younger brother and father charged for abetting his wife for committing suicide because of harassment by the petitionersandmotherinlawbailapplicationrejected criminalapplicationagainstdyingdeclarationshowingno mentionofharassmentfirecausedbyaccidentwhether
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petitionershereleasedonbail? (4) 2002CRI.L.J.548 PRITISH VERSUS STATEOFMAHARASHTRA Wherein it is held by the Honourable Supreme Court of Indiathat, CriminalP.C.(2of1974),S.340LandAcquisitionAct(1of 1894),S.18,S.23ACQUISITIONOFLANDDOCUMENTS FORGERY SALE DEED Offence affecting administration of justice by using forged documents PreliminaryinquirybeforefilingcomplaintOpportunityof hearingtowouldbeaccused,isnotrequiredtobegiven Reference Court ordering prosecution against claimants/Land owners for wangling big amount of compensation by producing forged sale deeds Court is undernoobligationtoaffordanopportunityofhearingto claimants/land owners before filing complaint before Magistrateforinitiatingprosecutionproceedings. (5) 2008CRI.L.J.372 RAMESHBABURAODEVASKAR VERSUS STATEOFMAHARASHTRA Wherein it is held by the Honourable Supreme Court of Indiathat, CriminalP.C.(2of1974),S.154FIRCOMMISSIONOF OFFENCEFIRLodgingofEnmitybetweentwogroups
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in village Commission of offence resulting in death LodgingofFIRinsuchcaseisalwaysconsideredtobevital. FirstInformationReport,inacaseofenmitybetweentwo groupsinvillageresultingindeathofpersons,providesfor a valuable piece of evidence although it may not be a substantialevidence.Thereasonforinsistingoflodgingof FirstInformationReportwithoutunduedelayistoobtain the earlier information in regard to the circumstances in which the crime had been committed, the name of the accused,thepartsplayedbythem,theweaponswhichhad beenusedasalsothenamesofeyewitnesses.Wherethe parties are at loggerheads and there had been instances which resulted indeathofone or theother,lodging ofa FirstInformationReportisalwaysconsideredtobevital. [22] LearnedAdvocateMr.C.K.Shah,appearingonbehalfofthe accusedNo.85hascitedfollowingauthoritiesinsupportof theircase: (1) 2008(3)SUPREMECOURTCASES(CRI.)500 LATUMAHTOANDANOTHER VERSUS STATEOFBIHAR(NOWJHARKHAND) Wherein it is held by the Honourable Supreme Court of Indiathat, CriminalProcedureCode,1973Ss.313,228,374and386 Framingofproperchargeandappropriateexaminationof
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accused under S.313 Necessity Eleven accused, variously armed with lethal weapons alleged to have assaultedthedeceasedresultinginhisdeathandcausing injuries to others Motive for crime said to be the land dispute Trial courtfinding allaccusedguiltyunderSs. 302/149IPCAppealsfiledthereagainst dismissed by High Court Submission by appellant that neither their examinationunderS.313wasproperlydone,northedetails of accusations werebrought totheir notice andeventhe chargeswerenotproperlyframedCommonchargeshad been framed against all accused as far as Ss.149 and 302/34 were concerned Finding by High Court that charges were explained to accused while recording their statementsunderS.313founderroneousSupremeCourt on perusal of relevant documents noting that no appropriatequestionwasposedduringexaminationunder S.313Cr.P.C.andappropriatechargeswerealsonotframed Moreover, High Court had dismissed the appeal by an unreasoned order Discussing the case law highlighting theimportanceofareasonedorder,andnecessityofproper examination of accused under S.313, held, conviction as recorded by trial court and upheld by High Court unsustainable Penal Code, 1860 Ss.302/34 and Ss. 302/149 Criminal Trial Judgment Reasoned order/Speakingordernecessity.
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(2)
2008(3)SUPREMECOURTCASES(CRI.)767 BASAVARAJA VERSUS STATEOFKARNATAKA Wherein it is held by the Honourable Supreme Court of Indiathat, IndianPenalCode,1860S.34,302CodeofCriminal Procedure, 1973 S. 313 murder accused with an intention to cause death dragged victim, in cattle shed,, pouredkeroseneoilonherandsetheronfireorderof acquittalsetasidebyHighCourtsustainabilityofheld, such casual framingofchargeandexaminationunderS. 313ofCr.P.C.deprecatedimpugnedconvictionorderset asideappealallowed.
(3)
(2012)1SUPREMECOURTCASES(CRI.)717 KAILASHGOUR VERSUS STATEOFASSAM Wherein it is held by the Honourable Supreme Court of Indiathat, EvidenceAct,1872S.3IndianPenalCode,1860S.34, 302, 323, 324, 326, 448 surcharged communal atmosphere in post demolition of mosque mob of 20 peoplearmedvariouslyforciblyopeneddoorofhouseof PW 2, entered and attacked inmates three innocent persons including two young children done to death findingsofCommissionindicatedantiminoritybiasamong policeforceincommunalriotssituationsandinvestigations
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and directing certain reforms reports directed to Governments held, sooner such reforms are brought betteritwouldbeforinclusivesocietylikeourswhereevery citizen regardless of his caste or creed is entitled to protectionofhislife,limbandpropertythoughincertain cases aberrations may have taken place but such instancesarenotenoughtodenouncerulesofevidenceor fundamentaltenetsofcriminaljusticesystemthataccused ispresumedtobeinnocenttillheisprovedguiltybeyond reasonable doubt rules of evidence and standards by whichsamehastobeevaluatedalsocannotbedifferentin cases depending upon whether case has any communal overtones or in an ordinary crime for passion, gain or avariceitisprinciplethatcannotbesacrificedonaltarof inefficiency, inadequacy or inept handling of investigation bypolicebenefitarisingfromanysuchfaultyinvestigation ought to go to accused and not to prosecution. Criminal Jurisprudence murder trial rule of presumptionofinnocenceeveryaccusedpresumedtobe innocent unless his guilt proved held, presumption of innocenceishumanrightsubjecttostatutoryexceptions, said principle forms basis of criminal jurisprudence in Indiaaccusedispresumedtobeinnocenttillheisproved guiltybeyondreasonabledoubtisprinciplethatcannotbe sacrificed on altar of inefficiency, inadequacy or inept handling of investigation by police and it is equally well
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settled that suspicion howsoever strong can never take place of proof there is indeed long distance between accused 'may have committed offence' and 'must have committedoffence'whichmustbetraversedbyprosecution byadducingreliableandcogentevidenceaccusedcannot beconvictedonmeresuspicion. IndianPenalCode,1860S.34,302,324,448Codeof Criminal Procedure, 1973 S. 154 communal riots murderofladyandtwogirlchilddelayinlodgingofFIR depositionofPW2thatthoughpolicearrivedatsceneof occurrence immediatelyFIRwasdrawnonlyafterIOhad through this witness got 100/200 people from locality gathered who had assembled, officer then interrogated themandafterdeliberationswitheldersofcommunitygot reportscribedbyPW5namingasmanyas13personsas accused held, it is difficult to appreciate how report prepared after such wide consultation and deliberations could carry semblance of spontaneity to be credible in criminal trial of such serious nature delayed and wide consultationanddeliberationspeoplewhohadassembled whenejaharwaswrittenbyhimPW2hehadrecognized onlyfourofaccusedwhohadcomelookingforhimthere isnoexplanationastohowwereremainingaccusednamed whenhehadnotidentifiedthematthetimeofoccurrence andatwhoseinstanceespeciallywhenaccordingtowitness hissonswereinhospitalunexplaineddelayinlodgingof
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FIRandmannerinwhichejaharwasscribednotfreefrom doubt. IndianPenalCode,1860S.34,302,324,448murderof lady and two girl child by mob in moonlight motive communalviolenceandwidespreaddisturbancesasresult ofdisputeoverdemolitionofmosquehowever,evidentthat large scale disturbances had indeed taken place in area including incident of house being set on fire in neighborhood of place of occurrence, previous enmity betweensomeofappellantsandPW2onaccountofland dispute between them couldbepossiblereasonforPW2 namingappellantsandothersclosetohimasassailants held,enmitybetweencomplainantpartyandaccusedbeing doubleedgedweapontherecouldbemotiveoneitherside for commission of offence as also for false implication appealallowed. [23] Followingpointsariseformydeterminationofthiscase:
POINTS
(1) Whether the prosecution proves that, death of the11(Eleven)personsashomicidal? (2) Whether the prosecution proves that, the accused or any of them formed unlawful
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assembly by intentionally joining the assembly with the common object of voluntarily causing hurt, grievous hurt, murder, burnt and to destruct the properties of Muslim community andcontinueinitandtherebybecomemember ofUnlawfulAssembly? (3) Whether the prosecution proves that, the accused or any of them in prosecution of common object formed unlawful assembly with thecommonobjectofvoluntarilycausinghurt, grievous hurt, murder, burnt and to rob the propertiesoftheMuslimcommunityandthereby became member of Unlawful Assembly committedoffence? (4) Whether the prosecution proves that, the accused or any of them committed rioting by armingthemselveswithdangerousweapon? (5) Whethertheprosecutionprovesthatalloranyof the accused have in furtherance of common object of unlawful assembly have committed offencecausingmurderof11(elevenpersons)? (6) Whethertheprosecutionprovesthatalloranyof the accused have in furtherance of common
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object of unlawful assembly have acted with intention and knowledge that under such circumstances that if, he by that act caused death,hewouldbeguiltyofmurderandthereby havecommittedattempttomurderofwitnesses fromChudivas? (7) Whether the prosecution proves that, in furtheranceofcommonobjectofsuchunlawful assembly, all the accused or any of them have caused damage to the property of Muslim personsbydestructingthehousesinChudivas? (8) Whether the prosecution proves that, in furtheranceofcommonobjectofsuchunlawful assembly by setting on fire the houses in Chudivas by pouring kerosene, petrol etc. with intenttodestroythehousesandtherebycaused thedestructionofhousesusedbytheresidents oftheChudivasfortheirresidencepurposeand therebycommittedcrime? (9) Whether the prosecution proves that, in furtheranceofcommonobjectofsuchunlawful assembly accused persons caused hurt to the complainant and witnesses so rashly and negligentlytoendangerhumanlifeandthereby committedcrime?
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(10) Whethertheprosecutionhasprovedthat,allthe accusedhavedestroytheevidencebydisposing of dead bodies of deceased persons at Malav Talav and have helped each other and thereby committed offence u/s. 201 read with section 149? (11) Whethertheprosecutionprovesthat,accusedin furtherance of common object of unlawful assemblywithintenttoprovokebreachofpeace intentionally caused insult of Muslim Communityandbythreateningtocausedeathor grievoushurtortocausethedestructionoftheir property by fire and thereby have committed crime? (12) Whether the prosecution proves that, all the accusedoranyofthemhavecommittedcriminal conspiracytocommitanoffencepunishablewith death imprisonment for life or rigorous imprisonmentoranyotherimprisonment? (13) Whethertheaccusedhavecommittedoffenceby committingbreachoftheNotificationofDistrict Magistrate by arming themselves with burning rags, stones, Dhariya, sword, iron pipe and inflammableitemsetc.?
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(14)
Whether the prosecution has proved that, accused No.83 Public Servant has disobeyed the direction of Law and has framed incorrect record or writing with intent to save persons frompunishmentandtherebyabatedthecrime?
(15)
Whether the prosecution has proved that, accusedNos.84&85havevoluntarilyobstructed in discharging his public function and have suppressed the riot affray, apprehending the personschargedwithorguiltyofanoffenceand beingboundbylawandintentionallyomittedto give assistance and thereby abetted the Crime and thereby they used power being public servant with an intent to cause injury to the person and to the property of Muslims and therebyabettedtheCrime?
(16)
Which of the accused are liable for committing offenceandifyes,underwhichsections?
(17) [24]
Whatorder?
Myfindingstotheabovepointsareasunder: (1) Inthenegative.
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(2)
IntheaffirmativeagainstAccusedNos.2,3,4,5,6, 7,8,11,15,16,17,19,20,22,25,33,42,44,51,69, and76& Inthenegative againstaccusedNos.9,10,12,13, 14,18,21,23,24,26,27,28,29,30,31,32,34,35, 36,37,38,39,40,41,43,45,46,47,48,49,50,52, 53,54,55,56,57,58,59,60,61,62,63,64,65,66, 67,68,70,71,72,73,75,77,78,79,80,81,82,84 and85.
(3)
IntheaffirmativeagainstAccusedNos.2,3,4,5,6, 7,8,11,15,16,17,19,20,22,25,33,42,44,51,69, and76& Inthenegative againstaccusedNos.9,10,12,13, 14,18,21,23,24,26,27,28,29,30,31,32,34,35, 36,37,38,39,40,41,43,45,46,47,48,49,50,52, 53,54,55,56,57,58,59,60,61,62,63,64,65,66, 67,68,70,71,72,73,75,77,78,79,80,81,82,84 and85.
(4)
IntheaffirmativeagainstaccusedNos.2,3,4,5,6 and7 & InthenegativeagainstaccusedNos.8,9,10,11,12, 13,14,15,16,17,18,19,20,21,22,23,24,25,26, 27,28,29,30,31,32,33,34,35,36,37,38,39,40, 41,42,43,44,45,46,47,48,49,50,51,52,53,54, 55,56,57,58,59,60,61,62,63,64,65,66,67,68, 69,70,71,72,73,75,76,77,78,79,80,81,82,83, 84and85.
(5) (6)
Inthenegative. IntheaffirmativeagainstAccusedNos.2,3,4,5,6, 7,8,11,15,16,17,19,20,22,25,33,42,44,51,69, and76&
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Inthenegative againstaccusedNos.9,10,12,13, 14,18,21,23,24,26,27,28,29,30,31,32,34,35, 36,37,38,39,40,41,43,45,46,47,48,49,50,52, 53,54,55,56,57,58,59,60,61,62,63,64,65,66, 67,68,70,71,72,73,75,77,78,79,80,81,82,84 and85. (7) IntheaffirmativeagainstAccusedNos.2,3,4,5,6, 7,8,11,15,16,17,19,20,22,25,33,42,44,51,69, and76& Inthenegative againstaccusedNos.9,10,12,13, 14,18,21,23,24,26,27,28,29,30,31,32,34,35, 36,37,38,39,40,41,43,45,46,47,48,49,50,52, 53,54,55,56,57,58,59,60,61,62,63,64,65,66, 67,68,70,71,72,73,75,77,78,79,80,81,82,84 and85. (8) IntheaffirmativeagainstAccusedNos.2,3,4,5,6, 7,8,11,15,16,17,19,20,22,25,33,42,44,51,69, and76& Inthenegative againstaccusedNos.9,10,12,13, 14,18,21,23,24,26,27,28,29,30,31,32,34,35, 36,37,38,39,40,41,43,45,46,47,48,49,50,52, 53,54,55,56,57,58,59,60,61,62,63,64,65,66, 67,68,70,71,72,73,75,77,78,79,80,81,82,84 and85. (9) IntheaffirmativeagainstAccusedNos.2,3,4,5,6, 7,8,11,15,16,17,19,20,22,25,33,42,44,51,69, and76& Inthenegative againstaccusedNos.9,10,12,13, 14,18,21,23,24,26,27,28,29,30,31,32,34,35, 36,37,38,39,40,41,43,45,46,47,48,49,50,52, 53,54,55,56,57,58,59,60,61,62,63,64,65,66, 67,68,70,71,72,73,75,77,78,79,80,81,82,84 and85.
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(10) (11)
Inthenegative. IntheaffirmativeagainstAccusedNos.2,3,4,5,6, 7,8,11,15,16,17,19,20,22,25,33,42,44,51,69, and76& Inthenegative againstaccusedNos.9,10,12,13, 14,18,21,23,24,26,27,28,29,30,31,32,34,35, 36,37,38,39,40,41,43,45,46,47,48,49,50,52, 53,54,55,56,57,58,59,60,61,62,63,64,65,66, 67,68,70,71,72,73,75,77,78,79,80,81,82,84 and85.
(12)
Inthenegative.
(13) IntheaffirmativeagainstaccusedNos.2,3,4,5,6 and7& InthenegativeagainstaccusedNos.8,9,10,11,12, 13,14,15,16,17,18,19,20,21,22,23,24,25,26, 27,28,29,30,31,32,33,34,35,36,37,38,39,40, 41,42,43,44,45,46,47,48,49,50,51,52,53,54, 55,56,57,58,59,60,61,62,63,64,65,66,67,68, 69,70,71,72,73,75,76,77,78,79,80,81,82,83, 84and85. (14) IntheaffirmativeagainstaccusedNo.83. (15) InthenegativeagainstaccusedNos.84&85. (16) Asperfinalorder. (17) Asperfinalorder.
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::REASONS::
DISCUSSIONONTHEPOINTOFIRREGULARITIES:
[25] Before appreciating evidence in the present trial it is necessary to have a note on some important points like irregularitiesduringthetrial. ForthispurposeIwouldliketoreferRANBIRYADAV Vs.STATEOFBIHAR(1995)4SupremeCourtCases392 Inthecitedruling,itwasapartheardmatter.Evidencewas partlyrecordedbyonemagistrateandpartlybyanother.It was observed that magistrate can resummon a witness already examined only for further examination. Fresh examination of such witnesses for fresh trial is not permissible.Accusedhasnorighttoclaimdenovotrial.It is further observed in the cited ruling that; court has discretiontodirectanewtrialbutunlessthereisaspecific ordertothateffect,itcannotbepresumedthatanewtrial has commenced after addition or alteration of charges. Furthernosuchdirectionfornewtrialcanbegivenunless proceeding withtrialislikelytoprejudicetheaccusedor the prosecution. Even, if there is any irregularity in continuationofthetrialafterframingofadditionalcharges judgmentnotopentobesetasideintheabsenceoffailure of justice. Thus ajudgecan exercisea judicialdiscretion onlyforfurtherexaminationofawitnessalreadyexamined
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andnotforfreshexaminationofwitnessesforafreshtrial. Further itis observedinthecitedrulingthatunlessthe court passes a specific order and directs a new trial, it cannotbepresumedthatafreshtrialhasbeencommenced onlybecauseanalterationtoachargewhichhasbeenread over and explained to the accused has been made. Any suchdirectiongivenbythecourthastobejudgedonthe touchstoneofprejudicetotheaccusedortheprosecution. Whenatrialisconductedinamannerdifferentfromthat prescribedbythecode,thetrialisbadandnoquestionof curinganirregularityarises.Butifthetrialisconducted substantially in the manner prescribed by the code. And someirregularityoccursinthecourseofsuchconduct,the irregularitycanbecured.Inthecitedrulingthecourthas passedtheorderforframingchargesafreshanddirecting the prosecution to furnish the list of witnesses to be examined on its behalf while, three accused had surrenderedthemselvesafterchargeshadbeenframedand fourwitnessesfortheprosecutionhadbeenexaminedin chiefandthreeofthemdischargedaftercrossexamination andthattheaccusedpersonshadbeenprejudicedintheir defenceas,insteadofalawyeroftheirchoicealawyerfrom thedefencepanelhadappearedontheirbehalfonthefirst dayofthetrial.Thereforeasagainstthepresentappellants andtheotheraccusedwhowerebeingtriedwiththemthe questionofframingcharges,afreshdidnotandcouldnot arise; and, in fact, as already noticed, only additional
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charges were framed against them. The direction of the Courtregardingframingofchargesafreshhasthereforeto be read and construedwithreferencetothosethreewho surrenderedlater. InthecitedrulingItisobservedthatthreeaccused whohadsurrenderedthemselvesduringthetrial,theywere not accused when earlier trial was commenced. In that circumstances court was not only legally bound to frame charges against them but also to record the evidence of witnesses already examined afresh if the prosecution intendstousethesameagainstthem.Alltheevidencehas to be recorded in the presence of accused or when the personal presence of accused is dispensed with, in the presence of lawyer. Therefore, the reliance upon the evidenceofthosewitnessesagainstaccusedsubsequently joinedasaccusedcanbechallengedunlessthoseaccused are given opportunity but, the accused persons in whose presence trial was conducted cannot challenge the legitimacy of the trial. Here, in the present case while accuse No.1 to 50 in whose presence earlier trial was conductedcannotchallengethelegitimacyofthetrial.Here, in the present case after adding accused No.51 to 85 additional charges are framed and most of the witnesses whowereexaminedearlier,arecalledinthecourtandthey areexaminedandcrossexaminedatlength.Therefore,no prejudice is going to cause to any of accused nor to
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prosecution on thispoint.Itis well settledthat after the chargeisalteredandadded.Prosecutorandaccusedshall be allowed to recall or to summon and examine with referencetosuchalterationandadditionanywitnesswho hasalreadybeenexaminedunlessthecourtforreasonsto berecordedinwritingconsideredthat,thedesiretorecall or reexamine such witness is only for a purpose of defeating the ends of justice. It is also the law that; prosecutorandtheaccusedbepermittedtocallanyfurther witnesswhomcourtmaythinkittobematerial.Thus,the interest of prosecution and the accused has to be safeguardedbypermittingthemtofurtherexamineorcross examine the witness already examined and by affording themanopportunitytocallotherwitnesses.Itisalsotrue thatcourthas beengivendiscretiontodirectanewtrial after addition or alteration of any charge but it does not meanthateverysuchadditionoralterationinthecharge which has been read over and explained to the accused would lead to inevitable inference that the court has directedanewtrialforthem.Anysuchdirectionhastobe judgedonthetouchstoneofprejudicetotheaccusedorthe prosecution. Keeping in mind the above concept of law when we consider the facts of present case, Here trial against accused No. 1 to 50 was conducted further statements were recorded only at the stage of arguments matterwasstayedbytheHonbleSupremeCourt.Afterthe stay is vacated from the trial matter is required to be
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proceededfurther.Thereisnonecessitytoproceedafresh inthematterfromthebeginningagainsttheNo.1to50. WhileaccusedNo.51to85aresubsequentlyaddedasan accused.Hereinthepresentcasechargeagainstaccused No.1to50arealsoframedafreshthoughthereisnosuch order to conduct the trial afresh. Thus, the trial without anysuchspecificordercannotbeconstruedasfreshtrial. It is to be considered a continuous trial. The charge is requiredtobeframedafreshagainstaccusedNo.51to85 only and evidence is required to be recorded accordingly. After,framingthechargeagainstaccusedNo.51to85,they are given an opportunity to examine the witnesses who were examined earlier. Either they are examined by the accusedsideorpassedapursisthattheydonotwantto examine those witnesses vide Exh.1319. Similarly prosecutionsideisalsogivenopportunityandprosecution has also passed the pursis accordingly. Thus, this court hastriedtoremoveallsortsofinfirmitiesandirregularities. Thus,alltheaccusedaswellasprosecutionaregivenfull opportunityofbeingheardduringthetrialandthereisno possibilityofprejudicinganypartyatall.Andnoonecan claimdenovotrial.Sofarasirregularitiesduringtrialare concernedthoseirregularitiesaresuchwhichcanbecured as substantially the matter is conducted in the manner prescribedbythecode. Oneofthepointwhichrequiresconsiderationisthat, InvestigatingOfficerM.K.Patel,whohadinvestigatedthe
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crime initially and had chargesheeted 50 accused in the year2002,Sessionswascommitted,trialwasconductedby the then Additional Sessions Judge, during that trial M.K.PatelwasexaminedasInvestigatingOfficer.Thereafter, matter was stayed and during investigation, S.I.T. has chargesheeted the then Investigating Officer M.K.Patel andherehehasbeenarrangedasanaccusedNo.83.After he is arranged as an accused, he is examined by my learned predecessorasanInvestigatingOfficer,insucha circumstanceswhenhewasarrangedasanaccused,what isthestatusofhisdepositionasInvestigatingOfficer,that isalsorequiresconsideration.Inmyhumbleopinionasper theprovisionsofLaw,hisfirsttimedepositionisrequiredto beconsideredforappreciationofevidenceforcorroboration andcontradictionpurposeonly.Forotherfactswehaveto consider the evidence of other Police persons of Investigatingtem,whilehissecondtimedepositioncannot beatallconsideredasanevidence.Therefore,hissecond time deposition is hereby required to be ignored and by ignoring that second time evidence, I hereby appreciating theevidenceanddiscussinganddecidingthetrial. Same is the situationin respect of accusedNo.53 PatelRameshkumarMadhavlal,whoafterarranginghimas anaccusedhasbeenexaminedasaPanchwitnessbymy learnedpredecessorasP.W.115RameshkumarMadhavlal Patel (Exh.650) of the Panchnama of Scene of Offence, producedvideExh.168.ThisPanchnamaisproduced and
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exhibitedwiththeconsentoftheparties.Further,another PanchP.W.34PatelVinubhaiGokaldasisexaminedvide Exh.167, as Panch witness, in such circumstances this Panchnamaisrequiredtobeconsideredwhileappreciating the evidence on record but the deposition of P.W.115 RameshkumarMadhavlalPatel(Exh.650)isrequiredtobe ignoredtotally. To cure such irregularities orders below Exh. Nos.1072, 1295, 1296 were passed accordingly charge, evidence,statements/Furtherstatementsareorderedtobe considered in continuation of earlier charge, evidence, statementsandfurtherstatements.Further,accusedNo.83 is given opportunity to cross examine all witnesses. In responsetothataccusedNo.83hascrossexaminedmost ofthewitnessesandsomeofthewitnessesarenotcross examinedbytheaccusedandtothateffect,hehaspassed pursis vide Exh.1323 that he does not want to cross examinethosewitnesseswhowereexaminedwhilehewas not an accused and that he has no objection if that evidence is read andappreciatedwhile deciding thetrial. Accused51to82&84wereaskedwhethertheywantto crossexamineanyofwitnesswhichwereexaminedearlier whentheywerenotanaccused.Inresponsetothatquery advocateShriBrahmbhatthaspassedpursisvideExh.1319 stating that they do not have any objection if earlier evidence is read and appreciated in the trial. Meaning
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therebytheydonotwanttocrossexaminethosewitnesses whowereexaminedearlierbutnotexaminedsecondtime. Exh.1322ShriChetanShah,learnedadvocatehaspassed pursisstatingthathedoesnotwanttocrossexaminethe witnesseswhowereexaminedearlier.AccusedNo.1to50 have made an endorsement that they do not have any objection if the documents Mark 64/4 to 64/5, 64/8, 64/35 to 64/40, 64/43 to 64/46, 64/49,64/50, 64/52, 64/54, 64/58 are exhibited. For the said documents. AccusedNo.51to82&84havepassedpursisvideExh.1319 toexhibitthosedocuments.AccusedNo.83haspassedthe pursisvideExh.1323.declaringthathehasnoobjectionif documents are exhibited and read in evidence. While AccusedNo.85haspassedthepursisthathehasmadean endorsement except serial No.37 for other serial number documentshehasnoobjectiontoexhibitthem.Forserial No.37ShriM.K.Brahmbhatt,SpecialProsecutorhaspassed pursisvideExh.1359declaringthereinthatthedocument inquestionisalreadyexhibitedastherewasnoobjection by other accused. Therefore, there is no question to de exhibitthatdocumentandthesaiddocumentissupported in the deposition of witness No.48 M.K.Patel, witness No.47 Shri Bachubha Vesalji Jadeja and the said documentislegallyproved.Afterhearingboththesideson thispointthisdocumentiskeptforadjudicationalongwith thetrial.Thus,allirregularitiesarecuredhence,thereis noquestionofbadtrial.
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[26]
Consideringtheirregularitiesasdiscussedabove,nowthe pointarosewhatwillbeevidentialvalueofevidencewhich wasrecordedfirsttimeandtheevidencewhichisrecorded secondtime.Wecannotforgetthat,thisisnotafreshtrial, thisisacontinuoustrial.Itisonlyafterstaywasvacated bytheHonourableSupremeCourtofIndia,trialisrequired tobeproceededfurther.Insuchsituationhowtoevaluate theevidenceonrecordforthat,ShriM.K.Brahmbhatthas arguedthattheHonbleCourtshallhavetobearinmind thatthiscaseisnotastraightwaytrialofasessionscase. Thisisacasewherein,thecasehasbeentried,practically twicehowever,thepresenttrialisnotthesecondtrialbutit isacontinuoustrialwhichhasstayedintheyear2003by theHonbleSupremeCourt,andthetrialreopenedwiththe vacatingofthestaybytheHonbleSupremeCourtandin accordance with certain directions by the Apex court. Further,itisarguedthatduringpreviousdepositionallthe witnesses were under fear and duress as there was no policeprotectionatthattime.Therefore,witnessesthough deposed truth but as they deposed incomplete and they havedeposedcompletelyduringsecondtimedeposition,at that time they are provided police protection. Thus, the witnesses have given additional details and description relatingtotheincidentandrelatingtoaccusedpersonsin the crime. Therefore, it is requested to appreciate the evidenceinwholebytakingintoconsiderationtheevidence
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adducedinpreviousaswellasinpresenttrialtoarriveat correct and true conclusionintheinterestofjusticeand appreciation of evidence in this case requires with due considerationofthesituationofthecase. WhileitisarguedbyShriB.S.Patelordinarilyaperson recollects any incident, but because of lapse of time, his memoryisfading.Here,weareinuniquecasethatafterthe incident,wheneverthewitnessentersintothewitnessbox, instead of fading memory , the memory of the witnesses hasincreased.Thisisunnatural;even,itiscommoninall thewitnesses.Inordinarycourse,inacriminalcase,there canbe contradictionsbetweenthestatementgiventothe police and the statement given by the witnesses in the court on oath. In the present case, there is a great difference.Wehavegotstatementsofthewitnessesbefore thepolice,verifiedbytheDy.S.P.,thenfurtherstatements of the witnesses on oath before the Honble Court, the statementsgivenbythewitnessesbeforetheSITwhereby theyhavealsoconfirmedtheirstatementsbeforethepolice andthentwiceexaminationofwitnessesaftertheSITcame into picture. A single improvement in a criminal trial is proved to be fatal to the prosecution case, but here improvement is not only from the police statement, but fromtheevidencegivenbeforetheHonbleCourtonoath. This fact is required to be considered while appreciating theevidence.
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Considering the above arguments when we consider positionofthepresentcasepreviouslywhenthetrialwas conductedwitnesseswereexaminedandafterstayvacated thesamewitnessesareagainexaminedbygivingdifferent P.W. Nos. by different exhibits. As discussed earlier a witness can be recalled, reexamined, recrossexamined but can not be examined afresh unless afresh trial is ordered. Here, many witnesses are examined afresh. Therefore, by passing order vide Exh.1072 the evidence whichissecondorthirdtimerecordedisorderedtobekept withfirsttimeevidenceofsaidwitnessanditisorderedto beconsideredincontinuationinearlierevidence.Itiswell settled that evidence of a hostile witness if supports the prosecution in cross examination, requires corroboration. Here,witnesseswhoseevidencewereearlierrecordedand they were declared hostile their second time evidence cannot be considered a fresh hence, their second time evidence can onlybeconsideredascorroborativepieceof evidence. Now, the point which requires consideration is thatwitnessisexaminedandcrossexaminedinfirsttime andsecondtimeagainheisexaminedandcrossexamined second time evidencecannot beconsideredafresh.As it can only be considered in continuation of first time evidence.Inthissituationwhatisthestatusofsecondtime examinationinchiefofthesaidwitness.ForthispurposeI wouldliketorefer ZAHIRAHABIBULLAH.SHEIKHAND
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ANOTHER VS. STATE OF GUJARAT AND OTHERS., reported in 2004 Supreme Court Cases(Cri) 999. whereinitisheldbytheHon'bleSupremeCourtofIndia that, ThereisnorestrictioninthewordingofSection391 eitherastothenatureoftheevidenceorthatitisto betakenfortheprosecutiononlyorthattheprovi sionsoftheSectionareonlytobeinvokedwhenfor malprooffortheprosecutionisnecessary.
Thenecessityforadditionalevidenceariseswhenthe Courtfeelsthatsomeevidencewhichoughttohave beenbeforeitisnotthereorthatsomeevidencehas beenleftoutorerroneouslybroughtin.
Itistruethatmerelybecausetheaffidavithasbeen filedstatingthatthewitnesseswerethreatened,asa matterofroutine,additionalevidenceshouldnotbe permitted. But when the circumstances as in this caseclearlyindicatethatthereissometruthorpri mafaciesubstanceinthegrievancemade,havingre gardtobackgroundofeventsashappenedtheappro priatecoursefortheCourtswouldbetoadmitaddi tionalevidenceforfinaladjudicationsothattheac ceptabilityorotherwiseofevidencetenderedbyway of additional evidence can be tested properly and
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legallytestedinthecontextofprobativevalueofthe twoversions.Therecannotbestraightjacketformula orruleofuniversalapplicationwhenaloneitcanbe doneandwhen,not.
Inallcasesitcannotbelaiddownasaruleofuniver sal application that the Court has to first find out whethertheevidencealreadyonrecordissufficient. Thenatureandqualityoftheevidenceonrecordis also relevant. If the evidence already on record is shownorfoundtobetainted,tailoredtosuitorhelp aparticularpartyorsideandtherealtruthhasnot and could not have been spoken or brought forth duringtrial,itwouldconstitutemerelyanexercisein futility,ifitconsideredfirstwhethertheevidenceal readyonrecordissufficienttodisposeoftheappeals. Disposalofappealdoesnotmeandisposalforstatis tical purposes but effective and real disposal to achievetheobjectofanytrial.Theexercisehastobe takenuptogether.ItisnotthattheCourthastobe satisfiedthattheadditionalevidencewouldbeneces saryforrenderingaverdictdifferentfromwhatwas renderedbythetrialCourt.
MerelybecausetheHighCourtpermitsadditionalev idencetobeadduced,itdoesnotnecessarilyleadto theconclusionthatthejudgmentofthetrialCourt
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waswrong.
Inagivencaseevenafterassessingtheadditionalev idence, the High Court can maintain the verdict of thetrialCourtandsimilarlytheHighCourtoncon sideration of the additional evidence can upset the trial Court's verdict. It all depends upon the rele vance and acceptability of the additional evidence anditsqualitativeworthindecidingtheguiltorinno cenceoftheaccused. Moreover, whenever additional evidence is accepted, retrialisnotanecessarycorollary. It is only after admission that, the court should consider in each case whether on account of a contradictionbetweentheevidenceadduced earlier before the court and the testimony allowed to be given as additional evidence, which of them or any onepartorpartsofthedepositionsarecreditworthy and acceptable, after a comparative analysis and considerationoftheprobabilitiesandprobativevalue of the materials for adjudging the truth. To reject additional evidence merely because of contradictions,andthattooinasensitivecaselike thisone,withahorrorandterrororientedhistoryof its own, would amount to a conspicuous omission
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and deliberate dereliction of discharging functions judiciouslyandwithajusticeorientedmission.Ina givencasewhenthecourtissatisfiedthatforreasons onrecordthewitnessnotstatedtruthfullybeforethe trialcourtandwaswillingtospeakthetruthbefore it,thepowerunderSection391Cr.P.C.,1973istobe exercised.However,itisnotthatineverycasewhere the witness, who had given evidence before court, wantstochangehismindandispreparedtospeak differently, that the court concerned should readily accedetosucharequestbylendingitsassistance.If the witness who deposed one way earlier comes before the appellate court with a prayer that he is preparedtogiveevidencewhichismateriallydifferent fromwhathehasgivenearlieratthetrialwiththe reasonsfortheearlierlapse,thecourtcanconsider the genuineness of the prayer in the context as to whetherthepartyconcernedhadafairopportunity tospeakthetruthearlierandinanappropriatecase, acceptit. Whether the witness had told the truth before the trialcourtorasstatedintheaffidavit,werematters for assessment of evidence when admitted and tendered, and when the affidavit itself was not tenderedasevidence,thequestionofanalyzingitto findfaultwasnotthepropercoursetobeadoptedby
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theHighCourt.Theaffidavitswerefiledtoemphasize the need for permitting additional evidence to be taken for being considered as the evidence themselves. Even the conclusions arrived at with reference to those affidavits do not appear to be correct and seem to suffer from apparent judicial obstinacy and an avowed determination to reject them.Forexampletobrandapersonasnottruthful because a different statement was given before the trialcourt,unmindfuloftheearlieststatementgiven during investigation and the reasons urged for turning hostile before the trial court negates the legislative intent and purpose of incorporating Section391inCr.P.C.,1973 Here, in the present case it is true that it is not a stageofappealaswasinthecitedruling.But,considering thesituationinthepresentcaseasstatedearlier,theobject andintentionasdiscussedinBestBakerycaseisrequired to be adopted here while appreciating the evidence. Here whensecondtimeevidenceofwitnessesarerecordedafresh itcanbeunderstoodasimpliedpermissionofthecourtfor such evidence. As discussed earlier vide order below Exh.1072 second evidence is kept just below the first evidenceanditisorderedtotreatascontinuousone.By considering above situation and that too in a situation whenSITisformedbyHonbleSupremeCourtorderedto
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investigatethematter. Trialmustbefairtoallconcerned. Proceedingsofthecasecannotalwaysbeleftinthehands of parties. Crimes being public wrong in breach and violationofpublicrightsanddutieswhicheffectthewhole communityandareharmfultosocietyingeneral.Wehave toappreciatetheevidence,whichofthemoranyonepartor partsofthedepositionsarecreditworthyandacceptable, after a comparative analysis and consideration of the probabilitiesandprobativevalueofmaterialsforadjudging thetruth.Inthepresentcasealsomerelyoncontradictions and that too in such a sensitive case like this one, we cannotrejectthesecondtimeevidenceasitwouldamount to a conspicuous omission and deliberate dereliction of dischargingfunctionsjudiciouslyandwehavetoconsider thegenuinenessoftheevidencebyassessingtheevidence. Keeping in mind above position of facts and circumstances,positionoflaw,Iwillherebyappreciatethe evidenceonrecordinthepresentcase.
F.I.R.:
[27] Before dealing with the evidence I would like to have a discussionregardingsomepointslikeF.I.R.andAsperthe case of prosecution, complaint about the incident was lodged by P.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66)on28.02.2002at10.15P.M.inthePoliceStation, whichisproducedvideExh.67,whileaspersayofdefence, applications produced vide Exh.761 to 765 should be
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considered as complaints of the individuals in respect of thepresentincident. Here,Exh.66,Exh.761to765andMarkAwhichof them should be considered as complaint in the present case.Forthiswhenweperusetheevidenceofprosecution side,P.W.2MahmadIqbalAhmedkhanBaloch(Exh.66) has deposed on oath that, he has lodged the complaint beforethePolice.Complaintwaswritten.Asperhissay,it issignedbyhim,complaintisproducedvideExh.67.Inhis crossexamination by Shri Brahmbhatt, he has deposed that,thecomplaintwaslodgedduring10.30to11.00P.M. andforwritingofcomplaint,hewascalledinsidethePolice Station,atthattimeMahmadHanifwaswithhim.Mahmad HanifwasresidinginHouseNo.12.Itisadmittedbyhim that,aftercomplaint,nofurtherstatementwasrecordedby thepolice.Itisdeniedbyhimthat,hehadnotstatedinthe complaint about the persons having arms in their hands cameatabout04.00to04.30P.M.andincidentofpelting stoneoccurred.Itisdeniedbyhimthat,hehasnotstated in the complaint about the injury to Sattarkhan and Fatehkhan.Itisdeniedbyhimthat,hehasnotstatedin the complaint about the death of 11 persons and the Children were weeping by saying that their brothers and familymembersarekilled.Itisadmittedbyhimthat,inthe complaint he has not stated that, mob has burned the persons by burning bundle of grass and dry stalks of
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Castor Seeds. In his second time deposition, in chief examination,hehasstatedthat,whenhewenttothePolice Station,policehadwrittenhiscomplaintbutatthattime M.L.A. from Visnagar Shri Prahladbhai Gosa and Dahyabhai Tribhovanbhai Patel were present and P.I. M.K.Patelhaswrittenthecomplaintaspertheirsay.The complaint was not read over and explained to the complainant.Itwassimplysignedbythecomplainant,no copy of the complaint was supplied to the complainant, whenhewasdictatingthecomplaint,otherinjuredpersons from the Maholla were being shifted by the Police to the CivilHospital.Afterlodgingthecomplaint,hewenttoCivil Hospital, complaint was recorded in the presence of P.I. M.K.Patel,bytheWriterofM.K.Patel,inhisroom.Atthe timeof lodgingthecomplaint,MohmadHanif,Writer,P.I. M.K.Patel, M.L.A. Prahladbhai Gosa, Dahyabhai TribhovandasPatelandotherrepresentativesofB.J.P.were present.Hehad narratedthewholefactsbutmanyfacts were not written in his complaint. The names which are mentionedinthedepositionwerestatedbyhimatthetime ofwritingofcomplaintbutthosenameswerenotwritten. Asthecomplaintwasnotreadovertohim,hecouldnot know whether all names asstated by him arewritten or not.Forthefirsttime,atthetimeofdeposition,hecameto knowthat,thenamesofallthepersonswerenotwrittenin thecomplaint,asperhissay.Inhiscrossexaminationby Shri Brahmbhatt, he has admitted that, at the time of
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lodgingthecomplaint,hisbrotherMohmadHanifwasnot with him. To lodge the complaint, he himself had gone. StraightwayhewenttotheChamberofPoliceInspector.He didnotremember,whether45personsweresittingandhe said that, he is going to lodge the complaint and in 45 persons, Yusufkhan Muradkhan was present. When he wenttolodgethecomplaint,hetoldYusufkhanthat,heis going to lodge the complaint and Yusufkhan refused to accompanyhimforlodgingthecomplaint.Thenheasked Mohmad Hanif to accompany him then he went to the Chamber of Police Inspector M.K.Patel. There were five chairs,oneWriterwasthere.Immediately,hehasstarted writingthecomplaint.Inwritingthecomplainthowmuch time taken, he didnotremember.About09.30writingof complaint was completed. Further, in his cross examination,hehasstatedthat,complaintwasnotwritten by Writer Ranjitsinh, Hasmukhbhai and Ramesh, the persons of P.I. M.K.Patel, they had written the complaint underpoliticalpressure,aspertheirwhims.Atthattime, Prahladbhai Gosa, D.T.Patel, Dahyabhai Parshottambhai, SankalchandPatelwerepresentandatthattime,theywere sent in another Chamber with the Writer, hence the complaintwasnotwrittenproperly.Itisdeniedbyhimthat, inhiscomplaintdated28.02.2002,hehasnotstated the nameofaccusedDahyabhaiParshottam,ManilalBajidas, Rameshkumar Madhavlal, Ramanbhai Girdharlal, Parshottam Engineer, Nitinbhai Dahyabhai, Pravinbhai
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Dahyalal, Chimanlal Choksi, Jitubhai Shivabhai and Bharatbhai Ishvarbhai. He has denied that, in the complaint,hehasstatedtwiceabouttheincidenttimeas 12.30P.M.Further,hedidnotrememberthat,infirsttime depositionhehasstatedthat,helodgedthecomplaintat about10.30to11.00P.M.Itisdeniedbyhimthat,incident startedatabout04.00P.M.andthesaidfactisnotstated inthecomplaint.Itisdeniedbyhimthat,hehasnotstated inthecomplaintaswellasdeposedinhisfirstdeposition beforetheCourtthat,Yusufbhaihadtoldhimthat,hehad seentheMurderof11personsofhisfamilyandhetoldthe names of deceased as well as names of accused. He has stated that, he did not remember whether he has stated before the Court deposition or in complaint or in any statement before S.I.T. that when the family members of Yusufkhan were beaten, he heard the voices of Children andthreeladyaccusedweregivingGallonofKeroseneto otheraccusedforpouringthekeroseneonthebodies.Itis deniedbyhimthat,hehasnotstatedinthecomplaintthat, the persons who cameattheentranceofMaholla,police tookthemintothePoliceStation.Further,hehasstated that, he did not remember whether in the complaint or statementbeforeS.I.T.hehasstatedthat,officebearersof B.J.P.weredictatingthecomplaintinthechamberofPolice Inspector.Itisdeniedbyhimthat,hehasnotstatedbefore theS.I.T.,thenamesofaccusedpersons,whokilledthe11 personsweregivenbyYusufkhantothePolice.Further,he
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deposedthat,hedoesnotrememberwhetherhehasstated beforeS.I.T.thenamesinthecomplaintwerenotwrittenas perhissay.Itisdeniedbyhimthat,hehasstatedbefore S.I.T. that, he had not read the complaint before signing and at that time he was having no knowledge about the names of accused. It is denied by him that, he has not statedbeforeS.I.T.,thatwhenhecamebeforethecourtfor the first time to depose then only he came to know the namesofaccusedwerenotwritteninthecomplaintasper his say. Further, in his crossexamination by accused No.83,hehasdeposedthat,hehasseenM.K.Patel,forthe firsttimewhenhewenttolodgethecomplaint.Further,he hasdeposedthat,hedoesnotrememberwhether,outof45 personshealonewillinglywenttolodgethecomplaint.Itis denied by him that, M.K.Patel has not written the complaintasperhissay.Itisnottruethat,PoliceInspector wasaskinghimandhewasreplyinghisquestionsandhis Writerwaswritingthecomplaint.Hedoesnotknow,how muchtimehetookinlodgingthecomplaint.Headmitshis twosignaturesattheendofcomplaint.Healsoadmitshis fullsignatureatPageNo.2ofthecomplaint.Itisdeniedby himthat,hehassignedthesecondsignatureforreceiving thecopyofthecomplaint.Further,hehasdeposedthat,he does not remember whether at the time of writing of complaint,D.S.P.waspresentornot.Itisdeniedbyhim that,copyofcomplaintwasgiventohimintheChamberof P.I.Hedoesnotrememberwhetherhehasgiventhenames
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ofnineaccusedinthecomplaint.Itisadmittedbyhimthe factofinjurytothecomplainantiswrittenbyM.K.Patel.He doesnotrememberwhether,hehadtakenthenamesand injuriesofwitnessesfromChudivasatthetimeofwritingof complaint.Itisadmittedbyhimthat,hehasstatedthefact inthecomplaintthat,atthetimeofincident,mobwasnot disbursedhencePolicefiringwasresorted.Thesaidfactis writteninthecomplaintbyP.I.Itisadmittedbyhimthat, inthecomplaint,hehasstatedthat,incidentoccurreddue toGodhraRailwayincidentdated27.02.2002.Itisdenied byhimthat,Dy.S.P.ShriJadejahasverifiedthecomplaint withhim.Itisalsodeniedbyhimthat,Dy.S.P.ShriJadeja methimandinhispresencehehassignedthecomplaint. Further,hehasstatedthat,hedoesnotrememberthat,in the complaint he has stated that, he has signed the complaint and in hispresencePolicehasalsosignedthe Complaint and Complaint is written as per his say. It is denied by him that, on 05.10.2002, he has not deposed beforetheCourtthat,copyofcomplaintisnotreceivedby him.Further,hehasdeposedthat,hedoesnotremember whetherJeorzFarnandiazcametotheVisnagarandatthat timehehastoldthatcomplaintwasnotwrittenasperhis say.Inhiscrossexaminationhehasdeposedthat,Roomin whichPoliceInspectorwassittingisabout15to20Ft.wide and14to15Ft.inlength.Whenheenteredtheroom,he sawtheabovenamedpersonssittingintheroom.Hehad notseenthosepersonsenteringintheroom.Byreferring
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documentproducedvideMark1000/1,itwasaskedbythe accusedsideaboutthecontentsofthedocuments,witness has replied about the ignorance of the contents and has stated, he does not remember about those contents. Further,hedoesnotrememberwhetherthecomplaintwas not written by Writer Ranjitsinh, Hasmukhbhai and Ramesh, etc. as per instructions of Police Inspector M.K.Patel and that complaint was written under political pressure and at that time M.L.A. Prahladbhai Gosa, Dahyabhai Tribhovanbhai Patel, Dahyabhai Parshottambhai Patel and Sankalchand Patel, political personswerepresentinthePoliceStationandhewassent totheanotherChamberforwritingthecomplainttherefore, he requested to write the complaint again so that independent investigation can be done. Further, he has deposedthat,hedoesnotrememberabouttheburningof House of Akbarmiya. He received the news about the burning of house of Akbarmiya. There is no explanation aboutnonmentioninginthecomplaintabouttheburning ofthehouseofAkbarmiya.Further,hehasdeposedthat, he does not remember whether after recording the complaint,hismanystatementswererecordedbyVisnagar PoliceandOfficersoftheS.I.T.Further,itisdeniedbyhim that, the complaint is lodged in the collusion with Police OfficersandleadersfromMuslimcommunity.Itisdenied by him that, he lodged the complaint, as per say of his leaders. P.W.3 Gulabkhan alias Gulubhai Kayamkhan
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Sindhi hasdeposedinhiscrossexaminationthat,atthe time of lodging complaint, he was with Mahmad Iqbal AhmedkhanBaloch.P.W.4AabidbhaiGulabkhanSindhi (Exh.71) has denied in his crossexamination that, they weresittingMahmadIqbalBalochcameandatthattime,it was decided that complaint would be lodged by the complainantMahmadIqbalAhmedkhanbecausehecan speak. It is denied by him that, the names which are mentioned in the complaint are given as per their say. P.W.5 Zubedabibi Mahebubkhan Baloch (Exh.84) has deposed that, Mahmad Iqbal is the son of Ahmedbhai AnvarbhaiBaloch,whoisservingintheG.E.B.Further,it isdeposedbyherinhersecondtimedepositionthat,when she went to Police Station, she has not made any submissionbeforeanyPoliceOffice.Shewasintheopen space,justinfrontofPoliceStation.P.W.30Shabbirmiya Hasumiya Belim (Exh.146) has in his second time deposition has deposed that, when Mahmad Iqbal and MahmadHanifDalubhaiweregoingtolodgecomplaint,he alsowentalongwiththemandMahmadIqbalandMahmad Hanif Dalubhai were went inside the Police Station, P.I. M.K.PatelwassittinginhisroomandM.L.A.Prahladbhai Gosa and D.T.Patel were also sitting there and Mahmad IqbalandMahmadHanifremainedintheroomwhilethis witness came out side the room but he could not see MahmadIqbal,MahmadHanif,P.I.ShriPatel,M.L.A.and Dahyabhai.Evenhewasnotabletohearthevoicesfrom
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the room. He was having no knowledge about what was happened in the room subsequently, he came to know aboutlodgingofcomplaint.Inhiscrossexaminationhehas shownhisignorancewhetherhehasstatedinhisearlier depositionthat,hewassittingontheOtlaofPoliceStation andatthattimeMahmadIqbalandMahmadHanifwentin theroomofP.I.Forlodgingcomplaint,healsowentalong with them where P.I. M.K.Patel and M.L.A. Prahladbhai GosaandD.T.PatelweresittingontheOtla,otherpersons fromMahollawerealsositting.Hehasshownhisignorance aboutthefactthat,MahmadIqbalcameoutafterlodging complaint about 2,1/2 hours, when Mohmad Iqbal came out, he was not in the Police Station. P.W.32 Mahmadhanif Dalubhai Sindhi (Exh.150) has in his secondtimedepositionhasdeposedthat,whentheywent tothePoliceStation,policecametothemandaskedthem to lodge their complainttherefore,MahmadIqbalwentto lodgethecomplaintandthiswitnessalsowentalongwith thecomplainantandotherMuslimPersonswerealsothere in the room of P.I. and at that time the then M.L.A. Prahladbhai Gosa and D.T.Patel were also present in the room.MahmadIqbalwaslodgingthecomplaint,Mahmad Iqbaltoldaboutthedeathof11personsandalsotoldthat, those11personshavediedinhispresenceandhealsotold that,11personshavediedinhispresenceandatthattime Prahladbhai Gosa and D.T.Patel have told whether 10 personsdiedor20personsdiedbutatpresentcomplaint
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aboutriotingistobelodgedandMahmadIqbalwasasked to sign it, who signed it in his presence and no copy of complaint was suppliedtothem,nor complaint wasread overandexplainedtothemandtherefore,whatwaswritten inthecomplaint,theywerenotallowedtoreaditandthey were asked to go from the Police Station. In his cross examination,hehasdeniedthat,hehasnotstatedbefore thePolicethat,Policecalledhimtolodgethecomplaintand therefore,healongwithMahmadIqbalandotherMuslim persons went inside the room of P.I. where Prahladbhai Gosa and D.T.Patel were sitting. Mahmad Iqbal was dictating the complaint, who told about the death of 11 persons the witness himself has also told that, in his presence 11 persons were died and at that time Prahladbhai Gosa and D.T.Patel told no complaint of murderistobelodged,compliantregardingriotingistobe lodgedwhether10personsor20personsdiedandMahmad Iqbal was asked to sign the complaint, who signed the complaintinhispresenceandcopyofthecomplaintwas notsuppliedtothemandtheywerenotallowedtoreadthe complaint and they were asked to go. In his cross examinationbyaccusedNo.83,itisadmittedbyhimthat, they were sitting in the compound of Police Station and Policecametothemandaskedtolodgethecomplaint.Itis deniedbyhimthat,healongwithMahmadIqbalandother 4 to 5 Muslim persons went into the room of P.I. It is admittedbyhimthat,inthestatementbeforeS.I.T.,hehas
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not stated that, when they went inside the P.I. Room Prahladbhai Gosa and Dahyabhai T. Patel were sitting in theroomandon15.12.2009forthefirsttimehedisclosed thisfact,beforethecourt.Further,itisadmittedbyhimin the crossexamination that, Mahmad Iqbal has accompaniedhimonthedayofhisdeposition.Itisdenied byhimthat,afterdecidingwhichoftheaccusedpersons should be involved in the incident, they have named the accused persons in the complaint. P.W.52 Faridabanu AhmedkhanBaloch(Exh.306) hasdeposedinhiscross examination that, the complainant is her brother. In her secondtimedeposition,inhercrossexaminationshehas shown her ignorance that, after lodging the complaint, whetherPolicecametocallherbrotherornot.Shedoesnot remember on the day of incident police took 14 to 15 personsinthePolicestationatthattimewhethershehad seen her brother ornot. Further,shehasdeposedthat, sheisunabletosaythatshehasstatedbeforeS.I.T.that herelderbrotherMahmadIqbalalongwithYusufbhaiand Yakubbhai went to the Police Station for lodging the complaint. [28] P.W.13 Rameshji Rajuji (Exh.97) has in his cross examination by accused No.83 has admitted that, the complainant Mahmad Iqbal Ahmedkhan Baloch came before P.I. M.K.Patel and lodged the complaint. It is admitted byhim that,complaintiswrittenbyasking the
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complainant. P.I. M.K.Patel was asking the complainant whileWriterwaswritingthecomplaintandcomplaintwas recorded at about 10.30 P.M. and after lodging the complaint,thewitnesswasbusyinotherworkupto04.30 A.M. P.W.44 Rameshchandra Popatlal Sharma
(Exh.218) hasdeposedthat,hewasworkingasP.S.O.in Visnagar Police Station, he was on duty, during 19.30 hours to 24.00 hours, Mahmad Iqbalkhan Baloch lodged the complaint and he received that complaint which is registeredvideI.CR.No.60/2002foranoffencepunishable underSection307,436,147,148,149,506(2)ofI.P.C.In hissecondtimedeposition,hehasdeposedthesamefacts. Furtherdeposedthat,F.I.R.ofthecomplaintwassentto P.I.M.K.PatelandcopyofthatwassenttotheCourtand another copy was given to the complainant. Note of supplyingofcopytothecomplainantismadeintheStation Diary. He does not remember whether he had taken the signatureofthecomplainantforsupplyingthecopyornot. HehadinformedDy.S.P.throughWirelessSetandcopyof complaint was sent through Police Constable. P.W.46 AnupamsinhJaysinhGehlot(Exh.226) hasinhiscross examination admitted that, some of the Muslim Persons weretellinghimthat,someoftheirpersonsareburntby cuttingthem.Therefore,hehadinstructedPoliceInspector to lodge the complaint. Further, he was receiving the information through Telephone. In his second time deposition, in crossexamination he has admitted that,
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afterlodgingthecomplaint,complainantneverapproached himnoranygrievancesmadeagainstP.I.ShriM.K.Patel about not lodging thecomplaint properly.Itis not in his notice that, P.I. M.K.Patel has not worked as per his instructionsandthatP.I.M.K.Patelwasnegligent.P.W.47 Bachubha Vesalji Jadeja (Exh.227) has deposed that, complaintwaslodgedinthePoliceStationandcomplaint wasrecordedbyPoliceInspectorM.K.Patel.Inhissecond time deposition, he has deposed that, he has instructed Police Inspector M.K.Patel to record the complaint and PoliceInspectorM.K.Patelhasrecordedthecomplaintin PoliceStation. Itisfurtherdeposedbyhimthat,hehad verifiedthecomplaintthereafter,itwassignedbyhimbut when he had verified the complaint, he is unable to say. ThereportforaddingSection302wassenttoJ.M.F.C.but whenitwassent,heisunabletosay.Hehasadmittedthat, hehadinstructedPoliceInspectorM.K.Pateltogotothe PoliceStationfromtheplaceofoffenceandtorecordthe complaintandthecomplaintwasgivenbyMahmadIqbal Ahmedkhan Baloch. It is admitted by him that, complainant has not made any complaint before him in respect of complaint recorded by Police Inspector M.K.Patel. Further, he has deposed that, at the time of verifying the complaint, it came to his notice that 11 personsaremissing.Complaintwasverifiedon01.03.2002. InhiscrossexaminationbyaccusedNo.83,hehasdeposed tilltheinvestigationwasinprogress,complainanthasnot
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made any complaint before him that Police Inspector M.K.Patelhasnotrecordedthecomplaintproperly.Itisalso not complained before him that, at the time of recording complaintM.L.A.ShriPrahladbhaiGosaandD.T.Patelwere present and they were interfering the recording of complaint. It is admitted by him that, in his presence complainantoranyotherwitnesshasnotinformedabout themissingofpersons. P.W.48ManubhaiKarshanbhai Patel (Exh.228) has deposed on oath that, he has recordedthecomplaintaspersayofthecomplainantand thereafter, the complaint was sent for registration. It is admitted by him in crossexamination that, complainant hasnotstatedbeforehimthat,SattarbhaiandFatehkhan Badarkhan were injured. It is also not stated by the complainantthat,11personshavediedandtheirpersons were weeping and saying that, their brothers and family membersarekilled.Itisalsonotstatedinthecomplaint, hehadseen30personsinthemobandheknewthemby nameandfacebuthehasonlystatednameof9personsin the complaint. P.W.65 Mahendrasinh Bhairavsinh (Exh.518)hasdeposedthat,complaintwasrecordedinhis presence and it was written in the handwritings of Ranjitsinh.Inhiscrossexamination,hehasadmittedthat, complaintwasgivenbyMahmadIqbalAhmedkhanBaloch beforePoliceInspectorM.K.Patelandatthattimehewas presentandPoliceInspectorM.K.Patelwasrecordingthe complaint by asking the complainant and writer was
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writingthecomplaint,asperhissay.Itisalsoadmittedby him that, after completion of writing of complaint, complainanthassignedthecomplaintandthereafterPolice InspectorM.K.Patelhassignedthecomplaint.Itisalso admitted by him that, said complaint was verified by Dy.S.P. Shri Jadeja. P.W.83 Dashrathsinh Amthaji (Exh.572) has in his crossexamination admitted that, complaint was given by the complainant in the Police Station,whenthecomplaintwascompleted,itwasabout 11.00 or 11.30 P.M. It is deposed by him that, door of ChamberofPoliceInspectorM.K.Patelisfallingtowards OtlaandthiswitnesswasseenfromOtla.Complainantwas stating the complaint and Writer of Police Inspector M.K.Patel Shri Ranjitsinh was writing the complaint, as per say of P.I. He has no knowledge whether copy of complaintwassuppliedtothecomplainantinhispresence. Further,hehasdeposedthat,hehasnotseenPrahladbhai Gosa or D.T.Patel. P.W.147 Babubhai Mansangbhai Chaudhari (Exh.772) has deposed that, complaint of complainant Mahmad Iqbal Ahmedkhan Baloch was recordedinthePoliceStation.P.W.171RanjitsinhPituji (Exh.865) has deposed that, Mahmad Iqbal Ahmedkhan BalochwasinquiredabouttheincidentbyPoliceInspector M.K.PatelandaccordinglyPoliceInspectorM.K.Patelwas dictating the complaint and this witness was writing the complaint. Complaint was written in his handwritings, which is produced vide Exh.67. It is signed by the
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complainantandPoliceInspectorM.K.Patel.Therearetwo signaturesofthecomplainant,oneisinrespectofrecording ofcomplaintandsecondsignatureofthecomplainantisin respect of supplying of copy of complaint to the complainantandafterrecordingthecomplaint,itwassent toP.S.O.forregistrationandafterregisteringthecomplaint, itwassenttoPoliceInspectorM.K.Patelforinvestigation. Inhiscrossexamination,itisadmittedbyhimatthetime ofrecordingofcomplaint,D.T.PatelandPrahladbhaiGosa were not present. In his crossexamination by accused No.83,hehasadmittedthat,afterwritingthecomplaint,it was signed by the complainant in his presence. Further, boththesignaturesofthecomplainantweretakenatatime andthereafter,itwassentforregistrationandthecopyof complaint was supplied to the complainant before registration. P.W.175 Gautamkumar Vishnubhai Barot (Exh.912) has deposed that, on 12.05.2008 complainant remained present before him, he was explained the complaint which was recorded earlier and thereafter, his statement was recorded. In his crossexamination by accusedNos.1to82,hehasadmittedthat,hehadseenthe complaintgivenbythecomplainantbeforePoliceInspector M.K.Patelandthatcomplaintiskeptinrecord. [29] P.W.18SaiyedNazirmiyaKalumiya(Exh.103)hasinhis secondtimedepositionhasdeniedinhiscrossexamination byaccusedNo.83that,whenhisstatementwasrecordedby
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Police,complaintwasreadovertohim.Itisdeniedbyhim that, in his statement dated 08.03.2002, he has stated before the Police that, complaint of Mahmad Iqbal Ahmedkhan Baloch was read over and explained to him, which is true. P.W.22 Yusufkhan Muradkhan Pathan (Exh.112) has deposed on oath in his second time deposition that, complaint was given by Mahmad Iqbal Ahmedkhan Baloch. In his crossexamination, he has deposed that complainant told him that, Police has not recorded the complaint about the death of his family members. It is deposed byhim that,his family members were killed in spite of that he did not come out because therewasCurfewandhewasunderfear. Further,inhis crossexamination he has stated that, he does not rememberthat,hehasstatedbeforeVisnagarPoliceStation thatcomplaintofMahmadIqbalisreadovertohimandit istrue.WhileinhiscrossexaminationbyaccusedNo.83, hehasstatedthat,hedoesnotrememberwhetherhistwo statementsandcomplaintofMahmadIqbalwasreadover tohim. P.W.23AhmedmiyaHasumiyaBelim(Exh.128) hasdeposedinhissecondtimedepositionthat,hehasnot givenanycomplaintbeforePolice.ItisonlyMahmadIqbal AhmedkhanBaloch,whohadgivencomplaintbeforePolice. Inhiscrossexaminationhehasstatedthat,itwasdecided bythepersonsofMahollathat,whowillgivethecomplaint beforethePolice.Further,hehasnoknowledgewhohad gonetolodgethecomplaint. Hehasdeniedthat,hehad
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gonetoPoliceStation.HehasnotgonetothePoliceStation during 2.30 to 4.30 P.M. to lodge the complaint. No complaintwaslodgedinrespectofincidentoccurredinthe house of Vazirkhan. P.W.24 Shermahmad Dalubhai Sindhi(Exh.132)hasdeposedonoaththat,complaintwas lodgedbyMahmadIbrahim.Inhiscrossexamination,itis denied by him that before recording his statement, complaintofMahmadIqbalwasreadoverandexplainedto him.Itisadmittedbyhimthat,hehasstatedbeforethe policethat,complaintwasreadovertohimwhichistrue. Inhiscrossexaminationhehasdeniedthat,complaintwas read over to him. P.W.25 Mohmad Hanif Ahmedkhan Baloch (Exh.134) has admitted in his crossexamination that,complaintwasgivenbyMahmadIqbalandaftergiving complainthewenttoNavavas.Inhiscrossexamination,he hasadmittedthat,hehasknowledgeaboutthefactthat, complaintwasgivenbyhisbrotherinthePoliceStationas hewassittingontheOtla,outsidethePoliceStation.Heis the younger brother of the complainant. P.W.26 HusenkhanBadarkhanBaloch(Exh.137)hasinhiscross examinationbyaccusedNo.83hehasadmittedthat,before recording his statement complaint was read over to him. P.W.96IbrahimkhanUmarkhanBaloch(Exh.610) has inhiscrossexaminationstatedthat,hehasnotlodgedany complaint in respect of this incident. It is only on 06.08.2008 he was called by officer of S.I.T. and his complaintwasrecordedbyS.I.T.andatthattime,hehas
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notstatedthat,hewillsubmitMedicalCertificatelateron. Nofurtherstatementwasrecordedafterthatcomplaint. [30] DuringthecourseofcrossexaminationPoliceInspector M.K.Patelhasadmittedthat,theapplications,whichwere submittedbeforeJudicialMagistrate,FirstClassweresent to him with an order under Section 156 of Cr.P.C. by JudicialMagistrate,FirstClassandapplicationsweresent to him, which are kept in record. The application dated 15.03.2002 vide M.Case No.6/2002 was received by Visnagar Police Station and that was the complaint of Yusufkhan Muradkhan Pathan. There were other six complaints also, which were signed by Baloch Mahmad Hanif and Ahmedkhan, Behlim Ahmadmiya Hasumiya, ShermahmadDalumiyaSindhi,MahmadHanif,Nazirmiya KalumiyaSaiyed.Thezeroxcopiesofthoseapplicationsare producedduringthecourseofhiscrossexaminationwhich areproducedvideMarkA.Here,Iwouldliketomention that,afterarrangingInvestigatingOfficerM.K.Patel,asan accused, he is examined as a witness and during the course of his second time deposition, application of Yusufkhan Muradkhan is exhibitedas Exh.759 while the applications which are produced vide Mark A in earlier examinationsareexhibitedvideExh.761to765.Nodoubt secondtimedepositionofI.O.isrequiredtobeignoredbut thefactthat,theapplicationswhichareexhibitedduring the course of his second time examination, require some
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discussionasthoseapplicationsaremarkedasMarkAin earlier examination. When we peruse these applications, application of Yusufkhan Muradkhan Pathan, dated 05.03.2002, produced on record at Exh.760 while the applicationproducedvideExh.759issignedby Isubkhan Muradkhan Pathan, dated Nil, application preferred by MahmadHanifAhmedkhanBaloch,producedvideExh.761, dated Nil, application preferred by Behlim Ahmedmiya Hasumiya, addressed to Police Inspector, Visnagar, produced vide Exh.762, dated Nil, application produced vide Exh.763, addressed to Police Inspector, Visnagar, signed by Shermahmad Dalumiya Sindhi, application preferredbyMahmadHanifDalubhaiSindhi,addressedto Police Inspector, Visnagar, Exh.764, application preferred by Nazirmiya Kalumiya Saiyed, addressed to Police Inspector, Visnagar, produced vide Exh.765, dated Nil, applicationsproducedvideExh.759,761to765aredated Nil, addressed to Visnagar Police Station and those applicationsaresubmittedbeforeJudicialMagistrate,First Class, on 05.03.2002 accordingly Magistrate has passed orderforinvestigationunderSection156(3).Here,whenwe peruse the Complaint produced vide Exh.67, which was lodged on 28.02.2002 at about 22.15 Hours while the applicationsproducedvideExh.759and761to765arethe applicationssubmittedsubsequently,meaningtherebythe complaintproducedvideExh.67isthefirstintimeandon thestrengthofthiscomplaint,investigationisstartedwhile
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theapplicationsproducedvideExh.759and761to765are thesubsequentapplicationsandatthattimeinvestigation wasalreadystarted.Forthispurpose,whenweperusethe report dated 16.05.2002 of Investigating Officer, it transpiresthat,onreceivingtheOrderfromMagistratefor investigation under Section 156(3) of Cr.P.C., he has submitted in the said report that, already complainant Mahmad Iqbal Ahmedkhan Baloch, resident of Dipra Darwaja, Chudivas has lodged the complaint about the incident, dated 28.02.2002, at about 20.30 hours accordingly F.I.R. was already lodged therefore, by submittingadetailedreport,hehassubmittedhisreport before the Court that, on the strength of Court Inquiry No.6/2002, dated 25.03.2002, no separate complaint is lodged and Judicial Magistrate, First Class, Visnagar has passed order to keep said report with the papers of I.CR.No.60/2002, vide his order dated 16.07.2002. ConsideringaboveallExh.67isfirstintimethatcanonly be treated as F.I.R. while rest of the applications though exhibitedbythethenlearnedSessionsJudgecanonlybe considered as Statements during the course of Investigation. For this purpose this Court relied upon VINODCHATURVEDIv.STATEOFM.P.,reportedinAIR 1984911, inwhichithasbeenobservedthatthe,Letter writtenbythewitnesstotheSuperintendentofPoliceafter investigation was startedonthebasisofF.I.R.cannotbe consideredasanadmissibleinevidence. Further,hereI
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wouldliketoreferthecaseof B.SUBHARAOv.PUBLIC PROSECUTOR, HIGH COURT OF ANDHRA PRADESH, reportedin(1997)7SUPREME155,itisobservedinthe cited ruling that, report was sent by the witness to the PoliceStationonverynightthroughVillageServant,which wasreceivedbythePoliceonlyafterinvestigationwastaken up, that statement would bea statement recorded under Section 162, it could not be admitted in evidence. In anothercase KALIRAM v.STATEOFH.P.,reportedin (1973)2SCC808,inwhichithasbeenobservedthatmere perusaloftheprovisionmakesitplainthatstatementmade by any person to a Police Officer in the course of an investigation, cannot be used for any purpose, except for thepurposeofcontradictingthewitnessasmentionedin theprovisotosubsection(1)forthepurposesmentionedin subsection (2). The provision contained in the section relates to all statements made during the course of investigation.InthecitedrulingtheletterPEEEwhichwas addressedbyShahiRamtoStationHouseOfficerwasin the nature of narrationwhataccordingtoShahiRam he had been told by the accused. Such a letter would constitutestatementforthepurposeofSection162ofthe CodeofCriminalProcedure.Theprohibitionrelatingtothe use of a statement made to a Police Officer, during the courseofaninvestigationcannotbesaidatnaughtbythe Police Officer not himself recording the statement of a person but having it in the form of a communication
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addressedbyapersonconcernedtothePoliceOfficer.Ifa statement made by a person to a Police Officer in the course of an investigation is admissible except for the purposementionedinSection162.Thesamewouldbetrue of a letter containing narration of facts addressed by a person to a Police Officer, during the course of an investigation. It is not permissible to circumvent the prohibition contained in Section 162 by the Investigating Officerobtainingawrittenstatementofaperson,insteadof aInvestigatingOfficerhimselfrecordingthatstatementand the Hon'ble Supreme Court of India has held that said letterisinadmissibleinevidence. [31] ThisCourthasreliedupon 2010(3)G.L.R.PAGE2617IN THECASEOFD.A.SOLANKIVS.STATEOFGUJARATin which,ithasbeenobservedthatF.I.R.waslodgedonnext day however, witnesshadnarratedtheincident toothers soonafteritsoccurrenceinthenight.Itwasheldthatlate filing of the F.I.R. pales into insignificance. In another citation1978SCPAGE1142SONILALANDOTHERSVS. STATEOFU.P.,citedbyprosecutionoccurrencetookplace in the midnight wherein the informant had lost his two sons.Hemusthavebeeninshockparticularlywheneven thecorpsesoftwodeceasedwerenotsparedbutweretaken 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
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India has held thatthereisnodelay.Inanothercitation (2009) 10 SUPREME COURT CASES 477 VISHNU AND OTHERSV.STATEOFRAJASTHAN, the Hon'ble
SupremeCourtofIndiahasheldthat,merelybecauseFIR handed over to policeon next day ofincident, would not show that no incident took place all undoubtedly, appellants were members of unlawful assembly, common intentionofwhichwastomountattackandcauseinjuries anddeathtofirstinformantandhisrelativesHence,held convictionjustifiedcriminalprocedurecode1973S.154 DelayinlodgingFIRsatisfactoryexplanation.Inanother citation 1982 CR.L.J. PAGE 36 RAM CHANDRA AND ANOTHERv.THESTATEOFRAJASTHANrelieduponby theprosecution,therewasdelayinlodgingthecomplaint and the delay was caused due to anxiety of relatives to providemedicalaidtotheinjuredpersonsbeforethefiling ofF.I.R.Itwasobservedthatdelaymustbedeemedtobe wellexplained.Theanothercitation1994(2)G.L.H.PAGE 329INTHECASEOFRAMSINHBAVASINHJADEJAVS. 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 CASEOFHARIJANKESHUBHAIBHADAJIVS.STATEOF GUJARAT InthecitedrulingF.I.R.waslodgedafterthe Inquestbutwithinthreehoursofincidentanditwasheld thatitdoesnotsufferfromphaseofdelay. [32] Consideringaboveallratiolaiddowninthecitedrulingsas well as keeping in mind the provisions laid down under Section162ofCr.P.C.,whenweconsidertheapplications producedvideExh.759and761to765addressedtoPolice Inspector by the witnesses under the circumstances as statedabovecanonlybeconsideredasstatementsbefore Police during the course of investigation, which are inadmissibleinevidenceandthoseapplicationscanonlybe considered for contradiction purpose and the arguments advancedbythelearnedadvocatesappearingonbehalfof theaccusedthat,thoseapplicationsshouldbeconsidered asF.I.R.cannotbeacceptedintheeyeoflawandExh.67 canonlybeconsideredasF.I.R. [33] Itmaybeobservedthatthequestionoftimeanddateof recordingofF.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
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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 relevant for ascertaining whether F.I.R. had indeed been lodgedatwhenitisclaimedtohavebeenlodged.\ [34] On perusal of citations produced on behalf of both the 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 insuch a claim,isindeedcorrect.Insuchcases,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. [35] So far as the document produced vide Mark A is concerned, it is in respect of I.CR.No.231/2008. For this purpose when we peruse the evidence of P.W.96
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Ibrahimkhan Umarkhan Baloch (Exh.610) has deposed that, on 28.02.2002 house of Akbarmiya Kalumiya was broken by the mob of Patels'. Some of the persons from Maholla told him to go to the Police Station for seeking protection hence he went to the Police Station at about 03.00P.M.HemetPoliceInspectorM.K.Patelandasked for protection. Police Inspector M.K.Patel refused for providingprotectionhencehecamebacktohishouseon hisway.HewasbeatenbymobofPatels'Jitendrakumar BharatkumarhasinjuredhimbySwordhencehebecame unconscious.HewasshiftedtotheHospital,seconddayhe wasshiftedtoMahesanaHospital,wherehetooktreatment for7days,asanindoorpatient,thereafter,hecamebackto KasbainMahesana.Inhiscrossexaminationbyaccused No.83, it is deposed by him that, he lodged a complaint beforeS.I.T.Hehasdeniedthat,inthatcomplaint,hehas statedthat,whenhewenttothePoliceStation,therewas onePoliceConstableandheaskedforprotectionfromthat Constableandhetoldthemthat,thereislessPoliceforce henceheshouldnotcomeoutofhishouse.Itisdeposedby thewitnessthat,hemettoPoliceInspectorM.K.Patelnot to Police Constable. Witness was shown a zerox copy of complaint,signatureisadmittedbythewitnessandhehas admittedthat,complaintissignedbyShriG.V.Barot,which is marked as A. It is admitted by him that, in that complaint it is stated by him that, there was noise near Police Station hence one Police employee camewith Rifle
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andtookhimontheOtlaofPoliceStation.Further,itis submitted byhimthat,whenhestayedwithNathibenat Mahesana, he has not lodged any complaint in Police Station.Further,itisadmittedbyhimthat,duringthree years,hestayedatKakoshiandduringthatperiodalsohe has not lodged any complaint. Further, it is admitted by him that, thereafter he came at Visnagar and stayed for fouryearsandduringthatperiodalsohehasnotlodged anycomplaintwiththeVisnagarPoliceStation.Asperhis say,officersoftheS.I.T.hastakenhiscomplaintaftersix years. When we peruse Mark A the incident, which is narratedbythiswitnessisabout2.00to2.30P.M.anditis registered only on 08.08.2008 at about 10.30 A.M. therefore,alsothiscomplaintcannotbetreatedasF.I.R.of thepresentcaseasitisregisteredafteraspanof6.5years and it was received by the Magistrate on 11.08.2008 at about10.45A.M.InrespectofthisF.I.R.ittranspiresthat, offence is registeredasI.CR.No.231/2008butneither the I.O. Shri G.V.Barot, who has recorded this complaint is askedaboutthiscomplaintnoranyotherPolicewitnessis examinedinthisregardnororiginalcopyofthiscomplaint istriedtobeproducedbeforetheCourt.Thus,thisMark AcannotbeconsideredasF.I.R.ofthepresentcase.
RECOVERY&ARRESTPANCHNAMA:
[36] It is argued by learned Special Prosecutor Shri M.K.Brahmbhatt that, it is established that recovery Panchnama show the weapon recovery, sent to F.S.L. in
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intactposition,therewerebloodstainsonweapon,those blood stains are not explained by the accused in the Further Statements. Further accused side has not asked thewitnesseswhethertheyhaveidentifiedtheweaponsor not and in that circumstances if the weapons are not showntothewitnesses,evidencecannotbediscardedwhen the evidence is well supported by oral evidence and circumstantial medical evidence. So far as Panchas are examined though not supported the recovery Panchnama but supported by the Investigating Officer and from the crossexamination of the Investigating Officer, nothing broughtoutbytheaccusedsidetodestroytheprosecution case about the Muddamal article which was sent intact afterfollowingcompleteprocedurebytheI.O.inhisofficial capacityandwhichissupportedbyF.S.L.Report.Human bloodwasfoundontheweaponslikeSword,Dhariya,Short Spear,Trishul,PlasticgallonsofKeroseneetc.whichwere sent in intact position, F.S.L. report shows hydro carbon petroleum products. In some weapon human blood was found, blood group was not determined. This fact also suggestthecircumstancesagainsttheaccused.Thus,there is circumstantial evidence for recovery of incriminating materialfromthatplace.Onthatgroundnonidentification of Muddamal by the witnesses cannot be a ground to disbelievethetestimonyofthewitness.Sofarasarguments that weapons arenotshowntothewitnesses,itisnota majordefectoftheprosecutioncase.
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[37]
So far as arrest of accused in the present case are concerned,7accusedwerearrestedon28.02.2002bythe then I.O. M.K.Patel and Arrest Panchnama was drawn, whichisproducedvideExh.180.ThesaidPanchnamawas executedinthepresenceofPanchasP.W.41Kirtikumar Ramniklal Dave (Exh.179) and P.W.39 Vishnubhai Lilachand Patel (Exh.177) and P.W.41 Kirtikumar Ramniklal Dave (Exh.179) they have admitted their signatures in the Panchnama. They are also declared Hostile. In their secondtimedepositionalsonothing new cameoutinrespectofPanchnama,producedvideExh.180 andSignatureSlipvideExh.621.ForthisPanchnamaP.I. M.K.Patel, I.O. hasdeposedthat7personswerearrested fromtheplaceofoffence.Theywerehavingarmsintheir handsandthosearmswererecoveredfromthepersonsso arrested.ForthispurposewhenweperusethePanchnama, producedvideExh.180,itwasexecutedon28.02.2002,in thepresenceofKirtikumarRamniklalDaveandVishnubhai LilachandPatel.Itwasstartedabout22.25to23.45Hours. And the said Panchnama was signed by I.O. M.K.Patel. WhenweperusethecontentsofPanchnamaandfirsttime depositionofM.K.Patel,itisestablishedbytheprosecution that, the accused No.1 Vishnukumar Shivram, No.2 BipinkumarBabubhaiPatel,No.3BhikhabhaiNarandas Patel, No.4 Vipulkumar Naranbhai Patel, No.5 Patel Rajeshkumar Ranchhoddas, No.6 Patel Chimanlal
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KacharabhaiandNo.7PatelDhirubhaiBhikhabhaiwere arrestedonthespot.AccusedNos.1,2and7werehaving Dhariya having Handle of Iron Pipe, accused No.3 was havingIronPipe,accusedNo.4washavingstick,accused No.5washavingSwordhavingHiltofBrassandaccused No.6washavingIronRod.(HereIwouldliketoclarifythat, duringthecourseoftrialitisfoundthat accusedNo.1 PatelVishnukumarShivarambhaiisjuvenileandtherefore, order vide Exh.1154 has been passed dropping him from framingofchargefromthepresentcaseanditisorderedto sendhiscasetotheJuvenileJusticeBoard).
[38]
Accused No.8 Patel Parimal alias Jetho Babulal and accused No.9 Patel Jayeshkumar alias Bhurio Dahyalal both were arrested by the then I.O. M.K.Patel on 06.05.2002andArrestPanchnamawasdrawnaccordingly in the presence of Panchas, P.W.37 Natvarbhai Bhagvandas Patel (Exh.174) and P.W.38 Dineshkumar Kantilal Patel (Exh.176) and the Panchnama is produced videExh.175.BoththepanchasaredeclaredHostilewhile M.K.Patel,thethenI.O.hasdeposedinhisfirstdeposition that, the accusedwhowereavailablethosewerearrested andagainstthemChargesheetwasfiledbyhimandrestof theaccusedareshownasabsconding.Whenweperusethe PanchnamaitwasdrawnbyP.I.M.K.Patelinthepresence ofPanchP.W.37NatvarbhaiBhagvandasPatel(Exh.174) and P.W.38 Dineshkumar Kantilal Patel (Exh.176) on
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06.05.2002, during 12.45 to 13.30 Hours. From the depositionofthesePanchasanddepositionofI.O.,drawing ofPanchnamaissupportedandaccusedwerefoundwith SwordwithoutScabbard.
[39]
Accused No.10 Patel Chandubhai Kuberdas, accused No.11 Parmar Ashokkumar alias Senting Shankarlal, accused No.12 Patel Bharatkumar alias Pado Narayanbhai, accused No.13 Patel Rakeshkumar alias Rako Akhadian Dahyalal, accused No.14 Patel SatishkumaraliasMarshalShantilal,accusedNo.15Patel RanjitkumaraliasLaloRamanbhai,accusedNo.16Patel Vijaykumar alias Bhano Chandrakant, accused No.17 Patel Ragneshkumar alias Lalo Kantilal, accused No.18 PatelNikeshkumaraliasNikoKacharabhai,accusedNo.19 PatelAnandkumaraliasBadoBhogilal,accusedNo.20 Patel Jayeshkumar Babulal, accused No.21 Patel Hirenkumar alias Lalo Babulal, accused No.22 Patel Jayeshkumar Kantilal, accused No.23 Patel Nitinkumar alias Salman Vishnubhai, accused No.24 Patel Nileshkumar Vishnubhai, accused No.25 Patel YogeshkumaraliasChoksialiasLuckyChimanlal,accused No.26 Patel Nikeshkumar Dahyabhai, accused No.27 PateDevanshukumaraliasKakoBabulal,accusedNo.28 Patel Shaileshkumar Shivrambhai, accused No.29 Patel Hemandrakumar Alkeshbhai, accused No.30 Patel Pravinbhai Dahyabhai and accused No.31 Patel
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Sanjaykumar Chimanlal Choksi were arrested on 07.05.2002bythethenI.O.M.K.Patel,inthepresenceof Panchas P.W.35 Babubhai Ishvarbhai Patel (Exh.170) and P.W.40 Mahendrakumar Ramabhai Patel (Exh.178). Both the panchas are declared Hostile but they have supported their signatures on the Muddamal Slip and Panchnama.WhenweperusethePanchnamavideExh.171, it transpires that, said Panchnama was drawn on 07.05.2002during12.00to15.30hours.Itwassignedby thethenI.O.M.K.Patel.FromthePanchnamaittranspires that, accused No.10washavingoneYellowColourPlastic Gallonofkerosene,accusedNo.11washavingSwordhaving plastic Hilt. Accused Nos.12 and 15 were having Dhariya havingwoodenhandle,accusedNos.13and21werehaving SwordofIronHilt,accusedNo.14washavingRedColour PlasticGallonofKerosene,accusedNos.16,20,22,23,24, 25and27werehavingSwordwithoutScabbard,accused No.17 was having Sort of Spear having wooden Handle, accused No.18 washavingDhariyahaving HandleofIron Pipe,accusedNo.19washavingTrishul,accusedNo.26was having Yellow Colour Plastic Gallon of kerosene, accused No.28 was having Yellow Colour Plastic Gallon of petrol, accusedNo.29washavingburningragandaccusedNo.30 washavingAxehavingwoodenHandle.
[40]
AccusedNo.32PatelBhavinkumaraliasBapuAmrutlal, accusedNo.33PatelKaushalkumarRameshbhai,accused
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No.34 Patel Tarunkumar alias Lalo Gunvantlal, accused No.35PatelRohitkumarShantilal,accusedNo.36Patel Sureshkumar Jethalal, accusedNo.37 Patel Viralkumar alias Baadshah Natvarlal, accused No.38 Patel RohitkumaraliasMadhoShankarlal,accusedNo.39Patel MiteshkumaraliasMellNarayandas,accusedNo.40Patel AshokkumaraliasKhataroGokaldas,accusedNo.41Patel NitinkumarDahyalal,accusedNo.42PatelJitendrakumar Hasmukhbhai Aasobiya, accused No.43 Patel Amrutlal Nanalal,accusedNo.44PatelDashrathkumarShivabhai, accusedNo.45PatelAmrutbhaiLilachand,accusedNo.46 Patel Yogeshkumar Vitthalbhai, accused No.47 Patel Surendrakumar alias Madho Babulal, accused No.48 Patel Alkeshkumar Sankalchand, accused No.49 Patel Vijaykumar Bhogilal and accused No.50 Patel Jitubhai Bharatbhaiwerearrestedon15.05.2002bythethenI.O. M.K.Patel,inthepresenceofPanchasP.W.36Amratlal Tribhovandas Patel (Exh.172) and P.W.39 Vishnubhai Lilachand Patel (Exh.177).Boththe panchasaredeclared Hostile but they had supported their signatures on the Muddamal Slip and Panchnama. When we peruse the Panchnama vide Exh.173, it transpires that, said Panchnama was drawn on 15.05.2002 during 19.00 to 22.30 Hours. It was signed by the then I.O. M.K.Patel. From the Panchnama it transpires that, accused Nos.32 and39werehavingDhariyahavingHandleofIron,accused Nos.33and38werehavingDhariya,fittedintheHandleof
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Bamboo,accusedNos.34,35,41,43,44,46and47were having Sword, accused No.36 was having White Colour PlasticGallonofKerosene,accusedNo.37washavingIron Pipe,accusedNos.40,49and50washavingSortSpearof wooden handle, accused No.42 was having Yellow Colour Plastic Gallon of Kerosene, accused No.45 was having Sword,fittedintheHiltofBambooandaccusedNo.48was havingSkyColourGallonofKerosene.
[41]
AccusedNo.51PatelDahyabhaiParshottamdas,accused No.52PatelBharatbhaiIshvarbhai,accusedNo.53Patel Rameshkumar Madhavlal, accused No.54 Patel JitendrakumaraliasJitubhaiShivrambhai,accusedNo.55 Patel Parshottambhai Joitaram, accused No.56 Patel DahyabhaiMadhavlal,accusedNo.57PatelSankalchand Kacharabhai, accused No.58 Patel Hasmukhbhai Sankalchandbhai, accused No.59 Patel Amrutbhai Madhavlal, accused No.60 Patel Babubhai Parshottamdas, accused No.61 Patel Nikeshkumar Jitendrakumar alias Jitubhai, accused No.62 Patel Mahendrakumar alias Mukri Madhavlal, accused No.63 Patel Munnabhai Shantilal, accused No.64 Patel Kamleshkumar Ranchhodbhai, accused No.65 Patel Jigneshkumar alias Jago Kantilal, accused No.66 Patel Hareshkumar Narottamdas, accused No.67 Patel Satishkumar Parshottamdas (Stamp Vendor), accused No.68PatelPankajkumarKantilal,accusedNo.69Patel
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Chamanlal alias Choksi Ramchanddas, accused No.70 Patel Manilal Bajidas, accused No.71 Patel Geetaben Babulal Ishvarlal, accused No.72 Patel Madhuben Ajitkumar Amrutlal, accused No.73 Patel Manjulaben RameshbhaiMadhavlalwerearrestedon23.10.2002bythe thenI.O.ShriHimmatsinhBhupatsinh,inthepresenceof Panchas P.W.164 Rajendrabhai Chhaganlal Patel (Exh.830), Patel Chamanlal Punjiram and P.W.166 Gomtiben Jayantilal Patel (Exh.839). Both the panchas P.W.164 Rajendrabhai Chhaganlal Patel (Exh.830) and P.W.166GomtibenJayantilalPatel(Exh.839)aredeclared Hostile but they have supported their signatures in the Muddamal Slips and Panchnama. When we peruse the PanchnamaproducedvideExh.173,ittranspiresthat,said Panchnama was drawn on 23.10.2002 during 12.30 to 16.30 Hours. It was signed by the I.O. Shri Himmatsinh Bhupatsinh. I.O. Shri Himmatsinh Bhupatsinh has deposed that, the said Panchnama was executed in his presenceinthePoliceStationandtwomaleandonefemale Panchwerepresent.Armswereproducedbytheaccused persons and they remainedpresentinthePoliceStation. TheywerearrestedaccordinglyandArmswererecoveredby drawingPanchnama,producedvideExh.831andthesaid PanchnamaweresignedbythePanchasandthereafter,I.O. had signed the Panchnama. In his Crossexamination nothing comes out from which we can discard this fact. From the Panchnama it transpires that, accused Nos.51,
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52, 56, 59, 60, 63, 64, 67, 69, 70 were having Sword withoutScabbard,accusedNo.53washavingWhiteColour PlasticgallonofPetrol,accusedNo.54washavingDhariya, fitted in the Iron Pipe, accused No.55 was having Sort Spear,fittedinWoodenHandle,accusedNos.57,58,62,71, 73 were having White Colour Plastic gallon of Kerosene, accused No.61 was having Axe having wooden handle, accused No.65 was having Dhariya, fitted in the Wooden Handle, accused No.66 was having Dhariya, fitted in the IronHilt,accusedNo.68washavingWhiteGlassBottleof Kerosene and accused No.72 was having Yellow Colour PlasticGallonofKerosene. [42] AccusedNo.75PatelYogeshkumarBabulalwasarrested on23.01.2004bytheI.O.ShriVirajiVarvajiThakor,inthe presenceofPanchasP.W.66ShankarlalMaganlalPatel (Exh.521)andP.W.167GandajiSomajiThakor(Exh.840). Both the panchas are declared Hostile but they had supported their signatures on the Muddamal Slip and Panchnama. I.O. Shri Viraji Vravaji Thakor has deposed that,hehasdrawntheArrestPanchnamaofthisaccused PatelGandabhaiMadhavlalon23.01.2004during9.00to 9.30 hours. He has produced the Muddamal. Muddamal Slip Exh.844 wasalsopreparedaccordinglyandthesaid PanchnamawassignedbythePanchas. Whenweperuse thePanchnamaproducedvideExh.843,ittranspiresthat, saidPanchnamawasdrawnon23.01.2004during9.00to
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9.30 Hours. It was signed by the I.O. Shri Lilaji Varvaji Thakor. From the Panchnama it transpires that, accused No.75washavingSword. [43] AccusedNo.76PatelGandabhaiMadhavlal,wasarrested on23.01.2004bytheI.O.ShriVirajiVarvajiThakor,inthe presenceofPanchasP.W.66ShankarlalMaganlalPatel (Exh.521)andP.W.167GandajiSomajiThakor(Exh.840). Both the panchas are declared Hostile but they have supported their signatures on the Muddamal Slip and Panchnama. I.O. Shri Viraji Vravaji Thakor has deposed that,hehasdrawntheArrestPanchnamaofthisaccused PatelGandabhaiMadhavlalon23.01.2004during13.00to 13.30hours.HehasproducedtheMuddamal.Muddamal Slip Exh.846 was alsopreparedaccordingly andthesaid PanchnamawassignedbythePanchas.Whenweperuse thePanchnamaproducedvideExh.841,ittranspiresthat, saidPanchnamawasdrawnon23.01.2004during13.00to 13.30.ItwassignedbytheI.O.ShriVirajiVarvajiThakor. FromthePanchnamaittranspiresthat,accusedNo.76was havingSword. ThisI.O.VirajiVarvajiThakoragainexaminedbythe thenlearnedSessionsJudgebutnothingnewinrespectof arrest of accused No.75 and 76 came out from his deposition therefore, there is no necessity to discuss the secondtimedepositionofthisI.O.
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[44]
Accused No.77 Patel Narendrabhai alias Kanjibhai RamniklalaliasRamanbhai,wasarrestedon05.03.2004by the I.O. Shri D.A.Asari, in the presence of Panchas P.W.167GandajiSomajiThakor(Exh.840)andDahyabhai Ishvarbhai Patel. Said panch P.W.167 Gandaji Somaji Thakor(Exh.840)isdeclaredHostilebuthehassupported his signature in the Muddamal Slip and Panchnama. DolatbhaiSavjibhaiAsarihasdeposedthat,hehasdrawn the Arrest Panchnama of the accused on 05.03.2004 during13.00to13.30hoursatVisnagarPoliceStation,in the presence of Gandaji Somaji Thakor and Dahyabhai Ishvarlal Patel, Panchas and one Plastic Gallon of Green Colour having kerosene smell was produced by the accused,whichwasrecoveredasstatedinthePanchnama and said Panchnama was signed by the Panchas in his presence. Slip was also signed by the Panchas. Slip is produced vide Exh.846.WhenweperusethePanchnama vide Exh.845, it transpires that, said Panchnama was drawnon05.03.2004during13.00to13.30Hours.Itwas signedbytheI.O.ShriD.A.Asari.FromthePanchnamait transpires that, accused No.77 was having Green Colour PlasticGallonofKerosene.
[45]
AccusedNo.78PatelBabubhaiIshvarbhai,wasarrested on17.03.2004bytheI.O.ShriD.A.Asari,inthepresenceof Panchas Dahyabhai Ishvarbhai Patel and P.W.66 ShankarlalMaganlalPatel(Exh.521).SaidpanchP.W.66
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ShankarlalMaganlalPatel(Exh.521)isdeclaredHostilebut hehassupportedhissignatureontheMuddamalSlipand Panchnama. Dolatbhai Savjibhai Asari has deposed that, he has drawn the Arrest Panchnama of the accused on 17.03.2004during08.00to08.40hoursatVisnagarPolice Station, inthepresenceofDahyabhaiIshvarlalPateland ShankarbhaiMaganlalPatel,PanchasandoneSwordwas producedbytheaccused,whichwasrecoveredasstatedin the Panchnama and said Panchnama was signed by the Panchas in his presence. Slip was also signed by the Panchas.SlipisproducedvideExh.856.Whenweperuse thePanchnamaproducedvideExh.855,ittranspiresthat, saidPanchnamawasdrawnon17.03.2004during08.00to 8.40. It was signed by the I.O. Shri D.A.Asari. From the Panchnama it transpires that, accused No.78 was having Sword.
[46]
Accused No.79 Patel Ramanbhai Girdharbhai, was arrested on 11.07.2004by theI.O.ShriD.A.Asari,inthe presenceofPanchasP.W.39VishnubhaiLilachandPatel (Exh.177) and Dahyabhai Ishvarbhai Patel. Said panch P.W.39VishnubhaiLilachandPatel(Exh.177)isdeclared Hostile but he has supported his signature on the MuddamalSlipandPanchnama.DolatbhaiSavjibhaiAsari hasdeposedthat,hehasdrawntheArrestPanchnamaof theaccusedon11.07.2004during07.00to07.30hoursat Visnagar Police Station, in the presence of Dahyabhai
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Ishvarlal Patel and Vishnubhai Lilachand Patel, Panchas and one Plastic Gallon of Black Colour having kerosene smellwasproducedbytheaccused,whichwasrecovered as stated in the Panchnama and said Panchnama was signed by the Panchas in his presence. Slip was also signed by the Panchas. Slip is produced vide Exh.846. When we peruse the Panchnama vide Exh.834, it transpiresthat,saidPanchnamawasdrawnon11.07.2004 during07.00to7.30Hours.ItwassignedbytheI.O.Shri D.A.Asari.FromthePanchnamaittranspiresthat,accused No.79washavingBlackColourPlasticGallonofKerosene. Nothing in crossexamination of I.O. has come out, from whichwecandiscardtheabovesaidfact. [47] Accused No.80 Patel Vishnubhai Ishvarbhai, accused No.81 Patel Amitbhai Ramabhai and accused No.82 PatelDipakkumarGangaramwerearrestedon06.06.2008 by the I.O. Shri G.V.Barot, in the presence of Panchas P.W.66ShankarlalMaganlalPatel(Exh.521)andP.W.170 AkbarkhanUmarkhanPathan(Exh.864).Boththepanchas are declared Hostile but they have supported their signatures on the Muddamal Slip and Panchnama. It is deposed by him that, on 06.06.2008 Patel Vishnubhai Ishvarbhai, Patel Amitbhai Ramabhai and Patel Dipakkumar Gangaram appeared before him in Visnagar PoliceStationatabout4.00O'Clockandinthepresenceof Panchas Shri Shankarlal Maganlal Patel and Akbarkhan
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UmarkhanPathanarrestPanchnamawasdrawnatabout 16.00 to 16.30 hours. Thereafter, it was signed by the panchasaswellasbyhim. ShriBarothasdescribedthe clothswhichwerewornbyPatelAmitbhaiRamabhaiand VishnubhaiIshvarbhaiPatelandDipakbhaiGangarambhai Patel. In support of his deposition, he has produced PanchnamavideExh.857.WhenweperusethePanchnama producedvideExh.857,ittranspiresthat,saidPanchnama wasdrawnon06.06.2008during16.00to16.30Hours.It was signed by the I.O. Shri G.V.Barot. From the Panchnamaittranspiresthat,nothinghasbeenrecovered fromtheaccusedNos.80,81and82.Incrossexamination of Shri G.V.Barot nothing comes out from which we can discardabovesaidevidence.
[48]
Further, accused No.83 M.K.Patel was arrested on 16.02.2009 by Shri G.V.Barot, vide Panchnama produced on record at Exh.930. There is nothing in cross examination from which we can discard the above said evidence.
[49]
So far as accused No.84 Patel Prahladbhai Mohanbhai GosaandaccusedNo.85PatelDahyabhaiTribhovandas areconcernedtheyaretakenasanaccusedunderOrder passed below Exh.656 and both are taken in Judicial Custodyon03.08.2010.
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[50]
All the accused are subsequently released on bail on differentdates.
SCENEOFOFFENCE:
[51] As per the case of the prosecution incident occurred in Chudivas, Dipra Darwaja, Visnagar on 28.02.2002. Shri Brahmbhatthasarguedthat,thehousesofChudivaswere ransackedandsetonfireandwholeincidentoccurredin Chudivas.MapproducedvideExh.477givesclearpictureof area of Chudivas. Photographs produced vide Exh.494 shows distance from where each witness personally witnessed the incident of killing and burning of human being.PhotographsproducedExh.478and479arerequired tobeconsideredwiththeMapproducedvideExh.477. [52] While,itissubmittedonbehalfoftheaccusedNos.1to82 and 84 that, Panchnama of scene of offence dated 01.03.2002 was drawn, complainant was present, neither theS.I.T.norprosecutionhasmadeanyattempttosuspect thatPanchnama.InentirePanchnamanotasingledropof bloodandboneisfoundinChudivas.Itisonlyatthetime of drawing Panchnama on 06.03.2002 Police had found remains,bones,bloodetc.Thereisnoiotaofevidencethat, any of the accused went to the scene of offence between 01.03.2002 and 06.03.2002. On the contrary prosecution witnesseshadvisitedtheplace.Absenceofblood,specially when 11 persons have been cut into pieces is totally impossible.Further,itisarguedbylearnedadvocateShri
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B.S.Patelthat,if11deadbodieshavebeencutintopieces by using Sword, there must be fountain of blood on the floor and surrounding wall, which is absent in the Panchnamas. In Panchnama dated 01.03.2002 there was no blood stain, in Panchnama dated 06.03.2002 there is dotofbloodinlargecirclebutnodropofblood.Thesame blood was examined by the concerned Laboratory and it wasfoundhumanblood.ButD.N.A.ReportofYusufkhanis notonrecordthoughYusufkhanclearlydeposebeforethe Court that, his blood sample was taken. This situation createsdoubtaboutthereportofhumanblood.Sofaras fivedeadpersonsidentifiedfromhalfburntknottedhairs, ring, Zanzar. Some articles are before the Court but not identified by the witnesses in the Court. Human hair alwayscatchesfirefast,ring,Zanzararetwochipwhichare notofGoldorSilver,thoseitemswerenothavinganyblood stains,noranyburntmarkstherefore,itisarguedbyShri Patelthat,thereispossibilityofplantationofthoseitems beforethePanchnamadrawnon06.03.2002.Further,itis arguedbyShriPatelthat,theplacewhere11personshave beenkilledhavegotwidthof5Ft.andatthebottomon bothsidethereisembankmentof1Ft.inthateventtotal width available is 3 Ft., assuming it is 5 Ft. in that circumstancesalsonoonecanchopinjurieswiththehelp ofSwordandinjuredbyDhariyaisalsonotpossibleasitis allegedthat,deadbodieshadbeencutintopieces.Thereis no single scratchinthewalleither of Dhariyaor Sword.
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Assumingthe11personswerejustbelowHouseNos.10and 11, then also considering the size of the place, it is not possiblethat11deadpersonsortheirpiecesofbodiesand morethan20accusedcouldstandtogetherandnoneofthe accusedsustainedanyinjury. In the present case not a single piece of bone was found on 01.03.2002 which falsifies the case of prosecution. On this strength it is argued by Shri Patel that, scene of offence has been changed,ifnothingwasthereon01.03.2002,inthatevent noneoftheaccusedcanbesaidtobeguiltyforcausingthe deathofanyperson, [53] Forthispurposewhenweperusetheevidenceadducedand produced by the prosecution, the Investigating Officer Police Inspector M.K.Patel wasexaminedbythethen PresidingOfficeroftheFastTrackCourt,MahesanaShri I.B.Vaghela, vide Exh.228 as P.W. 48, in which he has deposedthat,PanchnamaofSceneofOffencewasexecuted on01.03.2002.Asperhisdepositionnodeadbodyorany articlewasrecoveredfromthesceneofoffence.Hecalled F.S.L.on06.03.2002.F.S.L.Teamcamealongwithofficers and staff members at the scene of offence. For the Panchnama executed on 01.03.2002, panch Vinubhai GokaldaswasexaminedbythethenPresidingOfficerofthe Fast Track Court, Mahesana Shri I.B.Vaghela, vide Exh.167 as P.W. 34, who has deposed on oath that, on 01.03.2002 he was called at the scene of offence for
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executionofPanchnama,theplaceofoffencewasshownby Baloch Mahmadbhai Iqbalbhai, there were houses of Muslims in Chudivas, first house was of Kalumiya NanumiyaBismillah,havingthreefloors,thehouseholds of that house were burnt and there were damage of Rs.1,20,000/. Second house was of Mahmadkhan Badarkhan,householdofsaidhousewerealsoburntand loss of Rs.30,000/. Further, house of Fatehkhan Badarkhan Baloch was also burnt and there was loss of Rs.40,000/. House of Anvarkhan Baloch was also burnt and there was damage for Rs.25,000/. House of ZubedabenMahmudkhanwasalsoburntandhouseholds were lying hither and thither and there was a loss of Rs.5000/.FurtherhouseofMahmadkhanAnvarkhanwas burnt and there was a loss of Rs.11,000/. House of Ismailbhai Hasanbhai was also burnt having loss for Rs.11,500/.HouseholdofAhmedbhaiHasanbhaiwerealso burnt in his house, having loss of Rs.7,000/. House of SindhiGulabkhanKayamkhanwereburnt,havinglossof Rs.40,000/. House of Alikhan Kayamkhan Sindhi were also burnt and there were loss of Rs.8,000/. House of DalubhaiBachubhaiSindhiwasalsoburntandhousehold ofthesaidhousewerealsoburnt,whichcauseddamagefor Rs.14,000/. House and household of Usmanbhai Mahmadbhai were also burnt, causing damage for Rs.4,000/ while house of Ibrahimbhai Umarbhai was burnt along with households, causing damage for
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Rs.4,100/. House of Jahangirkhan Jalalkhan along with households were also burnt, causing damage for Rs.5000/.HouseofYusufkhanMuradkhanPathanalong withhouseholdswasburnt,causingdamageforRs.5000/. House of Yakubkhan Muradkhan was burnt along with households, causing damage for Rs.5000/. One Auto Rickshaw in the chowk of Randal Mata was burnt and there was damage for Rs.90,000/. House of Kalumiya Nannumiya was alsoburntandtherewasdamagetohis houseforRs.50,000/.ThePanchnamawaspreparedinhis presenceandCircleInspector,Visnagarhadpreparedthe Map, in his presence, in that Map he has signed. In support of his deposition, he has produced Panchnama vide Exh.168. When we peruse the crossexamination of this witness, he has admitted in his crossexamination that, he is the resident of Randal Mata Madh, in Dipra DarwajaandthereisopenChowk,passingtowardsRandal MataMadhandoncompletionofChowk,thereishouseof RamabhaiHirabhaiandthereafter,thereisNaveli,passing towardstheHousesoftheMuslims.Thereis4Ft.Naveliin between the Ramabhai Hirabhai's house and Bismilla Manjil and it is notpossibletotakeAutoRickshawfrom that Naveli. Further, he has deposed that, towards NorthernsideofBismillahManjilthereisanotherNaveli, passingtowardsKadaDarwaja.FromthatNavelialsoitis notpossibletotakeAutoRickshawandtheChowk,which isinbetweentheMahollaofMuslim,itisnotmorethan7
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to8Ft.,HouseofAnvarkhanBalochhavingdoortowards eastern side. When we peruse the Panchnama, produced videExh.168whileMap,whichwaspreparedbytheCircle Officer,Visnagar,on29.05.2002isproducedvideExh.164 and it is exhibited with the consent of the advocate, appearingonbehalfoftheaccused.Whenweperusethe Panchnama,producedvideExh.168,ittranspiresthat,said Panchnamawasdrawnon01.03.2002atabout07.00hours to10.00hours.ItwaspreparedinthepresenceofPanch Vinubhai Gokalbhai and Rameshbhai Madhavlal by the then Police Inspector, Visnagar M.K.Patel and endorsement dated 01.03.2002 is made by Dy.S.P. Shri Jadeja.Forthispurposewhenweperusethedepositionof PW 47 Bachubha Veshalji Jadeja, who was examined vide Exh.227. He has deposed on oath that, the offence having visitation offence. He had visited the place of offence. Second time after the investigation by the S.I.T. when his deposition was recorded by the then Presiding Officer on 24.02.2010, he has admitted in his cross examination that, Panchnama of scene of offence was preparedon01.03.2002atabout07.00A.M. atthattime F.S.L.OfficerswerenotcalledbyP.I.ShriPatel.Whenwe perusethePanchnama,itismentionedinitthat,theplace ofoffencewasshownbythecomplainantMahmadIqbal Ahmedkhan, Resident of Chudivas, Dipra Darwaja, Visnagar,theplaceofoffenceissituatedinDipraDarwaja, RandalMataMadh,knownasChudivasMuslimMaholla.
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ThesaidplaceistowardseasternsideofHouseNo.4/18/96 of Ramabhai HirabhaiPatel.TheFirsthouseisofSaiyed Kalumiya Nanumiya, having three floors and pakka construction, having northern and southern side doors. Due to burning doors, windows and other households of thehousewereburnt.Utensilswereblackened,therewas lossofRs.1,20,000/.Justadjacenttohishouse,houseof Mahmadkhan Badarkhan Baloch of one Room, having northern side door is situated. Households of his house wereburnt,doors andwindowswerealsoburnt,utensils were blackened and there were loss of Rs.40,000/. Just adjacenttothathouse,oneasternsidehouseofHouseof FatekhanBadarkhanBalochissituatedandsaidhouseis havingnorthernsidedoor.Windows,doorsandhouseholds wereburnt. Therewasonecoat,lying inburntcondition and there were other households were in another room. Utensils were blackened and there were total loss of Rs.40,000/.Justadjacenttothathouse,towardseastern side there is passage for passing and repassing toother houses and adjacent to that road, towards eastern side house No.4 of BalochAnvarkhan Baserkhan is situated, whichisjustadjacenttohouseNo.3.Saidhouseishaving door towards eastern side and the said house is of two roomshavingroofofNaliya.Thewallsandnaliyaofthat housewasinbrokencondition,householdsofsaidhouse were in burnt condition. In one room of southern side, there was a Gas Cylinder, which was in a blackened
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condition and whole households along with windows and doorswereburntandtherewasdamageforRs.25,000/. Thereafter, towards eastern front side, after leaving road, there is house No.5 of Jubedabanu Mahebudkhan Anvarkhan Baloch is situated. Said house is having door fallingtowardswesternside,havingoneroomofhavingiron roofs, whole households were burnt, utensils were blackened. Gas Cylinder were also blackened and other households were lying in the house and there was a damage for Rs.5000/. Thereafter, there is house No.6 towards southern side, having door on western side. The saidhousebelongstoAhmedkhanAnvarkhanBaloch.Said houseishavingtworooms,innorthernsidewalltherewas onecoat,whichwasinaburntconditionandotherhouse holdswerelyinginabrokenandburntconditionandthere wasdamageforRs.11,000/.Towardssouthernsideofthat house,houseNo.7ofIsmailbhaiHasanbhaiissituated.The saidhouseishavingwesternsidedoor,havingroofofiron sheets.Thebackportionofthathousewaslyinginfront portion and front portion of that house was used for residence purpose. The households of that house were burntandtherewaslossofRs.11,500/.Thereafter,there is house of Shaikh Ahmedbhai Hasanbhai and after said housethereispassageforpassingandrepassingtowards east to west. Thereafter, house No.8 of Ahmedbhai Hasanbhaiissituated,whichishavingeasternsidedoor.It isapakkaconstructedhouse.Thereisanotherdoorfrom
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northern side wall to enter in the said house. There is anotherdoortowardswesternsideforenteringinthesaid house.Householdsofthathousewereburnt.Windowsand doors were also burnt. Other articles were also burnt. Electric Wires were also burnt. There was damage for Rs.7000/.Justinfrontofthathouse,thereisoneChowk. Inthatchowk,therearetwoNimbtreesandoneTrunkin that Chowk. Just adjacent to House No.8, towards southern side two small rooms of Hanifabibi Sabirbhai Salemahmad and Mahmadkhan Badarkhan Baloch are situated. From that chowk to western side there is a another way and House No.10. And one small room of SindhiGulabkhanKayamkhan,havingsouthernsidedoor, which was burnt, households were also burnt and there weredamageforRs.40,000/.Justadjacenttothatroom, towardswesternsidethereishouseofoneroomofSindhi AlibhaiKayamkhan,havingsouthernsidedoorissituated, households were burnt and damage for Rs.8,000/ was caused.Justadjacenttothathouse,thereisbacksidewall ofotherhousesandtowardssouthernsideinfrontsideof thathouse,houseNo.12ofDalubhaiBachubhaiSindhiis situated. Said house is of one room, having two storied. Householdswereburnt,utensilswereblackenedandthere wasdamageforRs.14,000/.adjacenttothathouse,house No.13 of Shaikh Usmanbhai Mahmadbhai is situated, in whichhouseNo.4/10/101iswritten.Saidhouseishaving oneroomofnorthernsidedoor.Householdsweredamaged
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and there were damage for Rs.4000/. Adjacent to that house, house No.14 of Ibrahimkhan Umarkhan Baloch is situated.Saidhouseishavingtworooms,havingnorthern sidedoors.Duetoburn,utensilsandotherarticleslyingin the house were burnt and there were damage for Rs.4,100/.Adjacenttothathouse,houseNo.15ofPathan Amubai, W/o.Jahangirkhan Iqbalkhan is situated. Said house is having two rooms, having northern side door. Households were burnt and there was damage for Rs.5,000/.Adjacenttothathouse,houseNo.16ofPathan Yusufkhan Muradkhan is situated. Said house is having threerooms,havingnorthernsidedoor.Inthefirstroomof iron sheets is as it is but the utensils were blackened. Householdswereburnt.Insecondroom,roofofironsheets werefallenandjustinfrontofthathousetowardsnorthern sidethereisKitchenandBathroominwesternwall.There wasdamageforRs.7,000/.Adjacenttothathouse,house No.17issituated.ThatsaidhousebelongstoHamidkhan UmarkhanandYakubkhanMuradkhan,havingoneroom. Households were burnt and there were damage for Rs.5000/. Towards eastern side of the place of offence, thereisKadaDarwajaandonwesternsidethereisRandal MataMadhandonnorthernsidebacksidewallofRandal Mata Madh is situated whiletowardssouthern side back sideofDipraDarwajaissituated.Notasinglearticlewas recovered by the Police during the Panchnama. From Chudivas to Randal Mata Madh, there is main door and
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from that door, just adjacent to western side northeast there is a way to pass from Dipra Darwaja to Kada Darwaja,whichisamainroad,whichpassesfromRandal Matamaindoor.Thereisopenchowkandtriangleroadand inopenchowk,threeautoRickshawwereburnt.Numbers of Auto Rickshaw were not visible. There was 90,000/ damagestothoserickshaws.Justtoadjacenttothoseauto Rickshawstowardswesternsidethereisonehouseoftwo rooms,havingtwostoried,maindoorofthathousewasin brokencondition,housenumber4/16/94iswrittenonthe door of said house, adjacent to that house, towards northern side House No.4/16/93 and adjacent to that house,HouseNo.4/16/92ofJamalbhaiaresituated.Both thehousesarehavingthreestoriedandtworooms.Main doorsofthosehousesareinbrokencondition.Houseswere not burnt. But there was damage for Rs.25,000/ to all these three houses. Just in front of auto rickshaws, nothing was recovered by the Police. There was no bad smellattheplaceofincident. [54] On06.03.2002anotherPanchnamaoftheplaceofoffence was drawn in the presence of F.S.L. Officers, which is produced vide Exh.151. No doubt said Panchnama is admitted by the advocates appearing on behalf of the accusedNos.1to50buttheevidenceofPanch Mahmad Iqbal Gulam Husen has been recorded vide Exh.590 as PW90 aftertheinvestigationbytheS.I.T.Hehasdeposed
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onoaththat,hewascalledbythePoliceon06.03.2002.He wascalledinChudivasatabout03.30PM.AnotherPanch was Yunusbhai Alibhai. F.S.L. Officers were present. SabbirmiyaHasumiyaandNazirmiyaKalumiyaandother threepersonswerepresent.P.I.,Visnagarwasalsopresent andotherPolicePersonalswerealsopresent.Theplacewas neat and clean but there was bad smell in the air. P.I. M.K.Pateltoldthat,thereisnothingbuttheofficersofthe F.S.L.havetoldthat,theycamefromAhmedabadandthey want to investigate.Andwiththehelpofpolicethey had removedheapofclayandbricksandtheyfoundhalfburnt andburntbones.Therewasbadsmellfromonebagmade from flex. The debris of the burnt houses were removed, charredbones,burntcloths,flashornaments,bloodstains, werefound,knottedhairofwomanwasfoundhalfburnt, lumpofhumanmeatwhichwashalfburntwasfoundin thesaidbagandbloodstainscontainingclothswerefound inthatbagandsixarticleswerefoundfromthatplaceviz. 1Zanzar,Acchoda,2rings,1bangle,1earingwasfound, which were half burnt, which were recovered in the presenceofPoliceandF.S.L.Officer.Thoseornamentswere notidentifiedbyanyoneatthattime.Policehadinquired fromNazirbhaiaboutthearticlesbuthehasnoknowledge whatwasansweredbyNazirbhai.Policehadalsoinquired from Shabbirbhai but he has no knowledge what was answeredbyShabbirbhaineartoNaveli.Onthebackside ofwalltherewasbloodstainsintheareaof5x4.Itwas
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tried to clean the place with the water. There was blood stains on Naliya and bricks and those blood stains were pickedupbytheF.S.L.Officers,whichweresealedbythe Police, by taking the signatures of the Panch and after preparingthePanchnama,saidPanchnamawasreadover tothePanchanditwassignedbythepresentPanchaswell as by second Panch Yunusbhai and said Panchnama is producedvideExh.151.ItwassignedbyP.I.,Visnagaralso. MuddamalArticleNo.16to21wereshowntoPanch.Hehad identified those articles. Second Panch Yunusbhai Alibhai Mansuri is also examined by the prosecution as PW92videExh.599,whohassupportedthedrawingof Panchnama,producedvideExh.151anditisstatedbyhim that, he has signed the Panchnama. In his cross examinationhehaddeniedthat,hehasnotmentionedin thePanchnamaaboutthebadsmellofhumanmeat.Itis admittedbyhimthat,theboneswhichwererecoveredfrom Chudivasweresealed.Itisalsoadmittedbyhimthat,the MuslimswhowereresidinginChudivaswereusedtotake nonveg.WhenweperusethePanchnamaproducedvide Exh.151,itisdated06.03.2002andPanchnamawasdrawn during16.00hoursto18.30hours.ItissignedbyPanch IqbalGulamHusenandIdrishbhaiAlibhaiMansuriandit isalsosignedbyP.I.,VisnagaranditisverifiedbyDy.S.P. Shri Jadeja on 06.03.2002. The version of the Panch witnessesarecorroboratedbythisPanchnama. Whenwe perusethedepositionofDy.S.P.ShriJadeja,ittranspires
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that, on 06.03.2002 he was very much involved in the investigation and he has made the visitation of the Investigation. He has supported the case of prosecution that, on 06.03.2002, Officers of F.S.L. were called and workers from Municipality called and with the help of workerstheyhaveremovedthedebrisandtherewasbad smellcomingfromthatplaceandtheyfoundburntlumpof humanmeatandbonesandalsofoundburntclothsofGirl, hairs etc. and blood stains and with the help of F.S.L. OfficersinthepresenceofP.I.ShriPatelandpanchasall the articles were picked up and Panchnama was drawn accordingly. For this purpose when we peruse the cross examinationofthiswitness,itisdeposedbyhimthat,for the first time he came to know about the murder of 11 persons on 06.03.2002.Itisdeniedbyhim that, hehad givenlatepermissiontosendtheMuddamaltoF.S.L.When second time his deposition is recorded, after the investigation by S.I.T., he has deposed about this Panchnama.Thesamefacts,whicharenarratedinearlier deposition. Further, he has deposed that, at the time of drawing Panchnama, Nazirmiya was present and other relatives of the deceased were also present. They had identified the articles. In crossexamination he had admitted that, when he came at the place of offence on 06.03.2002,F.S.L.Officerswerepresentandtheytoldthat, due to the then circumstances in Gujarat, it was not possibleforthemtoreachatallplacesattherelevanttime.
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Therefore,F.S.L.Officerswerecameon06.03.2002. Itis admittedbyhimthat,debriswereremovedinthepresence ofP.I.ShriPatelandallthearticleswererecoveredinthe presenceofShriPatelandthesaidPanchnamaisdrawnin his presence. It is admitted by him that, articles were identifiedbyNazirmiyaKalumiyainhispresence.Atthat timehehadnotfoundanymischiefwasplayedatthescene of offence. When we peruse the deposition of PW.49 Hasmukhlal Thakorlal Modi, who is examined vide Exh.232 first time. He has deposedon oath that, at the time of incident, he was working as Scientific Officer, Investigation Branch. On 06.03.2002 he was called at Visnagar, in respect of I.CR.No.60/2002. He has visited DipraDarwaja,Visnagar,passageofDalumiyaBachumiya's house and surrounding houses. Thereafter, he had prepared the report and in the presence of Panchas and I.O.debriswereremovedandtheyfoundburnt,halfburnt knottedhairs,halfburntpiecesofcloths,halfburntlump of human meat, and one bag, made from flex and some ornaments,likeoneAcchodo,tworings,twoearrings,one bangle and one Zanzari. Thereafter, a sample of blood stainsfromthewallnearNavelifromtheareaof5x4Ft. werepickedup.Thereweretwopiecesofbricks,onepiece of Naliya, there wereradish dots on those pieces and on primary investigation, those dots were found as of blood andfrombricks,Naliyaandfromwallhetookthesamples withcottongauzeandalltheelevensampleswerepicked
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upandPanchnamawasdrawnaccordinglyinthepresence of I.O. and Panchas and same articles were sent for InvestigationtoF.S.L.Insupportofhisdeposition,hehas supportedthePanchnamaproducedvideExh.151.Whenwe perusethecrossexaminationofthiswitness,itisadmitted byhimthat,saidPanchnamaisnotsignedbyhimandthe sampleswerealsonotsignedbyhim.Thiswitnessisagain examined after the investigation of S.I.T. and he has deposedbynarratingthesamefactsaswasdeposedearlier. In his crossexamination by accused No.83, he has admittedthat,on06.03.2002debriswasremovedfromthe Naveliinhispresence,whateverarticleswerefound,those werementionedinthePanchnamaandtwoandhalfhour timetook placeindrawingsaidPanchnama.Hehasalso admitted that, during the drawing of such Panchnama, Dy.S.P. Jadeja was also present. When we peruse the PanchnamaproducedvideExh.151,itfullycorroboratesthe sayofShriH.T.Modi,ScientificOfficer. [55] For the purpose of place of offence when we peruse the deposition of PW 172 Nitin Chhotubhai Limbachiya, Exh.869,whowashavingStudioinVisnagartownatthe timeofincident.On06.03.2002hewascalledinChudivas and Photographs were taken by him at the instance of Police and Videography of the place of incident was recordedbyhim.Asperhissayhetookphotographsand videography was recorded by him at different places in
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Visnagartownandforthat,hewaspaidbythePolice.He hadhandedoverthenegativesandphotographstoVisnagar Police Station. He has demonstrated the recording of videography in the open Court. In this regard when we peruse the deposition of PW 92 Yunusbhai Alibhai Mansuri, Exh.599, he has deposed that, on 06.03.2002 whenthePanchnama,producedvideExh.151wasdrawn, VideographywasrecordedbyNitinbhaiLimbachiya,atthat timeP.I.Patelwaspresentandwholeprocedureofdrawing ofPanchnamawasrecordedinVideography.Atthattime, F.S.L.OfficerswerealsopresentandtheMuddamal,which wasrecoveredwasalsorecordedinVideography. Further, it is deposed by him that, on 11.05.2010 Nitinbhai Chhotubhai Limbachiya has displayed the Video Cassette beforetheCourtandatthattimehewaspresentandhad seen whole Videography but in that Videography the procedure which was adopted at the time of drawing the PanchnamaExh.151isabsent.Inhiscrossexamination,he has deposed that, at the time of Panchnama and VideographyNazirmiyaKalumiyawaspresentandhehad identifiedtheMuddamal. [56] AnotherPhotographerShriPriteshbhaiGaneshbhaiPatel isexaminedat Exh.1156asPW177.Hehasdeposedon oaththat,hewascarryingStudioinVisnagarCityatthe timeofincident.During2009hewascalledbythePoliceat DipraDarwaja,Chudivasandhehaddonethephotography
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attheinstanceofthatPolice.About12photographswere takenbyhim.PhotographsproducedvideExh.478and479 are the photographs, which were taken by him. Amount waspaidbythePolicetohimforsuchphotographs.While onperusingthecrossexaminationofthiswitness,referring Exh.478hehasadmittedthat,nomeasurementiswritten in both the two photographs. He has admitted that, photographsofMarkD/1wastakenbyhim.Whilereferring photographsproducedvideExh.479,hehasadmittedthat, nomeasurementiswritteninthatphotographs.Hehasno knowledge about who is the Investigating Officer in the presentcasebutthepolicewashavingknowledgethat,he is residing at Surat and from Surat he is called for deposition. He has admitted that, he has taken the photographsaspertheinstructionsofthePolice.Further, hehasadmittedthat,whenhewenttotakephotographs, houses were demolished and there was wild growth of small trees. For this purpose when we peruse the depositionofM.K.Patel,thethenInvestigatingOfficer,heis silent about Videography and Photography in his first deposition in the year 2003. His second evidence is recordedaftertheInvestigationbyS.I.T.on29.05.2010.,at thattimehewasalreadytakenasanaccusedinthetrial therefore, this second part of his deposition cannot be consideredasanevidenceinthetrialandthatevidenceis requiredtobeignored.Forthispurpose,whenweperuse thedepositionofP.W.47,BachubhaVesaljiJadeja,Exh.227,
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heisalsosilentabouttheVideographyandPhotographyin hisfirstdeposition.Hisseconddepositionisrecordedafter theinvestigationbyS.I.T.Inhissecondtimedepositionalso heissilentaboutVideographyandPhotography.Whenwe peruse the deposition of PW. 175 Gautamkumar VishnubhaiBarot,Exh.912,hehasdeposedonoathabout the photographs that the 7 photographs produced vide Exh.478 are the photographs which were taken by the photographer during his investigation and 4 photographs which are produced vide Exh.479are the photographs of Chudivas,whichwerealsotakenduringhisinvestigation. Hehasidentified4photographsandhehasdeposedthat, measurementin photographsisshowninFoot.Sofaras Map produced vide Exh.477, it is deposed by him that, during his investigation he received application from complainant and other witnessesandafter verification,it wasfoundthatthereissomedifferenceinMapandactual positionoftheplacetherefore,againon15.11.2008hehad instructed Circle Inspector to prepare the Map and accordinglytheMapproducedvideExh.477wasprepared by the Circle Inspector in the presence of Panchas on 17.11.2008. This deposition of I.O. is corroborated by the depositionofPW145VirsangjiHirajiThakor,Exh.768, whohasdeposedonoaththat,duringNovember2008he was working as Circle Inspector in Mamlatdar Office, Visnagar.On15.11.2008hewasaskedtoprepareMapof Dipra Darwaja in Chudivas in Visnagar I.CR.No.60/2002
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accordinglyon17.11.2008healongwithDy.S.P.,Panchas, Victims, Talati and other persons went to the place and PoliceOfficersandVictimshadshowntheplaceandhehad preparedtheMap,whichisproducedvideExh.477.Itwas signed by the panchas and he had also signed that Panchnama. He has shown the houses of Chudivas and numbersandnamesarealsomentionedintheMap,which werewrittenatthesayofresidentsandvictimsofChudivas and the roads as wellasnames whichare shown inthe Map are shown after verifying the names from nearby persons. For this purpose, when we peruse the cross examinationofthiswitness,hehasadmittedthat,asper MapRandalMataMadhistowardseasternsidewhileDipra Gate is on eastern side from Chudivas. He has no knowledge about the name of Dipra Gate but he had written Dipra Gate, after verifying the name of the Gate fromthelocalpersons.TheroadpassingfromDipraGate toinsideisabout10to12Ft.wideandtowardssouthern sidethereis10to12Ft.wideroadandtowardssouthern side of Chudivas, houses of Patels' are situated. He is unabletosaythedistanceofroadbetweenthehousesin Chudivas. When we peruse the Map produced vide Exh.477,supportsthesayofthiswitnessaswellassayof InvestigatingOfficerShriG.V.Barot.Inthisregardwhenwe perusethedepositionof PW57BarkatbhaiAadambhai Mansuri, Exh.497, he has deposed on oath that, Map produced vide Exh.477 was prepared in his presence. At
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thattimesecondpanchYunusbhaiAlibhaiMansuriwas also present and other officers were also present. Measurementoftheplacewastakenbytheofficers.Hewas shownphotographsofChudivas,whichareproducedvide Exh.478and479.Itishissaythat,thosephotographsare of Chudivas. Referring to photographs produced vide Exh.479alsoitishissaythat,thosephotographsarealso of Chudivas. It is admitted by him that, photographs produced vide Exh.479 and photographs produced vide Exh.494 are one andsame.Referringtothephotographs producedvideExh.494,itisdeposedbythewitnessthat, the measurements were taken by the officers are the correctone.Whenweperusethecrossexaminationofthis witness, it is admitted by him that, there is a way from Mamlatdar Office to Chudivas, there is about 50 to 60 Mtrs.DistanceinbetweenMamlatdarOfficeandChudivas. WhenhewenttoChudivas,CircleOfficerandTalatiwere there.Theywere8to10Ft.aheadfromhim.Secondpanch toldhimthat,theyaretheGovernmentOfficers.Therewere other4to5Officers.Atabout12.00O'clocktheywentto Chudivas. One folding table was brought by Government Officers andbyopeningthattabletheyhadpreparedthe Mapthere.Headmitsthat,photographswhichareshown tohim,producedvideExh.479to494werenottakeninhis presence.Itisfurtherhissaythat,thereisotherpersons residingnearbyChudivas.HeishavingtwoYunusbhaiviz. Yunusbhai Lightvala and Yunusbhai Panvala friends in
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Chudivas. Further, he has admitted that, oftenly he was goingtoChudivas,priortoincident.Itisadmittedbyhim that,attheentranceofDipraDarwajatowardsrightside threestorieshosesofPatels'aresituatedandonleftside there is a chowk and at the end of houses of Patels', Chudivas is situated. It is also admitted by him that, towardsleftsideofNaveliinChudivas,housesofPatels'are situatedandthatNaveliis5to6Ft.wide.Thereisanother Naveli, having 3 to 4 Ft. width. P.W. 92 Yunusbhai AlibhaiMansuri,Exh.599,isexaminedassecondpanch witness. He has deposed on oath that, on 17.11.2008 he was called by the officers of S.I.T., Circle Inspector was alsopresent,Mapofthesceneofoffencewaspreparedin his presence and said Map is produced on record vide Exh.477, it is signed by him. Further, the photographs which are produced vide Exh.478, those are seven photographs,itisstatedbythispanchwitnessthat,those photographsareofChudivasareaandthosephotographs weretakeninhispresence.Whilereferringtophotographs produced vide Exh.479, he has deposed that, those photographs were recorded in his presence and those photographsarealsoofChudivasarea.Measurementwas takenbytheofficersinhispresenceandmeasurementis writteninthephotographsaccordingly.Whilereferringto photographsproducedvideExh.494,itisdeposedbyhim that,thosewerealsotakeninhispresence.Further,hehas deposedthat,Videographywasalsodoneinhispresence
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on 6th and 9th of 2003 and on 17.11.2008. Further, it is deposed by him that, during the Map prepared, he was present for 3 to 4 hours in Chudivas. In his cross examination he has deposed that, he was called by the officersoftheS.I.T. Firststraightwayhealongwiththe officers of the S.I.T. went to Circle Office, from where he went to Police Station, thereafter he along with Circle Officer, TalaticumMantri, Police Officers, S.I.T. Officers, anotherPanchBarkatbhaiwenttoChudivas.Atthattime, personsfromMuslimcommunitywerepresentinChudivas. Thereafter, Photography were done in his presence, no videography was done in his presence. First photographs were taken thereafter, Map was prepared. He is well acquainted with the area of Chudivas. At the time of drawingthePanchnama,thepersonsfromadjoiningarea were not present. At the entrance of Chudivas, there is houseoftwostories,knownasBismillaManjil.Hehasno knowledgeaboutthelengthofNaveliandthatsaidNaveliis knownasDalumiyaNaveli.Itisadmittedbyhimthat,itis notpossiblethatafourwheelercanpassfromthatNaveli. [57] Insupportofdepositionofthispanchwitnessaswellas Photographer and Videographer Nitinbhai Chhotubhai Limbachiya,prosecutionhasproducedoneapplication at Exh.893, stating therein that the Videography was demonstrated before the Court on 11.05.2010 and prosecutionintendstoproducethesaidVideographywith
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affidavit in sealed cover accordingly the then Designated Judge had passed the order and the Videography was orderedtobeexhibitedaccordinglyandkeptinsealedpack coveronrecord.ThevideographyCassetteisexhibitedvide Exh.899, which is in respect of Chudivas area and Exh.900, which is in respect of Malav Talav area. Prosecution has produced affidavit vide Exh.894, mentioningthedetailsofCassetteintheaffidavit. [58] AsperthecaseoftheprosecutionF.S.L.MobileVanhad visitedtheplaceofoffenceon07.03.2002,atabout09.00 A.M.to11.00A.M.Insupportofthisfacttheprosecution hasexaminedP.W.91ImranAbdulRasulMemon,Exh. 594, whohasidentifiedhissignatureinthePanchnama. ButhehasdeniedthedrawingofPanchnamabytheF.S.L. Officersinhispresenceanditisalsodeniedbyhimthat, workers of Municipality had cleaned the place in his presence. For thatPanchnamaheisdeclaredhostileand hasnotsupportedthecontentsofPanchnamaproducedat Exh.182. Second Panch P.W.92 Yunusbhai Alibhai Mansuri, Exh.599, of this Panchnama has also not supported this Panchnama, only signature has been identifiedbyhim.ThisPanchisnotdeclaredhostilebythe prosecution.Inthisregardwhenweperusethedeposition ofP.W.132NareshbhaiDashrathbhai,Exh.698,hehas deposedthat,hewasworkingasSweeperinMunicipality, Visnagar,on07.03.2002hewasinformedbytheSanitary
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InspectortogowithPoliceOfficer,healongwithRajubhai Maganlal, Parshottam Punja, Vasantbhai Parshottam, Ashok Ambalal, Hareshbhai Ranchhodbhai, Dhanjibhai Mafatlaletc.wenttoPoliceStationinTractor.FromPolice Station, he and other Sweepers along with F.S.L.Officers, PoliceOfficers,PanchWitnesseswenttoChudivas,where they had removed the debris at the instructions of the officers. Sindhi Mahmad Dalubhai, resident of Chudivas was present. During their cleaning work nothing was recovered. Dy.S.P. Jadeja has deposed about drawing of thisPanchnamaon06.03.2002andhehassupportedthe factthat,debriswasremoved bytheSweepersandF.S.L. Teamwaspresentandatthattimelumpofhumanmeat, cloths, bangles etc. were recovered and Panchnama was drawn accordingly. Nazirmiya was present at that time. Thus,aspersayofthiswitness,Panchnamawasdrawnon 06.03.2002. When weperuse the Panchnamathe dateis mentionedas07.03.2002.Inhiscrossexamination,hehas admittedthat,itisnotmentionedinthePanchnamahow many bones were recovered. P.W.55 Vasantbhai
ParshottambhaiMakwana,Exh.495,hasdeposedthat,he wascalledinChudivas,forcleaningpurpose,hecouldnot recollectthedatebutintheMonthofMarch2002,hewas called. Other five sweeperswerealso there.They wentto Chudivas at the instructions of Shri B.M.Chaudhari. In ChudivasPoliceOfficerswerepresent,theyhadcleanedthe roadinChudivasandhadremovedthedebris.Hehasnot
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supportedthefactthat,F.S.L.Officerswerepresentduring that period. He is declared Hostile. In his cross examinationbyaccusedNo.1to82hehasadmittedthat, no article was recovered from that place. P.W.56 Hareshbhai Ranchhodbhai Makwana, Exh.496, has deposedonoaththat,healongwithotherSweeperswentto Chudivas,attheinstructionsofhisOfficerandtheyhad cleanedtheChudivas.AtthattimenoMuslimpersonswere there.AftercleaningChudivas,theytookalldebrisintheir Tractor. During cleaning period there were no officer present.ThiswitnessisalsodeclaredHostile.Inhiscross examination he has admitted that, no articles were recoveredfromChudivasatthetimeofcleaningtheplace and in cleaning the place, they took one hour. P.W.14 PankajbhaiMangaldasParmar,Exh.99,hasdeposedthat he is working as Sweeper in Visnagar Municipality on 06.03.2002.HewascalledatDipraDarwaja.Healongwith Kantibhai Valabhai, Rajubhai Dahyabhai went at Dipra Darwaja at about 3.00 P.M. Police persons were present there.Theyhadcleanedtheplace.Theyhadnotrecovered halfburnedpiecesofclothsandbones.Onebagmadefrom flex was also not found at the place. No ornaments like Zanzari, Acchodo, Ring, Earrings and knotted hair of womanandlumpofhumanmeatwererecoveredfromthe place. This witness is declared Hostile. In his cross examinationbytheprosecutionhehasdeniedthefactthat, in Chudivas in the Naveli debris was removed from the
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Naveli by him along with other Sweepers and ornaments likeZanzari,Acchodo,Ring,Earringsandknottedhairof womanandlumpofhumanmeatwererecovered.Hehas also denied the execution of Panchnama. This witness is notcrossexaminedbyanyoftheaccused.AccusedNo.83, 84 and 85 have passed the Pursis accordingly. P.W.15 Kantibhai Valabhai Parmar, Exh.100, has deposed on oath that he was working as Sweeper in Visnagar Municipalityon06.03.2002.Alongwithothersweepershe wenttoChudivas,DipraDarwaja,Visnagar.HisOfficerShri MalaviyaandotherPoliceOfficerswerepresentthere.They had cleaned the Chudivas. They had removed the debris fromtheNaveli.Nothingwasrecoveredduringthatperiod. As per his say ornaments like Zanzari, Acchodo, Ring, Earringsandknottedhairofwomanandlumpofhuman meatwererecovered.ThiswitnessisdeclaredHostile.Inhis crossexamination by the prosecution, he has denied the recovery of ornaments like Zanzari, Acchodo, Ring, Earringsandknottedhairofwomanandlumpofhuman meat,while removingthedebris. Thiswitnessisfurther examined after the Investigation by S.I.T. as P.W.107 at Exh.635.Asdiscussedearlier,thisisnotafreshtrial.The depositionwhichisrecordedsecondtimeisrequiredtobe considered in continuation of the deposition recorded at firsttime.Atfirsttimerecordingofevidence,witnesswas declared as Hostile therefore, the deposition which is recordedsecondtimecanonlybeconsideredasdeposition
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after declaring hostile of witness and as per settled Law, oncethewitnessdeclaredHostile,hisevidenceintheform of crossexamination or in any form such as here in the presentcaseaschiefexaminationcanonlybeconsidered forcorroborationpurposeonly.Keepinginmindthissettled position of law, we have to consider the second time evidence of this witness. In second time witness has deposedthat,heisdeposingbeforethecourtunderPolice protectionandwithoutfear.Nothingnewhascomeoutin his second time deposition. But he is crossexamined by Shri B.G.Patel, learned advocate appearing on behalf of Accused No.83 while accused No.84 and 85 have passed the pursis and havenotcrossexaminedthiswitnessbut nothing contrary brought on record. P.W.16
Parshottambhai Punjabhai Makwana, Exh.101, has deposedonoaththat,on07.03.2002hewascalledatDipra Darwaja for cleaning purpose. He along with 3 to 4 sweepers went to Dipra Darwaja. Kantibahi Valabhai, PankajbhaiMangalbhaiandRajubhaiMaganbhaiwerewith him. Police Persons and officers of the Municipality were presentthere.Theyhadcleanedtheplace.Hehasdenied thepresenceofF.S.L.Officers.Hewasnotcrossexamined byanyoftheaccused.Pursishasbeenpassedaccordingly. SecondtimeheisexaminedaftertheInvestigationbyS.I.T. as P.W.126 at Exh.679. As discussed earlier,second time depositionisrequiredtobeconsideredincontinuationof thedepositionrecordedatfirsttime.Meaningtherebythis
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evidenceisrecordedafterthecrossexaminationbyaccused Nos.1to82andreexamination.Itcanbeconsideredasan additionalevidence.Inthisevidence,hehasdeposedthat, along with him Vasantbhai Parshottambhai, Ashokbhai Chelabhai, Hareshbhai Ranchhodbhai, Bhangi Rajubhai Maganlal, Nareshbhai Dashrathbhai, Dhanjibhai Mafatlal etc. were present along with him for cleaning purpose. SanitaryInspectorShriChaudhariwasalsopresent.They wentinTractorforcleaningpurpose.F.S.L.VanandF.S.L. Officerswerepresentattheplaceandpublicpersonswere presentasPanchas.TheyhadcleanedtheChudivasasper instructions of their officers and F.S.L. Officers. Whether MahmadHamirDalubhaiSindhiwaspresentornot,heis unable to say butoneMuslim personwaspresentthere. TheytookthedebrisintheTractoraftercleaningtheplace. AccusedNo.84and85havepassedthepursistotheeffect that, they do not want to crossexamine this witness. P.W.17 Rajubhai Maganbhai Solanki, Exh.102 has deposed on oath that, on 07.03.2002 he along with ParshottambhaiPunjabhai,KantibhaiValabhai,Pankajbhai MangalbhaiwenttoChudivas,DipraDarwaja,forcleaning purpose. Police Officers and officers of Municipality were present. No Officer from F.S.L. was present. No Muslim personwaspresent.ThiswitnessisdeclaredHostile.After declaringHostile,heiscrossexaminedbytheprosecution and it comes out that, in his presence Mahmad Hanif Dalubhaihasshowntheplaceandtheplacewasexamined
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inthepresenceofPanchasinscientificmannerandsome oldremainswererecoveredfromtheplace.Heisnotcross examinedbyanyaccused. P.W.19RajubhaiDahyabhai Bhangi,Exh.106 whohasdeposedonoaththat,healong with Kantibhai Valabhai, Pankajbhai Mangalbhai, Raju Magan,Pasho,BabuSoma,RajuDahyawenttoChudivas andtheyhadcleanedtheChudivasandwenttohishouse. Nothing was recovered from the place. This witness is declared Hostile. In his crossexamination he has denied that,inhisstatementbeforethePolicehehasstatedthat, on 06.03.2002 at about 3.00 P.M. he along with other sweepershadremovedthedebrisfromtheNaveliandthey had recovered ornaments like Zanzari, Acchodo, Ring, Earringsandknottedhairofwomanandlumpofhuman meat. He is not crossexamined by any of the accused. Pursis has been passed accordingly vide Exh.1319, 1322 and1323.P.W.20BabubhaiSomabhaiBhangi,Exh.107 has deposed on oath that, on 06.03.2002 he along with Kantibhai Valabhai, Pankajbhai Maganbhai, Parshottambhai Punjabhai, Rajubhai Maganbhai and RajubhaiDahyabhaiwenttoChudivasforcleaningpurpose and they had cleaned the place. Nothing was recovered fromtheplace.Thiswitnessisdeclaredashostileandafter declaringhostile,heiscrossexaminedbytheProsecution, inwhichhehasdeniedthat,inhisstatementbeforePolice hehasstatedthat,on06.03.2002at3.00O'Clockhewent to Chudivas and they had removed the debris and
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ornaments like Zanzari, Acchodo, Ring, Earrings and knotted hair of woman and lump of human meat were recoveredandPanchnamawasdrawn.Thiswitnesswasnot crossexaminedbytheaccusedatthattime. Thiswitness is further examined after the Investigation by S.I.T. as P.W.128 at Exh.682. As discussed earlier, second time depositionisrequiredtobeconsideredincontinuationof thedepositionrecordedatfirsttime.Atfirsttimerecording ofevidence,witnesswasdeclaredasHostiletherefore,the deposition which is recorded second time can only be consideredasdepositionafterdeclaringhostileofwitness andaspersettledLaw,oncethewitnessdeclaredHostile, his evidence in the form of crossexamination or in any formsuchashereinthepresentcaseaschiefexamination can only be considered for corroboration purpose only. Keeping in mind this settled position of law, we have to consider the second time evidence of this witness. In second time witness has deposed that, he is deposing beforethecourtunderPoliceprotectionandwithoutfear. He has deposed that, while cleaning the debris in the Naveli, they had recovered ornaments like Zanzari, Acchodo, Ring, Earrings and knotted hair of woman and lumpofhumanmeat.Hisstatementwasrecordedbythe Police.Thus,consideringthedepositionofthiswitnessasa whole,hehasnotsupportedtherecoveryofArticlesina chiefexamination while after declaring hostile, he has supported the recover of the articles as per Panchnama.
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Butheisnot crossexaminedbyanyoftheaccused and theyhavepassedthepursisatExh.1319,1322and1323. P.W.83 Dashrathbhai Amthabhai, Exh.572 who was serving as Police Head Constable in Mahesana Police Station, at the timeofincident.Hehasdeposedon oath that,on06.03.2002hewenttoChudivasinthemorning, sweepers from the Municipality were cleaning the place, they removed the debris and ornaments, knotted heirs, blood,piecesofbricks,clothsetc.wererecovered.Further, in his crossexamination he has deposed that, on 01.03.2002, he was present in Chudivas, Panchnama of scene of offence wasdrawninhispresence and Panchas werepresentatthattime.Further,on06.03.2002whenthe Municipal employees were removing the debris, photographerwaspresent,photographsweretakenatthat time. P.W.91ImranAbdulRasulMemon,Exh.594 has deposedonoaththat,on07.03.2002.Inthisregard,when weperusethedepositionofP.W.48M.K.Patel,thethen I.O., Exh.228, when the first time his deposition was recorded,hehasalsomentionedaboutthedrawingofthis Panchnama on 06.03.2002 and has stated that, human bones, ornaments, burnt cloths, coiled hairs etc. were recoveredandPanchnamawasdrawnaccordingly.Atthat timehewasnotaccusedinthecase.Whilesecondtimehis deposition is recorded he is taken up as an accused therefore,thatpartofhisdepositioncannotbereadasan evidence in the trial. When we peruse the Panchnama,
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produced vide Exh.182, it supports the prosecution case that,itwaspreparedon07.03.2002atabout09.00A.M.to 11.00 A.M. in the presence of Panch Imranbhai Abdul RasulMemonandYunusAlibhaiMansuri.Itisalsosigned by the Police Inspector, Visnagar M.K.Patel and it is verified by Dy.S.P. Shri Jadeja on 08.03.2002. This Panchnamaisexhibitedwiththeconsentofaccusedside andaccusedsidehasmentionedthat,theydonothaveany objection if it is read as an evidence in the trial. It transpires from the Panchnama that, Mahmad Hanif Dalubhai Sindhi, resident of Chudivas, Dipra Darwaja, Visnagar was present at the time of drawing this PanchnamaandScientificOfficerfromF.S.L.ShriH.T.Modi andFingerPrintExpertShriV.S.Abotiwerepresentand debriswereremovedfromthatplacethroughSweepersof Municipality Nareshbhai Dashrathbhai, Rajubhai Maganlal, Parshottam Punja, Vasantbhai Parshottam, Ashok Ambalal, Hareshbhai Ranchhodbhai, Dhanjibhai Mafatlaletc.andnothingwasrecoveredfromthatplaceat thetimeofdrawingthisPanchnama.Whenweperusethe depositionofPW49ShriH.T.Modi,ScientificOfficer, Exh.232, in respectofthisPanchnama, he isnotsaying aboutthedrawingofthisPanchnamaon07.03.2002.Heis silentaboutthisPanchnamainhissecondtimeevidence also.ThisPanchnamaisproducedvideExh.182,whichis admitted by accused, Panchas have not supported this Panchnama but the Sweepers and other witnesses have
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supportedthisPanchnama.However,theF.S.L.Officerand Police Officers are silent about the drawing of this Panchnamaon07.03.2002. [59] PW. 31 Pathan Aarifkhan Yakubkhan, Exh.147, has deposed that, it is true that house of Yusufkhan Muradkhanisjustadjacenttohishouseandinthelineof Usmanbhai Mahmadbhai, house of Dalubhai Bachubhai Sindhi was in existence. There is Naveli, which passes towardsPatelMaholla,itisalsoadmittedbyhimthat,in front of his house, there are three houses and all these threehousesarehavingdoorsonfrontsideaswellasback side.Itisdeniedbyhimthat,thereisnodoortowardsback sideofhishouse.Itisalsodeniedbyhimthat,therewas no door towards back side of his Uncle Muradkhan Yusufkhan's house. When we peruse PW 32 MahmadhanifDalubhaiSindhi,Exh.150,itisdeposedby him that, on 06.03.2002 F.S.L. Officers were called in Chudivas,DipraDarwajaandfromNaveliornaments,ring, Acchodo, pieces of cloths, Lump of human meat were recovered. In his crossexaminationitisadmittedbythis witnessthat,hishouseisjustinfrontofhouseofAlikhan Kayamkhan Sindhi. This witness has got doors northern and southern side of his house. House of Usmanbhai MahmadbhaiPapervalaisadjacenttohishouseandthat houseisalsohavingtwodoors.Therearefourhousesin betweenhishouseandhouseofMuradkhanYusufkhan.It
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isalsoadmittedbyhimthat,thereisNaveliinfrontofhis house. In his second time deposition, this witness has admitted generally a person passes from Dipra Darwaja, RandalMataMadhtoPoliceChowky,heusedtousesaid waysincelastmanyyears.OutsideofDipraDarwaja,there aretwotothreeMuslimsFamilies,oneFamilyofAkbarmiya Kalumiya,thereareothertwofamiliesalso.Asperhissay fromtheChowk,houseofAkbarmiyaKalumiyacaneasily beseen.AnotherwayfromChudivastoKadaDarwajaand just adjacent to Kada Darwaja, there are Patels'. It is deposedbyhimthat,iftheywanttocarryAutoRickshaw, thentheyusedtocomethroughPoliceStationorthrough DipraDarwaja.FromPoliceStationtoMaholla,thereis5to 10Minutesdistance,attheentranceofChudivas,thereis BismillahManjil,whichishavingtwostories.InChudivas, Bismillah Manjil as well as Houses of Shabbirmiya Hasumiya and Ahmadmiya Hasumiya, Ahmedkhan Anvarkhanandhouseofthiswitnessarehavingstoriesand restofthehousesarehavingonlyGroundfloor.Itisalso admitted by him that, there is two to three houses in between his houses and house of Yusufkhan and Yakubkhan. He can see the open space of the house of YusufkhanandYakubkhanfromthewindowoffirstfloorof hishouse. Hisfirstfloorisjustinfrontofthehouseof Gulabkhan.Itisalsodeposedbyhimthat,hishousehas got doors. Further, itisdeposedby him that,Dalubhai's Naveliisabout2to2.5Ft.Itisadmittedbyhimthat,two
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persons cannot pass from the Naveli at a time. On 28.02.2002 there was no debris in the Naveli. P.W.58 KarishmabanuYusufkhanPathan,Exh.502hasdeposed onoaththat,thereare17housesinChudivas,outof17,3 to4housesarehavingfloorsandothersareofsmallroom type.Outof4storieshouses,oneisofIqbalbhaiBaloch, second one is of Balim Lightvala, third one is of Shabbirmiya Hasumiya. It is admitted by her that, for comingtoChudivas,therearetwowaysfromeasternand westernside.EasternsidethereisThakorvasandwestern sidethereisDipraDarwaja.Itisalsoadmittedbyherthat, afterChudivas,thereisNaveliandimmediatelythereafter Thakorvasissituated.Itisalsoadmittedbyherthat,from ChudivastoDipraDarwaja,thereisPatelMaholla.Shehas statedthat,theywerehavingtheirhouseoftworooms,one kitchen. Referring to Map produced vide Exh.477, house No.10 of Yusufkhan Muradkhan is shown by her as her house.HouseNo.11isshownasofYakubkhanMuradkhan. PlaceofHouseNo.12isopen,whileinMap12numberis shownintheHouseofIbrahimkhanUmarkhanBaloch.In themapNo.18isgiventothehouseofBelimShabbirmiya Hasumiya.AdjacenttothehouseofShabbirmiya,houseof Ahmedmiya Hasumiya is situated and in front of that house,thereisNaveliandforgoingtoDipraDarwajafrom hishouse,theyhavetopassfromNaveliandthatNaveliis about3Ft.wide. P.W.65MahendrasinhBhairavsinh Exh.518,AnarmPoliceConstable, hasdeposedonoath
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that, Panchnama of Scene of Offence was started on 01.03.2002, at about 7.00O'Clock.Itis alsoadmitted by him that, Team for cleaning the debris at the scene of offencewascalledbyPoliceInspectorShriPatelandF.S.L. Officerswerealsocalledtohavevisitoftheplaceofsceneof offence.FingerPrintExpertandExecutiveMagistratewere also called at the scene of offence. P.W.70 Patel Madhavlal Ranchhoddas, Exh.535, has deposed that, adjacent to Muslim Maholla, there is one Naveli about 2 and2.5Ft.wideandaftercompletionofthatNaveli,thereis KadaDarwajaandonbothsideofKadaDarwaja,persons from Thakor community are residing. P.W.96
Ibrahimkhan Umarkhan Baloch, Exh.610, has admitted inhiscrossexaminationthat,hishouseisjustadjacentto the house of AminabibiandheishavingdoorsonNorth andSouthdirectionofhishouse.Towardssouthernsideof his house, house of Shabbirmiya is situated. House of Shabbirmiya is having southern side door. Shabbirmiya's houseandhishousehavegotdoorsonbackside.Thereare twoportionofhishouse,inoneportionhealongwithhis wife is residing and in another portion other family members are residing. It is admitted by him that, from northernsidedoorhecannotseethehouseofYakubmiya. It is admitted by him that, his house is just in front of houseofUmarkhanBashirkhan.Thereis8Ft.distancein betweenboththehouses.Itisadmittedbyhimthat,noone can see Randal Mata Madh by standing in between the
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houseofUmarmiyaandhishouse.P.W.125Samanabibi AnvarhusenPathan,Exh.678 hasadmittedinhercross examinationthat,houseofNazirmiyaisattheentranceof Chudivasandinfrontofherhouse,houseofGulabmiyais situated, her house is in between houses of Ahmedmiya Rasulmiya and Nazirmiya Kalumiya. House of Nazirmiya Kalumiyaishavingtwostories,apakkaconstruction. [60] P.W.50SaidabibiMahmadHanifSindhi,Exh.302 has deposed on oath that, Dalubhai is the fatherinlaw and Mahmad Hanif Dalubhai Sindhi is the husband of the witness.Theyarehavinghouseoftworooms,havingtwo doors.OnedoorisfallingtowardsChowkandsecondoneis fallingtowardbackside.ThedooroftheChowkistowards PoliceStation.TheirHouseNo.13whilehouseofherfather inlawishavinghouseNo.12. Itisadmittedbyherthat, doorofherhouseisfallingtowardsthehouseofDalubhai andtowardsDipraDarwajaleftsidehouseofIbrahimkhan UmarkhanBalochissituatedandtowardsleftsideofthe houseofIbrahimkhan,houseofAbumiyaissituatedand just adjacent to his house towards left side, house of Yusufkhan Muradkhan is situated. It is admitted by her that,towardsrightsideofherhouseNaveliofDalumiyais situated and at the end of that Naveli, one Naveli falling towardsbacksideoftheirhousesisinexistence.Herhouse is having first floor having one room with the facility of staircase.WindowofthatroomisfallingtowardsDalubhai's
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house.AnotherwindowisfallingtowardsChowkandthird windowisfallingtowardsRightHandSidewall.Fromtheir a person can see the Naveli, where the incident had occurred.SheisagainexaminedaftertheInvestigationby S.I.T. as P.W.61 at Exh.510. As discussed earlier, second timedepositionisrequiredtobeconsideredincontinuation ofthedepositionrecordedatfirsttime.Insecondtimein her crossexamination she has admitted that, Dalumiya's Naveliisabout2to3Ft.wideandafterNaveli,houseof SamirmiyaHasumiyaissituatedandjustadjacenttohis house, house of Ahmedmiya Hasumiya is situated. It is admittedbyherthat,atthetimeofincident,thereweretwo Pakka constructed houses of Kalumiya Nannumiya and AhmedmiyaHasumiya.Inadditiontothat,asperhersay therewereothertwopakkaconstructedhouseswerealso situated, one of Dalubhai Bachubhai and second of AhmedmiyaAnvarmiya. Itisadmittedbyherthat,onthe back side of her house, house of her fatherinlaw is situatedandtowardsleftsideofherfatherinlaw'shouse, house of Yakubkhan Muradkhan and Yusufkhan Muradkhanaresituated.Inthegroundfloorofherhouse, therewasoneVeranda(Osari)andthedoorofherhouseis justinfrontofthehouseofGulammiya.Itisadmittedby herthat,therewasnowindowinherfirstfloorhouse. [61] P.W.51 Aminabibi Ahmedkhan Baloch, Exh.303 has admitted in her crossexamination that, house of
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AhmedmiyaishavingfirstfloorwhileP.W.52Faridabanu AhmedkhanBaloch,Exh.306 hasadmittedinhercross examination that, house of Dalumiya Bachumiya Sindhi was the last house. Thereafter, there was Naveli. It is deniedbyherthat,fromtheNavelijustneartothehouseof Dalumiya,ifapersonisstandinghecanseeKadaDarwaja towardsleftsideofDalumiya'shouse,houseofYusufkhan MuradkhanissituatedandafterthehouseofYusufkhan Muradkhan, there is wall and then Patel's Maholla is situated.Itisadmittedbyherthat,attheendofYusufkhan Muradkhan's house, Naveli is completed and thereafter, thereiswall.DoorofYusufkhanMuradkhan'shousefalls towards Chowk and on back side there is Naveli. That NaveliistowardsbacksideofIbrahimkhan'shouse.House ofDalumiyaishavingonefloor.Thathouseishavingtwo rooms.Tworoomsareongroundfloorandtworoomsare onfirstfloor. Fromthewindowapersoncanseebutno one can see that person from out side. Two persons can standnearwindow.Thatwindowwasopen.Twopersoncan easily see from that window.Thereisone Navelibetween Dalumiya'shouseandNazirmiya'shouse.Thereisanother windowofDalumiys'houseandfromthatwindowisequal tothewindowasstatedabove.Therewerefivehousesjust adjacenttoDalumiya'shouse.Inhercrossexaminationshe hasadmittedthat,sheishavinggroundfloorhouseonly. Thereisnofloorinherhouse.Sheisagainexaminedafter the Investigation by S.I.T. as P.W.131 at Exh.695. As
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discussed earlier, this is not a fresh trial, second time depositionisrequiredtobeconsideredincontinuationof thedepositionrecordedatfirsttime. [62] P.W.175GautamkumarVishnubhaiBarot,Exh.912has deposedinhisdepositionthat,hehasvisitedthesitebut the condition of thehouseswere deterioratedhence with thehelpofBambooandStringandmeasuretapeareawas measuredandphotographsweretakenon04.05.2008and distance are shown in the photographs, from where NazirmiyaKalumiyaSaiyed,ShabbirmiyaHasumiyaBelim, Yusufkhan Muradkhan Pathan, Mahmad Hanif Dalubhai Sindhihadseentheincidentisshowninthephotograph. He has produced photographs, produced vide Exh.478, which are of Chudivas and there are other four photographs produced vide Exh.479, those are also of Chudivas. Those were prepared by him during the investigation. PhotographsproducedvideExh.494arethe photographs are showing from where the witnesses had seen the incident. Distance is also mentioned in those photographs. Further, he has deposed that, during the course of investigation he came to know about the VideographyofPanchnamaafterobtainingthatVideo,that videoisdisplayedbeforethecourton11.05.2010,whichis producedintheCourt.VideoRecordingdated02.03.2002 isshowingthepositionofhousesandplaceofChudivas. There is no recording of Panchnama. In his cross
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examination,itcomesoutthatdistancebetweenChudivas and Police Station is about Km. Back side of Police StationandChudivasthereis400to500Ft.distancewhile distance between Chudivas and Randal Mata Madh is about100to150Ft. [63] P.W.171RanjitsinhPituji,Exh.865hasdeposedonthat, on06.03.2002healongwithP.I.M.K.Patel,officerofF.S.L. ShriH.T.Modi,FingerPrintExpertShriV.S.Abotiwentto theplaceandPanchnamawaspreparedattheinstructions of Shri Modi. Again on 07.03.2002 Panchnama was preparedinthepresenceofofficersofF.S.L.andP.S.I.Shri Chauhan, as M.K.Patel, P.I. was busy in the trial of Sessions Case, Mahesana. It is further deposed by him that,atthetimeofdrawingPanchnamaon06.03.2002in Chudivas,PhotographerShriNitinkumarofRaviStudioof Visnagar was present. He took the Videography of the place. [64] P.W.1 Fatehkhan Badarkhan Baloch, Exh.61 has deposedonoaththat,heishavingoneCabinoneastern sideoftheirMaholla,neartoKadaDarwajafrompassingto Cabin to his house, towards left side there is Thakor's MahollaandbyleavingthatMaholla,Chudivasissituated. GateoftheMahollaistowardswesternsideandfromthere apersoncangototheMarket. Thereisonewaytowards Right side in the Maholla, which goes towards Police
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Stationandfromthatway,apersoncangotothePolice Station from the Maholla, within five minutes. It is admittedbyhimthat,apersoncanseethePoliceStation fromtheterraceofPakkaconstructedhouseofChudivas and noise of Maholla can be heard from Police Station. House of Kalumiya Nannumiya is the first house of the Maholla,havingfourfloors.HouseofAhmedmiyaishaving door towards western side and another door is falling towardseasternside,thereisonewayofhishousetowards rightsideandhousestowardsleftsideandthesaidwayis about3.00Ft.wideandafterleaving3.00Ft.widespace, thereishousesofPatels'andtherearewindowsanddoors ofboththesidehouses.Itisadmittedbyhimthat,there are houses towards three sides of Ahmedmiya's house. DoorofAhmedmiya'shouseisfallingtowardsMahollaand thereafter, house of Yusufbhai is situated and towards Rightsideinturnthereisawayandonleftsidethereisa way.Houseofthiswitnessishavingdoortowardsnorthern side and he can see Dipra Darwaja from the door of his house. Inhissecondtimeevidence,heisagainexamined after the Investigation by S.I.T. as P.W.64 at Exh.516. As discussedearlier,secondtimedepositionisrequiredtobe considered in continuation of the deposition recorded at first time and it can be considered for corroboration purpose only. It is deposed by him that, there were 17 houses in Chudivas and there were Patel Community residingsurroundingChudivas.Apersonhastopassfrom
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Patel Maholla for going to Mamlatdar Officer and Dipra Darwaja.ApersoncanreachinMamlatdarOfficewithin5 minutesandforPoliceStationapersoncanreachwithin10 minutesfrombacksideofChudivas,thereiswaytogoto SavalaDarwaja.ThereisalsoPatelCommunity,thereare two ways for going intheChudivas.After KadaDarwaja, thereisThakorvas.Itisadmittedbyhimthat,nearDipra Darwaja there are houses of Patel, Rabari, Vankar, PrajapatiAagakhanietc. [65] P.W.2MahmadIqbalAhmedkhanBaloch,Exh.66 has statedincrossexaminationthat,thehouseNo.6,whichis shownintheMapbytheCircleInspectorishishouse.Itis deniedbyhimthat,doorofhishouseisfollowingtowards westernside.Itisadmittedbyhimthat,thereismaindoor ofDipraDarwajatowardswesternsideofhishouse.There is 20 steps distance between his house and entrance of Maholla and there is distance between 100 to 120 steps between his house and Police Station. There is 20 Mtr. DistancebetweenhishouseandPoliceStation.Thereisa big chowk in between main door of Dipra Darwaja and Muslims' houses. House of Kalumiya Nannumiya is out side portion of Dipra Darwaja. House of Kalumiya is having first floor. He is again examined after the InvestigationbyS.I.T.asP.W.81atExh.568.Asdiscussed earlier,secondtimedepositionisrequiredtobeconsidered incontinuationofthedepositionrecordedatfirsttimeand
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itcanbeconsideredforcorroborationpurpose.Insecond timedeposition,hehasdeposedthat,thereare21houses shown in the Map. House No.18 is the house of Belim Shabbirmiya. House No.21 is the house of Ahmedmiya Hasumiya.HouseNo.18and21areadjoiningtoeachother. Houses, which are shown in the Map are the houses of Muslims, who were residing in Chudivas at the time of incident. Mamlatdar Officer is adjacent to Police Station. Police Station is 200to300Mtr.Distancewhiledistance between Dipra Darwaja and Randal Mata Madh is about 100 Mtr. Referring to photographs of Chudivas, it is admittedbyhimthat,thosephotographsofChudivasare produced vide Exh.478, while the four photographs are produced vide Exh.479 are also of Chudivas and the photographsproducedvideExh.494arealsoofChudivas. Referring to photographs produced vide Exh.494, it is deposed by him that, on the right side house is of ShabbirmiyaHasumiyawhileleftsidehouseisofDalumiya BachumiyawhilethephotographofSr.No.3ofExh.494isof the house of Yusufkhan and front portion of that house, thepassageforpassingandrepassingthanthereisagrill. While the photograph of Sr.No.4 of Exh.494 is the photograph of front portion of house of Yusufkhan Muradkhan Pathan. There is door one on front side and anotherisonbackside.InfrontsideJannatbibiisresiding while in back side Muradkhan is residing and right side house is of Ahmedmiya Hasumiya, It is admitted by him
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that, on 06.03.2002remainsofthepersonsofYusufbhai were identified and at that time he was present. All the remains were identified by Yusufbhai. In his cross examination, he has stated that, the house of Kalumiya Nannumiya is shown in Exh.477 Map. Nazirmiya Kalumiya,hiswifeandsonwereresidinginthehousejust adjacenttohishouse,houseofAhmedkhanBadarkhanis situated, who was residing with his family members. UmarkhanBadarkhanwasresidingwithhiswifeSaidabibi andhissonwereresidingintheSmallroom,situatedon the back side. Family members of Fatehkhan Badarkhan and his mother Jinnatbibi, brother Husenkhan, son Ayubkhan Fatehkhan were residing with him. Family membersofUmarkhanBadarkhanSaidabibiUmarkhan was residing with him. Umarkhan and Mahmadkhan are theuncleandnephewwhileFatehkhanisthesonofuncle. Anvarkhan Basirkhan was residing with his family members, wife Mithabibi, while Gulabmiya was residing with his wife Basirabibi, son Faruk, Aabid and Riyaz. Zubedabibi was residing with her family members. Son Aamirkhan, Daughter Samirbanu Mahemudkhan. Ahmedkhanwasresidingwithhisfamilymembersnamely Aminabibi, Mahmad Iqbal Anvarkhan, Mahmad Hanif, Kaushalbanu,Samimbanu,MariyambanuAhmedkhanand Nasimbanu Ahmedkhan. Shabbirhusen was residing with his family members Hanifabibi Sabirhusen, Anvarhusen Sabirhusen, Shabanabanu Anvarhusen, Faridabanu and
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Arbaz.AhmedmiyaHasumiyawasresidingwithhisfamily members namely Husenabibi, Majidmiya Ahmedmiya, Mohsinmiya, Samirmiya Ahmedmiya. In the house of BishanbibiKalumiya,ShabbirmiyaHasumiyawasresiding and using that house. Shabbirmiya, Shakinabibi Hasumiya, Shabiramiya, Daughter Sohita and son Naim wereresidingwithhim.Noonewasresidinginthehouse of Fakirmahmad Anumiya but that house was used by Shabbirmiya. No one was residing in the Nazirmiya Kalumiya's house. In the house of Dalumiya Bachumiya membersofhisfamilywereresidinginhouse. Fatmabibi, Mahmad Hanif Dalubhai, Shermahmad Dalubhai, daughterinlaw Saidabibi Mohmad Hanif and son Soheb wereresidinginhishouse.InthehouseofShaikhUsman Mahmad, family members Nadimabibi Usmanbhai, son Salim Usmanbhai were residing. In the house of Ibrahimmiya Umarkhan his wife Sugrabibi was residing withhim,whowasresidingwithAllarakhaIbrahimheis having no knowledge about it. While in the house of Yakubkhan Muradkhan, his wife Husenabibi, sons Aasifkhan, Aarifkhan, Aabidkhan and daughter Sabnambibiwereresidingwithhim.Inthefamilymembers ofYusufkhanMuradkhantherewereBanubibiYusufkhan, Attahullakhan Amanaullakhan. In the house of Muradkhan, JinnatbibiwasresidingandAminabibialone was residing in her house. It is admitted by him that, towards western side after road of Kalumiya Nannumiy's
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house,houseofRamabhaiHirabhaiissituated.Itisalso admitted by him that, the western wall of Muradkhan's house and Ramabhai Hirabhai's eastern side wall is commonandwhileenteringintoRandalMataMadh,which endsattheentranceofChudivasandbacksideportionof Police Station is known as Randal Mata's Madh. On the easternsideofChudivas,thereisPatelMahollaandthere is Patel vas towards both the sides of that way passing towards Kada Darwaja. It is admitted by him that, there were two pakka constructed houses in the Maholla. His house was Kachchha constructed house. House of KalumiyaNannumiyawashavingthreefloors,whilehouse of Ahmedmiya Hasumiyawashavingonlysinglefloor.50 persons cannot reside in the house of Ahmedmiya Hasumiya.HouseofShabbirmiyawashavingfirstfloorand 50personscanresideinthathouse,atatime. Houseof Shabbirmiyaisbigratherthanhishouse.Ontheeastern side of Shabbirmiya's house, house of Ahmedmiya Hasumiyaissituatedandafterthat,thereischowk.Four vehicles cannot stand at a time in that chowk. Only one scootercanstandatatime.Arickshawcanpassfromthat chowk.Afterthatchowk,housesofPatels'aresituated.Itis admittedbyhimthat,justinfrontofShabbirmiya'shouse, towardsrightsidethereishouseofDalumiyaissituated and there is 3.00 Ft.Galleryinbetweentwohousesand onlyonepersoncanpassfromthatgalleryatatime.Atthe endofthatgallery,thereiselectricpole.
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[66]
P.W.13RameshjiRajuji,Exh.99hasstatedinhiscross examinationthat,therearethree Gatesfromcomingout DipraDarwaja,outofwhichoneismaindoor,secondone isneartoPoliceStationandthirdoneisKadaDarwaja.Ifa personstandsinDipraDarwajaChowk,hecanseeKada Darwajaway.Hehasadmittedthat,bystandinginchowk of Dipra Darwaja, a person can see the northern side housesofMuslimsbutcannotseeotherhouses.
[67]
P.W.21ShabbirkhanIbrahimkhan,Exh.108hasdeposed onoath.Heisagainexamined aftertheInvestigationby S.I.T.asP.W.98atExh.616.Asdiscussedearlier, second timedepositionisrequiredtobeconsideredincontinuation of the deposition recorded at first time, in which he has admitted that, his house is just adjacent to house of Yakubkhan and his house is following towards southern sideofKadaDarwajaRoad.HouseofNazirmiyaKalumiya issituatedattheentranceofMaholla.
[68]
P.W.22 Yusufkhan Muradkhan Pathan, Exh.112 has deposedonoaththat,on06.03.2002hewascalledbythe PoliceandinthePoliceStationhewasshownornaments likeZanzari,Acchodo,Ring,Earringsandknottedhairof woman and lump of human meat, out of which he had identified five remains. He had identified the Ring of Jinnatbibi Muradkhan Pathan, Earrings of Banubibi
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Yusufkhan,KadlaofMunafbhaiJabirbhai,Knottedhairsof Suhanabibi Ibrahimbhai, Zanzar of Husenabibi Yakubkhan. Inhiscrossexaminationhehasstatedthat, the house in which he was residing is just in front of Bismillah Manzil, admeasuring 15 x 30 and just on the backsideofsaidhouse,houseofYakubkhanMunafkhanis situated and just adjacent to that house, house of Ibrahimkhna Umarkhan is situated and on another side house of Usmanbhai Mahmadbhai is situated. House of Yakubkhanwashavingtwodoors.Therewasnospacein betweenthehouseofthiswitnessandhisbrother'shouse. Thereisawallinbetweenthetwoandonbacksideofhis house,thereisNaveliofabout15.00Ft.wideandafterthat Naveli,thereishousesofPatelCommunity.DoorsofPatels' house are not following towards Naveli. Only doors of Muslims' houses are falling in the Naveli. House of Ramabhai Hirabhai is towards right side of his house. There is common wall between the said two houses. In betweenthehouseofthiswitnessandhouseofRanjitbhai Ramabhai,thereis15Ft.widewayandthereisGrilloftwo irondoors,whichislockedbyRanjitbhaiRamabhai.Wallof thehouseofthiswitnessisabout12to13Ft.inheightand wallofthehouseofRanjitbhaiisalsoequalinheight.As the said iron doors having Grill was locked, it was not possible for a person to pass from that passage, but a personcangofromthatplacebyjumpingthatirondoors havingGrill.ThatIrondoorshavingGrillwasabout7Ft.
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Leaving that Iron doors having grill, a person can go towards Dipra Darwaja. It is further stated by him that, door of the house of Yakubkhan is falling towards the houseofthiswitness.Further,itisadmittedbyhimthat, ifapersonwantstogotowardsKasba,hehastogotowards easternsideandforgoingtoDipraDarwaja,hehastogo towards western side and the way, which is passing through Chowk is going towards Police Station. From ChudivastoPoliceStation,ifapersonwantstogo,ittakes only5minutes.HehasadmittedthenoisefromChudivas can be heard from Police Station. Heis again examined aftertheInvestigationbyS.I.T.asP.W.133atExh.699.As discussedearlier,secondtimedepositionisrequiredtobe considered in continuation of the deposition recorded at firsttime. Inthesecondtimedeposition,hehasdeposed that,thephotographswhichareproducedvideExh.478are of Chudivas and photographs which are produced vide Exh.494 are also of Chudivas. Referring to photograph producedvide494atSr.No.3hehasstatedthat,itisthe photographofthatirondoorwherehehashiddenhimself andphotographproducedvideExh.479,atSr.No.3isalso ofthesameirondoorshavingGrill.Further,itisdeposed by him the photograph at Sr.No.1 of Exh.478 is the photographofPakkaconstructedhouse,havingwindow.He hasnoknowledgeaboutthathouse.Justadjacenttothat house,anotherhouseisshowntohim.Itisstatedbyhim that,thathouseisofonePatel.Hehasnoknowledgeabout
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the other houses shown in the photographs. The photographshownatSr.No.4ofExh.478,istheBismillah Building.Hehasnoknowledgeabouttheownershipofthat Housesituatedtowardsleftsideofthathouse.Similarly,he is having no knowledge about the seven photographs showing the houses, produced vide Exh.478. But the Photograph No.5 of Exh.478 is the house of Ahmedmiya Hasumiya.Further,hehasnoknowledgeaboutthehouse showninthephotographNo.6.Further,heisunabletosee abouttheownershipoffourhouses,showninphotographs produced vide Exh.479. But he is stating about the photographNo.3,abouttheirondoorsandstatingthat,he himselfhidebehindsaidirondoorsandthehouseswhich areinphotographsbelongtoPatelCommunity.Further,he hasnoknowledgeaboutthephotographNo.3ofExh.494. Further,hehasstatedthat,hehasnoknowledgeaboutthe directionsofdoorofhishousebutmaindoorofhishouse is just in front of house of Kalumiya Nannumiya and on back side of his house, house ofRanjitbhai Ramabhai is situatedandadjacenttothehouseofthiswitness,houseof Yakubkhan Muradkhan issituated.And on another side, houseofIbrahimkhamUmarkhanissituatedanddoorsof house of Yakubkhan Muradkhan are falling towards two sides.Heightofthehouseofthiswitnessisabout8.00Ft. havingshadeofironsheetsonthreerooms.Thereisaway in between his house and house of Ranjitbhai Ramabhai butaRickshawcannotpassfromthatway.Itisadmitted
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bythiswitnessthat,doorofYakubmiya'shouseisfalling towardsawayinfrontofhouseofRanjitbhaiRamabhai.It isfurtherstatedbyhimthat,houseofYakubkhanishaving equal height of his house. It is admitted by this witness that,justadjacenttoirondoors,hishouseissituated.Itis further stated by him that, when he was called atPolice Station for identification of ornaments, those ornaments were in melted condition and knotted hairs and he is unabletodescribeabouttheknottedhairs.Hecouldnot identifywhichtwoEarringswereofhiswifeBanubibiwhich Ring was of his mother Jinnatbibi, Zanzar was of Husenabibi. He had identified those articles before the Police. When we refer the F.S.L. Reports, D.N.A. Test, Muddamal Receipts, Forwarding Letters, Serological Reports etc., we found that, the Muddamal which was sealedinthepresenceofPanchasandaftercollectingall thesamplesitwassentinasitispositionintheF.S.L.and it was received by the F.S.L. in the same condition. ReferringtoExh.76,whichisF.S.L.Report,itsuggestthat, there was no blood in the knotted hairs which were recoveredfromtheplaceofoffence.Furthertherewasno bloodfoundinSampleNos.B,C,D,K,MandN i.e. pieces of cloths, pieces of bones and control Cotton GauzeandControlClaywhilebloodwasfoundinSample No.E,F,G,H,J,I1andI2i.e.Disintegrated Tissues, bag made from flex, pieces of bricks, Shingles while in SerologicalReportorigin ofbloodwasofhuman
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andBloodGroupwasBwhileinSampleNo.F,G,H, I1,I2,JandCtheoriginofbloodwashumanwhile inBloodgroupinSampleNo.CandFundecidedwhilein Sample No.G, H, I1 and I2 was blood group A whileinCottonGauzeSampleNo.JbloodgroupwasAB. InParcelNo.B2,presenceofPetroleumHydroCarbonsof PetrolwasfoundandinParcelNo.JandZ,H8,M13 and S19 presence of petroleum Hydro Carbons of Kerosenewerefound. [69] AnapplicationbelowExh.739waspreferredbytheSpecial Prosecutor for visiting the place of offence by the Court. Accused side had no objection if the place of offence is visitedbytheCourt. [70] Attherequestofaccusedsidebeforetheirarguments,this CourthadvisitedtheSceneofOffense on26.09.2011,at about 10.00 O'Clock, in the presence of Advocates, ProsecutorandPoliceOfficers,Complainant,Witnessesand Accusedpersons.Memorandumwaspreparedaccordingly, which is produced vide Exh.1192 and copies of Memorandum were supplied to the concerned advocates and Prosecutors. Thereafter, arguments of accused side wereheardandattheendofarguments,thiscourtfoundit necessarytoagainvisittheSceneofOffenseforjustand correct decision in the trial and thereafter also MemorandumispreparedincontinuationofExh.1192.Now
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whenweperusetheMemorandum,preparedbytheCourt, it is found that from Visnagar Police Station Ground to Chudivas,DipraDarwaja,thereisoneNavelifromwestto northsouth,whichisabout8Ft.andapersoncanpass fromthatNavelitoChudivas.Afterhearingboththesides, keepinginmindtheargumentsofboththesidesaswellas Map,Panchnama,DepositionsofWitnessesetc.TheCourt has perused the place earlier when first time Court had visited the place, the place was unused and there was Bushes. It was not possible for a person to enter into it therefore,firsttimeCourtcouldnotvisittheinteriorpartof the houses of Chudivas. Considering the arguments and evidence on record, as it was found to have visit of Chudivas minutely therefore, that place was cleaned by S.I.T. so that Court can visit the place and can have a vision of each and every house minutely and for that, a written consent was obtained from both the sides vide Exh.1324. Due to cleaning of the place there was no changeinoriginalpositionofthesceneofoffense.Following situations is observed by the Court during the visit of SceneofOffense: FromMahesanatoVisnagar,passingtowardsVijapur Roadbytakingturnonleftside,theareaknownas DipraDarwajaissituatedandbypassingfromthat placetowardsRightsideturn,thereisRandalMata MadhandbyenteringfromthatplacethereisChowk
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then Chudivas. From Randal Mata's Madh to Chudivas, there is chowk of about 175 Ft. while distancebetweenChowkandChudivasisabout105 Ft. House of Akbarmiya is just in front of Randal Mata'sMadh.TowardseasternsideofRandalMata's Madh, leaving 280 Ft. distance there are houses knownasChudivas.Itistruethat,incidentoccurred intheyear2002andatthetimeofvisitingtheplace morethan10yearshavebeenpassedandtherefore, thehousesinChudivasareinDilapidatedcondition. By entering in Chudivas, House No.1 was of the ownership of Saiyed Kalumiya Nannumiya, having threefloorsandhouseNo.21ownedbyAhmedmiya Hasumiya having Terrace and Ground floor was foundinexistingconditionwhiletheterraceand/or roofoftherestofthehouseswerenotfound.Keeping on hand the Map, drawn by the Circle Inspector, produced on record vide Exh.477, when the Court hasvisitedtheplaceitwasfoundthat,thehouses situatedonthenorthernsideofHouseNos.2,3,10, 13, 14 and 15, no numbers were given to those houses and therefore, for convenience said houses areidentifiedasHouseNos.2A,3A,10A,13A,14 Aand15A. ThereisawaytowardsSouthernsideforenteringin
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Chudivasandthereafter,oneasttowestonrightside towards southern side houses of Chudivas are situated while on northern side meaning thereby towards left side of the road, houses of Patel community are situated and the said position is shown in the Map. The house of Kalumiya NannumiyaSaiyedishavingthreefloorsandonright sidehouseofPatelcommunityissituatedandthere is10Ft.wideroadinbetweenthetwoandthesaid way reaches up to the Chokdi (Square spot in cornerofroomsforaccumulatingandclearingwaster water) situated in front of house of Jinnatbibi and while passing onward, left side meaning thereby towards eastern side in turn, there are houses of northern side, house No.10A, 12, 13A, 14A, 15A and there is open Chowk about 16 x 10 Sq.Ft. betweenHouseNos.1and10Aand12whilethereis 13x23Sq.Ft.openchowkinbetweenHouseNos.3 A,13A,14Aand15Aandthereisopenlandabout 10 x 8Sq.Ft. betweenHouseNos.13A,14A,15A and 2A. Thus there is about 540.00 Sq.Ft. Open landinbetweenthetwolinesofthesehouses.Said positionisnotclearintheMap. Onthe backsideofHouseNos.10,11.13.14and15 towards southern side hinder wall of Houses of Patels' is situated and in between that, one Naveli
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easttowestissituated,whichendsatHouseNo.10. Thereafter,housesofPatels'starts.Thereisonegate, havingIronDoorintwoparts,havinggrillandsaid doorsare8Ft.inheightand4Ft.inwidth andin the said doors, in lower portion up to 2 Ft. iron sheetsfixedandinrestupperportionthereisgrill fromwhichapersoncanseetowardsotherside.On thebacksideofHouseNos.10and11,thereisone slope from North to South, which is admeasuring 7.00 Ft. approximately. For that slope, towards western side of House No.10 and towards Eastern side of House No.11, there are small pillars made fromCementandSteel,whichareabout5.00Ft.in HeightandonfrontsideofHouseNos.10and11,in between the two small pillars, there are another marksofhavingtwopillars. Atpresentthereisno shadeoverthosepillars.Afterthatslopeandonthe backsideofhousesofPatels',thereis5Ft.wideroad and on back side of House Nos.13, 14 and 15, towardssouthernside,thereisbacksideofhouses ofPatelsandthereisawayof10Ft.wideand27Ft. in length is situated. The said way passes from easternsideofChudivastobacksideofRandalMata MadhandthentowardsVijapurroad.Thesaidroad isinbetweentherowofhousesofPatels'. Further, theanotherway towardswhichthedoorsofHouse Nos.1,2,3,6and9aresituated.Thatroadisfrom
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west to east, till the end of those houses than towardsrighthandsideinturnandpassesonward towards left side turn, which approaches to wide road, where both the sides, houses of Patel community aresituated.Further,in frontofHouse No.21,towardseasternsidethereisopenlandabout 32x25Ft.approximately.Inthatopenland,towards easternsidethereisoneToiletBathroomandatthe end of that place, towards eastern side there are stepsandafterthosestepsthereiswayforpassing towards Kada Darwaja and on that way there are Patels' houses towards both the sides. Further, towards eastern side of House No.15 and 15A and towardswesternsideofHouseNo.16,17and18there isonesmallNaveli,knownasDalmiya'sNaveli,which passesfromNorthtoSouth.Further,towardseastern side wall ofHouseNo.5,4and6andwesternside wall of House Nos.7 and 9 there is small Naveli, which also passes from North to South. Towards northern side of back side of House No.8, western side wall of the house of Chaman Choksi and towardseasternsidewallofHouseNo.9,thereisone smallNaveli. ThedescriptionofeachHouseindetail(asperVisit) isasunder:
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HouseNo.1(OwnerSaiyedKalumiyaNannumiya): ItisafirsthouseattheentranceofChudivas,having threefloorsandpakkaconstruction,havingterrace. Forenteringinthesaidhouse,therearetwodoors, oneonnorthsideandsecondonsouthernside.At presentthereisnostaircaseforgoingtoFirstfloor orSecondfloorandtherefore,withthehelpofFire Brigadetogouptofirstfloorandsecondfloor. In the groundfloor of that house, towards northern side,thereisBathroomandChokdiandforentrance there is one door.Therearetworoomsonground floor.Fromsouthernside,thereisonedoorandone big window and one small window while for going first floor, it appears one door for entering towards northernsideandonebigwindowtowardssouthern side andanotherwindowtowardswesternsideand on second floor of that house, one door is on northernsideandsecondoneonsouthernsideand one window towards western side appears. And towardssouthernside,oneBalconyisappearsand towards southern there is one Gallery and towards left side of that Gallery there is one Chimney. ConsideringthesituationofHouseNos.10,11,13,14 and15onthebacksideofthesehouses,afterslopeif a person stands on the way, upper portion of that personcanbeseenfromthesecondfloorofhouse
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No.1orfromterraceorfromGalleryofSecondfloor ofsaidhouse. HouseNo.2(OwnerMahmadkhanBadarkhan): ThishouseisownedbyMahmadkhanBadarkhan.It isfallingtowardseasternsidewayofRandalMata's Madhand easternsideofHouseNo.1.Forentering into the house, entrance door appears in the northernwallofthehouse.Thishouseishavingonly groundfloor. Towards southern side of this house, House No.2A of Umarkhan Badarkhan is situated and towardseasternsideHouseNo.3ofFatehkhan Badarkhanissituated. HouseNo.2A(OwnerUmarkhanBadarkhan): ThishouseistowardseasternsideofHouseNo.1and southern side of House No.2 and western side of House No.3 and 3A and entrance of this house appearsinsouthernwall. HouseNo.3(OwnerFatehkhanBadarkhan): ThishouseissituatedtowardseasternsideofHouse No.2fallingtowardseasternsidewayofRandalMata Madh.EntranceofthishouseappearsonNorthern side wall. Towards southern side of this house,
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House No.3A of Umarkhan Badarkhan is situated and towards eastern side House No.6 of Baloch AnvarkhanBasirkhanandhalfportionofHouseNo.4 ofGulabmiyaaresituated. HouseNo.3A(OwnerUmarkhanBadarkhan): ThishouseissituatedtowardseasternsideofHouse No.2A,southersideofHouseNo.3andwesternside ofHouseNo.4.Entranceofthishouseisappearson southernsidewall. HouseNo.4(OwnerGulabkhanKayamkhanSindhi): Towards eastern side of House No.3 and 3A and southernsideofHouseNo.6thishouseissituated. Entranceofthishouseappearsonsouthernwalland justadjacenttothishouse,towardseasterncorner, houseNo.5issituated. HouseNo.5(OwnerAbumiya): Towardseasternandsouthernside,easterncornerof House No.4, this house is situated. This house is havingbacksidetowardseasternsideandthereafter Naveli is situated. And entrance of this house is towards southern side in the Chowk and towards easternsideintheNaveli.
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HouseNo.6(OwnerAnvarkhanBasirkhanBaloch): ThishouseissituatedtowardseasternsideofHouse No.3.Thishouseishavingentrancetowardseastern side Gallery, having eastern side wall. This house appearshavingtwofloors. HouseNo.7(OwnerAhmedkhanAnvarkhanBaloch): ThishouseissituatedtowardseasternsideofHouse No.8, southern side of House No.9, northern southern Gallery is falling towards western side of this house and entrance of this house is on the westernwallofthehouse. HouseNo.8(OwnerShabbirHusenPathan): ThishouseistowardseasternsideofHouseNo.7and thereisawaytowardseasternsideofthishouseand towards northern side of this house, there is open land. No mark appears for entrance in this house. Therefore, it is difficult to find out the entrance of this house. Towards northern side of this house, thereisopenlandandjustadjacenttothishouse, pakka house of Chaman Choksi having terrace is situated.Thereisawaytowardsnorthernsideand easternsideofthishouse.
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HouseNo.9(OwnerZubedabibiMahemudbhai): This house is situated towards eastern side of the way in the eastern side of Naveli of House No.6. Houseistowardseasternsideoftheroadandthere isHouseNo.7towardssouthernsideofthishouse. OneasternsidethereissmallGalleryinthehouse andthereafter,towardsnorthernsideofHouseNo.8, thereisopenspace. HouseNo.10(OwnerYusufkhanMuradkhan): AfterenteringinChudivas,aftertakingturntowards rightside,backsideofHouseNo.10Aissituatedand towards southern side of that back side of House No.10A, this House No.10 is situated. Towards western side of House No.10, houses of Patel Community in one line are situated and towards westernsideofHouseNo.10,HouseNo.11issituated and towards southern side, after leaving entrance door, there is slope of 7.00 Ft. wide and after that place, there is 5.00 Ft. wide Naveli, said way ends towards western side of House No.10 and just adjoiningthereisirondoorhavinggrillissituated. There are marks for passing and repassing from HouseNo.10and10A.
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HouseNo.10A(OwnerJinnatbibiMuradkhan): After entering in to Chudivas, after taking turn towardsrightsidesaidhouseissituatedjustinfront side.Infrontsideofthathouse,Kitchen,Bathroom andChokdiaresituatedandtowardswesternsideof House No.10A, houses of Patel Community in line aresituated.TowardseasternsideofHouseNo.10A, House No.12issituatedandtowardssouthernside House No.10 is situated. In between house No.10A and10,thereisspaceforpassingandrepassing. HouseNo.11(OwnerYakubkhanMuradkhan): ThishouseissituatedtowardseasternsideofHouse No.10,westernsideofHouseNo.13,southernsideof House No.12. Door of this house appears towards southern side and thereafter, 7 Ft. wide slope is situated and thereafter, Naveli of 5 Ft. in width is situated. HouseNo.12(OwnerAminabibiJahangirkhan): ThishouseissituatedtowardseasternsideofHouse No.10A and western side of House No.13A and northern side of House No.11 and entrance of this houseappearsinthenorthernwallofthehouse.The entranceofthishouseisjustinfrontofhouseNo.1 and2A.
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HouseNo.13(OwnerShabbirmiyaIbrahimkhan Baloch): This house istowardseasternsideof HouseNo.11, westernsideofHouseNo.14,southernsideofHouse No.13A and main entranceof thedoor appears on thesouthernwallandjustadjacenttotheentrance wallofthishouse,westernsidecornerofhouseNo.11 is situated, where the Kitchen of House No.11 appearsandafterKitchenthereisNaveli. HouseNo.13A(OwnerIbrahimkhanUmarkhan Baloch): ThishouseistowardseasternsideofHouseNo.12, western side of House No.14A, northern side of House No.13. Main entrance of the door is on the northernsidewalloftheHouseandentranceofthis houseisjustinfrontofHouseNo.2A. HouseNo.14(OwnerShaikhUsmanbhai Mahmadbhai): ThishouseistowardseasternsideofHouseNo.13, westernsideofHouseNo.15,southernsideofHouse No.15A and entrance of this House is in the southernwalloftheHouse. Thishouseissituated towardseasternsideofHouseNo.13A,westernside
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ofHouseNo.15A,northernsideofHouseNo.14and mainentranceofthehouseappearsinthenorthern wallandmainentranceofthishouseisjustinfront ofHouseNo.3A. HouseNo.15(OwnerSindhiDalubhaiBachubhai): ThishouseistowardseasternsideofHouseNo.14, southern side of house No.15A, there is one small Navelifromnorthtosouth,towardseasternsideof thishouseandtowardssouthernsideofthishouse, back side wall of Houses of Patel Community are situated and main entrance of the house is in the southern wall of the house. And there is Naveli in between the houses of Patel Community and main entrance of this house. This house appears of two floors. House No.15A (Owner Mahmad Hanif Dalubhai Sindhi): ThishouseistowardseasternsideofHouseNo.14A, northernsideofHouseNo.15.OnesmallNavelifrom northtosouthistowardseasternsideofthishouse and main entrance of this house appears in the northernwallofthehouseandmainentranceisjust infrontofHouseNo.4.
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HouseNo.16(OwnerNazirkhanKalumiya): It appears a small Room. Towards western side of said room there is one small Naveli from north to southandtowardseasternsideofsaidroomthereis openlandandtowardsnorthernside,houseNo.17is situated.IntheMapofCircleInspector,entranceof thishouseisshownontheeasternwallofthehouse while at the place the door of the Room appears towards western side of the wall. But there is no specific marks showing about the entrance of the Room. HouseNo.17(OwnerFakirmahmadAnumiya): Towards western side of this house, from north to southoneNaveliissituatedandtowardseasternside ofthisHouse,HouseNo.19and20aresituatedwhile towards northern side house No.18 is situated and towards southernsideHouseNo.16issituated and mainentranceofthehouseappearsinthewestern wallofthehouse. HouseNo.18(OwnerShabbirmiyaHasumiyaBelim): Towardseasternsideofthishouse,HouseNo.21is situatedandtowardssouthernsidehouseNo.17and towards northern side after leaving open space,
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House No.7 is situated and towards western side fromnorthtosouth,onesmallNaveliissituatedand mainentranceoftheHouseappearsinthewestern wall of the House and this House appears of two floors. HouseNo.19(OwnerSugarabibiPirkhan): Towards eastern side of this House, there is open space and towards western side house No.17 is situatedandtowardsnorthernside,houseNo.20and towardssouthernsideopenspaceofhouseNo.16is situatedandmainentranceoftheHouseappearsin theeasternwalloftheHouse. HouseNo.20(OwnerBasanbibiKalubhai): Towards eastern side of this house, there is open space and Bathroom. Towards western side House No.17 and towards Northern side House No.21 and towardssouthernsidehouseNo.19aresituatedand mainentranceofthehouse,appearsintheeastern wall. HouseNo.21(OwnerAhmedmiyaHasumiya): This house is pakka constructed house, having terrace,havinggroundfloor.Towardseasternsideof this house there is open space and thereafter way
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andstepsforpassingtowardsthehousesofPatels'. Towards northern side of this house, after leaving open space, house No.8 is situated while towards westernside,HouseNo.18andtowardssouthernside HouseNo.20andtowardsnorthernsideopenspace ofthehouseissituated.Andmainentranceofthis houseappearsintheeasternwallofthehouse.One doorandsmallwindowappearsinthenorthernwall also. [71] Thus,fromaboveallevidencemanydiscrepanciesappeared in describing the situation of Chudivas. Therefore, prosecutionwasaskedtoexplainthesituationvideorder passedbelowExh.1329andprosecutionhasexplainedthe situationvideExh.1346.Asperexplanationofprosecution followingisthesituationofhousessituatedinChudivas: House No.1 belongs to Saiyed Kalumiya Nannumiya, a pakka house, knownasBismillah Buildingisshownin themapasHouseNo.1. House No.2 belongs to Mohammadkhan Badarkhan is mentionedascollapse.Thathousewasobtainedbyhimon rent from its original owner Namadbai Baserkhan and partitionedintwopartsandinonepartMohammadkhan Badarkhan was residing and in another part his brother UmarkhanBadarkhanwasresiding.
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House No.3 is mentioned in the map as house of FatekhanBadarkhanwhichisrunninginthenameofhis fatherBadarkhanBaserkhan,intheGovernmentrecord. House No.4 is mentioned in the map as the house of Sindhi Gulabkhan Kayamkhan which is running in the Government record in the name of his cousin brother Sindhi Dalubhai Bachubhai and southern side small portioned of this house which is mentioned in vide Exh.477 map as collapse house of Abumiya. That house No.5wastheoneofthepartofhouseno.4. HouseNo.6 belongstoBalochAnvarkhanBaserkhanis mentioned as collapse which is running in the name of himself,intheGovernmentrecord. House No.7 is mentioned in the map as house of AhemadkhanAnvarkhanwhichisrunninginthenameof AhemadkhansfatherBalochAnvarkhanBaserkhan,inthe Governmentrecord. HouseNo.8ismentionedinthemapashouseofPathan SabirhusenSalimbhaiwhichisrunninginthenameofhis father inlaw Badarkhan Baserkhan, in the Government record.
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HouseNo.9ismentionedinthemapExh.477ashouseof JubedabibiMahebubbhaiwhichisrunninginthenameof her fatherinlaw Baloch Anvarkhan Baserkhan, in the Governmentrecord. House No.10 is mentionedaspartitionedintwoparts, outofthemnorthernsideportionismentionedasbelongs toMuradkhanandsouthernsideportionismentionedas belongstoYusufkhanMuradkhan.Thesetwopartsofone houseisrunningintheGovernmentrecordinthenameof elderbrotherofthesetwopersonsJalalkhanMuradkhan. HouseNo.11ismentionedinthemapExh.477ashouse of Yakubkhan MuradkhanandintheGovernmentrecord also name of said deceased Yakubkhan Muradkhan is running. HouseNo.12ismentionedinthemapExh.477ashouse ofAminabibiJahangirkhanwhichisrunninginherself,in theGovernmentrecord. HouseNo.13ismentionedinthemapExh.477ashouse ofBalochSabbirkhanIbrahimkhan,outofthemnorthern sideportionismentionedasbelongstotheirfartherBaloch Ibrahimkhan Umarkhan. These whole house No.13 was runninginthenameofSabbirkhanIbrahimkhanBaloch.
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House No.14 is mentioned in the map Exh.477 as partitioned in two parts as house of Sheikh Usmanbhai Mohammadbhai whichisrunning inthenameofSheikh Usmanbhai Mohammadbhais uncle Sheikh Motubhai Kasambhai,intheGovernmentrecord.
House No.15 is mentioned in the map Exh.477 as partitionedintwopartsoutofthemsouthernsideofthis house is mentioned as Sindhi Dalubhai Bachubhai and northern side of this house is mentioned as Mohammad HanifDalubhai.ThesewholehouseNo.15wasrunningin thenameofSindhiDalubhaiBachubhai. HouseNo.16ismentionedinthemapExh.477asOrdiof NazirmiyaKalumiyawhichisrunninginthenameofthem, intheGovernmentrecord. HouseNo.17ismentionedinthemapExh.477ashouse of Fakir Mohammad Anumiya which is running in the nameofthem,intheGovernmentrecord. HouseNo.18ismentionedinthemapExh.477ashouse ofSabbirmiyaHasumiyawhichisrunninginthenameof their,intheGovernmentrecord. House No.19 is mentioned in the map Exh.477 as the houseofSugarabibiPirkhanandhouseno.20ismentioned
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asthehouseofBisanbibiKalubhai.Boththesehousesare as per Government record running in name of Fakir Mohammad Anubhai, father of both these sisters. This Fakirmohammad is not having any male child and therefore,hehasgivensaidhousetohisbothdaughtersfor residingbutattimeofincidenttheywereresidingattheir maritalhome. House No.21 which is mentioned Exh.477 map in the name of Ahemadmiya Asumiya. That house was also runningintheGovernmentrecordinhisownname. IntheMapExh.477intherelevanthousesnamesof relevant persons are mentioned. Out of them except SugarabibiHouseNo.19andBisanbibiHouseNo.20,all thepersonsalongwiththeirfamilymembersatthetimeof incidentwereresidingintherelevanthouses. [72] Asperthecaseofprosecutionremainsofdeadbodieswere disposed of near Malav Talav. For this purpose when we perusetheevidence,producedbytheprosecution,asper the deposition of P.W.175 Gautamkumar Vishnubhai Barot Exh.912, he has recorded the statements of the ownersoftheadjoiningfieldsofMalavTalavinconnection withtheoffenseregardingtakingofremainsbytheaccused aswellasuseofvehicleintheoffenseetc.Thereafter,on 23.06.2008 he has recorded the statement of Amrutbhai
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Rabari, in his Chamber at Gandhinagar. Chandrakant, owner of the Field was also inquired about this fact on 30.06.2008.Further,hehasdeposedthat,onperusingthe CaseDiaryinrespectofthisoffenseitwasfoundbyhim that, Videography was done on 09.03.2002 and after collectingthatCassetteitwasdisplayedbeforetheCourton 01.06.2010,whichisproducedintheCourt.Duringdisplay oftheCassette,itwasfoundtherecordingofnearbyareaof MalavTalavbuttherewasnorecordingaboutthedrawing ofPanchnama. P.W.13RameshjiRajujiExh.524,who happenstobethePoliceConstablehasdeposedaboutthe Malav Talav that on 09.03.2002 he went to Malav Talav along with P.I. M.K.Patel, Dy.S.P. Shri Jadeja, Officers of F.S.L.,twoPanchas,personsfromMunicipality,Mamlatdar etc.onthebankofpond.TherewereBabultrees,lumpof meatandpiecesofbones,halfburntpiecesofbonesand lumpsofmeats,halfburnFaggotofMustardsteeds,black dots were there. P.W.47 Bachubha Vesalji Jadeja Exh.227 has deposed that on 09.03.2002, P.I. M.K.Patel has received telephonic message and on the basis of telephonic message they went to Malav Talav towards Visnagarsidebankofpondhalfburntpiecesofboneswere lyingandthereweresmellofkerosene.Afterinvestigation in the water, they received some bones and those bones wererecoveredbyP.I.M.K.Patel,inthepresenceofPanchas and F.S.L. Officers and those wererecovered and sent to F.S.L. for investigation. In his second time deposition, he
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has repeated the same thing. Further deposed that, one Muslimpersonwaspresentthere.Inhiscrossexamination bytheaccusedsidehehasadmittedthat,howmanypieces of bones were recovered is not mentioned in the Panchnama. But he has explained that, the remains of bones which were recovered from the Pond or from the banksideofthepondwererecovered.Further,inhiscross examinationhehasadmittedwhentheF.S.L.Vancame,he waspresentattheplacealongwithotherPolicepersons, Panchas and persons from minor community. He has admittedthat,Investigationwasdoneunderhisdirections. M.K.Patel, Police Inspector, has deposed in his first time deposition that, P.S.O. from Police Station had informed himabouttheremainsofpersonsofChudivaslyingatthe bankofpondandtherefore,F.S.L.Officerswerecalledfrom MahesanaandinthepresenceofPanchas,burntpiecesof bones were recovered from the bank of the pond. Near Babul tree from the water of pond, also some pieces of bones were recovered and Panchnama was drawn accordinglyinthepresenceofPanchas.Itwassealedand Control sand was also recovered and the Muddamal was sentto F.S.L.forinvestigation. P.W.65Mahendrasinh BhairavsinhExh.518hasdeposedthat,aftertheincident hewenttoMalavTalavandalltheprocedurewasadopted in his presence. In the presence of Panchas, pieces of boneswererecovered.SampleofControlClaywastakenby F.S.L. and all the Muddamal were sent to F.S.L. In his
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crossexamination he has admitted that, in his presence videographerwasalsocalledandF.S.L.Officerhadvisited the place and all the burnt pieces of bones etc. were recoveredinhispresence.P.W.83DashrathsinhAmthaji Exh.572hasdeposedthat,on09.03.2002healongwith P.I.ShriPatelandotherstaffmemberswenttoMalavTalav. F.S.L.Officers, Executive Magistrate, Photographer, Dy.S.P. ShriJadejaandtwoPanchaswerepresent.Therewasone blackdotandburntpiecesofbones,halfburntpiecesof woods were lying there. Writer Ranjitsinh had drawn the Panchnama at the instance of Shri Patel and from there theyhadrecoveredhalfburntbonesetc.Theytookoneand halfhourforthesaidwork.FromDipraDarwajatoMalav Talavthereis1.1/2Km.Distance.MalavTalavmeansthere waswaterinthepondandneartosaidpondtherewere babultreesandneartosaidplacetherewereagricultural fieldsandwayforgoingtoVisnagartoKada. Further,he has deposed that, Panchnama was drawn as per say of Panchas and the persons who were present there had showntheplace. P.W.171RanjitsinhPitujiExh.865 hasdeposedthat,on09.03.2002P.I.ShriPatelreceivedthe informationabouttheburningofdeadbodiesnearMalav Talav, Kada Darwaja, Visnagar and on the basis of that message, Shri Patel along with F.S.L. Officer Shri Modi wenttoMalavTalav.PanchnamawasdictatedbyShriPatel and he had written the Panchnama. Nitinkumar Patel of RaviStudiowaspresentandVideographywasdonebyhim
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butthesaidVideographyCassettewasnotproducedinthe Police, in his presence.HehasnotseentheVideography andPhotography.Inhiscrossexaminationhehasadmitted that, Panchnama was drawn in the presence of F.S.L. Officers and he has written Panchnama as per say of Panchas and during the whole procedure of Panchnama, YusufkhanMuradkhanwaspresent.P.W.152Dahyabhai MafatlalPatelExh.787hasdeposedthaton09.03.2002 whetherhis vehiclewasusedforcarryingtheremainsof dead bodiesto MalavTalav,hehadnotinquiredaboutit fromhisdriverandtherefore,hehasnoknowledgeabout thesame.P.W.172NitinkumarChhotubhaiLimbachia Exh.869 hasdeposedthat,on09.03.2002hewascalled bythePoliceforPhotographyandVideography,nearMalav Talav.ThathedidnotrememberwhetherVideographywas done by him near Malav Talav or not. But he has done photography.Whateverphotographsweretakenbyhimand Videographydonebyhimwerehandedoverbyhimtothe Policeonthesameday. Inhiscrossexamination,hehas stated that, he did not remember whether F.S.L. Officers werepresentatMalavTalavornot.Butrecordingwasdone about one hour. Thereafter, he has explained that, no Videography was done at Malav Talav, only Photography was done. P.W.49 Hasmukhlal Thakorlal Modi Exh.232hasdeposedthat,on09.03.2002onreceivingthe informationabouttheburningofdeadbodies,theywentto the sim of Visnagar, on Kada Darwaja, near Octroi Point
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(JakatNaka).HewentwithF.S.L.Vanandinthepresence ofPanchas,hehadvisitedtheplace.Therewasblackdot surrounding 14 Ft. x 10 Ft. and there was smell of inflammableitemandallthesampleswererecoveredatthe instructionsofI.O.SampleofControlClayandlackburnt dots of Clay, burnt and half burnt pieces of bones were recovered in the presence of Panchas, it was sealed and PanchnamaproducedvideExh.152wasdrawnaccordingly. Inhiscrossexamination,hehasadmittedthat,onthatday forfirsttimehewenttoMalavTalav.Hehasnoknowledge whether that place is used by Raval and Vaghari community for burning the dead bodies. In second time deposition,itisadmittedbyhimthat,howmanypiecesof bones were recovered from the water or from land and duringtheprocedureatMalavTalav,twohourstimewas taken.Dy.S.P.ShriJadejawaspresentandPanchnamawas done at the instructions of I.O. Shri Patel. P.W.18 SaiyedNazirmiyaKalumiyaExh.103 hasstatedinhis firsttimedepositionthat,hehasnotstatedanythingabout MalavTalavPanchnamawhileinhiscrossexaminationhe hasdeniedthat,on10.03.2002beforePolicehehasstated that, he went to Malav Talav on 09.03.2002 and he had identified the remains. He has denied the fact that, the Panchnama was drawn at Malav Talav on 09.03.2002, in hispresence. P.W.22YusufkhanMuradkhanPathan Exh.112hasdeposedthat,on09.03.2002,Policetookhim tothePoliceStationandtherewerelumpofhumanmeat,
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bones,remainsofburntandPolicetoldhimthat,thoseare the dead bodies of six persons of his family, which are recoveredfromMalavTalav,inthepresenceofF.S.L.Team. Inhiscrossexamination,hehasdeniedthat,forthefirst time,heisstatingthisfactbeforetheCourt.Inhissecond timedeposition,hewasnotpresentatthetimeofdrawing ofPanchnama,nearMalavTalav.Inhiscrossexamination, hehasdeniedthat,PolicehadcalledhimatMalavTalav.He hasdeniedthefactthat,atthesayofprosecutionside,he is telling that, he had seen the remains in the Police Station.Further,hehaddeniedthat,on09.03.2002hewas calledbythePolicefromGetiyavastoMalavTalav.P.W.23 AhmedmiyaHasumiyaBelimExh.128 hasstatedthat, Police had called him on 09.03.2002 near Malav Talav. Therewasoneblackdot,piecesofbones,piecesofcloths, lumpofmeatandfivedeadbodieswererecoveredfromthe pond.Insecondtimedeposition,hehasfurtherstatedthat, at Malav Talav other Muslims Yunusbhai, Ibrahimbhai Memon and other 4 to 5 Muslim persons were present, F.S.L.OfficersandPolicewerethere.Therewasbedsmellof humanmeat.LumpsofHumanmeat,piecesofclothsand bones were found near Bushes. One bundle was drawn from the pond in which pieces of bones, ornaments and lumpofhumanmeatwerethere.Theywereforonehourat Malav Talav. Yusufkhan was not present at Malav Talav. Lump of human meat was half burnt. P.W.24 Shermahmad Dalubhai Sindhi Exh.132 has deposed
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that,on09.03.2002PolicetookhimtoMalavTalav,where he found bones of dead bodies. Those were the bones of Yakubkhan Muradkhan, Aasif Yakubbhai, Attaullakhan Yusufkhan, Amanullakhan Yusufkhan, Suhanabibi and Yakubkhan.P.W.25MohmadhanifAhmedkhanBaloch Exh.132hasdeposedthat,on09.03.2002onreceivingthe information he along with Police persons went to Kada Road,MalavTalav,wheretheyfoundlumpsofhumanmeat, therewasoneblackdotontheland,therewasevidenceof destroyingtheevidenceofmurderofsixpersons.Panch Yunusbhai Tantri and Iqbal Valmiya were present. In his crossexamination it is denied by him that, he was not presentatMalavTalavatthetimeofdrawingPanchnama andremainswereshowntohimatPoliceStation.Insecond time deposition he has admitted that, he has declared before S.I.T. on 24.05.2008 that, he was not present at Malav Talav. He has also not stated before the Visnagar PoliceStationon10.03.2002that,atthetimeofdrawing Panchnamaon09.03.2002hewaspresentatMalavTalav. Furtherhehasshownhisignoranceaboutthedrawingof Panchnama by P.I. Shri Patel on 09.03.2002. P.W.2 MahmadIqbalAhmedkhanBalochExh.66 inhisfirst time deposition has not deposed anything about the happenings at Malav Talav while in his second time depositionhehasdeposedthat,MalavTalavisatadistance of1.1/2Km.FromChudivasandapersoncangotoMalav TalavviaDipraDarwaja.Further,hehasdeposedthat,on
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09.03.2002, remainswerebroughtbythePoliceatPolice Station.HewaspresentatPoliceStation.F.S.L.Teamcame atMalavTalavandcollectedthehalfburntpiecesofbones and lump of human meat and Yunusbhai had identified that lump of human meat as of his Family Members. Further,hehasdeposedinhiscrossexaminationthat,he didnotrememberwhetherinhisearlierdepositionhehas statedthat,on09.03.2002whentheremainsfromMalav TalavwerebroughtatPoliceStation,Yusufbhaiwaspresent withhim. P.W.5ZubedabibiMahemudkhanBaloch Exh.84 has not deposed about the happenings at Malav Talavwhileinsecondtimedeposition,shehasdeposedthat on 09.03.2002 she had not gone to MalavTalav and she has stated that, she did not remember that, she was present on 09.03.2002 at Malav Talav at the time of drawingofPanchnama. P.W.29HanifabenShabbirbhai PathanExh.144hasdeposedonoaththat,shewasnot calledbythePoliceatMalavTalavon09.03.2002.Inher crossexaminationshehasstatedthat,shehasnotstated beforethePolice,on10.03.2002thaton09.03.2002F.S.L. OfficersandshealongwithtwoPanchaswerecalledatthe bankofMalavTalav,wheremanydeadbodieswereburnt byinflammableitemslikePetrol,Keroseneandhalfburnt piecesofbonesandotherremainswererecoveredfromthat place and from the remains of bones, Yusufkhan had identifiedthebonesofhissonAttaullahkhananddaughter ofhisbrotherJalalkhanSuhanabibiandYakubkhanand
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sonsofYakubkhanAabidkhanandAasifkhanandthus total six bodies were identified by him. P.W.30 ShabbirmiyaHasumiyaBelimExh.146hasstatedthat, on08.03.2002PolicecalledhimatMalavTalav,wherelump of meat and bones and Taviz of Yakub was there. He could not identify the dead bodies as there was lump of meat.Inhiscrossexaminationhehasdeniedthefactthat, hewasnotpresentatMalavTalav.Itisalsodeniedbyhim that, he has not stated before the Police that, on 01.03.2002PolicetookhimatMalavTalav,whereTavizof Yakub,bonesandlumpofmeatwerethere.Inhissecond timedeposition,hehasstatedthat,atMalavTalav,F.S.L. Officers were present, there were smell of burning of humanbody. Therewereburntpiecesofbonesandlump of meat of human body where remains were burnt there wasblackdot.OneRingandTavizwerethere.Hestayed there for 1.1/2 hour. In his crossexamination he has admittedthat,on09.03.2002forthefirsttimehewentto MalavTalav.Hehasadmittedthat,on08.03.2002hewas notatMalavTalav.Hehasnoknowledgewhenhewentat MalavTalavwhetherYusufbhaiwaspresentornot.Further, hehasstatedthat,inhispresencebonesweretakenout fromthewater,whichwerehalfburnt.Hehasnotseenthe fresh fire at Malav Talav. Malav Talav is 1.1/2 Km. away fromtheCity.Itisdeniedbyhimthat,deadbodiesofdog, cow,pigetc.usedtotakeatMalavTalavfordissectionand hehasnoknowledgewhetheranimalsarebeingburiedat
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Malav Talav. P.W.31 Aarifkhan Yakubkhan Pathan Exh.147 has not stated in first time deposition about happenings at Malav Talav and in his second time deposition,inhiscrossexaminationhehasdeniedthat,on 10.03.2002, he has stated before the Police that on 09.03.2002F.S.L.OfficerscameatMalavTalavand11dead bodieswereidentified. P.W.32MahmadhanifDalubhai Sindhi Exh.150 has stated that, on receiving the information,F.S.L.TeamcalledhimatPoliceStationthen wenttoMalavTalav,wherehumanremainslikeboneswere recoveredandtherewasBlackdotonthespot.Duringhis second time evidence, he has stated that, there was bed smellofburningof humanbodyandtherewaspiecesof bones, one Taviz was also found and two Panchas were presentandpolicedidwholeworkatthatplace.Further,in hiscrossexaminationhehasstatedthat,Videographywas doneandPanchnamawaspreparedaccordingly.Whenwe peruse the deposition of Panch witnesses of Malav Talav Panchnama, Dated 09.03.2002, P.W.91 Imran Abdul RasulMemonExh.594 hasdeposedonoaththat,he was called by the Police at Malav Talav for drawing of Panchnama on 09.03.2002 along with him Yunusbhai Alibhai Mansuri was the second panch. They reached at Malav Talav at about12.30P.M. PoliceOfficer M.K.Patel andotherPoliceOfficers,F.S.L.Officersandothertwoto three Muslim persons were present, near Malav Talav towardsroadsideoneblackdotwasfoundandthereafter,
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piecesofhalfburntboneswerecollectedbyF.S.L.Officers. Therewasonebabultreefromtherealsohalfburntbone pieceswererecovered.F.S.L.OfficershavecollectedControl ClayfromtheplaceandfromthePondoneRingandhalf burntpiecesofboneswererecovered.OneTavizwasalso recoveredbytheF.S.L.Officers.Smellofburntofhuman bodywascoming.Halfburntpiecesofbones,Tavizwere sealedbythePoliceandPanchnamawasdrawnandonslip signaturesofPanchasweretaken.InPanchnamaproduced videExh.152boththepanchashavesigned.AtMalavTalav Yusufbhai Muradkhan and Shabbirmiya Hasumiya were also present. Yusufkhan Muradkhan had identified the familymembersbyseeingtheremainsandthePolicehad written the name which were given by Yusufkhan Muradkhan. Photographer was present. Control Clay ArticleNo.28,piecesofbonesArticleNo.27areidentified bythiswitnessbeforetheCourtandhehasalsoadmitted the signature in the slips, which are produced vide Exh.596, 597 and 598. Another Panch P.W.92 YunusbhaiAlibhaiMansuriExh.599 hasalsodeposed onoathaboutthedrawingofPanchnamaatMalavTalav.As statedbytheanotherpanchImranAbdulrasulMemon, thispanchhasalsoadmittedhissignatureinslipsaswell asinPanchnama.HehassupportedthePanchnama.When we peruse the examination of Panch Imran Abdulrasul Memon, he has stated when he went to Malav Talav, Yusufbhaiwasnotwithhimandstraightwaytheywentto
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MalavTalav.Hehasnoknowledgeaboutthedischargeof drainagewaterintheMalavTalav.Hehasadmittedthat, therewascleanwaterinMalavTalav.Onthebankofpond there were babul trees. Nothing more comes out in his crossexamination. In this regard when we peruse the Panchnama, producedvideExh.152,thisPanchnamawasdrawninthe presence of Police Inspector Shri Patel and Panchas, on 09.03.2002atabout13.15to15.00Hours.ThisPanchnama supportsthedepositionofboththepanchasaboutrecovery ofhalfburntpiecesofbones,oneTavizanditwassealedby putting the slips having signatures of Panchas. The said PanchnamawasdrawninthepresenceofScientificOfficer Shri H.T.Modi, Finger Print Expert Shri V.S.Aloti and other Police Officers and Videographer. There was one blackdot14Ft.x10Ft.bythesideofbankofPond.There wassmellofinflammableitems.Yusufkhanhasidentified the bones of Pathan Yakubkhan Muradkhan, Pathan Aasifkhan Yakubkhan, Pathan Aabidkhan Yakubkhan, Khilji Suhanabibi, Zabirbhai Usmanbhai, Attaullahkhan Pathan,AmanaullakhanYusufkhanPathan.Itismentioned that,thevideographyoftheplacearealsodone.Thus,the drawingofPanchnamaissupportedbyboththePanchasas well as from the earlier deposition of I.O. and other witnesses. So far as F.S.L. Report and Serological Report producedvideExh.76&77areconcerned,inSampleNo.L
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of Exh.76, presence of Petroleum Hydro Carbons were foundandthatwasthesampleofClay,whichwastaken from the black dot from the bank of Malav Talav. The pieces of bones whichwere recovered from thePond and from nearby of the pond are having origin of thehuman blood while bloodgroupisundecided.Whenwereferthe report, produced vide Exh.78 it suggests the presence of petroleumcarbohydrateinSampleNo.N.Forthispurpose when we refer Exh.209, this report is prepared by Shri H.T.Modi,whichsupportsthedepositionofShriH.T.Modi that, he had visited the place with F.S.L. Team on 09.03.2002atabout13.15to15.00Hoursandonthebank ofMalavTalavDy.S.P.Jadeja,I.Oandotherpersonswere presentandtherewasoneblackdotencircling14x10Ft. andtherewassmellofinflammableliquidandsamplesof ClayfromtheblackdotaswellasControlClayandHalf burntpiecesofboneswererecovered.Thisdocumentfully supportsthesayofShriH.T.Modiandtheprosecutioncase inthisregard.SofarasD.N.A.Test,whichisproducedvide Exh.245inrespectofSampleNo.Nisconcerned,itwas bone pieces and as per D.N.A. Test those bones were completely charred pieces, therefore, blood could not be detected and the result was that no STR patent was obtained from Exh.C therefore, no conclusion could be made on its comparison with those of Control Blood Samples.D.N.A.wasextractedbyS.O.E.M.
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Keeping in mind the situation mentioned in MemorandumproducedvideExh.1192andtheexplanation submitted by prosecution vide Exh.1346 and the Map producedvideExh.477Iwillappreciatetheevidencebutit doesnotmeanthat,theotherevidencewhichisonrecord isrequiredtobediscarded.Theotherevidenceinrespectof sceneofoffencewillalsobekeptinmindwhileappreciating the evidence. From the evidence, prosecution has proved whatever incident occurred that has occurred in Dipra Darwaja,ChudivasMaholla.Fromthecrossexaminationof the witnesses, as well as from the defence of accused nothing comes outfrom whichwecandisbelievethefact that, incident has not occurred in Chudivas. Further, it doesnottranspiresfromwholedefencethat,thedefenceis challenging the fact that, incident has not occurred in Chudivasarea.Theonlydefenceregardingplaceofincident ischallengedbytheaccusedsideisthat,prosecutionside ischangingplaceswherethepersonswerekilledaswellas placeswherethedeceasedwereburnt.Butthatiswithin theareaofChudivas,DipraDarwaja. Thus,fromtheaboveevidence,itiswellestablished by the prosecution that, on receiving the message Police party, along with F.S.L. Team, Panch witnesses, Muslim witnesseswenttoMalavTalavandPanchnamawasdrawn thereandduringthecourseofPanchnama,someremains wererecoveredeitherfromthepondorfrombythesideof
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pond.ThosewereexaminedbyF.S.L.Fromthebonesand otherremainssomeofthewitnesseshavetriedtoestablish that,thosebonesandremainsofsixallegeddeadpersons of their family members or from their Maholla but from F.S.L.Report,D.N.A.Testandotherevidenceitisdifficult toconcludethat,thosebonesbelongtoaparticularperson. It will be mockery of justice if we accept the version of familymembersofalleged11deadpersons.Howaperson can identify a dead body from a piece of bone in a circumstances where F.S.L. failed in reporting about the identificationofthedeadbodies.Thus,thereisnothingin evidence of Malav Talav to establish the disposing of six deadbodiesatMalavTalavtoconnectthoseremainswith thepresentcrime.Hencethereisnosubstanceinthesay ofprosecutionaboutdisposinganddestroyingtheevidence atMalavTalav. Thus, keeping in mind the situation as discussed above in respect of Panchnama drawn on 01.03.2002 of sceneofoffence,producedvideExh.168,Panchnamadated 06.03.200, produced vide Exh.151, Map produced vide Exh.164, Panchnama drawn by F.S.L. Mobile Van dated 07.03.2002, produced vide Exh.182, Map, prepared by Circle Inspector, produced vide Exh.477, Photographs produced vide Exh.478 and 479, Video Cassette of the Scene of Offence, produced vide Exh.899, Memorandum, preparedbytheCourt,whilevisitingtheplaceofoffence,
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producedvideExh.1192andtheapplication,producedvide Exh.1346bySpecialProsecutor,explainingthedescription oftheHousesofChudivas,Iwilldiscussandappreciatethe evidenceofthewitnesses.Detaileddescriptionofsituation ofthehousesaswellasMahollaofChudivasisnecessary therefore,indetailitisdiscussedabovesothat,Courtcan conveniently appreciate the evidence of the witnesses to reachtojustandcorrectdecisioninthetrial.However,here I will like to mention that, there are variations in descriptionsofthepropertiesinmostofthedocumentsas wellasinthedepositionofthewitnessesabouttheexact positionoftheMahollaandhousesandthesurroundings oftheMaholla.Insuchcircumstancesbyconsideringthe Memorandum Exh.1192 and the application produced videExh.1346andtheMap,preparedbyCircleInspector, producedvideExh.477willbeconsideredasconclusiveand authenticoneinacircumstanceswherevariationsoccurs inthedepositionsaswellasinotherdocumentsbutitdoes not mean that, I am ignoring other documents and evidence of the witnesses. Thus, from the evidence on record the Prosecution has proved whatever incident has occurred, was occurred in Dipra Darwaja Chudivas Maholla.Fromthecrossexaminationofthewitnessesalso nothingcomesoutfromwhichwecandisbelievethisfact. Further,fromthedefenceofaccusedsidealsoitdoesnot transpires that, defence is challenging that, the incident wasnotoccurredinChudivasarea.
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DAMAGES:
[73] Asperthecaseoftheprosecution,intheincidentmobhad causeddamagestothepersonsandpropertiesofMuslims, residing in Chudivas. For that when we peruse the Panchnama,Map,DescriptionofPropertyCard,Ownership Documents,Depositionsofwitnessesanddamagesshown in the Panchnama etc. there appears 21 houses in the Chudivas. House No.1 belongs to Nazirmiya Kalumiya. Nazirmiya Kalumiya is examined as P.W.18, as per Panchnama, produced vide Exh.169, loss caused to his house is shown as Rs.1,20,000/. This witness is not speakingaboutthedamagescausedtohishouse.Second house is of Mahmadkhan Badarkhan Baloch. As per PropertyCard,nameofownerofsaidpropertyismentioned asNamadbaiBasherkhan.Thiswitnesshadkeptthehouse on rent basis and Mahmadkhan and Umarkhan were residinginthehouses.ThiswitnessisexaminedasP.W.6 MahmadkhanBadarkhanBaloch(Exh.85)buthehasnot deposed any loss caused to this house. However, as per PanchnamaRs.30,000/damagesshown.HouseNo.3isin thenameofFatehkhanBadarkhan,inGovernmentrecord itismentionedinthenameofBadarkhanBasherkhan,he isP.W.1,notdeposingaboutthedamagestotheproperty butinthePanchnamalossofRs.40,000/isshown.House No.4isinthenameofGulabkhanKayamkhan,inProperty Card,nameisshownasSindhiDalubhaiBachubhaiand asperMap,producedvideExh.477,itisshownasdebrisof
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the House of Abumiya and he is the P.W.3 and as per PanchnamaRs.40,000/lossisshownbutthiswitnessis alsonotdeposingaboutthelosscausedtohishouse.This houseisshowninthePanchnamaasHouseNo.10.House No.5,asperMapExh.477,itisinthenameofAbumiya,as perPropertyCard,itisinthenameofDalubhaiBachubhai Sindhi,inGovernmentrecorditisinthenameofDalubhai Bachubhai. House No.6, as per Map Exh.477 belongs to AnvarkhanBasherkhanBaloch,whoisexaminedasP.W.33 , he has not deposed about the damages caused to his house.However,asperPanchnamaLossisshowntothis HouseforRs.25,000/.HouseNo.7,asperMapExh.477it isinthenameofAhmedkhanAnvarkhan,inPropertyCard also his name is mentioned. In Government record this houseisrunninginthenameofhisFather.Thiswitnessis examinedasP.W.51.Hehasnotdeposedaboutlosscaused tohishousebutasperPanchnama,losstohishouseis shownforRs.11,000/.HouseNo.8isasperMapExh.477 is in the name of Shabirhusen, while in Property Card nameofBadarkhanBasherkhanismentioned.Nolosshas beenshowninthePanchnamatothishousenoranyone has deposed aboutthelosscausedtothishouse.House No.9isasper MapExh.477inthenameofZubedabanu Mahebubkhan Baloch. In the Property Card name of Anvarkhan Basherkhan ismentioned and inGovernment record, it is mutated in the name of Anvarkhan Basherkhan. ThiswitnessisexaminedasP.W.5,she has
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notdeposedaboutthelosscausedtohishousebutasper Panchnama loss caused to his house is shown as Rs.5000/. House No.10, as per Map Exh.477 is in the nameofYusufkhanMuradkhan,asperPropertyCarditis inthenameofJalalkhanMuradkhanandinGovernment record,itisinthenameofJalalkhanMuradkhan.Witness isexaminedasP.W.22,whohasshownlosscausedtohis houseforRs.7,000/.InPanchnama,thishouseisshown as House No.16 and loss caused to this house as Rs.7,000/. House No.11 is in the name of Yakubkhan Muradkhan,hehasnotdeposedaboutthelosscausedto hishouse.InthePanchnamalossshownasRs.5000/to thishouseandthishouseisshownasHouseNo.17.House No.12 is as per Map Exh.477 in the name of Aminabibi JahangirkhanPathan,itisinthenameofwitness,lossis shownasRs.5000andinthePanchnamaitisshownas HouseNo.15.HouseNo.13isasperMapExh.477isshown in the name of Shabbirmiya Ibrahimkhan, in the Governmentrecord,itisshowninthenameofhisfather, witnesshasnotdeposedaboutlosscausedtohishouse, while second partofhishouseisshownasHouseNo.14 andlosscausedtothehouseisshowninthePanchnama asRs.4100/.HouseNo.14isinthenameofMahmadbhai. HouseNo.14AisinthenameofUsmanbhaiMahmadbhai, inGovernmentrecorditisinthenameofKasambhai.In thePanchnamathishouseisshownasHouseNo.13and loss caused to thishouseisshownasRs.4000/.House
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No.15 is in the name of Dalubhai Bachubhai. In PanchnamaitisshownasHouseNo.12andlossisshown asRs.14,000/.HouseNo.15AisinthenameofMahmad Hanif Dalubhai, no loss is shown in the Panchnama, witnesshasalsonotdeposedaboutthelosscausedtohis house.HouseNo.16isinthenameofNazirkhanKalukhan, heisexaminedasP.W.18buthehasnotshownanyloss caused to this house. House No.17 is in the name of Fakirmahmad Anumiya. No loss is shown to this house. House No.18 is in the name of Shabbirmiya Hasumiya, while in Governmentrecorditisrunninginthenameof AhmedmiyaHasumiya,thiswitnessisexaminedasP.W.13, he has deposed that, he received Rs.5,500/ towards damages. Another Cheuqe of Rs.7000/ was received by himonbehalfofhisbrotherbutheisnotcompensatedfor losscausedtohisAutoRickshaw. HouseNo.19isinthe name of Sugarabibi, it is running in the name of Fakirmahmad Anubhai, no loss is shown in the Panchnama. House No.20 is in the name of Basanbibi Kalubhai,inGovernmentrecorditisrunninginthename of Fakirmahmad Anubhai, no damages is shown to this house. House No.21 is in the name of Ahmedmiya Hasumiya, it is running in his name, he is examined as P.W.23 but has not deposed about loss caused to his house.InPanchnamahishouseisshownashouseNo.8 and loss caused to his house is shown as Rs.7,000/. P.W.141 Virambhai Ramjibhai Desai (Exh.736) from City
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SurveyOfficeisexamined,whohasproducedtheProperty Cardsof16Houses,videExh.737,showingtheownership of theHouses.WhenweperuseExh.737,itsupportsthe sayofthiswitness.Incrossexaminationnothinghasbeen brought from which we can discard the 16 properties owned by respective owners. In this regard when we perusethedepositionofP.W.155KirtikumarVitthalbhai Patel(Exh.794), whoisservingintheMamlatdarOfficer, Visnagar, has deposed on oath that, they have paid compensation to the victims of Dipra Darwaja, Chudivas and in support of that, he has produced the Statements vide Exh.795, 796 and 797. When we peruse all these three documents shows that, amount towards compensationwerepaidtothevictims.
TIMEOFINCIDENT:
[74] As per the charge incident occurred in between 04.00 04.30to08.30P.M.Forthispurpose,whenweperusethe depositionofP.W.8ReshmabenSattarbhai(Exh.87)she has deposed that, on the day of incident she was in Chudivas. In her crossexamination on behalf of accused Nos.1 to 82, she has deposed that, at about 04.30 mob cameandstartedpeltingstones,burningthehousesetc. Incident started at about 5.00 P.M. She has not stated before Police that, mob of about 200 persons came with weaponsatabout08.30P.M.whenthehouseswereburnt, atabout06.00P.M.theywentinthehouseofAhmedmiya. During06.00to9.30P.M.about50personsfromMaholla
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were in the Ahmedmiya's House. P.W.18 Saiyed NazirmiyaKalumiya(Exh.103)hasdeposedthat,atabout 04.00 P.M. to 05.00 P.M. a mob of about 200 to 300 personscameandtheincidentstartedatabout05.00P.M. anditwascontinuedupto09.00P.M. Policecameabout 08.30P.M.InhiscrossexaminationbyaccusedNos.1to82 hehasstatedthat,atthetimeofincidenthealongwithhis otherfamilymemberswasontheterraceofhishouseand they stayed on terrace up to 09.00 P.M. The incident of causinginjuriesandkillingthepersonsoccurredatabout 06.30 to 07.00 P.M. Incident occurred in the month of February.Itisdeniedbyhimthat,hehasnotstatedbefore thePolicethat,incidentstartedatabout04.30P.M.Itis alsodeniedbyhimthat,hewasnotpresentatthetimeof incident.Inhissecondtimedeposition,hehasstatedthat, incidentstartedatabout02.00to02.30P.M.andatthat timehewasintheMahollaandtheincidentinChudivas continuedupto09.00P.M.andpolicecameatabout08.30 P.M.Inhiscrossexamination,hehasadmittedthat,inhis statement before Visnagar Police, before S.I.T. and in his application dated NIL as well as in his earlier deposition has not stated that, the incident started about 02.00 to 02.30 P.M. Further, in his crossexamination by accused No.85, he has stated that at about 02.00 to 02.30 P.M. whenheheardthenoise,hecouldnotfeelthat,itisnot possibletostayintheMaholla.Itisdeniedbyhimwhen themobcameatabout02.00to02.30P.M.,hewasunder
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fearbuthadnottriedtogoatasaferplace.Further,itis deposedbyhimthat,onthedateofincident.Mobcameat about04.00to04.30P.M.andatthattimehewasinthe Mahollaandwentinsidehishouse.Thesecondtimemob came at about 04.30, which went towards the house of Yusufkhan. P.W.22 Yusufkhan Muradkhan Pathan (Exh.112) hasdeposedthat,atabout04.00P.M.to05.00 P.M.amobofabout200personscamefromRandalMata Madhside.InhiscrossexaminationbyaccusedNos.1to82 hehasdeposedthat,deadbodieswereburntbythemobat about 06.00 to 07.00 P.M. At about 04.30 P.M. to 05.00 P.M. incidentofkillingoccurredatabout05.00to06.00 P.M.Further,hehasdeposedthat,atabout08.00to09.00 P.M.houseswereburnt,priortothat.Itisadmittedbythis witnessthat,during04.00P.M.to09.00P.M.Policedidnot cametoChudivas.Itisdeniedbyhimthat,hehasstatedin his statement before the Police about the occurrence of incidentatabout08.00to08.30P.M.Itisdeniedbyhim that, he has not stated before the Police that, at about 04.30to05.00P.M.amobofabout200personscamefrom theRandalMataMadh.Itisdeniedbyhimthat,hehasnot stated before Police or not stated in the application, preferred before the Magistrate that, at about 06.00 to 07.00P.M.the deadbodiesofthedeceasedpersonswere taken near the House of Bachumiya and Nazirmiya and afterpouringkeroseneandpetrol,deadbodieswereburnt. Inhissecondtimedepositioninhiscrossexaminationby
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theaccusedNos.1to82, hehasdeposedthat,theywere sittingintheMahollaatabout04.30,asthemobcame,he wentbehindGrill.Itisdeniedbythiswitnessthat,incident occurredatabout08.30P.M.Itisdeniedbyhimthat,as therewasdarkat08.30P.M.andattheinstanceofS.I.T. Police,heistellingaboutoccurrenceofincidentatabout 04.00 P.M. P.W.23 Ahmedmiya Hasumiya Belim (Exh.128) has stated that, incident occurred at about 08.30P.M.Atabout07.30P.M.therewasnolightinthe area.Atabout05.00P.M. Swordswerebrandished.After onehourIbrahimkhanwenttothePoliceStation,Swords wereusedafterthatabout05.30to06.00P.M.burningthe houses took place. His house was burnt at about 06.30 P.M. It is admitted by him that, in his statement before PoliceorbeforeS.I.T.orintheapplicationdatedNilandin earlierdeposition,hehasnotstatedthatatabout2.00to 2.30P.M.houseofAkbarmiyawasdamagedbythemob.It is denied by him that, incident occurred at about 08.30 P.M. It is denied by him that, he has stated before the Visnagar Police Station on 08.03.2002 that, incident occurredatabout08.30P.M.Further,hehasdeposedthat, hedoesnotrememberwhetherhehasstatedbeforeS.I.T. for the first time after six years of incident that, the incident was not occurred at 08.30 but occurred earlier. Forthefirsttimeheheardthevoiceduring02.00to02.30 P.M.Itisdeniedbyhimthat,atabout02.00to02.30P.M. mobwascomingtowardshisMaholla.Itisadmittedbyhim
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that,mobwhichhehadseendidnotenterintheMaholla up to 04.30. P.W.24 Shermahmad Dalubhai Sindhi (Exh.132) has stated that, incident occurred at about 04.30andatthattime,hewasinhishouse.Atabout02.30 P.M. hecameoutfromhishouseandatabout04.30he wasinhishouse.Hishousewasburntatabout06.00P.M. andhecameoutfromhishouseatabout06.15P.M.and wenttothehouseofAhmedmiya.AhmedmiyaHasumiya's housewasburntatabout09.00P.M.Itisadmittedbyhim that, about 09.00 P.M.healong with other persons from Maholla were in the house of Ahmedmiya. It is also admittedbyhimthat,atabout09.00P.M.theycameout from the house of Ahmedmiya. Ibrahimbhai went to the Policeatabout05.30P.M.andthereafter,after3.00to4.00 hours police came. Incident of cutting and killing the persons occurred at about 06.00 P.M. and at that time therewasnodarkness.HehasnotstatedbeforethePolice that,incidentoccurredatabout08.30P.M.Itisadmitted byhimthat,hehasstatedbeforethePolicethat,atabout 08.30P.M.mobof200to300personshavingironpipes, sticks,dhariyas,Swords,kerosenegallons,SortofSpears etc.cameintheMaholla.Itisadmittedbyhimthat,inthe applicationbeforeMagistrate,aswellasinthestatement before Police, he has not stated about the occurrence of incidentatabout04.30P.M.Inhissecondtimedeposition, he has repeated the same facts as stated in his earlier deposition.Further,hehasdeposedthat,Police cameat
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about08.00to08.30P.M. Further,hehasdeposedthat, hehasnoknowledgeatwhattime11personswerekilled but at that time, there was light. Further, it was not happenedthatIbrahimkhancamebackatabout06.30P.M. andatthattimeincidentofcuttingthepersonsoccurred. Inhiscrossexamination,hehasdeposedthat,hedoesnot remembered whetherhehasdeposedbeforetheVisnagar PoliceStationthat,atabout08.30P.M.amobabout200to 300persons,armedwithweaponsenteredintheMaholla. InhiscrossexaminationbyaccusedNo.83,hehasdenied that,incidentoccurredatabout08.30P.M.Itisdeniedby himthat,hehasstatedbeforeVisnagarPoliceStationthat, incidentoccurredatabout08.30P.M.Itisdeniedbyhim that, incident occurred at about 04.30 P.M. in stead of 08.30P.M. P.W.25MohmadHanifAhmedkhanBaloch (Exh.134) hasstatedthat,theincidentoccurredatabout 04.30to05.00P.M.Atabout12.30P.M.hecametoknow about the killing of Muslim Persons. At about 04.30 to 05.00P.M.mobofPatels'fromDipraDarwaja,having200 to300persons,enteredintheMahollaandpeltedstones. Persons from Maholla came out at about 09.00 P.M. Further,hehasdeposedthat,itistruethat,hehasstated before Police on 08.03.2002 that, at about 08.30 P.M. a mob from Dipra Darwaja, having 200 to 300 persons, entered in the Maholla. It is denied by him that, in his statementbeforePolice,hehasstatedthat,infactincident hasnotoccurredatabout04.30P.M.to05.30P.M.buthe
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hasstatedsobeforethePolice.Inhissecondtimecross examinationbyaccusedNos.1to82,hehasdeposedthat, atabout03.00to03.30P.M.heheardthevoices.Atabout 03.00to03.30P.M.hewenttohishouseandafter5to10 minutes, he alone went to the house of Mahmad Hanif DalubhaiSindhi.Further,hehasdeposedthat,hedoesnot remember whether, he has stated before Visnagar Police Station on 08.03.2002 that, at about 08.30 P.M. mob of Patels' residing near Dipra Darwaja, In his cross examinationbyaccusedNo.83,hehasdeniedthat,incident occurred at about 08.30 P.M. P.W.26 Husenkhan BadarkhanBaloch(Exh.137) isthehostilewitness.First time not supported the prosecution case therefore, his second time deposition can only be considered for corroboration purpose. And he is to be considered as Hostilewitness,asawhole.Inhissecondtimedeposition, hehasdeposedthat,atabout04.00to04.30P.M.mobof Patels'came. Theincidentoccurredduring04.0004.30 P.M.to08.30P.M.P.W.33AnvarkhanBasirkhanBaloch (Exh.166) has deposed that, incident occurred at about 03.00to04.00P.M. andpolicecameatabout09.00P.M. Itis true that, he hasstatedbeforePolicethat,atabout 08.00 to 08.30 P.M. a mob of Patels' having 200300 personsfromDipraDarwajaarea,enteredintheMaholla.It isdeniedbyhimthat,hehasnotstatedbeforethePolice that,incidentoccurredatabout03.00to04.00P.M.P.W.68 Savitaben Dahyalal Patel (Exh.533) is the hostile
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witness and after declaring as Hostile witness she has deposedinhercrossexaminationbyprosecutionthat,she doesnotrememberwhethershehasstatedthat,atabout 08.30 P.M. a mob having 200300 persons armed with weapons entered in Chudivas and burnt the houses of Chudivas.WhileinhercrossexaminationbyaccusedNos.1 to82,shehasadmittedthat,atabout08.30P.M.amob having400500camefromtheRandalMataMadhsideand after10minutes,policecame. P.W.69DahibenKantilal Patel(Exh.534)hasdeposedonoaththat,atabout08.00 P.M. mob of 500 persons went towards Chudivas. She is declared Hostile and in her crossexamination, she has admitted that, she has stated in her statement that, on 28.02.2002incidentoccurredatabout08.30P.M.P.W.70 MadhavlalRanchhoddasPatel(Exh.535) hasdeposedin hiscrossexaminationonbehalfofaccusedNo.83that,itis truethatheheardthevoicesfromChudivasatabout08.30 P.M. P.W.71NaranbhaiAmthabhaiPatel(Exh.536) has deposedthat,atabout04.00to05.00P.M.heheardthe voices from Chudivas and at 08.30 P.M. Police vehicle came. In his crossexamination,hehasadmittedthat,at about04.00to04.30P.M.hehadnotheardanyvoices.In hiscrossexaminationbyaccusedNo.83,hehasadmitted that, he heard the voices from Chudivas at about 08.00 P.M.P.W.72ChiragkumarSureshbhaiPatel(Exh.541)is the Hostile witness. In his crossexamination by prosecutionhe hasdeposedthat,atabout08.30P.M. a
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mobofabout200to250persons,wenttowardsChudivas. P.W.74 Shantaben Bhogilal (Exh.543) is the Hostile witness. Inher crossexaminationbytheprosecutionshe hasdeposedthat,atabout08.30P.M.amobwenttowards Chudivas. P.W.76 Kantibhai Kacharabhai Patel (Exh.550) hasdeposedthat,atabout08.30P.M.themob wenttowardsChudivas.P.W.77BhikhibenBabulalPatel (Exh.551)istheHostilewitness.Inhercrossexamination byprosecutionshehasdeposedthat,atabout08.30P.M.a mobofwenttoChudivas.Itisdeniedbyherthat,incident inChudivasoccurredatabout04.00to04.30P.M.P.W.79 Taraben Kacharabhai Patel (Exh.558) is the Hostile witness. Inher crossexaminationbytheprosecutionshe has deposed that, incident occurred at about 08.30 P.M. and at about 08.30 to 09.00 P.M. Police came. P.W.80 Manguben Amratbhai Patel (Exh.559) is the Hostile witness.Inhercrossexaminationbyprosecutionshehas deposed that, at about 08.30 P.M. a mob went towards Chudivas. It is denied by her that, mob had started attacking at about 04.30 P.M. P.W.87 Hasumatiben VinodkumarPatel(Exh.581)istheHostilewitness.Inher crossexaminationbyprosecution,shehasdeposedthat,at about 08.30 P.M. mob went towards Chudivas. P.W.88 Taraben Kaushikkumar (Exh.582) has deposed in her crossexamination that, at about 08.30 P.M. mob went towards Chudivas. P.W.96 Ibrahimkhan Umarkhan
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Baloch (Exh.610) has deposed that, at about 03.00 to 03.30P.M.hewenttoPoliceStation,seekingprotection.In his crossexamination by accused Nos.1 to 82, he has deposed that, disturbance startedat about 11.00A.M.to 12.00Noonandatabout02.30P.M.to03.00P.M.hejust came in front of house of Umarkhan and attack on him took place at about 03.30 to 04.00 P.M. and he went to Police Station at about 02.00 to 02.30 P.M. P.W.102 NitabenRohitkumarPatel(Exh.623)hasadmittedinher crossexamination that, at about 08.30 P.M. disturbance took place. P.W.108 Savitaben Hareshbhai Patel (Exh.636) has deposed that, at about 08.30 P.M. disturbancetookplace.P.W.110KailasbenYogeshkumar Patel(Exh.638)hasdeposedthat,atabout08.30P.M.the disturbance was continued.In her crossexamination she has admitted that, incident occurred at about 08.00 to 08.30 P.M. P.W.125 Sabanabibi Anvarhusen Pathan (Exh.678)hasdeposedthat,atabout04.00to04.30P.M.a mobofPatels'cameintheirMahollaandtheywereinside theHouseofAhmedmiya,upto08.30P.M.Itisonlywhen thepolicecame,theycameout.Inhercrossexamination byaccusedNos.1to82,shehasadmittedthat,ontheday of incident, there was no disturbance before 04.00 P.M. P.W.127 Imrankhan Sabirhusen Pathan (Exh.681) has deposedthat,atabout02.00to02.30amobcametotheir Maholla.InhiscrossexaminationbyaccusedNos.1to82,
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hehasdeniedthat,hehasnotstatedbeforeS.I.T.that,at about02.00to02.30P.M.amobof200250personscame in their Maholla. P.W.149 Arbaz Anvarhusen Pathan (Exh.778) hasinhiscrossexaminationadmittedwhenhe sustained stone injury, it was day time. P.W.150 Aslambhai Kadarbhai (Exh.779) has also deposed that, whenhesustainedinjuryitwasdaytime.P.W.162Sohil Mahmad Hanif (Exh.825) has deposed that, at the time whenthemobhadattackedtheMaholla,itwasdaytime. [75] P.W.42Dr.BhaveshVrajlalNayak(Exh.185)hasdeposed that, on 01.03.2002 at about 07.20 A.M. Hanifaben Abdulbhai Mansuri and Abdul Karim Mahemud Mansuri cametohimfortreatment,withoutPoliceYadi.Inhistory, theytoldthat,on28.02.2002,atabout03.30P.M.mobhad attackedthem. [76] P.W.12 Bijendrasinh Rampratapsinh (Exh.96) has deposed that, they received Wireless Message at about 08.30 P.M. that, some persons have burnt the Muslims hence they along with D.S.P. went to Dipra Darwaja, Chudivas. In his secondtimedeposition,hehasdeposed same facts. Further deposed that, after receiving the Message, they reached at Dipra Darwaja, within five minutes. P.W.13RameshjiRajuji(Exh.97) hasdeposed that,hewaswithPoliceInspectorM.K.Patelinpetrolling, theyreceivedthemessageabouttheattackonChudivas,
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DipraDarwaja.Theyimmediatelywenttotheplace.Inhis secondtimedeposition,hehasdeposedthatatabout08.30 P.M.theyreachedatDipraDarwaja.P.W.46Anupamsinh Jaysinh Gehlot (Exh.226) has deposed that, at about 09.00P.M.hewasgoingtowardsVisnagar,meanwhilehe receivedthemessageabouttheburningofhousesinDipra Darwaja,ChudivashencehewenttowardsDipraDarwaja, Chudivas, Visnagar. In his crossexamination, he has deposedthat,theincidentoccurredatabout08.00P.M.He has no knowledge about burning and killing incident at about03.00to03.30P.M.Inhissecondtimedeposition,in his crossexamination by accused No.83, he has deposed that, at about 08.45 P.M. he received the message about theincidentofDipraDarwaja. P.W.47BachubhaVesalji Jadeja(Exh.227)hasdeposedthat,atabout08.30P.M.he receivedthemessageabouttheburningofhousesinDipra Darwaja, Chudivas. As per his information incident occurred after 08.30 P.M. In his crossexamination by accusedNos.1to82,hehasdeposedthat,noincidentof burning occurred during 12.00 to 04.00 P.M. Incident occurred in the night, if any one says that incident occurredatabout03.30to04.00P.M.thenitisfalse.But in his second time deposition, in crossexamination by accused No.83, hehasdeposedthatatabout08.30P.M. happeningofincidentwascontinued.Hehasnotseenthe smokeofburningfromChudivasareaatabout04.00P.M. P.W.48 Manubhai Karshanbhai Patel (Exh.228) has
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deposedthat,atabout08.30P.M.hereceivedthemessage about the incident in Dipra Darwaja, Chudivas. Immediately,hewenttoDipraDarwaja,Chudivas.Hehas deposedthat,HusenkhanBadarkhanhasstatedbeforehim that, at about 08.30 P.M. a mob of 200300 persons residingadjoiningMahollaofDipraDarwaja,attackedthe Maholla. In his crossexamination, he has deposed that, incidentoccurredatabout08.30P.M.Noincidentoccurred atabout08.30P.M.Ifanyonesaysthat,incidentoccurred atabout03.30thenitisfalse.Itisadmittedbyhimthat, MahmadIqbalAhmedkhanhasnotstatedbeforehimthat, incident occurred at about 04.00 P.M. Further, in his crossexamination, he has deposed that, Zubedabibi Mahemudkhan has not stated before him that, at about 04.00P.M. amob cameintheMaholla.Further,hehas deposedthat,AbdulKarimMahmadhasnotstatedbefore himthat,incidentoccurredatabout04.00P.M. P.W.65 Mahendrasinh Bhairavsinh (Exh.518) has deposed that, atabout08.00P.M.theyreceivedthemessageaboutthe incidentthroughWireless,theywenttoDipraDarwaja,at that time it was 08.30 P.M. P.W.83 Dashrathsinh Amthaji(Exh.572)hasdeposedthat,theyreachedatDipra Darwaja at about 08.35 P.M. P.W.144 Amrutbhai Bhikhabhai Bhimavat (Exh.767) has deposed that, at about07.45P.M.to09.00P.M.D.S.P.receivedthemessage about the incident. P.W.147 Babubhai Mansangbhai
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Chaudhari (Exh.772) has deposed that, at about 08.30 P.M. they received the message from control about the disturbance at Dipra Darwaja. Hence they went towards Chudivas, Dipra Darwaja, mean while Police Inspector M.K.Pateltoldthemtobeready.Itwasabout08.39P.M.In hiscrossexaminationbyaccusedNo.83,hehasadmitted that, about 08.30 P.M. their Mobile Van reached first at DipraDarwaja.P.W.171RanjitsinhPituji(Exh.865)has deposedthat,hewasondutyinInvestigationVan,atabout 09.00P.M.someMuslimPersonscameatPoliceStationin respect of incident occurred at Dipra Darwaja, Visnagar. P.W.175GautamkumarVishnubhaiBarot(Exh.912)has deposed that, on recording the statements of seven witnesses, he came to know that, the time which is mentioned in the complaint is different from the time of incident. Further,hehasdeposedthat,Ibrahimkhanhas stated before him about the gathering of mob at about 02.00 to 02.30 P.M. Inhis crossexamination byaccused Nos.1to82,itisdeniedbyhimthat,nodifferenceappears inrespectoftimeofincident.Inhiscrossexaminationby accusedNos.1to82,hehasadmittedthat,inhispresence thatImrankhanShabbirkhanhasnotdeposedbeforehim that,atabout02.00to02.30P.M.amobcameinMaholla. Itisadmittedbyhiminhiscrossexaminationbyaccused No.83,thatMohmadkhanBadarkhanhasstatedbeforehim exceptchangeintimeotherfactsarecorrect.Inhiscross examinationbyaccusedNo.83,hehasdeniedthat,inthe
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statementsofwitnessesrecordedbyexceptchangeintime other facts are similar, which were stated before Police InspectorM.K.Patel, Itisadmittedbyhimthat,inher statement RasidabibiSattarbhaihasacceptedthechange intimeofincident. [77] P.W.45KamleshkumarJethabhaiRathod(Exh.219)has deposedonoaththat,atabout08.30P.M.healongwith Police Inspector M.K.Patel went to Dipra Darwaja and abouttheburningincidenthewasinformedatabout08.30 P.M. In his crossexamination, he has deposed that, at about03.00to03.30P.M.perhapshewasinhisofficeand at that time he has notheard about thescreaming from Chudivas. [78] P.W.1 Fatehkhan Badarkhan Baloch (Exh.61) has deposedthat,incidentoccurredatabout04.30P.M.andat thattimetherewassunlight.Intheeveningtime(sunset time) two houses in the Maholla were burnt. Incident of injurytothiswitnessaswellasotherwitnessoccurredat about 04.30 P.M. After the incident occurred at about 04.30P.M.injuredanddeceasedwereinsidetheirhouses upto09.30P.M.HouseofLuckyCyclewalaissituated,at about 04.00 to 04.45 mob had burnt that house, then enteredintheMaholla.Inhissecondtimedeposition,he has deposed that, at about 04.30 a mob entered in the Maholla. At about 08.30 P.M. Police came. In his second
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time crossexamination by accused Nos.1 to 82,at about 04.00 to 04.30 persons from the mob had pelted stones, policecametillthenpeltingofstoneswascontinued.Itis admittedbyhimthat,personsfromMahollawereinjuredat about04.30P.M.Itisdeniedbyhimthat,hehasstated beforeVisnagarPoliceStationthat,mobcameabout04.00 to04.30P.M.InhiscrossexaminationbyaccusedNo.83, he has denied that,he has statedbeforethePolicethat, incidentoccurredatabout08.00P.M.Itisdeniedbyhim that,inhisstatementdated01.03.2002,atthebeginning andattheendofstatement,hehasstatedaboutthetime ofincidentas08.30P.M.Itisdeniedbyhimthat,incident occurredinthenight.P.W.2MahmadIqbalAhmedkhan Baloch (Exh.66) has deposed that, at about 04.30 P.M. mobcameintheirMaholla.Inhiscrossexaminationbythe accused Nos.1 to 82, he has denied that, on the day of incidentupto04.30P.M.therewaspeaceinthetownand upto04.30P.M.noincidentoccurredintheirMaholla.At about 04.30 P.M. at the entrance of Maholla, pelting of stones and disturbance started. Pelting of stones was continuedupto09.30P.M.Inhissecondtimedeposition, hehasdeposedthat,incidentstartedatabout04.00P.M.A mobofPatels'enteredintheMahollaandincidentoccurred up to 08.30 to 09.00P.M. In his crossexamination by accused Nos.1 to 82, he has deposed that, House of Shabbirmiyawasburntatabout08.00P.M.Itisdeniedby himthat,inhiscomplainthehasstatedtwiceaboutthe
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timeofincidentas08.30P.M.Itisdeniedbyhimthat,he hasnotstatedinhisoriginalcomplaintaswellasinhis depositionbeforetheCourtthat,incidentstartedatabout 04.00P.M.InhiscrossexaminationbyaccusedNo.83,he hasdeniedthat,hehadseenPoliceInspectorM.K.Patelat about08.30P.M.inChudivas. Itisdeniedbyhimthat, time of incident is given by him as 08.30 P.M. P.W.3 Gulabkhan alias Gulubhai Kayamkhan Sindhi has deposedonoaththat,mobcameneartotheirMahollaat about04.30P.M.Inhiscrossexamination,hehasdeposed that,housesintheMahollawereburntatabout04.30P.M. and the police came at about 09.30 P.M. at that time houses were burning. He has deposed that, it has not happenedthatduring04.30P.M.to09.30P.M.numberof personsinthemobeitherincreasedordecreased.Healong withhisfamilymembersatabout04.30P.M.wenttothe houseofAhmedmiyaLightvala.Further,hehasdeposedin hiscrossexaminationbyaccusedNos.1to82that,when hecameoutfromtheHouseofAhmedmiya,atabout09.15 P.M.,flamesoftheburningofhouseswereveryhighand smoke was also very high. On the day of incident police cameatabout09.30P.M.Itisadmittedbyhimthat,inhis statement he has not stated that, a mob came at about 04.30 P.M.andburntthehousesintheMaholla. P.W.4 AabidbhaiGulabkhanSindhi(Exh.71)hasdeposedinhis second time deposition crossexamination that, at about 04.30P.M.amobenteredintheMahollaandtheincident
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continued up to 08.00 to 08.30 P.M. In his cross examinationbyaccusedNos.1to82,hehasadmittedthat, beforetheincidentstartedatabout04.30P.M.,theywere sittingintheChowk.After04.30P.M.themobhadstarted burninghouses.Itisdeniedbyhimthat,hehasdeposedin his earlier deposition that, at about 09.15 P.M. due to burningofhousesallthepersonscameoutfromtheHouse ofAhmedbhai.InhiscrossexaminationbyaccusedNo.83, hehasdeniedthat,inhistwostatementsbeforePoliceand in his deposition before the Court, he has stated that incident occurred at about 04.00 to 04.30 P.M. It is admittedbyhimthat,atabout08.30P.M.hewasinhis house.Itisdeniedbyhimthat,atabout08.30P.M.mobof 200personscameandstartedpeltingstones.Inhiscross examination by accused No.85, he has deposed that, he receivedthemessageabouttheincidentatabout02.30to 03.00P.M.Itisdeniedbyhimthat,astheincidentstarted at about 02.30 P.M. P.W.5 Zubedabibi Mahebubkhan Baloch (Exh.84) has deposed that, incident occurred at about04.00to04.30P.M.MobcameintheMaholla.Sheis declared as Hostile witness. In her crossexamination by accusedNos.1to82,shedeposedthat,atabout04.30P.M. mobcameandhadstartedcausingdisturbanceandthey wereinsidethehouseofAhmedmiyaduring04.30P.M.to 09.30P.M.Itisdeniedbyherthat,shehasnotstatedin any Police Statement that, mob came in the Maholla at about 04.30 P.M. In her crossexamination by accused
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No.83, she has admitted that she did not remember whethershehasstatedbeforePoliceabouttheoccurrence of incident at about 08.30 P.M. P.W.6 Mahmadkhan Badarkhan Baloch (Exh.85) has deposed that, at about 04.00 P.M. a mob came in the Maholla. In his cross examination he has deposed that, during 04.30 P.M. to 09.00 P.M. he was in Ahmedmiya's House. Incident of peltingstonesstartedatabout05.30P.M.andfirstincident ofburningstartedatabout05.00P.M.Itisdeniedbyhim that,hehasnotstatedthat,mobcameatabout04.00P.M. P.W.7 Amzadkhan Mahmadkhan Baloch (Exh.86) has statedthat,atabout04.00to04.30P.M.incidentoccurred. Atabout04.00P.M.mobcameintheMahollaandstarted disturbance.Inhiscrossexaminationhehasstatedthat,it isnottruethat,hehasnotstatedbeforePolicethat,the mob has attacked at about 04.30 P.M. In his cross examination by accused Nos.1 to 82, during the whole incident from 04.00 P.M. to 09.00 P.M. persons from Mahollawerescreaming.Itisdeposedbyhimthat,itisnot truethat,hehasstatedthetimeofincidentbeforePoliceas 08.30P.M.Asperhissay,beforeS.I.T.hehasstatedthe time of incident as 04.30 P.M. P.W.8 Reshmaben Sattarbhai (Exh.87) has deposed on oath that, at about 04.30P.M.amobcamefromRandalMata'sMadh.Inher crossexamination she hasadmitted that,at about 04.30 P.M. to 09.30 P.M. she was in Ahmedmiya's house. It is deposed by her that, it is not true that, she has stated
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before the Police that, a mob having arms came in the Mahollaatabout04.00to04.30P.M.Inhersecondtime deposition, she has deposed that at about 03.00 P.M. a mobabout150personscameneartheHouseofAkbarmiya. P.W.10SugrabibiMahmadkhanBaloch(Exh.90) isthe Hostile witness. In her second time deposition, she has deposedthatatabout03.00to04.00P.M.amobofabout 300400personsofPatelcommunitycametowardsDipra Darwaja. P.W.11 Anvarhusen Shabbirhusen Pathan (Exh.91)hasdeposedthat,atabout04.30P.M.mobcame intheirMaholla.ThiswitnessistheHostilewitness.Itis deniedbyhiminhiscrossexaminationbyaccusedNos.1to 82 that, he has not stated in the Police Statement that, mob came at about 04.30 P.M. Further, he has deposed that, he has not stated before Police that, mob came at about 08.30 P.M. In his second time deposition, he has deposed that, incident started at about 04.00 P.M. and continued up to 08.30P.M. In his crossexamination by accusedNos.1to82,hehasdeniedthat,hehasstatedin his both statements that the incident occurred at about 08.30P.M.InhiscrossexaminationbyaccusedNo.83,he hasdeposedthatearlierbeforePolicehehaswronglystated thetimetherefore,beforeS.I.T.hehasstatedrighttimeof incidenti.e.atabout04.00P.M.Itisadmittedbyhimthat, beforeVisnagarPolicehehasstatedthat,incidentoccurred at about 08.30 P.M. P.W.21 Shabbirkhan Ibrahimkhan (Exh.108) has deposed that, at about 04.30 P.M. mob of
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Patels'fromtheirareacameshoutingsloganstocut,beat theBandiyas.InhiscrossexaminationbyaccusedNos.1to 82, he has deposed that, incident of burning of their houses occurred at about 04.30 P.M. In his cross examinationhehasstatedthat,itisnottruethat,hehas stated before the Visnagar Police Station that, at about 04.00 P.M. House ofAkbarbhai was burnt. Itisnot true that, he has stated the time of incident before Police InspectorM.K.Patelas08.30P.M.Itisnottruethat,he hasnotstatedbeforeS.I.T.that,incidentoccurredatabout 04.00 04.30 P.M. P.W.27 Abdulkarim Mahmadbhai Mansuri (Exh.140) has deposed on oath that, at about 03.30P.M.hewasinhishouse,amobabout400persons armedwithweapons,attackedtheirhouses. InhisPolice statement,policehadwrittenthetimeofincidentas08.30 P.M. incident occurredatabout03.30P.M.Itisnottrue that,hehasstatedinhispolicestatementthat,atabout 03.30 when he was in his house a mob of about 400 persons came. He has not stated the time as 08.30 P.M. P.W.28 Hanifabibi Abdulkarim Mansuri (Exh.141) has deposed that, at about 03.30 a mob about 400 persons attackedthem.InhercrossexaminationbyaccusedNos.1 to 82, she has deposedthat,itisnottruethat,shehas stated before the Police that, incident occurred at about 03.30P.M.Shehasadmittedthat,shehasstatedbeforethe Policethat,disturbancewascontinuedupto08.30P.M.In hersecondtimedepositionalsoshehasstatedsamefacts.
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InhercrossexaminationbyaccusedNos.1 to82shehas deposed that, it is not true that, she has stated before Policethat,incidentoccurredatabout03.30P.M.Itistrue that,shehasstatedbeforethePolicethat,disturbancewas continuedmeanwhileatabout08.30P.M.amobofabout 250300 persons armed with Sword, Concealed blade of Sword,Knifeetc.cameintheMaholla.P.W.29Hanifabibi ShabbirbhaiPathan(Exh.144)hasdeposedthat,atabout 03.00to03.30P.M.amobcame.SheisHostilewitness.In her crossexamination by accused Nos.1 to 82 she has deposedthat,itisnottruethat,shehasnotstatedbefore thePolicethat,amobcameatabout03.0003.30P.M.In hersecondtimedepositionshehasdeposedthat,incident occurred at about 04.30 P.M. P.W.30 Shabbirmiya Hasumiya Belim (Exh.146) has deposed that, at about 04.00 to 05.00 P.M.amobof Patels'of200250persons entered in their Maholla. In his crossexamination by accused Nos.1 to 82 has deposed that, he had seen the mob.Atabout04.00to05.00P.M.mobcamefromRandal Mata'sChowktoKadaDarwaja.Further,hehasdeposed that,itisnottruethat,hehasnotstatedbeforethePolice that,atabout04.00to05.00P.M.amobofPatels'of200 300personsenteredintheirMaholla.Inhissecondtime depositionalsohehasdeposedtheoccurrenceofincident at about 04.00 to 04.30 P.M. The disturbance was continuedupto4to5hours.Inhiscrossexaminationby accusedNos.1to82,hehasadmittedthatinhisstatement
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dated 17.05.2008 before S.I.T. he has stated that, his statementdated08.03.2002isreadovertohim,inwhich timeofincidentiswrittenas08.30P.M. Itiswrittenby Policethemselves.Hehasnotstatedso. Further,hehas deposed that, he has not stated in his earlier deposition that,atabout04.00to05.00P.M.hewasstandingoutof hishouseandhehadseenthemobcomingfromRandal Mata's chowk to Kada Darwaja. Further, he has deposed that, when the disturbance started at about 04.30 P.M. theysentIbrahimkhantoinformthePolice.Further,hehas deposedthat,itisnottruethat,hehasnotstatedbefore theVisnagarPolicethat,whenhewasstandingoutofhis house,atabout04.00to04.30P.M.mobofPatels'gathered atRandalMataChowk.Asperhissayincidentstartedat about04.30to05.00P.M.Hehasdeposedthat,itisnot true that, he has stated before the Police that, at about 08.30 P.M. a mob of about 200 persons came to their Maholla.Further,hehasdeposedthat,itisnottruethat, timeofoccurrenceofthisincidentas04.30P.M.iscreated byS.I.T.P.W.31AarifkhanYakubkhanPathan(Exh.147) hasdeposedonoaththat,incidentoccurredatabout03.30 P.M.AmobcameintheMaholla.Inhiscrossexamination he has deposed that, it is not true that, he has stated beforethePolicethatatabout08.30P.M.,amobcame.In hissecondtimedepositionhehasdeposedthat,atabout 04.00 04.30 P.M. a mob of 200 persons came. In his crossexaminationbyaccusedNos.1to82,hehasadmitted
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that,hehasnotstatedbeforeVisnagarPolicethat,onthe dayofincidentatabout04.0004.30P.M.amobabout 150200 persons came. P.W.32MahmadhanifDalubhai Sindhi(Exh.150)hasdeposedthat,onthedayofincident hewasinhishouse,atabout3.0004.00P.M.amobwas burning the house of Akbarmiya Kalumiya, which is situated out side the Dipra Darwaja. In his second time deposition he has deposed that, mob of Patels' came at about04.00P.M.BeforeS.I.T.hehasstatedthat,incident startedatabout04.30P.M.notat08.30P.M.Inhiscross examinationbyaccusedNo.83,hehasdeposedthat,itis nottruethat,hehasdeposedbeforeVisnagarPolicethat, incidentoccurredatabout08.30P.M.andforthefirsttime heisstatingthisfactforthefirsttimeintheCourt.P.W.50 SaidabibiMahmadhanifSindhi(Exh.302) hasdeposed that,atthetimeofincident,shewasinherhouse.Incident occurred at about 04.00 to 05.00 P.M. In her cross examinationbyaccusedNos.1to82,shehasdeposedthat, Policecameat08.00P.M.Policecameafter03.0003.30 hours.Incidentstartedatabout04.00to05.00P.M.andit wascontinued tillthePolicecame.Meaningtherebymob was there, causing disturbance. Incident of killing the persons occurred at about 06.00 P.M. In her cross examination she by accused Nos.1to 82she has further statedthat,shehasseentheburningofhousesatabout 06.0006.30P.M.Shehadseenthesmokeofhouses.She hasalsostatedthatfrom06.30to08.30disturbancewas
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continued. P.W.51 Aminabibi Ahmedkhan Baloch (Exh.303)hasdeposedthat,atabout04.30P.M.amobof about 250300 persons came in their Maholla. P.W.52 Faridabanu Ahmedkhan Baloch (Exh.306) has stated that,atbout04.00to05.00P.M.mobofPatels'about200 300 persons armedwithweaponscameintheir Maholla. Inhercrossexamination,shehasdeposedthat,incidentof cutting and burning the dead bodies occurred at about 06.00P.M.WhilethePolicecameatabout08.3009.00 P.M. During 04.00 to 09.00 P.M. mob was there. In her secondtimedepositionshehasalsonarratedsamefacts. Shehasfurtherstatedthat,disturbancecontinuedupto 08.30 09.00 P.M. P.W.58 Karishmabanu Yusufkhan Pathan(Exh.502)hasdeposedthat,amobofPatels'came intheMahollaatabout04.00P.M. P.W.120Reshmabibi Aarifkhan Kureshi (Exh.666) hasdeposedthat, incident occurred at about 04.00 P.M. Further, she has deposed that,incidentstartedatabout04.30andcontinuedtillthe Policecame.InhercrossexaminationbyaccusedNos.1to 82, she has admitted that, up to 04.30 P.M. there was peace in the Maholla.Itis deposedby him in her cross examinationthat,itisnottruethat,shehasstatedbefore S.I.T. that, incident started at about 04.30 P.M. and continuedtillPolicecameatnight. P.W.135Bashirnbibi Gulammahmad Sindhi (Exh.724) has deposed that, incidentoccurredatabout04.00P.M.
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[79]
Thus,fromtheevidenceofPatelwitnessesandotherHindu witnesses it transpires that, incident occurred at about 08.0008.30P.M.AllthePatelwitnessesarerelatedtothe accused,theywillnaturallysupporttheaccusedbutone fact is certain from their evidence that, some incident occurredinChudivasandmobenteredinChudivaswhile fromthedepositionofPolicewitnesses,itcomesoutthat, Policewasinformedatabout08.0008.30P.M.andthe police reached at the place at about 08.00 08.30 P.M. FromtheevidenceofPolice,speciallyfromtheevidenceof D.S.P.ithascomethat,whentheyreachedattheplaceof offence, there were high flames in Chudivas. In that circumstances, if the mob came in Chudivas, at about 08.0008.30P.M.andsetonfirethehouses,theninthat circumstances, it is highly impossible to have such high flames.Forhighflamesitwouldcertainlyhavetakensome timetherefore,settingonfirethehousesatabout08.00 08.30P.M.isnotpossible.Certainlyitmustbeearlierin time.Therearevariationsinthedepositionofwitnessesin respect of timing of incident. Witnesses are not telling accuratetimeofincident.Butallthewitnesseshavestated onefactthat,Policecameatabout08.0008.30P.M.Most of Muslim witnesses from Chudivas have deposed about settingonfirethehousesinbetween06.00to07.30P.M., whichismorereliable.Whenweconsidertheevidenceof Muslim witnesses, considering the social, educational,
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economical,geographicalbackgroundofthewitnesses,we can conclude from their evidence that, setting on fire incident occurred in the evening hours. Pelting of stones incident get support from the history given before the Doctors.AsperdepositionofMuslimwitnesses,peltingof stoneincidentoccurredpriortosettingonfiretheHouses. FromtheevidenceofPolicewitnesses,ithasnotcomeout when they reached in the Maholla, incident of pelting of stones continued. From the crossexamination of Muslim witnesses, nothing has come out from which we can discard the pelting of stones incident. P.W.18 Saiyed Nazirmiya Kalumiya (Exh.103) is deposing the time of incidentas02.0002.30P.M.,whichisneithersupported by any Muslim witness nor supported by any other evidence, therefore, it can only be considered as an exaggerationaboutthetimeofincident.Further,hehimself admitsthat,hehasnotstatedthetimeofincidentas02.30 P.M. in any of his statements. P.W.23 Ahmedmiya HasumiyaBelim(Exh.128)hasspecificallydeposedbefore the Court that, mob had not entered in the Maholla at about02.0002.30P.M.Inabovecircumstances,setting onfireincidentcanbeconsideredbetween06.00to07.30 P.M.,meaningthereby,peltingofstonesincidentoccurred during04.30to06.00P.M.therefore,thevariationsintime asdeposedbythewitnessescanbeconsideredasnatural one. On the contrary these variations draw attention towards the natural depositions of the witnesses. In the
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absenceofthosevariationsitcouldhavebeenconsidered astutoredone.Sofarastimeofincident,asmentionedin F.I.R.as08.0008.30P.M.isconcerned,complainantis notwellconversantwiththelegalposition,whenthePolice cameatabout08.0008.30P.M.andPolicehadarrested somepersons,atthattimewitnesseswerebroughttothe Police Station, at about 08.00 08.30 P.M., in that circumstancesandthattoo,insuchagraveandsensitive situation, we cannot expect from a person to make a statementmathematicallyandconsideringoralevidencein respectoftime,ifthetimeofstartingofincidentisnarrated by the complainant as 04.00 04.30 P.M., supported by otherwitnesses.Ifthetimeismentionedinthecomplaint as08.0008.30P.M.thatisrequiredtobeconsideredfor corroborationpurposeonlyandduetoabsenceoftimeas 04.0004.30P.M.inthecomplaint,wecannotconclude that,incidenthasnotstartedatabout04.0004.30P.M.It is true that, in the first time Charge time of starting of incidentas04.30P.M.issilentbutinsecondtimeChargeit ismentionedasstartingfrom04.30P.M.Fromtheevidence ofalltheMuslimwitnesses,ithascomeoutthat,timeof startingofincidentisatabout04.0004.30P.M.Accused personsaregivenampleopportunitytocrossexaminethe witnessesonthatcountandwitnessesarecrossexamined onthatpointatlengthandtherefore,noprejudiceisgoing to be caused to the accused on that count. Thus, it can easilybeconcludedthat,prosecutionhasestablishedthat
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incidenthadstartedat04.0004.30P.M.andcontinued tillthePolicecameat08.30P.M.
LIGHT:
[80] Fromtheevidenceasstatedabove,ithascomeoutthat, incident of setting on fire the houses occurred in the evening. From the evidence of some of the witnesses, it transpiresthat,therewasnoelectricityatthattime,while some of the witnesses are deposing that, there was electricity in the Maholla at the time of occurrence. Prosecutionhasnotproducedanyotherevidenceshowing that,atthetimeofincidenttherewaselectricity.Insucha situationwhether,witnesseswereinapositiontoseethe personsinthemob,whethertherewassufficientlight,for thatwehavetoconsiderthetimeofincident,assettingon fireincidentisbelievedtobeoccurredintheeveningtime, while pelting of stone started earlier in time and at that timetherewasdaylight,whileintheeveningandwhenthe Police reached at the place of offence there were high flames.Naturally,therewasnotoodark,asitwasevening timeandtherewaslightfromtheflamesalsoandinthat positionitcanbepresumedthat,therewassufficientlight in which a person can see who was in the mob. D.S.P. himselfdeposedbeforetheCourtthat,whenhereachedat theplaceofoffence,therewerehighflames.Thus,wecan concludethat,therewassufficientlight,inwhichaperson caneasilyseeotherpersons.
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ARGUMENTSOFADVOCATES:
[81] Learned Special Prosecutor Shri M.K.Brahmbhatt has argued that, this is not a straight way trial of Sessions Case.Casehasbeenpracticallytriedtwicehoweverpresent trial is not the second trial but it is a continuous trial, which was stayed in the year 2003 by the Honourable Supreme Court of India and trial was reopened with vacating the stay by the Honourable Supreme Court of India.Allthosewitnesseswhowereexaminedearlierhave statedthat,theirdepositionsinearliertrialwereincomplete astheywereunderfearandduressastheywerehavingno police protection at that time.Witnessesin previous trial thoughdeposedtruthbutastheywerenotprovidedwith policeprotectionandincidentwasfreshandtheydeposed incompletefacts.Thisfactmayhavestatedintheirprevious depositions. Thus, witnesses have completed their depositions in the present trial as the witnesses were providedPoliceprotection.Thissituationisrequiredtobe keptinmindwhileappreciatingtheevidenceofwitnesses. Witnesses have given additional details and description relatingtotheincidentandrelatingtotheaccusedpersons of this crime in the present trial. Therefore, evidence is required to be appreciated in whole by taking into considerationtheevidenceadducedinpreviousaswellas inpresenttrialtoarriveatcorrectandtrueconclusionand also in furtherance of and in abeyance of the directions issuedbytheHonourableSupremeCourtofIndia.During
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thedepositionofninewitnessesnameofPrahladGosaand DahyabhaiTribhovandasPatelhavebeendisclosedPrahlad Gosa admittedly was M.L.A. at the relevant time and DahyabhaiTribhovandasPatelwasCorporatorofVisnagar Municipality. P.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66),P.W.23AhmedmiyaHasumiyaBelim(Exh.128), P.W.24ShermahmadDalubhaiSindhi(Exh.132),P.W.30 Shabbirmiya Hasumiya Belim (Exh.146), P.W.32 MahmadhanifDalubhaiSindhi(Exh.150),P.W.25Mohmad Hanif AhmedkhanBaloch(Exh.134),P.W.21Shabbirkhan Ibrahimkhan (Exh.108), P.W.18 Saiyed Nazirmiya Kalumiya(Exh.103)andP.W.96IbrahimkhanUmarkhan Baloch (Exh.610), have deposed that, these two persons were present at theplaceof incidentand instigating and provokingthemobtoattackChudivas.Inadditiontothat, those witnesses have alleged when the complaint was recorded, these two persons were sitting in the room of Police Inspector M.K.Patel and complaint was recorded undertheguidanceandsupervisionofthesetwoaccused persons.Complaintwasnotrecordedasperthesayofthe complainant.DuringthecourseoftrialPoliceInspector M.K.PatelaccusedNo.83,PrahladbhaiMohanbhaiGosa accused No.84 and Dahyabhai Tribhovanbhai Patel accusedNo.85wereorderedtobearrangedasanaccused persons. At the time when accused Nos.84 and 85 were instigating the mob, Mahmadhanif Dalumiya Sindhi was passingthrough,hesawandheardwhatwastranspiring
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near the house of Akbarmiya. Thereafter, he went to the MahollaandinformedotherpersonsofChudivasandthis instigation resulted into attack on Chudivas and while recording the complaint, Police Inspector M.K.Patel minimizes the crime under the direct guidance and supervision of M.L.A. Shri Prahladbhai Gosa and DahyabhaiTribhovandasPatelaccusedNos.84and85,he hasnotmadeinvestigationefficientlyandnaturally.Hehas madefavouroftheaccusedwhilemakinginvestigationof the offence, with negligence in discharge of duty of I.O., whichamountcriminalnegligence.Suchinvestigationwas carried out in collaboration with the accused persons, particularlywiththeaccusedNos.84and85.Mostofthe panchas used by I.O. are Patel by community, connected withtheaccused,someofthePanchasareaccused,facing trial such as Rameshbhai Madhabhai Patel accused No.53.ThisactofI.O.clearlyprovesthat,hewasfavouring theaccusedpersonsfromtheverybeginning.Itisargued byShriBrahmbhattthat,attackonChudivascouldhave been materialized only because of the integration, instigationandconspiracybetweenaccusedNos.83to85. So far as appreciation of evidence in respect of offence committed by accused Nos.1 to 82 is concerned, it is argued by Shri Brahmbhatt that, admittedly there are contradictions and omissions in the depositions of witnesses but those contradictions and omissions itself suggest the genuineness and trustworthiness of the
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witnesses. Minor contradictions and significant discrepanciessometimesgivesguaranteeoftruth.Victims havesufferedbrutalmentalagony,witnessesandaccused areresidinginsamelocality,whichwouldcertainlyprevent thewitnessesfromnamingtheaccusedundersuchtense atmosphere but this ground cannot be considered for discardingthereliableevidenceofthewitnesses. Mostof thewitnesseshaveavoidedattributingfalseovertacttothe accusedidentifiedbythem,whichwasquiteeasyforthem. Attack was by a Hindu Patel mob, having no particular enmity towards any particular victim. Evidence of witnessescannotbedoubtedonlyduetosuchfailureand doesnotwarrantoutrightrejection.Thereisnoreasonfor witnessestoinvolveinnocentpersons,leavingrealculprits. Nothing comes out from crossexamination from which it can be inferred the absence of two accused in the mob. SpecificrolehasbeenattributedtoaccusedNos.84and85. P.W.22 Yusufkhan Muradkhan Pathan (Exh.112) whose familymembersarekilledintheincidentwhyhewillleave realculpritandinvolveinnocentpersonsinsuchaheinous crime. Defence did not suggest any enmity with the witnesses.Witnessesareuneducatedlabourclasspersons, wecannotexpectfromthempromptactionofnarratingthe incidenttoPoliceorotherauthoritieskeepinginmindthe surrounding circumstances, tense atmosphere, mental agonyofthewitnesses,contradictionscanbeconsideredas natural and no prejudice will be caused to the accused
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side.Mostofthewitnessesareinjuredwitnesses,resident ofChudivas,theirpresenceathomeatthetimeofincident isnaturalandtheywerehavingampleopportunitytosee themob.Theevidenceofthesewitnessescannotbejudged atthestandardofurbanwitnesses.Forthattherecannot be a mathematical calculation on such situation where every person would try to save himself by avoiding mob. Everypersonusedtodescribetheincidentasperhisown understanding. Suppose, there is exaggeration about the numberofmob,thenalsoitisnotgoingtotherootofthe caseanditcanbeconsideredasminorexaggerationonthis point one cannot conclude witnesses are telling lie. Witnesses during the whole incident were not at a particularplacemovingintheMahollatogetsafeandthat canbeconsideredasnaturalone.Silenceinnarrationof incidentbeforedoctor,policeoranyauthorityisconcerned witnesseswereinsuchatraumatizeconditions,somany injuredpersonsand11personsdiedinthatsituationmuch importance cannot be given to those omission. So far as delayinexaminingthewitnessesbythepoliceisconcerned inthiscase,witnesseshavesufferedseriousinjuries,they werehavingnoshelterandundersuchagraveatmosphere if there is delay in recording the statement it would not effect their evidence. Late disclosure of weapon in the hands of the accused also cannot be given much importance.Whileappreciatingtheevidenceofwitnesses, one important fact is required to be kept in mind that,
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witnesses were having no roof to stay and they were in Camporattheirrelatives'houseorinHospitalandinthat circumstances,wecannotexpectpromptnarrationoffacts fromthemouthofwitnessesandsuchlatedisclosuredoes not amount fatal to the prosecution case. On the day of incident,therewasfullmoonlightandtherewassufficient lightinwhichpersoncanseethemob.Itisanadmitted factthat,therewassufficientdaylight,flameofburning andmoonlight. Further,itisarguedbyShriBrahmbhattthat,every person reacts in his own way, there is no set formula of human conduct. Sophisticated approaches cannot be appliedwhenappreciatingtheevidenceofwitnesseshaving rusticbackground.ItisarguedbyShriBrahmbhattthat, maindefenceofaccusedsideisbasedonfalselyimplication of accused. No enmity suggested. It is argued by Shri Brahmbhattthat,accusedaswellaswitnessesareresident ofChudivas,theyareknowntoeachotherandwitnesses have seen the accused persons in the mob. Once it is established,thenitisthedutyofaccusedsidetoshowthe previous enmity why the witnesses involved the accused falsely.Hereitisacaseofmasskilling,itwasimpossible for witnesses to give detailed account of overt act of all accused persons. So far as damages and destruction of houses is concerned,damagesanddestructionofhouses and properties are proved by oral and documentary
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evidence.Photographs,Videography,paymentrecordabout compensationareprovedbytheprosecution. Referringtothedepositionofwitnesses,itisargued by Shri Brahmbhatt that, as per deposition of P.W.1 Fatehkhan Badarkhan Baloch (Exh.61), 11 persons have diedduetoinjuries.Thiswitnesshasdeposedthenames and weapons in the hands of accused. As per his deposition, mobburntthehousesandlootedthearticles from the premises. P.W.3 Gulabkhan alias Gulubhai Kayamkhan Sindhi (Exh.70) is the injured eyewitness. Intentionofthemobcanbegatheredfromtheconduct.7 persons were apprehended with weapon from the place. P.W.4AabidbhaiGulabkhanSindhi(Exh.71)istheinjured eyewitness,hehadseentheincidentfromthehouseofhis maternaluncle.P.W.5ZubedabibiMahebubkhanBaloch (Exh.84) and P.W.6 Mahmadkhan Badarkhan Baloch (Exh.85) is the injured witness, he has lost his auto Rickshaw,whichwasburntbytheaccusedpersons.P.W.7 Amzadkhan Mahmadkhan Baloch (Exh.86), P.W.8 Reshmaben Sattarbhai (Exh.87), P.W.9 Rashidabibi Sattarbhai Baloch (Exh.88) and P.W.11 Anvarhusen ShabbirhusenPathan(Exh.91)arealsoinjuredeyewitness, fully supports the case of prosecution. P.W.18 Saiyed NazirmiyaKalumiya(Exh.103)isthestarwitness,whichis reliable one, who has seen the incident from very near distance. One Photograph contains the place from where
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witness was standing, there is no reason to discard the evidence of this witness. He has seen the incident from window.P.W.22YusufkhanMuradkhanPathan(Exh.112) isthestarwitnessandunfortunateperson,whohaslost the11personsofhisfamily.Hehasseentheincident.11 persons of his family killed before his eyes and he was helplesstosaveanyone'slife.VideoCassetteproducedvide Exh.899 and 900, supports the position. P.W.23 Ahmedmiya Hasumiya Belim (Exh.128) and P.W.24 Shermahmad Dalubhai Sindhi (Exh.132) are the injured eyewitnesses, as per deposition of P.W.24 initially 7 persons werekilledandthereafter,4personswerekilled. Thereisnodiscrepancy,noomission,Inthedepositionof this witness, P.W.25 istrustworthy andreliable.P.W.30 ShabbirmiyaHasumiyaBelim(Exh.146)isinjuredwitness, photographshowingthepositionofthiswitness,P.W.31 Aarifkhan Yakubkhan Pathan (Exh.147) is child injured witness, nothing has come out in his crossexamination thatheistutoredone,hisdepositionistobeperusedas natural witness. P.W.32 Mahmadhanif Dalubhai Sindhi (Exh.150) is the driver of Auto Rickshaw, photographs shows the distance between the place of offence and the place where this witness was standing at the time of incident. This witness not only corroborates the incident but also supports the Muddamal recovery. P.W.33 Anvarkhan Basirkhan Baloch (Exh.166) and P.W.58 Karishmabanu Yusufkhan Pathan (Exh.502) are also
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injuredwitnesses.P.W.120ReshmabibiAarifkhanKureshi (Exh.666) is also injured eyewitness, who is natural witness, who has deposed about the burning and killing incident,thewitnessisnaturalandreliableone.Deathof 11deceasedisprovedbyreliableandcogentwitnessand documentaryevidence. Referring the depositionsof aboveallwitnessesitis submittedbyShriBrahmbhattthat,date,timeandplaceof incident, lost of properties, names of accused, weapons, fact of deceased persons are deposed by the witnesses, thereisnocontradictiononthesematerialpoints.Incross examination nothing is brought on record. Thus, it is provedbytheprosecution.ReferringtodepositionofPolice witnesses, it is argued by him that, Police arrived at the placeofoffenceandfiringwasresortedandasaresultof suchfiring,furthercasualtywasrestricted. Further,itisarguedbyShriBrahmbhattthataccused No.83 is Police Inspector M.K.Patel, who is the First InvestigationOfficerinthepresentcasehasbeenjoinedas an accused subsequently. Most of the relatives of the accused are examined as witness but they are not supporting the case of prosecution. They are deliberately taken up as a witness in the present case. P.W.78 Revaben Ranchhodbhai Patel (Exh.557) is sisterinlaw of accused No.6 Revabhai Ranchhodbhai, P.W.77
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Bhikhiben Babulal Patel (Exh.551) is the wife of accused No.60 Babulal Parshottamdas Patel and mother of accusedNo.8PatelParimalaliasJethoBabulal,accused No.51PatelDahyabhaiParshottamdasisthebrotherin lawofP.W.77BhikhibenBabulalPatel(Exh.551),P.W.69 Dahiben Kantilal Patel (Exh.534) is the sister of accused No.22PatelJayeshkumarKantilal,P.W.72Chiragkumar SureshbhaiPatel(Exh.541)isthesonofaccusedNo.36 Patel Sureshkumar Jethalal,P.W.74ShantabenBhogilal (Exh.543) is the mother of accused No.19 Patel Anandkumar@BakoBhogilal andaccusedNo.49Patel Vijaykumar Bhogilal. P.W.79 Taraben Kacharabhai Patel (Exh.558)isthemotherofaccusedNo.18and21.P.W.85 Kantaben Kantilal Patel (Exh.579), P.W.87 Hasumatiben Vinodkumar Patel (Exh.581), P.W.88 Taraben Kaushikkumar(Exh.582),P.W.101KapilabenNarayanbhai Patel (Exh.622), P.W.108 Savitaben Hareshbhai Patel (Exh.636),P.W.102NitabenRohitkumarPatel(Exh.623), P.W.109 Sushmaben Jitendrakumar Patel (Exh.637), P.W.110KailasbenYogeshkumarPatel(Exh.638),P.W.111 Kapilaben Babubhai (Exh.639), P.W.115 Rameshkumar Madhavlal Patel (Exh.650)are therelatives ofaccused.It waswithintheknowledgeofaccusedNo.83that,noneof thiswitnessisgoingtosupporttheprosecutioncaseeven though he has crossed all limits by recording the statements of theses witnesses and he has recorded the statement of P.W.115 Rameshkumar Madhavlal Patel
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(Exh.650), who is an accused No.53 here in the present case. Even he has taken one of the accused Patel Rameshkumar Madhavlal as Panch witness in the Panchnamadated01.03.2002andinthatPanchnama no where blood stains are mentioned while in second Panchnama of scene of offence, which was drawn in the presenceofF.S.L.Officeron06.03.2002.Bloodstainswere found.Itshowsdeliberateactofaccused.F.S.L.Reportvide Exh.76 shows presence of blood in Article No.G, H, I/1, I/2, J. Exh.77 Serological report shows Blood GroupA'whileinJbloodgroupisfoundAB.Witness who is examined asP.W.49HasmukhlalThakorlalModi (Exh.232)hassupportedthelistpreparedbythewitness. Aspertheevidenceofcomplainantandotherwitnesses,it isprovedthatcomplaintwasnotrecordedproperlybythis accused.Notonlythatcopyofcomplaintwasnotsupplied tothecomplainantandwhiledrawingthePanchnamaon 01.03.2002, materials were not collected by this witness. Further,hewasinformedabouttheoccurrenceofincident but he deliberately not send the Police at the place of occurrenceandtherebyhehasabatedthecrime.Beinga superiorofficeritwastheboundeddutyofthisaccusedto keep peace in the society. In such circumstances, mercy cannot be shown to this accused. Referring to accused Nos.84and85,itisarguedbyShriBrahmbhattthat,both theaccusedwereonkeyposts,complaintwasrecordedby accusedNo.83,asperdirectionsofboththeseaccused.He
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hadnotrecordedthecomplaintofmurderthoughhewas informed about the incident of murder. Video Cassette, produced vide Exh.899 and 900 supports this fact. Videographywas recordedafterincidentwasover.Asper deposition of P.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66)complainant,complaintwaswrittenaspersayof accused Nos.84 and 85. Referring to the depositions of P.W.18 Saiyed Nazirmiya Kalumiya (Exh.103), P.W.21 ShabbirkhanIbrahimkhan(Exh.108),P.W.23Ahmedmiya Hasumiya Belim (Exh.128), P.W.24 Shermahmad Dalubhai Sindhi (Exh.132), P.W.25 Mohmad Hanif Ahmedkhan Baloch (Exh.134), P.W.30 Shabbirmiya Hasumiya Belim (Exh.146), P.W.32 Mahmadhanif Dalubhai Sindhi (Exh.150) and P.W.125 Sabanabibi Anvarhusen Pathan (Exh.678), it is argued by Shri Brahmbhatt that, their evidence in this regard are not challenged in crossexamination. This witnesses have in their second time deposition narrated the overt act of accusedNos.84and85.Thereisnomaterialcontradiction oromissioninthisregard.Witnesseshavegivenplausible explanation for nondisclosing the names of accused Nos.84 and 85, as there was no Police protection was providedtothemandastheywereunderfear,theyhadnot takenthenamesofaccusedNos.84and85intheCourt. Here,isahostileinvestigationbytheInvestigationOfficer hence accused No.83 was arrested by the S.I.T. while accusedNos.84and85arearrangedasanaccusedbyan
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orderpassedintheapplicationunderSection319ofCr.P.C. Further,itisarguedthat,initiallytherewaspeltingstone duetoreactionofGodhraincidentandtherewasintention to cause damage totheproperty andvehiclewereseton fire.Subsequently,thisincidentwasconvertedintosucha graveincident. [82] ItisarguedbyShriBrahmbhattthat,therearesevenstar witnesses in the present case. P.W.18 Saiyed Nazirmiya Kalumiya (Exh.103), is the eyewitness, he has narrated wholeincidentofmurderof11persons.Hispresenceinthe Chudivascannotbedoubted.Hehasidentifiedtheaccused persons. As accused as well as witnesses are residing in samelocality.Thereisnoquestionofnonidentificationof accused persons by the witness. Not only that, he has narratedtheincidentbutalsonarratedtheweapons,how thecrimehasbeencommitted,howtheyhavedisposedof the dead bodies, he has given explanation that, earlier there was no police protection therefore, he could not deposewholefactswithoutfear.S.I.T.providedprotection to the witness. He could depose before the Court freely. AccusedNo.83wasinformedaboutthekillingof11persons but did not registered the offence under Section 302. Referring to the deposition of P.W.22 Yusufkhan Muradkhan Pathan (Exh.112), it is argued by Shri Brahmbhatt that, the 11 persons of his family members werebrutallykilledbythemobbeforehiseyes.Photograph
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produced vide Exh.494 and Panchnama, produced vide Exh.151, 152 shows the distance between the scene of occurrenceandtheplacefromwherethiswitnesshadseen theevidence.Hissecondtimedepositioniswithoutfear,he has given explanation regarding earlier deposition. The evidenceofthiswitnessprosecutionhasprovedkillingof11 persons and from the crossexamination of this witness, accusedsidecouldnotdisprovethefactsnarratedinchief examination therefore, this witness is reliable one. Referring to the deposition of P.W.23 Ahmedmiya Hasumiya Belim (Exh.128) and P.W.24 Shermahmad DalubhaiSindhi(Exh.132)itisarguedbyShriBrahmbhatt that, those are injured eyewitnesses, their injuries are supportedbyMedicalOfficer,theyarelocalresident,their presence at the time of incident in Chudivas, cannot be doubted. They have narrated the incident and they were injured in the incident. Referring to the deposition of P.W.25MohmadHanifAhmedkhanBaloch(Exh.134),itis arguedbyShriBrahmbhattthat,heisinjuredeyewitness, preliminarytreatmentwastakenfromoneCompounder Suleman, and burial rituals of dead bodies could not be performed as dead bodies were not found. This witness disclosestheovertactofaccusedNos.84and85.P.W.30 Shabbirmiya Hasumiya Belim (Exh.146) is the injured witness, he also took the treatment from Suleman. Referring to the evidence of P.W.32 Mahmadhanif DalubhaiSindhi(Exh.150),itisarguedbyhimthat,heis
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injuredeyewitness,healsotooktreatmentfromSuleman, thereisspecificdirectevidenceagainstaccusedNos.84and 85. In the deposition of this witness, he is the local resident.Hisrickshawwasdamaged,helosthissourceof income,therewasGujaratBandhatthetimeofincident, his presence at his residence at the time of incident is natural one. Thus, considering above all, the evidence of these witnesses inspire confidence. There are minor discrepancies,nomajordiscrepancies. [83] While learned advocate Shri A.K.Shaikh, appearing with prosecution has submitted his Written Arguments. Referringtothedepositionsofeyewitnesses,injuredeye witnesses,Policewitnesses,PanchWitnesses,Investigating Officer,itissubmittedbyShriShaikhthat,theprosecution has proved that, all the injured eyewitnesses are the residentsofChudivasandaccusedNo.83incollusionwith the accused side, has acted negligently and has not recoveredthearmsfromtheaccusedandhehadtakenthe relativesoftheaccusedpersonsaswitnesses.Thus,from theverybeginninghismalafideintentionisprovedbythe prosecutionand accusedNo.84and85weredirectlyand indirectly instigating the mob as well as directing the accusedNo.83withtheintentiontohelptheaccused.Itis onlyafter S.I.T.further investigationwascarriedoutand after seeking permission under Section 197 of Cr.P.C. accusedNo.83hasbeenaddedasanaccused.Referringto
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Section8ofEvidenceAct,itisarguedbyShriShaikhthat, preparationandpreviousandafterconductoftheaccused isrequiredtobeconsideredwhileappreciatingtheevidence in criminal trial. Here, due to Godhra incident with the ulterior object, all the accused conspired and prepared a Planandhaveactedaccordinglyandtheobjectofaccused wastocausedamagetothepersonandpropertiesofthe Muslims.AndaccusedNos.84and85hadinstigatedand abated the crime and their conduct is relevant as per Section 8 of Evidence Act. Referring to Section 10 of Evidence Act, it is argued by Shri Shaikh that, accused Nos.84 and 85 have conspired in the collusion of other accusedandSection10ofEvidenceActisapplicableinthe caseofaccusedNos.84and85.Section15ofEvidenceAct isalsoapplicableinthepresentsetoffactsastheactofall the accused was in series of same incidents with the motive and object to cause damage to the properties by burningthehousesofChudivasandbycausinginjuriesto thepersonsofMuslimcommunityfromChudivas.Thus,all theaccusedcamewithspecificobjecttotakerevengefrom MuslimCommunity.Section32oftheEvidenceActisalso applicable in the present facts and circumstances as 11 personsaremissingandtheywerekilledbycuttingthem into pieces and thereafter by pouring inflammable items, deadbodieswereburntandremainsofdeadbodieswere destroyed in Malav Talav. Witnesses have deposed accordingly, supporting this facts, Death Certificate of
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those11personsareproduced.Thus,itisprovedbythe prosecutionthat,allthe11personsarekilled.Referringto Section 35 of Evidence Act, it is argued by Shri Shaikh that,inpublicrecorditismentionedthat,these11persons are killed accordingly their death certificates are issued. Therefore,Section35isapplicabletothepresentfactsalso. As per his arguments Section 36 of Evidence Act is also applicable to the present set of circumstances as Circle Inspectorhaspreparedplanandmapofsceneofoffence. Further,itissubmittedinhiswrittenargumentsthat,after theinvestigationbyS.I.T.witnessesareexaminedandthey have deposed before the Court without fear. Therefore, manynewfactsarebroughtonrecord,whichispartand parcel of the deposition of those witnesses and Court is required to consider those evidence by taking due care. ReferringtoSection59ofEvidenceAct hehassubmitted that, eyewitnesses have identified the accused persons fromthemobandhavedeposedthat,whichoftheaccused hasplayedwhichroleandwhichoftheaccusedwasarmed withwhichweaponandhowandinwhatmannerthe11 persons are killed.Thereisnoreasontodisbelievethese evidence. Thus, considering the whole evidence and geographical position of Chudivas and that, it was the bounded duty of the police to protect the persons of ChudivasinwhichaccusedNo.83totallyfailedandsucha heinouscrimeoccurredandtherefore,alltheaccusedare liableforoffenceunderSection120(B),147,148,149,302,
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307, 436, 427, 337, 504, 506(2), 201, 188 of I.P.C. and Section135(1)ofB.P.ActreadwithSection114andSection 182,186and187ofI.P.C.readwithSection114and117 and this case falls within the rare of rarest case and therefore,alltheaccusedshouldbeconvictedaccordingly. [84] WhilelearnedadvocateShriB.S.Patelhasarguedthat,itis notafreshtrial,itisacontinuoustrial,itisnotobserved by the Honourable Supreme Court in the Writ that, evidencewhichwasrecordedearlierbeforetheCourtcan be ignored. Before the Court second time witnesses are tellingsomethingnew.IntheirStatements,theyhavenot statedthat,theywereunderfear.Thus,personscannotbe expectedto say beforetheCourt,whatheomittedtosay before the Court is not correct. Such type of evidence cannot be considered beyond the shade of doubts. The statements which are recorded by Police were verified by Dy.S.P.ShriJadeja,thereareimprovement,omissionafter the lapse of time. Generally a man can forget, here something more is coming from the mouth of witnesses, whichisunusual.Sofarasmissingof11personsformore thansevenyearsisconcerned,thatcanbeconsideredfor Civil purpose only, it cannot be considered for Homicidal Death.Nodoubtthat,DeathCertificatesof11personsare produced, issued by Health Department. Witnesses are tellingdifferentstoriesaboutthekillingof11persons.No deadbodyfound,thereisnoP.M.,noD.N.A.supportingthe
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caseofprosecution.Compensationisissuedtothem,Case ofkillingof11personsbecomedoubtful.Thereisnoiotaof evidence of killing of those persons. Death is not established.Itisnoone'scasethat,remainsoffivepersons fromChudivasandsixpersonsfromMalavTalavrecovered. Referringtojutebag,whichisrecoveredfromtheplaceof incident,itisarguedbyShriPatelthat,itisplacethereto believesixpersonswerebroughtthereandwhateverbones foundmustbeofhumanbones.ThereisonehutinMalav Talav,PolicehasnotinquiredaboutthathutandthatTalav is being used by Vaghari community. There is injustice caused to the accused, by wrongly arresting the accused persons.D.N.A.wasavailableatthetimeoffirsttrial.Police has not informed the Court about that D.N.A. Report showing that, noneofthebonesbelongtodeadpersons. ReferringtothedepositionsofwitnessesfromChudivas,it is argued by Shri Patel that, a mob of 200300 persons cannotgatherintheChudivasatatime.If,mobgathered and attack in that case, section 120B would not be applicable. Referring to deposition of Yusufkhan Muradkhan Pathan, it is argued by Shri Patel that, said witnesshasidentifiedalltheaccusedbuthedidnotcollect thenamesofMuslimpersonswhowenttoPoliceStation, saidwitnesscanbeconsideredastutoredoneandcannot bereliedupon.Hisstatementwasrecordedon8 th and9th March.Heisimprovingtheincident,inhisdeposition.As perthiswitness,injurywascausedbySwordandDhariya,
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killingof11personsintheNavelibyDhariyaandSwordis highly improbable. There is change of place, there is improvement in narration of incident therefore, such improvementamounttofataltheprosecutioncase.Ifthere iskillingof11personsbySwordandDhariyatheremustbe profuse bleeding on the spot. Only dots are recovered, nothing more. Whatever recovered on 6th March, that is plantationbyprosecutionsideasitisnotthecaseofthe prosecution that, accused went there in between 01.03.2002to06.03.2002.ReferringtodepositionofP.W.4 AabidbhaiGulabkhanSindhi(Exh.71),itisarguedbyShri Patelthat,heiseyewitnesshavingnoknowledgeaboutthe murder.From04.30P.M.to09.00P.M.hewasinthehouse of Ahmedbhai. As per say of Shri Patel there were 40 personsinthehouseofAhmedmiya.Ifthosepersonswere inside the house of Ahmedmiya, how they could see the murder of 11 persons or have identified the accused persons,itishighlyimprobable.Referringtothedeposition of P.W.45 Kamleshkumar Jethabhai Rathod (Exh.219) Mamlatdar,itisarguedbyShriPatelthat,thiswitnesshas stated that, they went to own while the Executive Magistratesaysthat,witnessesweresavedandtakenout. Mamlatdaristheindependentwitness.P.W.22Yusufkhan Muradkhan Pathan (Exh.112) has not disclosed about murder of 11 persons before him. Some persons were arrestedonthespotwithweaponbutnobloodstainson those weapons. Referring to deposition of P.W.46
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AnupamsinhJaysinhGehlot(Exh.226),D.S.P.hasdeposed aboutthemissingof11persons.Heisnotdeposingabout killing of 11 persons. As per his depositions 10 persons were saved from the houses of Chudivas. But those 10 personswhoweresavedbythePolicearenotexaminedas witness. Thus, prosecution is not bringing the real facts before the Court. No case was brought to his notice regardingthedeathof11personsofChudivas.Thereisno burninginjuries,thereisnoevidence,whocausedfire.Not a single witness says that, who put the fire. All the witnessesaresayingthekerosenetinsusedforburningthe deadbodiesbutthereisnospecificevidencewhopoured thekeroseneandwhosetonfire.Asperthedepositionof this D.S.P. fire was on top and there was blast of Gas CylinderandhehadinstructedPoliceInspectortotakethe injured persons out from the houses. Those real injured personshavebeenkeptaway.Thereisnoexplanationfrom prosecutionsideaboutthoseinjuredpersons.Ifthose10 persons were saved, where are those persons. Non discussionofvitalpartofevidenceamountsfatal.Referring tothedepositionofP.W.13RameshjiRajuji(Exh.97),they weretakingpersonsoutofthehouses.50personswerein burntposition.Thereisnoburninjuriestoanywitness.If there are burn injuries witnesses, why they are not examined, prosecutionissilentaboutit.Thus,truthhas notbroughtbeforetheCourtandadverseinferencecanbe drawnagainstthem.Further,atthetimeofincident,this
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witness was present on duty and they received the informationaboutthemissingof11persons.Atthetimeof incident, D.S.P., Dy..S.P. reached at the place of offence. Accused No.83 was present, who is charged for non inquiring about the 11 missing persons but there is no complaint against D.S.P. and Dy.S.P. Referring to the depositionsofDy.S.P.ShriJadeja,itisarguedbyShriPatel that,noneofthe10personswhoaresavedfromthehouses areexaminedbytheprosecution.Thiswitnesshadcarried outthevisitationduring28.02.2002to15.05.2002butno one has told him anything about missing of 11 persons. ThiswitnessisaPoliceOfficer,onthevergeofretirement, he had verified all the statements of witnesses. In his second time deposition, he is saying that, none of the injured sustained burns injuries, nor injuries by stick. Policehadnotusedstick.Thereissuppressionofmaterial facts. For the first time, on 12.05.2008 witnesses are disclosingabouttheinvolvementofaccusedNos.84and85. S.I.T.couldnotfoundanyevidenceagainstaccusedNos.84 and85.Further,thereisnoevidencehowtheremainsof11 dead persons traveled from Chudivas to Malav Talav. Further,itisarguedbyShriPatelthat,allthewitnesses have stated that, whatever they have stated earlier is correct but under fear they have stated incomplete facts. Thesefactstheyaredeposingjusttoprocureconviction.In F.I.R.deathof11personsnotdisclosed.InF.I.R.theyhave disclosedonlyattackandinjuries.Subsequently,theyare
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coming with a case of murder. Referring to deposition of P.W.22 Yusufkhan Muradkhan Pathan (Exh.112), it is arguedbyShriPatelthat,applicationwrittenbyhimdoes not disclose the names of assailants. Yusufkhan was in Police Station. His daughter Karishma was also in Police Station and then went to Hospital and on 01.03.2002 Karishma was disclosedasmissing.Subsequently,sheis traced out. As per deposition of P.W.22 Yusufkhan MuradkhanPathan(Exh.112),twosonsweresnatchedfrom the hands of his wife, while Karishma is saying, her brothers were killed by Babubhai Parshottambhai while Yusufkhan has not disclosed the name of Babubhai Parshottambhai. Name of Dahyabhai Madhabhai is referredbyKarishmawhileYusufkhanissilentaboutthe name of Dahyabhai Madhabhai. P.W.58 Karishmabanu Yusufkhan Pathan (Exh.502), when she came out from house,theywereassaulted.SheissilentaboutSwordwhile P.W.22 Yusufkhan Muradkhan Pathan (Exh.112) used Sword liberally. She took shelter in House No.18, her motherandbrothersarekilledandthisfactisnotdisclosed byherattherelevanttime.Sheisnotgoingwithherfather. P.W.31 Aarifkhan Yakubkhan Pathan (Exh.147) has not sustainedanyinjury,therewasnocrimeinPoliceStation. He has not disclosed before the Police or other persons about the killing of 11 persons. He takes the name of Jethabhai Babubhai, whose name is not disclosed by KarishmaandYusuf.AsperKarishma,theytookshelterin
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HouseNo.18whileasperAariftheytakeshelterinhouse No.21.Aftertheincident P.W.22YusufkhanMuradkhan Pathan (Exh.112) and P.W.31 Aarifkhan Yakubkhan Pathan (Exh.147) were in Navavas and none of other witness justifies their presence at the place of incident. Theychangesplaceofshelter.Referringthewholeevidence ofprosecution,itisarguedbyShriPatelthat,ittranspires that there is existence of two mobs, one with stone/acid andsecondonewithdeadlyweapons.Corpusof11persons areabsentfromthepresentcase.Identificationof11dead personsisnotprovedbytheprosecution.Whatwasfound from the Chudivas was not containing the smell of kerosene.Deathisnotestablished.Possibilityofanyoneof 11personsalivecannotberuledout.AariforYusufarenot cleaning the remains as per deposition no Jirayat was arranged.IfYusufwasinfacteyewitness,whyhedidnot disclosethekillingimmediately.Noboneidentified,thereis noevidence,wherethebonesgone,nobloodstainonthe spot.Thereareimprovementsintheversionofwitnesses. Complainant has improved the version before the Court. There are omission, contradiction in the evidence. There can be change of version but cannot be a change of incident. All improvements in change of time is in consistentbyfixingaparticulartarget.AspersayofDy.S.P. incident occurred at about 08.30. None of the witnesses says that, they witnessed the incident in moon light. Referring to the deposition of P.W.32 Mahmadhanif
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DalubhaiSindhi(Exh.150),itisarguedbyShriPatelthat, atthetimeoffirsttimedepositionintheyear2003hehas clearly stated that, during the incident, he was in his house,fromwherehecannotviewtheincident.Mobcame fromlefthandsideandafteronehouse,secondmobcame. HishouseisHouseNo.10. Insecondtimedeposition,he has deposed that, he took shelter in the House No.21, where50to60personswerethere.Mobhadtriedtoattack thathouseandhewitnessedthatincident.Hissecondtime deposition,whichisaftertheinvestigationofS.I.T. gives goodbyetohisearlierversion,nowthereisafreshversion. Itisacommonhumanbeingmemorythat,aftersixyears somethingcanbesaidbutnotmorethan100%.Thusthere is exaggeration and improvement in his version, which is against natural conduct.Sofarasreasonfor nonstating thefactinearlierdepositionisconcerned,hehasdeposed that,hewasafraidofhenceeverythingwasnotdeposedby him.It is thedutyofprosecutiontoimprovethisfactby independent witness. Since 2002 till 2011, not a single complaint about threatening has came before the Court. Nor any investigating agency telling about threat from accused side. P.W.24 Shermahmad Dalubhai Sindhi (Exh.132)istherealbrotherofP.W.32,bothwereresiding togetherinonehouse.HeisresidinginHouseNo.15.He has stated that, he was in his house in Ground Floor. Accordingtohim,hehasseentheincidentatdistance.How hecansaymobwashavingkerosene,petroletc.Itishighly
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impossible for a persons to see from inside the house. Whenhecouldnotidentifythewitnesses,howhecouldtell specific role about petrol, kerosene in the hands of eight persons.Mobdidnotcauseanyinjurytohim. P.W.30 Shabbirmiya Hasumiya Belim (Exh.146) is having house No.18. As per prosecution, some of the witnesseshavetookshelterintheHouseNo.18andsome witnessestookshelterintheHouseNo.21.Forenteringin thehouseNo.18,apersonhastopassfromleftsideNaveli, knownasDalubhaiNaveli.Thiswitnessisdeposingabout themobofPatelbutnotdisclosingthenamesofaccused. There is an improvement in his second time deposition. Thiswitnessdemolishesentireprosecutionas,asperhis saydeadbodieswerethrownintheNaveliandifthatisso, noonecouldenterinhishousefromtheNaveli.Mobhave noteventouchedhimthoughhishousecomesonwayfirst. Mobpassedandselectedpersonstokillthepersons,how he could see this incident from the house. There was darkness and no electricity in the area at the time of incident. P.W.52 Faridabanu Ahmedkhan Baloch (Exh.306)isthesisterofcomplainant,asperherdeposition shewasresidinginHouseNo.7.ShewenttoHouseNo.21, no one had even touched her though there is chowk betweenherhouseandHouseNo.21.Asperherdeposition, entireareawasfullofmobtheninthatcircumstancesif therewaspeltingofstones,otherslikeaccusedwouldhave
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alsosustainedinjuries.Forpeltingstones,theremustbe 25Ft.distance,shesustainedstoneinjuries.Shehastaken namesof13personsinherdeposition.Asperhersay,there wasnoelectricity,mobwasinthechowkatabout04.30 P.M.andsheisstatingthetimeofincidentas08.30P.M. whathashappenedduringsaidfourhours,sheissilent.35 to40personswereintheHouseNo.21,noneofthemwere injured.She isnotabletoidentifythe13personsinthe mob.P.W.51AminabibiAhmedkhanBaloch(Exh.303)is themotherofcomplainant,whosaysthat,therewasafloor onHouseNo.7,majoritystartwitnesseswereintheHouse ofAhmedmiya.Aspersayofthiswitness,Ahmedmiyawas not inside the house. This witness does not disclose the deathofanyperson.Sheisnotdeclaredhostile.Shehas deposed before the Court of her own. Evidence of this witness creates hurdles to the case of prosecution but throws light on correctness of the facts. She tried to improve herself, she is the witness. Contradictory to star witnesses of prosecution. She is not an independent witnessbutnotsupportingtheprosecutioncase.P.W.52 Faridabanu Ahmedkhan Baloch (Exh.306) came on her own. There is no question of fear. 16 to 17 persons are named by her in pelting stones. She had crossed the chowk,iftherewaspeltingofstones,shehasnotsustained any injury, nor any accused sustained any injury, if the crowd in chowk. No accused is arrested with Kerosene, PetrolTinetc. Sheisnotsayingwhoinflictedinjuriesby
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whom.Sheisexaminedattheinstanceofcomplainant,nor thewitnessofprosecution.Nosummonswasissuedtoher. P.W.51 and P.W.52 are interested persons and their evidencearerequiredtobeignored.P.W.51andP.W.52are motheranddaughterandtheywereresidinginHouseNo.7, whenmobentered,motherwenttoHouseNo.21,theright handsidewhiledaughtersays,shewentonlefthandside, she had not followed her mother. P.W.50 Saidabibi Mahmadhanif Sindhi (Exh.302) is not saying that, she along with Faridabibi had seen the incident from the window.Noovertactisattributedbyhertoanyaccused.As perhersayscuffletookplacebutthereisnoabrasionto anyaccused,whichsuggestthat,noaccusedwaspresent. All these three witnesses are not cited as witness, their statements were never recorded. Defence was not having anychancetocontradicttheirpolicestatementsandthey are examined just to fill up the lacuna for which prosecutioncannotbepermitted. P.W.25MohmadHanif Ahmedkhan Baloch (Exh.134) is the real brother of the complainantandsonofP.W.52.Asperhisdeposition,he wasinhishouse,awitnesscannotseetheincidentfrom theinsideofhishouse.HewentinsidethehouseofP.W.22. While P.W.22 is says that, except his family members no one was inside his house. If this witness was in house No.15,therewasnootherdoorinthathouse.Therewasno possibility to see theincident from thathouse.From the gallery adjacent to house No.10, no one can witness the
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incident.Aspersayofthiswitness,alldeatharecausedby ChamanChoksibySword,whileaspercaseofprosecution death was caused by Short Spear. No other person is attributedwithanyovertactbythiswitness.Thiswitness is not disclosing the names of lady accused. Place of burningofdeadbodiesischangedbythiswitness.Asper sayofthiswitness,placeofburningofdeadbodyisnearto his house. According to him he had accompanied the complainant,whenhegonetolodgethecomplaint.Hehas tried to pose himself as injured witness. Therefore, he is saying that, he took treatment from private doctor. Even beforeprivatedoctorhehasnotdisclosedaboutthemurder of11persons.Whenhewenttopolice,Dy.S.P.waspresent, injuredweresittinginthePoliceStationandatthattime alsohehasnotdisclosedabouthisinjuriesnorkillingof11 persons.Further,itisarguedbyShriPatelthat,till2003 noneofthewitnesssaysthat,accusedNos.84and85were present in the Chamber of Accused No.83. In earliest opportunitythewitnesscouldhavedisclosedtherealfacts. Itisfurther,arguedbyhimthat,offenceundersection307 continuedupto5thMarchandthereaftersuddenlymissing persons are shownasdeadpersonsandthatiswiththe helpofbrainoflocalleaders.Originalcaseisnotbrought before the Court. So far as application produced vide Exh.761to765areconcerned,thosearedrafterinsimilar fashion, there is some one who has drafted the applications, who is well aware about the sending of
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applications. Prosecution is silent about that person. All applications were sent under section 156(3) for inquiry. Prosecutionhasnotshownanyreasonforseparatingthose applications. Those applications were submitted on 8 th March, chargesheet does not contain those applications, thepersonswhowereshiftedtosaferplace,naturallywill notkeepsilencewhen11personswerekilledandhouses wereburnt.Theyhadstartedplanningtoindulgeinnocent persons.Noneoftheapplicationfindthenamesofaccused Nos.84and85.Therewasnocomplaintthatpolicehadnot given any heed to them. S.I.T. is also silent about those applications. It is submitted by Shri Patel that, entire Chudivas was vacated when the incident was started. Further, it is arguedby ShriPatel that,14 persons were missing, and planning started from 5th March. Karishma was traced out subsequently. If there was instigation by accusedNos.84and85,whythewitnesseshavenotstated that fact before any authority or in the Court first time. None of the witness from outside of Chudivas was examined though persons from other Maholla were also present. When Chudivas was put to fire, no one was presentintheChudivas,notasinglepersonhasgotburns injuries. All the accused have been arrested from their houses.Witnessesarenottellingtherealtruth.Timeand placeofincidentisnotcertain.Shelterhousesaredifferent. Thereisnovisibilityofwitnessesfromtheplaceofshelter. There is variation in number of dead persons. In second
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time every one is clear about the death of 11 persons. Investigation by local police and S.I.T. travels in different decreeindifferenttime.Noneofthewitnesseshavebeen shown with the weapons, which were discovered or recovered. It is the duty of the prosecution to prove the weapons.Nohairs,ringetc.wereshowntothewitnesses, none of the deceased had been buried, remains of the deceased persons were asked by any relative, no Jirayat tookplace,death of11personsisnotestablished.Burnt knottedhairswerenotsenttoF.S.L.,itmaybeartificial,it isonly6thMarchwhenSection302hadbeenadded.P.W.1 is specific about injury because of tiles thrown from terrace,hesustainedinjuries.Further,itisarguedbyShri Patelthat,thepersonswhoarearrestedcannotbepartyof mob. Prosecution has put the weapons in the hands of accused.Weaponsarenotconnectedwiththeincident. Thus,itisarguedbyShriPatelthat,thisisacaseof false implicationof82accused,whoarepassingthrough the mental agony of serious crime since more than 10 years. Witnesses have tried to mislead the Honourable Courtandthisisafitcaseinwhichordertoprosecutethe witnessesisrequiredtobepassedbythisCourtbecauseof theminnocentpersonsaresufferers.Ifitisnotdone,the personstutoredbehindthewitnessesshallnotbeexposed and nondisclosureofsuchtutorbehindthewitnessesis hazardous for maintaining the harmony and healthy
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atmosphereintheSociety. [85] LearnedadvocateMr.C.K.Shah,appearingonbehalfofthe accused No.85 has argued that, prosecution side is not clearaboutthepositionofaccusedNo.83whetherheisan accused or he is a witness. If he is considered as an witness,thenaccusedNos.84and85cannotbeconsidered as an accused. This position is required to be clarified. Charges not clear about the overt act of each accused. Chargesaregeneraloneandnotspecific.Atthetimeoffirst timeofframingcharge,thetimeofincidentismentionedas 08.30P.M.whileinsecondtimecharge,itismentionedas 02.30P.M.to08.30P.M.Evidenceiscontradictorytoeach other. Evidence is notclear about theovertact ofkilling whichoftheaccusedhadusedwhichweapon.Thereisno explanation. Conspiracy is not proved. Prosecution has suppressed material fact. Prosecution is not coming with realpositionofcase.ReferringtoExh.239,240and241it is argued that, D.N.A., F.S.L. Report were called for. ProsecutionissilentaboutD.N.A.Report.Thecomplaints whicharefiledbeforetheCourtvideExh.759to765were filed by the witnesses. They were fearless from very beginning. They had preferred applications before the Hon'ble Supreme Court. They had preferred different applications before the Hon'ble Supreme Court, seeking different reliefs like stay against trial etc. Thus, it shows fearlessnessofthewitnesses.Referringtothedepositionof
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P.W.30ShabbirmiyaHasumiyaBelim(Exh.146),P.W.18 Saiyed Nazirmiya Kalumiya (Exh.103), P.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66), P.W.23 Ahmedmiya Hasumiya Belim (Exh.128), P.W.24 Shermahmad Dalubhai Sindhi (Exh.132), P.W.32 Mahmadhanif Dalubhai Sindhi (Exh.150), P.W.25 Mohmad Hanif Ahmedkhan Baloch (Exh.134), P.W.21 Shabbirkhan Ibrahimkhan (Exh.108), P.W.1 Fatehkhan Badarkhan Baloch (Exh.61), P.W.4 Aabidbhai Gulabkhan Sindhi (Exh.71), P.W.5 Zubedabibi Mahebubkhan Baloch (Exh.84), P.W.7 Amzadkhan Mahmadkhan Baloch (Exh.86), P.W.9 RashidabibiSattarbhaiBaloch(Exh.88), P.W.8 Reshmaben Sattarbhai (Exh.87), P.W.11 Anvarhusen Shabbirhusen Pathan (Exh.91), P.W.12 BijendrasinhRampratapsinh(Exh.96),P.W.22Yusufkhan Muradkhan Pathan (Exh.112), it is argued by Shir Shah that, these witnesseshave not involvedaccusedNo.85in their deposition. Police witnesses are also not deposing aboutthepresenceandinvolvementofaccusedNo.84and 85.Itisonlysecondtimedeposition,someofthewitnesses have involved accused Nos.84 and 85 as an accused but there is no evidence against them at all, there is no evidence against accused Nos.84 and 85 regarding conspiracy. Accused Nos.84 and 85 are falsely been involved as an accused. Investigating Officer Shri Barot himselfadmitsthat,thereisnoevidencetoinvolveaccused Nos.84and85asanaccused.
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HOMICIDALDEATH:
[86] Aspertheprosecutioncase,Following11personsdieddue tohomicidaldeathoccurredintheincident: (1) PathanHusenabibiMuradkhan,Age:35Years, (2) PathanAfsanabanuYusufkhan,Age:19Years, (3) KhiljiMunafkhanJabirbhai,Age:02Years, (4) PathanZinnatbibiMuradkhan,Age:65Years, (5) PathanBanubibiYusufkhan,Age:46Years, (6) PathanAmaullakhanYusufkhan,Age:09Years, (7) PathanAzaullakhanYusufkhan,Age:04Years, (8) PathanYakubkhanMuradkhan,Age:35Years, (9) PathanAsifkhanYakubkhan,Age:14Years, (10) PathanAbidkhanYakubkhan,Age:11Yearsand (11) PathanSohanabibiJabirbhai,Age:25Years [87] P.W.22 Yusufkhan Muradkhan Pathan (Exh.112) has produced the Death Certificates of above mentioned 11 persons in his deposition vide Exh.701 to 711. In this regard,prosecutionhasexamined P.W.17DolatjiGalbaji Thakor(Exh.1158),whohasdeposedthat,heisservingas aClerkintheVisnagarMunicipality.Inhisdeposition,he hasproducedthecopyofBirthandDeathRegister,dated 26.06.2002atSr.Nos.179to189.Asperhisdeposition,itis written by Mr.G.G.Rabari and on the basis of that copy Death Certificates are issued. Copy of Birth and Death Register is produced vide Exh.1159. In the register date,
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casteandaddressarementioned.Inhiscrossexamination nothing has come out from which we can disbelieve the death entries mentioned in the register. Simply because those entries are notmentionedwithin21daysandLate FeesReceiptsarenotproduced,noRationCard,Election Cardwasseenbyhim,norDeathCertificateofHospitalor fromanyotherplacewasobtained,itcannotbesaidthat, thoseentriesarefalse.Itistruethat,fromthoseentries and death certificates, only the death of the persons concernedcanbeproved,whethertheirdeathishomicidal for that, death certificates and entries, produced vide Exh.1159arenotsufficient. Admittedly,thereisnocorpusinthepresentcase.To decidehomicidaldeathIhavetoconsiderthelawrelatingto homicidaldeathinacasewherethereisabsenceofcorpus. Theprosecutionhasrelieduponthefollowingcitations: Learned Special Public Prosecutor Shri M.K.Brahmbhatt, appearing on behalf of the Prosecution hascitedfollowingauthoritiesinsupportoftheircase: (1) AIR1957SUPREMECOURT381 RamChandrav.StateofU.P. Wherein it is held by the Honourable Supreme Court of Indiathat, Itistruethatinlawaconvictionforanoffencedoesnot
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necessarily depend upon the corpus delicti being found. Theremaybereliableevidence,directofcircumstantial,of thecommissionofthemurderthoughthecorpusdelictiare nottraceable. (2) 1981SUPREMECOURTCASES(CRI.)197 RamaNandandOthers, Versus TheStateofH.P., Wherein it is held by the Honourable Supreme Court of Indiathat, Itistruethatoneoftheessentialingredientsoftheoffence of culpable homicide required to be proved by the prosecutionisthattheaccused"causedthedeath"ofthe person alleged tohavebeenkilled.Discoveryofthedead body of the victim bearing physical evidence of violence, hasneverbeenconsideredastheonlymodeofprovingthe corpus delicti in murder.Indeed, very many casesare of such a nature where the discovery of the dead body is impossible. A blind adherencetothisold "body"doctrine wouldopenthedoorwideformanyaheinousmurdererto escape with impunity simply because they were cunning andcleverenoughtodestroythebodyoftheirvictim.Inthe contextofourlaw,Halesenunciationhastobeinterpreted nomorethanemphasizingthatwherethedeadbodyofthe victim in a murder case is not found, other cogent and satisfactoryproofofhomicidaldeathofthevictimmustbe adduced by the prosecution. Such proof may be by the
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direct ocular account of an eyewitness, or by circumstantialevidence,orbyboth.Butwherethefactof corpus delieti, i.e., homicidal death is sought to be established by circumstantial evidence alone, the circumstances must be of a clinching and definitive character, unerringly leading to the inference that the victimconcernedhasmetahomicidaldeath. (3) 2001SUPREMECOURTCASES(CRI.)1546 RamGulamChoudhury&Ors. Versus StateofBihar Wherein it is held by the Honourable Supreme Court of Indiathat, Itisnotatallnecessaryforaconvictionformurderthat thecorpusdelictibefound.Undoubtedly,intheabsenceof the corpus delicti there must be direct or circumstantial (evidence) leading to the inescapable conclusion that the personhasdiedandthattheaccusedarethepersonswho hadcommittedthemurder.InthiscasebelowCourtshave rightlycometotheconclusion,basedupontheevidenceof eye witnesses that Appellant No. 9 had killed the victim before his body was taken away by all the accused Appellants. (4) 2002SUPREMECOURTCASES(CRI.)1647 LAKSHMIANDOTHERS Versus STATEOFU.P.
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Wherein it is held by the Honourable Supreme Court of Indiathat, Prosecution Discrepancies and infirmities when prosecutioncaseisestablishedonthebasisoftrustworthy testimony of the eyewitnesses, n oidentification of the deceased, nonascertainment of cause of death and non recovery of the crime weapons would not be fatal to the prosecution. [88] ConsideringtheabovepositionofLaw,itiswellsettledin absence of corpus homicidal death can be proved from other evidence. If the other evidence is reliable and sufficienttoprovesatisfactorilythehomicidaldeath,then inthatcasebyrelyinguponthatevidencehomicidaldeath can be decided, in that case presence of corpus is not necessary. For this purpose, when we appreciate the evidence of prosecution side, P.W.1 Fatehkhan BadarkhanBaloch(Exh.61)isthehostilewitness,hehas deposedaboutdeathof11personsduetoinjuries.Inhis firststatementdated01.03.2002,hehasnotstatedabout deathof11personsduetoinjuryintheoccurrence.Inhis statement dated 10.03.2002,24.05.2008alsoheissilent about this fact. In his second time deposition, he has deposedthat,11familymembersofYusufkhanMuradkhan Pathan died in the incident. While complainant has deposed first time in his deposition that 11 persons of
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Yusufkhan'sfamilyhavediedintheincident.Whileinhis crossexamination,hehasdeniedthat,hehasnotstatedin thecomplaintthat11personshavediedintheincidentand their children wereweeping and saying that, their family membersarekilled.Whileinhissecondtimedeposition,he hasdeposedthat,whentheyweregoingtoPoliceStation, YusufkhanPathantoldhimaboutthekillingof11persons while the complaint is silent about the killing of 11 persons.YusufkhanwasverymuchpresentinthePolice compound along with other members of Maholla. In his statementdated28.02.2002,hehasnotstatedaboutthe killing of 11 persons, while in his statement dated 12.05.2008beforeS.I.T.hehasstatedthat,Yusufkhantold himaboutthekillingof11persons.Inthisregardwhenwe perusethehistorygivenbeforetheDoctor,itistotallysilent aboutthekillingof11persons. P.W.3Gulabkhanalias Gulubhai Kayamkhan Sindhi (Exh.70) is the Hostile witness,hehasonlystatedthat11personsofYusufkhan's family were burnt. He is silent about the killing of 11 persons in his statement dated 01.03.2002 while in his statementdated10.03.2002hehasstatedaboutmissingof 11personsandhasalsostatedabouttheidentificationof dead bodies from the remains recovered by F.S.L. at the timeofdrawingofPanchnama,dated06.03.2002.P.W.4 Aabidbhai Gulabkhan Sindhi (Exh.71) has stated in his firsttimedepositionaboutthedeathof11personswhilein second time deposition he has deposed that, he saw the
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killingof11persons.Inhisstatementdated01.03.2002,he issilentaboutkillingof11persons.Inhisstatementdated 10.03.2002 he has stated that, he saw the killing of 11 persons and he has stated about the identification of remainswhichwererecoveredbytheF.S.L.whilenothing statedbyhiminhisstatementdated24.05.2008.P.W.5 Zubedabibi Mahebubkhan Baloch (Exh.84) has deposed that, 11 persons have died in the incident and their childrenweretellingaboutthekillingof11personswhile she is silent about this fact in her statement dated 01.03.2002, 24.05.2008, while in her statement dated 10.03.2002,shehasstatedabouttheidentificationofdead bodies through remains recovered by F.S.L. by drawing Panchnama. P.W.6 Mahmadkhan Badarkhan Baloch (Exh.85) has come to know about killing of 11 persons subsequently.Heissilentaboutthekillingof11personsin hisstatementdated01.03.2002,24.05.2008whilehehas stated in his statement dated 10.03.2002 about identification of dead bodies through Panchnama dated 06.03.2002, drawn by the F.S.L. P.W.7 Amzadkhan MahmadkhanBaloch(Exh.86)subsequently,cametoknow about the killing of 11 persons. In his second time deposition,hehasdeposedatthetimeofincident,those11 personswereresidingintheirMahollaandtheywereburnt alive.Inhisstatementdated01.03.2002,heissilentabout thekillingofthose11persons,whileinhisstatementdated 10.03.2002,hehasstatedabouttheidentificationofdead
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bodies through the remains recovered by F.S.L. vide Panchnama dated 06.03.2002. In this regard when we perusethehistorygivenbeforetheDoctor,itistotallysilent about the killing of 11 persons. P.W.8 Reshmaben Sattarbhai(Exh.87)hasfirsttimedeposedthat,shecame toknowaboutthekillingof11personssubsequently,while insecondtimedepositionshehasdeposedthat,11persons were bitterly killed by cutting and burning, while she is silent about the killing of 11 persons in her statement dated01.03.2002,24.05.2008whileinherstatementdated 10.03.2002,shehasstatedabouttheidentificationofdead bodies through pieces and remains recovered by F.S.L. whiledrawingPanchnamadated06.03.2002.Inthisregard whenweperusethehistorygivenbeforetheDoctor,itis totally silent about the killing of 11 persons. P.W.9 Rashidabibi Sattarbhai Baloch (Exh.88) came to know about the death of 11 persons subsequently, while in secondtimedepositionshehasdeposedaboutthekillingof 11 persons, while she is silent about the killing of 11 personsinherstatementdated01.03.2002and24.05.2008 and in her statement dated 10.03.2002 she has stated about the identification of dead bodies through pieces of bones and remains recovered by F.S.L. while drawing Panchnama dated 06.03.2002. In this regard when we perusethehistorygivenbeforetheDoctor,itistotallysilent about the killing of 11 persons. P.W.10 Sugrabibi Mahmadkhan Baloch (Exh.90) has in her first time
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deposition deposed that, she came to know about the killing of 11 persons subsequently. In her second time deposition,shehasstatedthat,shehadnotseenanydead bodies,whilesheissilentaboutthekillingof11personsin herstatementdated01.03.2002and24.05.2008andinher statement dated 10.03.2002, she has stated about the identificationofdeadbodiesthroughpiecesofbonesand remains recovered by F.S.L. while drawing Panchnama dated 06.03.2002. In this regard when we peruse the historygivenbeforetheDoctor,itistotallysilentaboutthe killing of 11 persons. P.W.11 Anvarhusen Shabbirhusen Pathan (Exh.91) has deposed in his first time deposition that,11personswereburntandkilled.Thisfact,hecame to know in the Police Station. In his second time deposition,hehasdeposedthat,11personswerekilledby using weapons. Thereafter, he has never seen those persons, while inhisstatementdated01.03.2002hehas stated about the missing of 11 persons while in his statement dated 10.03.2002 he has stated about the identificationofdeadbodiesthroughremainsrecoveredby F.S.L. while drawing Panchnamadated06.03.2002,while in his statement dated 24.05.2008 he has made explanation that, Karishmabibi Yusufkhan and Ibrahimkhanarealivewhilethereisnoladyinthenameof Sugarabibi Jalalkhan while Suhanabibi died in the incident. Inthisregardwhenweperusethehistorygiven beforetheDoctor,itistotallysilentaboutthekillingof11
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persons. P.W.21 Shabbirkhan Ibrahimkhan (Exh.108) deposedinhisfirsttimedepositionthat,twochildrentold aboutthekillingof11personsintheincidentwhilethey were in Police Station. In his second time deposition, he hasdeposedaboutthedeathof11personsintheincident while in his statement dated 02.03.2002 he has stated about the missing of 11 persons, while in his statement dated24.05.2008hehasexplainedthat,twochildrentold aboutthekillingof11persons.Further,hehasexplained that,KarishmabibiYusufkhanandIbrahimkhanarealive andthereisnoladyinthenameofSugarabibiJalalkhan insteadofSugarabibi,Suhanabibihasdiedintheincident. P.W.26 Husenkhan Badarkhan Baloch (Exh.137) is the Hostile witness, in his second time deposition he has deposedaboutthekillingof11personsandhasdeposed that,11personshavediedintheattack.Inhisstatement dated 08.03.2002, he has stated about the killing of 11 persons and in his statement dated 10.03.2002, he has stated about the identification of dead bodies through remains recovered by F.S.L. while drawing Panchnama dated 06.03.2002. In this regard when we peruse the historygivenbeforetheDoctor,itistotallysilentaboutthe killing of 11 persons. P.W.29 Hanifabibi Shabbirbhai Pathan(Exh.144)hasdeposedinherfirsttimedeposition that,shehadnoknowledgeaboutthekilling11persons. She came to know about the killing of 11 persons subsequently.Inherstatementdated08.03.2002,shehas
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statedaboutthekillingof11personsintheincident.While inherstatementdated24.05.2008,shehasexplainedthat, shehasnotstatedinherstatementdated08.03.2002and 10.03.2002, about the killing incident, while in her statement dated 10.03.2002 she has stated about the identificationofdeadbodiesthroughremainsrecoveredby F.S.L.whiledrawingPanchnamadated06.03.2002.Inthis regard,whenweperusethehistorygivenbeforetheDoctor, itistotallysilentaboutthekillingof11persons. P.W.96 Ibrahimkhan Umarkhan Baloch (Exh.610) has deposed that, he come to know about killing of 11 persons subsequently. In this regard when we peruse the history givenbeforetheDoctor,itistotallysilentaboutthekilling of 11 persons. P.W.125 Sabanabibi Anvarhusen Pathan (Exh.678) has deposedthat, 11persons havediedin the incidentbutshehadnotseenthosedeadpersons.Inher statement dated 24.05.2008, she has stated that, when theyweregoingfromPoliceStationtoCivilHospital,she came to know about the killing of 11 persons. In this regard,whenweperusethehistorygivenbeforetheDoctor, itistotallysilentaboutthekillingof11persons.P.W.127 ImrankhanSabirhusenPathan(Exh.681)hasdeposedthat, 11personshavediedintheattackbuthehasnotstated thisfactinhisstatementdated24.05.2008.Inthisregard, whenweperusethehistorygivenbeforetheDoctor,itis totally silent about the killing of 11 persons. P.W.181 Shamimbanu Aniskhan Pathan (Exh.1350) has deposed
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that, she came to know about the killing of 11 persons subsequently,whenshewasinthePoliceStation. Inthis regard,whenweperusethehistorygivenbeforetheDoctor, itistotallysilentaboutthekillingof11persons. [89] P.W.24 Shermahmad Dalubhai Sindhi (Exh.132) has deposedinhisfirsttimedepositionthat,afterenteringin Chudivas, mob was divided in two parts. One mob went towards front side and another mob went towards back side.Soonasmobcamethewitnesswentinsidehishouse. As per his say, he had seen the incident of killing of 11 personsbyusingarmsandthereafter,bypouringkerosene and petrol,theywereburnt.Tillthepolicecame,hewas insidethehouseofAhmedmiyaandPolicetookthemout. Thus,ononehandheissayingthat,whenmobcamehe entered in his house on other hand he is saying that, duringwholeincident,hewasinthehouseofAhmedmiya. When he had gone to Ahmedmiya's house, he is silent aboutit,inhisfirsttimedeposition.Heisalsosilentfrom wherehehadseenthekillingof11persons.Whileinhis secondtimedeposition,hehasdeposedthat,hesawfrom the window of his house that, family members of Yusufkhan Pathan were screaming for help, voices were comingfrombacksideofhishouse,therefore,hesawthe killingof11personsfromthewindow.Heisunabletosay the time of killing of 11 persons but it was day time. In secondtimedeposition,hehasdeniedthat,hewasinthe
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house of Ahmedmiya. This witness is not attributing the specific role of particular accused in his deposition. Presenceofthiswitnessatthetimeofoccurrenceisnatural inChudivas,asheistheresidentofChudivasanddueto Godhra Riots, there was Gujarat and Bharat Bandh and Curfew was imposed, naturally person will stay at his house and that is natural one. For the first time, his statementwasrecordedon08.03.2002.Inthatstatement, hehasstatedaboutthekillingandburningof11persons, tillthenheissilent.Hehasnotdisclosedanyoneabout the killing of 11 persons, prior to his statement dated 08.03.2002, though he went to the Police Station along with the complainant and other persons. In his cross examination, he is saying that, he went to Ahmedmiya's houseatabout06.00P.M.whileasperhisdeposition,he sawthewholeincidentfromhisownhouse.Asperhissay killing incident occurred at about 06.30 P.M. From his deposition,ittranspiresthat,whenheenteredinhishouse, hehadclosedthedoorandwindowsthenhowhecouldsee theincidentfrominside.BeforeS.I.T.hesaysthat,hesaw the incident from first floor eastern side window of his house.Thus,thereisvariationinhisdepositionitself.On onehandhewasinAhmedmiya'shouse,ontheotherhand hesaysthat,hesawtheincidentfromhisownhouse.In hisapplication,hehasmentionedthat,healongwithhis family members, saw the killing and burning of Suhana andMunaffromthebacksidedoorofhishouse.Hehas
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notmentionedthenamesofotherpersonswhoarealleged to have been killed. In this regard when we peruse the historygivenbeforetheDoctor,itistotallysilentaboutthe killingof11persons.Thus,consideringaboveevidenceby solelyrelyingupontheevidenceofthiswitness,aboutthe killing and death of 11 persons we cannot conclude the homicidaldeathof11persons.Somecorroborationtothat effectisrequired. [90] SofarasevidenceofP.W.25MohmadHanifAhmedkhan Baloch (Exh.134) in respect of homicidal death is concerned,soon asmobenteredintheMaholla,hewent insidehishouseaswellasinthehouseofMahmadHanif Dalubhai Sindhi. As per his say, he saw the incident of killingbySwordbythesideofthehouseofMahmadHanif DalubhaiSindhi.Onperusingthesituationofthehouses inChudivas,apersoncanseefromthesideofthehouseof Mahmad Hanif Dalubhai. From his deposition, it also transpiresthat,hehadidentifiedtheremains,whichwere recoveredon06.03.2002fromChudivas.Heisthebrother ofcomplainant.Hehadaccompaniedthecomplainant.Up toPoliceStation,hewasverymuchpresentwiththePolice, when the complainant lodged thecomplaintin thePolice Station,atthattime,thiswitnesswastotallysilent,ifhe had seen the killing and burning incident, why he was silent.Inhisstatementdated08.03.2002,firsttimehehas stated about the killing of 11 persons. In his statement
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dated10.03.2002and24.05.2008also,hehassupported the killing of 11 persons and he has also supported the recovery of remains by F.S.L. in his statement dated 10.03.2002. His presence at the time of incident in Chudivas cannot be doubted as he is the resident of Chudivas and considering the situation of the town, everyonewouldliketoremaininthehousebutthenatural conductinacase,whenapersonhadseenthekillingof11 personswouldbetotelltoanyauthorityornearrelativesor surrounding persons about the incident. No one will sit ideal for about week, it is only after the remains were recovered by F.S.L. while drawing Panchnama on 06.03.2002 and Panchnama drawn at Malav Talav, this witnessistellingaboutkillingandburningof11persons. NodoubtfromthePanchnamadated06.03.2002andfrom thedepositionsoftheofficersofF.S.L.andPanchnama,it is proved by the prosecution that, the remains were recoveredfromtheChudivasandthosewereidentifiedby the witnesses. Those remains are not brought before the Court for identification and not identified by the witness beforetheCourt.Evenacceptingtheremainsidentifiedby the witness, then also it is very difficult to connect the deathof11personswiththoseremains.Sofarasbones, which are recovered from Chudivas is concerned, those wereincharredcondition,whetherthosebonesareofthe said 11 persons, F.S.L. is unable to say unless the prosecution proves those bones are of any of those
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particularpersons.Deathofparticularpersonscannotbe connectedwiththosebones.Itisdifficulttoplacereliance aboutthedeathofparticularpersonsonthebasisofsaid bones.Sofaraslumpofhumanmeatisconcernedwhether thatwasofanyofthose11personsallegedtohavebeen killed, there is no evidence. So far as other remains like Zanzar, ring, knotted hairs etc. are concerned the witnesses are identifying as those are of the deceased persons but those are not identified before the Court. Further, simply on the basis of that evidence, wecannot connectthedeathofanypersononthatbasis.Therefore, simply this witness is saying that, he has identified the remains and on the basis of those remains, death is established cannot be accepted. So far as remains from MalavTalavisconcerned,lumpofmeat,boneswhichwere recoveredwhiledrawingthePanchnamadated09.03.2002 arenotsufficienttoconnectthedeathofanypersonalleged tohavebeenkilled.Thiswitnesshasadmittedthat,hehas notstatedbeforeS.I.T.orVisnagarPolicethat,hesawthe incident from the window of Mahmad Hanif Dalubhai Sindhi.Asperhissay,hewasinsidethehouseofMahmad HanifDalubhaiSindhi,hewasonfirstfloor,therewerefive to seven persons. As per his say, window is not falling towards Dalumiya's Naveli, a person cannot see, what is happeningintheNaveli.BeforeS.I.T.hehasstatedthat,he saw the incident from the window of the house of MahmadbhaiDalubhaiSindhi.Aspersayofthiswitness,
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incidentofkillingoccurredintheNavelifallingtowardsthe wayforKadaDarwaja.Thus,therearedifferentversionsin thedepositionofthiswitnessaboutthekillingandburning of11personshencesolereliancecannotbeplacedonthe versionofthiswitnessaboutthekillingandburningof11 persons,itrequirescorroborationfromotherevidence. [91] P.W.23 Ahmedmiya Hasumiya Belim (Exh.128) has deposed that, soon as mob came in Chudivas, he went insidehishouseandfromfirstfloorofhishouse,hesaw thekillingof11personsfromthewindowofhishousebut onperusingthesituationofthehouses,hishouseishaving onlygroundfloorhavingterraceofR.C.C.andthereisno question of seeing the incident from that house. This witnessalsowenttoPoliceStationalongwithotherpersons fromChudivas,heremainedsilentaboutthekillingof11 persons.Heisdeposingabouttherecoveryofremainson 06.03.2002 by F.S.L. Officers from Chudivas and on 09.03.2002fromMalavTalav.Asperhisdepositionofthis witness,fivedeadbodieswererecoveredfromMalavTalav, exceptthiswitness,thereisnoanyotherevidenceabout the recovery of five dead bodies nor there is case of prosecution. So far as pieces of bones, which were recovered from Malav Talav is concerned, there is no evidence to show that, those are of the persons who are allegedtobekilledandburntintheincident.Inhiscross examination,thiswitnessissayingthat,fromthepiecesof
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deadbodiesandpiecesofclothsstickedwiththelumpof meat, bodies were identified by Yusufkhan Muradkhan Pathan, in the presence of Panchas. But the Panchnama does not suggest the pieces of cloths of alleged deceased personswerestickedtothelumpofmeatandonthatbasis deadbodieswereidentifiedbythewitness.Nodoubtinthe Panchnama, it is mentioned that, it was identified by Yusufkhan Muradkhan Pathan, as the dead bodies of Attaullakhan and Amanaullakhan but simply in the Panchnama,itismentioned,thereisnootherevidenceto connect the death of alleged killed persons therefore, the say of this witness that, Yusufkhan Muradkhan had identified the dead bodies on the basis of lump of meat sticked with the cloths cannot be relied upon. From the evidenceofthiswitnessitself,itcomesoutthat,aperson cannotseethehouseofYusufkhanfromtheterraceofthe house of this witness.Ontheother handthiswitnessis sayingthat,onseeingthemobhewentonthefirstfloorof Shabbirmiya Hasumiya's house and had seen the killing andburningfromthewindowofShabbhirmiya'shouseand therewereotherfivetosixpersonswithhim.Thus,inhis firsttimedeposition,heissayingthat,hesawtheincident from the window of his house, which is quite different situation and quite impossible whereas in second time deposition,heissayingthat,hesawtheincidentfromthe windowofthehouseofShabbirmiyaandfromthewindow of house of Shabbirmiya, a person can see what is
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happening in the Naveli of Dalumiyabut front portion of thehouseofYakubkhancannotbeseenfromtheterraceof the house of this witness. In the statement before the Visnagar Police, he has stated that, he saw the incident from his terrace, while in application he has mentioned that, he saw the incident from the window of his house whileinhisfirsttimedepositionhehasstatedthat,hesaw theincidentfromthewindowoffirstfloorofhishouse,now heissayingthat,hesawtheincidentfromthewindowof thehouseofShabbirmiya.Thus,thereisdifferentversion andthatistoo,thatthiswitnessissilentupto08.03.2002, whichisunnaturalconduct.Nodoubt,hispresenceatthe timeofoccurrenceinChudivasisnaturaloneandcannot be doubted but considering the above evidence by solely relyinguponhisevidence,wecannotconcludethedeathof alleged 11 persons as homicidal death. It requires corroborationfromotherevidence. [92] P.W.50 Saidabibi Mahmadhanif Sindhi (Exh.302), as perherfirsttimedeposition,shesawtheincidentofkilling andburningfromthewindowofthefirstfloorofherhouse, whichisfallingtowardsthehouseofDalubhai.Firsttime herstatementwasrecordedon24.05.2008tillthensheis silentthoughsheisposingasaneyewitness.Ifshehad seentheincidentofkillingandburningfromthewindowof herhouse,whyshewassilenttill24.05.2008,thereisno satisfactory explanation given by her. In her second time
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depositionalso,shehasnarratedthat,shesawtheincident ofkillingandburningfromthewindowofherhouse.Inher secondtimedepositionsheissayingthat,duetofearshe couldnotdeposewholefactsinherearlierdepositionbut she has narrated the killing of 11 persons in her earlier depositiontherefore,hersayinsecondtimedepositionthat, due to fear she could not say the whole facts becomes ineffective. In her crossexamination, she has admitted that,therewasnowindowonfirstfloorofherhouse.In this regard when we peruse the history given before the Doctor,itistotallysilentaboutthekillingof11persons. Thus, this witness is silent up to 24.05.2008, which is unnaturalconduct.Nodoubt,hispresenceatthetimeof occurrence in Chudivas is natural one and cannot be doubted but considering the above evidence by solely relyinguponherevidence,wecannotconcludethedeathof alleged 11 persons as homicidal death. It requires corroborationfromotherevidence. [93] P.W.52 Faridabanu Ahmedkhan Baloch (Exh.306) has statedthat,atthetimeofincident,shewasinherhouse, when the mob came she went to the house of Dalubhai Sindhi.Fromthewindowshesawmobwasproceedingfrom the Naveli of Dalubhai to the Naveli falling towards back side of the house of Yakubkhan Pathan and Yusufkhan Pathan. As the family members of Yusufkhan and YakubkhancameintheNavelitosavethemselves,mobhad
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bittenthemandtheywerekilledbyusingarmsandthey weretakentotheNaveliofDalubhaiSindhiandbypouring kerosenetheywereburnt.Nowthequestioniswhethera personcanseefromthewindowofthehouseofDalubhai Sindhi, the incident which occurred in the Naveli falling towardsthehouseofYusufkhan.Consideringthesituation ofNaveliaswellaswindowofthehouseofMahmadHanif DalubhaiSindhi,itcannotbeacceptedthat,apersoncan seefromthewindowofthehousetheincidentoccurredat theplaceofNaveli,whichisfallingtowardsthebacksideof thehousesofYusufkhanandYakubkhanbutapersoncan seefromthehouseofMahmadHanifDalubhaiSindhi,the Naveli which is known as Dalubhai's Naveli, ifsomething happens there, it can be seen, therefore, the say of this witnessthat,shesawthekillingof11personsintheNaveli falling towardsthebacksideofthehousesofYusufkhan and Yakubkhan cannot be accepted and it amounts exaggeration. In such circumstances if this witness is saying that, alleged deceased were taken to the Naveli of Dalubhai,wheretheywereburnt,alsocanbeconsideredas exaggeration.Shewassilentupto24.05.2008.Shewentto PoliceStationthentoCivilHospital.Authoritiesaswellas otherpersonsfromtheirMahollawerepresentinthePolice Station, in the Hospital, Medical Officer has noted the history but she is silent about the killing and burning incidentof11persons.Further,nosatisfactoryexplanation is found from witness side for nondisclosing this fact
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earlier in pint of time therefore, this is an unnatural conduct.Inthisregardwhenweperusethehistorygiven beforetheDoctor,itistotallysilentaboutthekillingof11 persons.Nodoubt,herpresenceatthetimeofoccurrence in Chudivas is natural one and cannot be doubted but consideringtheaboveevidencebysolelyrelyinguponher evidence,wecannotconcludethedeathof11personsas homicidal death. It requires corroboration from other evidence. [94] P.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66) complainant,hasdeposedthat,atthetimeofincident,he wasintheMaholla.MobhadattackedtheChudivas,many persons were injured. It is only after Police came mob disbursedandtheyweretakentoPoliceStation.Asperhis saychildrenofallegeddeceasedpersonswereweepingand telling that, their family members are killed, while in his second time deposition, he has deposed that, when they were going to Police Station, on the way Yusufkhan told about the killing of 11 persons. From the evidence, it is evident that, Yusufkhan was very much present in the PoliceStationbutthecomplaintissilentaboutthekilling of 11 persons. In his statement dated 28.02.2002, he is silent about the killing and burning of 11 persons while beforeS.I.T.on12.05.2008heistellingthat,Yusufbhaitold himaboutthekillingof11personswhileinhisstatement dated01.06.2008beforeS.I.T.hehastoldaboutthekilling
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of 11 persons. In complaint also, he is silent about the killingandburningof11persons.Nodoubt,hispresence atthetimeofoccurrenceinChudivasisnaturaloneand cannotbedoubted.Thereisnoevidenceinhisdeposition supporting the fact that, he had seen the killing and burning the deadbodies.Fromhisevidencecorroborated by complaint, nothing comes out about the burning and killingof11persons.Thereisnosatisfactoryexplanation givenbyhiminthisregard. [95] P.W.30 Shabbirmiya Hasumiya Belim (Exh.146) has statedthat,atthetimeofincidenthewasinChudivas,on seeingthemobintheChudivas,hewentonSecondfloorof his house, from where he had seen the incident. Family membersofYakubkhanandYusufkhanwerescreamingfor helpbutmobkilledthembygivingthemSwordblow.Itwas not possible for him to go to Naveli. Those people were takentoNaveliandtheywereburntthere.Fromhissecond time evidence of this witness, it has come out that, a personcanseefromthewindowofhishouse,thehousesof YakubkhanandYusufkhan.Whenweperusethesituation ofhouseofShabbirmiya,ithasgotfirstfloorandaperson canseefromfirstfloorwhatishappeningintheNavelibut apersoncannotseewhatishappeningintheNavelifalling towards the back side of the houses of Yusufkhan and Yakubkhan. His first time statement was recorded on 02.03.2002,inwhichhehasstatedaboutthemissingof11
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persons. In his statement dated 24.05.2008, he has explainedthereasonofmissingthat,whilegoingtoPolice Station, Yusufkhan told him that, out of alleged killed persons, Karishmabanu and Ibrahimkhan are alive while thereisnoladyinthenameofSugarabibi.Ifthiswitness hadseenthekillingandburningof11personswhyhehas statedaboutthemissingof11personson02.03.2002.We caninferthat,11personswerenottracedoutandtheyare stated as missing. It is only after 06.03.2002 when the Panchnama of scene of offence was drawn by F.S.L. and some remains were found then only witnesses are telling aboutkillingof11persons,inthatcircumstances,thesay ofthiswitnessthat,hehadseenthekillingandburningof alleged 11 persons requires corroboration from other evidence.Wecannotsolelyrelyuponthesayofthiswitness in this regard. No doubt, his presence at the time of occurrence in Chudivas is natural one and cannot be doubted but considering the above evidence by solely relyinguponhisevidence,wecannotconcludethedeathof 11personsashomicidaldeath. [96] P.W.32 Mahmadhanif Dalubhai Sindhi (Exh.150) has statedthat,atthetimeofincident,hewasinhishouse,he hasdeposedthat,mobhadattemptedtoattackuponthe Yakubkhan Muradkhan and Aminabibi Jahangirkhan's houses, as they tried to come out from the back side of theirhouse,theywereburntintheNaveli,fallingadjacent
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tothehouseofthiswitness,byputtingthemabundantly. As per his say 11 persons were killed and burnt and remains were demolished by the accused persons. In his second time deposition,11personsofYusufkhan'sfamily havediedintheincident.Personswerescreamingforhelp thenhesawfromthewindowoffirstfloorofhishouseand atthattimetherewasdarkbutintheflameofburningof houses, he saw the incident. That, family members of Yusufkhan and Muradkhan were killed by giving Sword, Dhariyablowandthereafter,duetofearthiswitnesswent tothehouseofShabbirmiyaHasumiya,whenhewasgoing to Shabbirmiya's house, he saw the dead bodies in the Naveli.Bypouringpetrolandkerosene,deadbodieswere burnt in the Maholla. This witness is silent up to 08.03.2002,itisonly08.03.2002whenhisstatementwas recorded,hehasnarratedabouttheburningandkillingof 11 persons. When he was inside his house, how he had seenthekillingofthesepersonsthatwasnotexplainedin his first time deposition while in his second time deposition, he has stated that he saw the killing of 11 persons from the window of his house and also saw the dead bodies in the Naveli. Further, as per his say on 06.03.2002remainswereidentifiedbyhimatthetimeof drawingPanchnama,fromChudivasandon09.03.2002at MalavTalav.ThiswitnesswasinPoliceStationalongwith complainant and other persons, he went in the room of PoliceInspector.Asperhissay,heaswellascomplainant
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toldPoliceInspectoraboutthedeathof11personsbutP.I. hadnotwrittensaidfactinthecomplaint.Thisfact,hehas stated in his second time deposition. In his first time deposition,hehasnotstatedthisfact.Thus,ittranspires that,thisfactisdevelopedsubsequentlybythewitnessin hissecondtimedeposition.Whyhehasnotdeposedthis fact in his earlier deposition, no satisfactory explanation hasbeengivenbythiswitness.Thus,thereisvariationin the version of this witness. In his crossexamination, he has admitted that, itis true thatadjacent todoor ofhis house,thereisNaveliandtherearefourhousesinbetween his house and house of Yusufkhan Muradkhan and a person cannot see the house of Yusufkhan Muradkhan Pathan from the house of this witness. Thus, there is exaggerationinhissecondtimedeposition.Nodoubt,his presenceatthetimeofoccurrenceinChudivasisnatural one and cannot be doubted but considering the above evidence by solely relying upon his evidence, we cannot conclude the death of 11 persons as homicidal death. It requirescorroborationfromotherevidence. [97] P.W.33 Anvarkhan Basirkhan Baloch (Exh.166) has statedinhisdepositionthat,atthetimeofincidenthewas in his house. 11 family members of Yakubkhan and Yusufkhan were killed and burnt and dead bodies of 11 personswerecutintopiecesbutfromtheevidenceofthis witnessitdoesnottranspiresthat,hesawthekillingand
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burningof11allegeddeceasedpersons.Simplyheisstating aboutthekillingof11persons.Thereisnothingspecificin hisdepositionaboutthehomicidaldeathof11persons.In hisstatementdated08.03.2002,hehasstatedthisfact.As per deposition of this witness, at the time of drawing Panchnama at Chudivas on 06.03.2002, remains were recovered by F.S.L. Officers and on 9 th remains were recoveredfromtheMalavTalav.Nothingspecificcomesout fromthedepositionofthiswitness.Inthehistory,inthis regard,whenweperusethehistorygivenbeforetheDoctor, itistotallysilentaboutthekillingof11persons.Nodoubt, his presence at the time of occurrence in Chudivas is natural one and cannot be doubted but considering the above evidence by solely relying upon his evidence, we cannot conclude the death of 11 persons as homicidal death. [98] P.W.58KarishmabanuYusufkhanPathan(Exh.502)has statedinherdepositionthat,sheisthefamilymemberof Yusufkhan Muradkhan. As per her say, at the time of incidentshewasinherhousewithherfamily.Asthemob came,herfamilymemberstriedtocomeoutfromthegate but mob had cordoned them and had beaten her family members and shebyhidingherselfwenttothehouseof IbrahimmiyaandthentothehouseofShabbirmiya.Her11 family members have died in the incident. She was also shown as missing by the prosecution side. Subsequently,
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prosecutionwitnessescametoknowthat,sheisalive.This fact has come out from the evidence and statements of otherwitnesses.Atthetimeofincident,thiswitnesswas veryclosedtotheallegeddeceasedpersonscertainly,she canbesaidaneyewitnessofkillingandburningincident. ButsheisnotcomingeitherbeforetheCourtorbeforethe Police or before any other authority or beforeany person sayingaboutthekillingofherfamilymembers.Itisonlyon 24.05.2008herstatementwasrecorded,inwhichshehas statedaboutthedeathof11personsofherfamily.Inher whole deposition, she is not specifying how and in what mannertheinjurieswerecausedtoherfamilymembers.In her crossexamination, it has come out that, she was standing in the Naveli when her family members were attackedbythemob.Whyshewassilentupto24.05.2008, there is no satisfactory explanation given by her. In this regardwhenweperusethehistorygivenbeforetheDoctor, itistotallysilentaboutthekillingof11persons.Nodoubt, her presence at the time of occurrence in Chudivas is natural one and cannot be doubted but considering the above evidence by solely relying upon her evidence, we cannot conclude the death of 11 persons as homicidal death.Itrequirescorroborationfromotherevidence. [99] P.W.18SaiyedNazirmiyaKalumiya(Exh.103)hasstated inhisdepositionthat,atthetimeofincidenthewasinhis house, he saw themobentering in theMaholla, thereis
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onedoorinbetweenthehousesofAminabibiJahangirkhan andYakubkhanMuradkhan,mobenteredinthehouseof YakubkhanMuradkhanPathanfromthatdooranddragged thefourdeceasedpersonsnamelyYakubkhanMuradkhan, Husenabibi Yakubkhan, Aasifkhan Yakubkhan and Aabidkhan Yakubkhan, out and by giving blow by Sword and dhariya, they were killed and by pouring petrol and kerosene,theywereburnt.Inhissecondtimedeposition, hehasdeposedthat,hesawincidentfromtheterraceofhis house.Forhisthissay,whenweseethesituationofthe houses,houseofNazirmiyaKalumiya,ishavingtwofloors i.e.Groundfloorandfirstfloorandapersoncanseefrom first floor the house of Yakubkhan Muradkhan and YusufkhanMuradkhanandthiswitnessissayingthat,he saw the incident from the terrace. Meaning thereby, he couldhaveseentheincidenteasilyfromtheterrace.Here, when we peruse his statement dated 08.03.2002, he is sayingthat,incidentofkillingandburningofthealleged deceased persons occurred in the house of Yakubkhan Muradkhanandinhisstatementdated17.05.2008hehas statedthat,familymembersofYakubkhanMuradkhanand Yusufkhan Muradkhan tried to come out from the back side door of their houses, at that time in the back side Naveli, they were attacked and killed. In his statement dated10.03.2002hehasstatedaboutidentificationoffive deadbodiesfromtheremainsrecoveredfromChudivason 06.03.2002 and six dead bodies were identified from the
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remainsrecoveredfromMalavTalavon09.03.2002.Inhis second time deposition, he went inside his house and closedthedoorofhishouseandwentonterraceandsaw the incident occurred just in front of the house of Yusufkhan. He saw the killing of 11 persons by cutting them. He also saw Yusufkhan went from the roof of his house then on front side and then on back side. If this witness had seen the incident, why he was silent up to 08.03.2002.Further,thereisvariationinhisversionbefore theCourtandinhisstatementbeforethePolice,thereare two versions, one is incident occurred inside the house while subsequently, it is developed in the manner that, allegeddeceasedweretakenoutoftheirhouseandinthe Naveli incident occurred. Another version comes from anotherstatementthat,allegeddeceasedpersonstriedto escapeandtheywerecordonedbythemobandthereafter, theywerekilled.Thus,therearedifferentversionsofthis witness.Nodoubt,hispresenceatthetimeofoccurrence in Chudivas is natural one and cannot be doubted but consideringtheaboveevidencebysolelyrelyinguponhis evidence,wecannotconcludethedeathof11personsas homicidal death. It requires corroboration from other evidence. [100] P.W.22YusufkhanMuradkhanPathan(Exh.112) isthe witness, whose family members are alleged to have been brutallykilledintheincident.Asperhissay,atthetimeof
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incident,hewasstandingoutsidethehouseofNazirmiya KalumiyaandasthemobcametowardstheirMaholla,due tofearheclimbedoverhisKitchen,thentohishouseand then to the house of Ranjit Rama. There is one wall betweenhishouseandthehouseofRanjitRamaandthen afterthereisIrongrilldoor,wherehehidehimselfandfrom therehesawtheincidentofkillingof11persons.Asperhis say,soonas7personsduetofearcameoutoftheirhouse, theywereattackedbythemobandbygivingSwordblow, they all were killed. Alleged deceased persons were screaming for help, after hearing the voices Yakubkhan Muradkhan,hissonsAabidandAasifandwifeHusenabibi cameoutfromtheirhouseandtheywerealsokilledbythe mob,bycuttingthemattheplacewheresevendeadbodies werelying.Hesawthisincidentfromthebacksideofthe grill,wherehehidehimself.Thereafter,inbetween06.00to 07.00P.M.allthepiecesofdeadbodiesweretakeninthe Naveli, falling towards the house of Bachubhai and by pouringkeroseneandpetrol,theywereburnt.Inhissecond timedeposition,hehasstatedthat,hesawthekillingand burningof11personsofhisfamily,whichhesawfromthe backsideofgrill,wherehehidehimself.Inhisfirsttime statement dated 08.03.2002,he has stated that,incident occurred inside the house, while in his statement dated 12.05.2008, he hasstatedthat,allegeddeceasedpersons tried to escape from the back side Naveli of their house, where they were killed and he saw the incident. In his
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statement dated 10.03.2002, he has stated about the identificationofdeadbodiesbyvirtueofremainsrecovered from Chudivas while drawing Panchnama by F.S.L. on 06.03.2002andrecoveryofremainsfromMalavTalav,while drawingPanchnamabyF.S.L.on09.03.2002.Thus,there are different versions in the depositions as well as statementsofthiswitness.Ononehand,heissayingthat incident occurred inside the house whereas on the other handissayingthat,incidentoccurredonthebacksideof house.Heisposinghimselfbehindthegrill,fromwherehe hasseentheincident.Thus,thereisimprovementinthe statement. In earlier statement, incident occurred inside thehousethenhowhehadseenthekillingandburning, thatisrequiredtobeconsidered,forthatsubsequently,he isimprovinghisversionbysayingthat,incidentoccurredin theNaveli.Nodoubt,hispresenceatthetimeofoccurrence in Chudivas is natural one and cannot be doubted but consideringtheaboveevidencebysolelyrelyinguponhis evidence,wecannotconcludethedeathof11personsas homicidal death. It requires corroboration from other evidence. [101] P.W.180 Pathan Shabnoorbanu alias Shayaonara Yakubkhan (Exh.1345) has in her crossexamination statedthat,whenshecameoutofherhouse,Husenabibi, Yakubkhan, Aasif, Aabid, Jinnatbibi, Banubibi, Attaullakhan,Amanullakhan,Afsana,Suhana,Munafwere
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insidethehouse.Acceptingitasitis,whenweconsiderthe fact of prosecution, presence of above 11 persons establishes butwhether thiswitnessisthesamewitness for that when we peruse the Medical Certificate of Shayonarabibi, injuries shown as CLW on Head, Left parietal region, which is stated by this witness in her deposition but considering the age mentioned in the depositionaswellasintheMedicalCertificatethereisvast differenceastheMedicalCertificatespeaksaboutage80 Years while this witness is about 20 Years. On this situation,itisdifficulttoplacerelianceuponthedeposition ofthiswitnesswhilecomingtoanyconclusion. [102] P.W.181ShamimbanuAniskhanPathan(Exh.1350)has come to know about the killing of 11 persons of their MahollainthePoliceStation.Therefore,shehasnotseen the cutting, killing and burning of 11 alleged deceased persons. Nodoubt,inthewitnessesmostlyPatels',relatedwith the accused side are not supporting the death of 11 persons in the incident and that is but natural. As discussedearlier,admittedlynodeadbodyfound.InF.I.R. nothingismentionedaboutthekillingandburningof11 persons.Panchnamadated01.03.2002issilent,thereisno sign of any evidence about the killing and burning of allegeddeadpersons.Therewasnobloodfoundatthetime
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offirstPanchnama.Itisonlyon06.03.2002someremains foundandonthestrengthofthoseremainsprosecutionis comingwithacaseofmurderof11persons,tillthenthere isnoevidenceaboutthedeathof11persons.Nodoubton 06.03.2002, Panchnama was drawn in the presence of F.S.L. by going thoroughly in the Chudivas and remains were recovered and in the remains some pieces of bones were recovered, which were sent to F.S.L. In Serological Report,itwasfoundasHumanbone,asthosepiecesof bonewerecompletelycharred,bloodcouldnotbedetected. Similarly,remainswhichwererecoveredfromMalavTalav on09.03.2002,humanbonewasfoundintheinvestigation by F.S.L. but bloodcouldnotbedetectedduetocharred bone.Inabovecircumstancesifsomeofthewitnessesare sayingthat,theyhaveidentifiedthedeadbodiesfromthose piecesofbone,itcannotbeaccepted.Naturally,noonecan identify a dead body from the piece of bone. So far as Panchnama drawn on 01.03.2002 is concerned, it transpiresthat,thethenInvestigatingOfficerhadnottaken much labour to find out those remains or other remains fromChudivas,whichwererecoveredon06.03.2002.Ifhe has made any attempts on 01.03.2002, while drawing Panchnama,positioncouldhavebeendifferentperhapsin D.N.A.Testprosecutioncouldhavegotsomepositiveresult as naturally it took some time in reaching in a charred position.Thus,ittranspiresthat,thereisnegligenceonthe part of accused No.83 while drawing the Panchnama on
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01.03.2002. So far as Panchnama dated 09.03.2002 at MalavTalavisconcerned,thepiecesofbone,whichwere recovered,thereisnoevidenceconnectingthosepieceswith the death of alleged 11 persons. Thus, there is no corroborationfromF.S.L.evidencetotheevidenceofeye witnessesinthisregard.Further,if11personswerekilled in Chudivas either inside the house or in the Naveli by cuttingthemintopiecesthenprofusebloodingisboundto bebutnoneofthePanchnamasuggestsprofuseblooding, that also goes against the say of the eyewitnesses. Now, whether, the evidence of eyewitnesses in respect of homicidal death is supported by the evidence of Police witnessesandforthatwehavetoconsidertheevidenceof Policewitnesses. [103] P.W.12 Bijendrasinh Rampratapsinh (Exh.96) is the witness,whoreachedDipraDarwajaatabout08.30P.M. Fromhisdeposition,nothingcomesoutaboutthedeath, killing of 11 alleged persons. His statements dated 03.03.2002 aswellas20.06.2008arealsosilentonthis point. [104] P.W.13RameshjiRajuji(Exh.97)isalsosilentaboutthe death,killingof11allegedpersons.Hisstatementsdated 04.03.2002 aswellas22.06.2008arealsosilentonthis point.InhiscrossexaminationbyaccusedNo.83,hehas admitted that, he came to know about missing of 11
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personsbuthowhereceivedthisinformation,heisunable tosay. [105] P.W.46AnupamsinhJaysinhGehlot(Exh.226), D.S.P., whoreachedatthetimeofincidentatabout08.30P.M.As per his say Muslim Persons of the Maholla have made grievance that, their family members are missing and therefore,hehadinstructedPoliceInspectorM.K.Patelto do needful. In his crossexamination, hehas statedthat, someoftheMuslimpersonshavetoldhimthat,someofthe Muslimpersonsareburntbycuttingthemintopiecesand therefore, he has instructed Police Inspector to take the complaintaboutthosedeceasedpersons,whowereburnt aftercuttingthem.Forthispurpose,whenweperusethe statementofD.S.P.dated06.06.2008,hehasstatedthat, there was no signofdeathofanypersonattheplaceof offence,stillsomepersonsweremissingandtherefore,he hadinstructedPoliceInspectorM.K.Pateltosearchthem and remains were found. Thus, from the deposition of D.S.P. the fact of cutting, killing and burning of some persons comes only in crossexamination of this witness. But who were killed by cutting into pieces and burnt, nothing specific comes in his deposition. From his chief examination,ittranspiresthat,hecametoknowaboutthe missingofpersonsanditalsotranspiresthat,therewasno sign of death of any person. Thus, this deposition is not sufficienttoconnectthedepositionofeyewitnessesabout
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thekilling,cuttingandburningofalleged11persons. [106] P.W.47BachubhaVesaljiJadeja(Exh.227), Dy.S.P.was thevisitingofficer,hewasalsopresentinDipraDarwaja, theywerebusyintakingouttheMuslimpersonsfromthe burninghouses.Theyhavesaved10persons,hecameto knowaboutthemissingof11persons.Hehadnotreceived anyinformationaboutthecuttingandkillingof11persons buthehadreceivedthemessageaboutthemissingofthose persons.Itisonlyon06.03.2002,hereceivedthemessage aboutthemurderof11persons.Anvarhusenhastoldhim aboutthemissingof11personsbutwhereaboutsofthose personswerenotavailable,againtheywenttotheplaceof offencebutnodeadbodyorsignofburnsordeadbodies werefound.Inhiscrossexamination,hehasadmittedthat, hehadadvisedPoliceInspectorM.K.PateltoaddSection 302onthebasisofbones,lumpofhumanmeat,hairsof headandburntcloths,recoveredfromtheplaceofoffence. He is unable to say, whether there was any evidence availableinrespectofdeathof11personstilltheCharge sheetissubmitted.Further,noonehasmadeanygrievance before him about killing or missing of these alleged 11 deceasedpersons.Further,whenhewasinChudivas,on thedayofoccurrence,noonehadinformedhimaboutthe missing of 11 persons. It is only after verifying the complaint, he came to know about the missing of 11 persons. Recovery of remains and identification of dead
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bodiesof11allegedpersonsatChudivasaswellasMalav Talav on 06.03.2002 and 09.03.2002 is admitted by this witness. At the time of verification of statement of Anvarhusen, he told him soon as they will receive the information regarding missing of 11 persons, they will informhim.Thus,fromoveralldepositionofthiswitness, he istheVisitationOfficerofthisoffence,heisreceiving informationaboutthemissingof11personssubsequently. On the day of offence, he had not received any such information. The statement dated 08.07.2008 of this witnessissilentaboutthemissing,killingandburningof 11 alleged deceased persons. As discussed earlier, while discussing the evidence of eyewitnesses, Panchnama drawn on 06.03.2002 and 09.03.2002, remains were recovered andonthebasisofthoseremainsdeadbodies identifiedbytheeyewitnessesareconcerned,thosearenot sufficientfromwhichwecanconcludethat,thoseremains aresufficienttoconnectthedeathof11allegeddeceased persons.Thus,theevidenceofthiswitnessisnotsufficient to corroborate theevidenceof eyewitnessesinrespectof cutting, killing and burning the 11 alleged deceased persons. [107] P.W.65 Mahendrasinh Bhairavsinh (Exh.518) his statement dated 04.03.2002 and 21.06.2008 are silent aboutthemissing,killing,cuttingandburningof11alleged deceased persons. He was in the team of Investigating
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Officer M.K.Patel. At about 08.00 P.M. they were in Chudivas. He has also narrated about the recovery of remainson06.03.2002and09.03.2002fromChudivasand MalavTalavanddeadbodieswereidentifiedonthatbasis but as discussed in earlier paragraph, those are not sufficient to connect the death of 11 alleged deceased persons.Inhisdeposition,heissilentaboutthemissing, cutting, killing and burning of 11 persons. Thus, the depositionofthiswitnessisnotcorroboratingthecaseof prosecutionaboutcutting,killing,burningof11deceased persons. [108] P.W.83DashrathsinhAmthaji(Exh.572),hewasalsoin the team of Police Inspector M.K.Patel. His statement dated22.06.2008issilentaboutcutting,killing,burning, missingof11persons.Hisdepositionisalsosilentonthis point.Recoveryofremainson06.03.2002and09.03.2002 issupportedbythiswitnessinhiscrossexamination.But asdiscussedearlier,itisnotsufficienttocorroboratethe deathof11allegeddeceasedpersons. [109] P.W.144 Amrutbhai Bhikhabhai Bhimavat (Exh.767) was present in Chudivas. In his crossexamination by accused No.83, he has admitted that, he stayed for one hourattheplaceofoccurrencebutnoonehadmadeany grievancebeforehimaboutthemurderof11persons.Inhis statementdated10.07.2008alsohehasstatedthat,hewas
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notinformedaboutthedeathofalleged11persons,norhe cametoknowaboutthekillingofthosealleged11persons. Thus, there is nothing in hisevidencetocorroboratethe say of eyewitnesses in respect of cutting, killing and burningof11allegeddeceasedpersons. [110] P.W.147BabubhaiMansangbhaiChaudhari(Exh.772)is silentaboutthemissing,cutting,killing,burningofthe11 allegeddeadpersons.Onthedayofoccurrencehewasin ChudivaswiththeteamofInvestigatingOfficerM.K.Patel. Inhisdepositionalso,heissilentonthispoint. [111] P.W.157VarvajiShankarjiChavada(Exh.811) wason the date of incident with the team of Police Inspector M.K.PatelandDy.S.P.ShriJadejaandhewasalsopresent in Chudivas but nothing comes out from his deposition aboutthemissing,cutting,killingandburningof11alleged deceased persons. While in his statement dated 22.06.2008,hehasstatedthat,hewasnotonduty. Thus, from the evidence of Police witnesses nothing hasbeenbroughtonrecordaboutkilling,killingintopieces andburningofthedeadbodiesbypouringkerosene/petrol. The first evidence after the incident is of D.S.P., who is saying that, some of the persons from Maholla told him about the missing of some persons from Maholla. No specificnameofmissingpersonsweregivenbeforehim.It
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was a general statement of the witness before him. He askedPoliceInspectorM.K.Pateltoinquireaboutit.The next evidence is the complaint, which is recorded in the Police Station. It is silent. Neither there is statement regardingmissingofpersonsnoritismentionedaboutthe cutting, killing and burning of dead bodies. Complaint is totally silent. Thereafter, on second day in some of the witnesseshavenarratedaboutthemissingofsomepersons from Maholla. Till 06.03.2002 Panchnama of scene of offence was drawn, there is a theory of missing of the persons from the Maholla. It is only after drawing the Panchnama on 06.03.2002, theory of cutting, killing and burning of dead bodies by pouring kerosene/petrol is coming on the basis of remains, bones recovered from ChudivasandfromMalavTalav.Ifthewitnesseshadseen the cutting and killing incident they could have told the D.S.P. and other Police officials, who were very much present in Chudivas but witnesses were silent. On the contrary when they went to Police Station and lodge the complaint,itissayofthewitnessesandcomplainantthat, on the way to Police Station, he was told by Yusufkhan Muradkhan about the killing of 11 persons, if that is correct,whyheissilentincomplaint.Sofarasexplanation given by the complainant and witnessesin thisregard is concerned,itisthesayofthecomplainantthat,thoughhe had narrated the incident of killing, cutting and burning beforePoliceInspectorM.K.Patelbutattheinstigationof
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accused Nos.84 and 85, it was not recorded by accused No.83.Butatthetimeoffirsttimedeposition,complainant hasdeposedthat,complaintiswrittenasperhissay,he has signed the complaint, whatever is written in the complaintiscorrectone.Atthattimealsoheisnotmaking complaint about the killing of 11 persons. So far as explanation that, they were under fear is concerned, if witnessesandcomplainantcannarratethewholeincident andtheywerehavingsufficientopportunityforthat,they have made applications to different authorities, meaning thereby, their explanationthat,theywereunderfear and therefore,theyhavenotnarratedthisfactintheComplaint andintheirstatementsisnotsatisfactorytotheextentto accepttheirversionaboutthecutting,killingandburning ofdeadbodies.Thereisnootherevidencesupportingthe cutting, killing and burning of alleged 11 dead bodies. F.S.L. Reports, Panchnamas and all other documentary evidencearenotcorroboratingtotheextentfromwhichwe canbelievethesayofcomplainantandwitnessesaboutthe killing,cuttingandburningofthepersonsfromMaholla.In a case where corpus is not available, it is the first and foremostdutyoftheprosecutiontoestablishtheHomicidal death.theremaybeadeath,itmaynotbehomicidal.Thus, fromtheoverallevidenceinferencecannotbedrawnabout thehomicidaldeath.Itistobeestablishedbytheevidence beyond reasonable doubt then only in the absence of corpus homicidal death can be believed. Considering the
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aboveevidenceitisnotuptothatsatisfactionfromwhich we can believe beyond reasonable doubt the homicidal death.Therefore,onthestrengthofthedepositionsofthe witnesses from Maholla and that is too, in the light of depositions of Police witnesses, who were very much presentintheMaholla,whoseevidenceisnotsupportingat allaboutthecutting,killingandburningofdeadbodies, establishmentofhomicidaldeathcannotbebelieved.
EVIDENCEONINCIDENT:
[112] As per the case of the prosecution mob entered in the Maholla and had pelted stones and also set on fire the houses in Chudivas and the mob was abusing and shoutingtheslogansagainsttheMuslims,mobwasarmed with deadly weapons, kerosene and petrol tins, for this purpose when we peruse the deposition of P.W.1 Fatehkhan Badarkhan Baloch (Exh.61) has deposed on oath that, on 28.02.2002, at about 04.30 P.M. incident occurred in their Maholla, at that time he was in the Maholla.AmobarmedwithweaponslikeSword,Dhariya, Burning rags came in the Maholla. In the incident 11 personswereinjuredwhodiedduetoinjuries.Other50to 60 persons were also injured. Mob was of about 200 persons. Pieces of stones were thrown, who had thrown those stones he had not seen. After 5 to 6 hours Police cameintheMaholla.Thiswitnessisdeclaredhostileand afterdeclaringhostile,hehasadmittedthat,hisstatement
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was recorded by the Police as per his say. In his cross examinationbyaccusedNos.1to82hehasdeposedthat, atthetimeofincidenttherewassunlightwhilethehouses wereburntintheeveningatabout06.3007.00P.M.They sustainedinjuriesintheincidentatabout04.30P.M.After the incident at about 04.30 P.M. all the injured and deceasedwereintheirhouses.Atabout09.30injuredand otherpersonswenttothePoliceandabout60personsin theMahollawereinthehouseofAhmedmiyafrom04.30 P.M.to09.30P.M.andother11personswereinthehouse of Yusufbhai. Burning rags were thrown on the house of Ahmedbhai. The house was having pakka constructed houseofGroundFloorandFirstFloor.Allthepersonswere ontheGroundFloor.Hecametoknowthat,onthedateof incidentriotstookplaceinthetown.FirstintheMaholla houseofLuckyCyclewalawasburntthereafter,mobcame intheMaholla.Itisdeniedbyhimthat,hecannotseethe burningofthehouseofLuckyCyclewala.Whenthathouse wasburnthewasintheopenspaceofhishouse.Atthat time25to50Patels'fromDipraDarwajawerestandingin theOpenChowk.9PersonswerearmedwiththeDhariya, Sword etc. Earlier he was not having any relation with those nine persons. He along with the complainant and other witnesses wenttothePoliceStationafterrecording complaint,theirstatementswererecorded.Noidentification took place in his presence. They were treated in Civil HospitalandaftertreatmenttheyweresenttoGhetiyaVas.
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Atthetimeofincident,stonethrowingincidentwasinfull formfromallside.Atthattimehewasinhishouse.There wasdistancebetween25to30Ft.betweenthewitnessand persons, who were throwing the stones. Pelting of stone tookplacefromtheterrace.Nopeltingofstonetookplace in the ground. In his second time deposition, he has narratedthesameincidentasstatedearlier.Inadditionto that, he has deposed that, in the incident each of the person from Maholla was injured. Burning rags were thrownonhishouse.Householdwerelooted.Therewere Patels'inthemob.11personsoftheirMahollahavediedin theincidentandthose11personswerethefamilymembers ofYusufkhan.Duringtheincident,hecameoutfromhis houseandwenttothehouseofAhmedmiyaHasumiyaand hishouseisontheroadsideofChudivaswhilethehouse of Ahmedmiya is in side the Maholla. Therefore, for the safetypurpose,hewentthere.Duringtheincident,persons fromtheMahollawerescreamingforhelp.Whilemobwas shoutingtocut,beattheMuslims.Priortothatincidentno untoward incident occurred between the witnesses and Patels' of that Maholla. There was no previous enmity between them. His statement was recorded by Visnagar Police on 10.03.2002.When firsttimehisdeposition was recordednoPoliceprotectionwasgiventohimhenceunder fearhehasdeposedbeforethecourttherefore,certainfacts remainedunstated.Thefactswhicharestatedarecorrect. On24.05.2008hisstatementwasrecordedbyS.I.T.Inhis
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crossexamination by Shri Brahmbhatt, he has deposed that,firsttimewhencametodeposebeforetheCourt,he hasnotsoughtanyPoliceprotection.Itisadmittedbyhim that, when Police came, the persons were inside the Ahmedmiya's house, came out and went to the Police Station. House of Ahmedmiya was burnt after they came outfromthathouse.4to5personsfromthemobwenton firstfloorofAhmedmiya'shouseandthrownburningrags. Theyhadtriedtostoptheaccusedbutfailed.Itisdenied byhimthat,inhispresenceGasCylinderwasburstinthe houseofAhmedmiya.Itisdeniedbyhimthat,beforeS.I.T. he has deposed that, his statement was recorded by VisnagarPoliceStationon01.03.2002and10.03.2002.Itis admitted by him that, before S.I.T. he has stated that, except change in time other statements are correct. It is admittedbyhimthat,atthetimeofincident,complainant and his brother Iqbal was residing in Ghetiyavas. He is unable to say, whether the burial rituals of dead bodies were performed or not. It is denied by him that, in his statement before Visnagar Police Station, he has stated that,atabout04.00to04.15P.M.mobcame.Itisdenied byhimthat,hehasnotstatedinanyofhisthreestatement that,houseswereburntbyburningthebundlesofgrass and household werelooted. It isdeniedbyhim that,he hasstatedbeforeS.I.T.that,theywerescreamingforhelp tosavethemfromthemob. Itisdeniedbyhimthat,he has not stated before S.I.T. that on 01.03.2002 to
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10.03.2002 no Police came to him to inquire about the incident.Itisdeniedbyhimthat,hehasnotstatedbefore OfficerofS.I.T.that,inGhetiyavashisstatementwasnot recordedbythePoliceOfficerbutitwasrecordedbyPolice on10.03.2002.Only2policepersonscametorecordthe statement.Heisunabletosaythat,thestatementwhichhe hadstatedwhetherS.I.T.hasreducedthesameinwriting ornot.Itisdeniedbyhimthat,hehasstatedbeforeS.I.T. that,afterrecordingofstatement,statementwasreadover andexplainedtohim.Itisadmittedbyhimthat,hehasnot statedbeforetheS.I.T.that,inearlierdepositionduetofear hecouldnotdeposedcertainfactsbuttherestofdeposition iscorrectone. Itisdeniedbyhimthat,PoliceInspector M.K.Patelhasrecordedhisstatementon01.03.2002.Itis deniedbyhimthat,atthetimeofrecordinghisstatement, Dy.S.P. Shri Jadeja was present who had verified his statement.Itisadmittedbyhimthat,Policehadwrittenthe names of accused as per his say and has also recorded abouttheinjuriestotheinjuredpersons.Itisadmittedby him that, in his statement he has stated that, Auto Rickshawsandhouseswereburntanddamagewascaused totheproperties.Itisdeniedbyhimthat,hehasstated before Visnagar Police Station that, Muslim sustained minorandmajorinjuries,duetonighttimehewasunder fear. In his crossexamination by accused No.85, he has admittedthat,thedepositiondeposedintheyear2002is correct one. When he went to Ghetiyavas thereafter, he
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never met accused. He does not remember whether he madeanysubmissionbeforeNanavatipanch.Witnesswas shownoneletterandonseeingthatletter,hehasidentified hissignatureintheletteranddeposedthat,saidletterwas given by him to Nanavati panch, which is in the form of affidavitbeforeNotary.Itisdeniedbyhimthat,ontheday ofincident,earlyinthemorningtheylefttheareaandwent toGhetiyavas.Theapplication,whichwaspreferredbefore NanavatiPanchisproducedvideExh.1055andaffidavitis producedonrecordatExh.1056butboththedocuments areexhibitedonlyforsignaturepurpose.Thosedocuments arenotprovedaccordingtolaw. [113] P.W.2MahmadIqbalAhmedkhanBaloch(Exh.66)has deposedthat,on28.02.2002hewasinhishousedueto Gujarat Bandh. Shops of Muslims were damaged in the VisnagarTown.Curfewwasimposedaccordinglyatabout 12.00Noon.Intheeveningatabout04.00P.M.hewasin his house, a mob of about 200 persons entered in the Mahollaandstartedpeltingstones.Theywereabusingthe Muslims and shouting that Muslims come out and also shoutingtokillthem.AshousesintheMahollaweresmall and surrounding houses were big in height, there was pelting stones just like rain and the persons of the mob werearmedwith deadlyweapons,Kerosenetins,burning ragsetc.andhadstartedburningthehouses.Tosavetheir livestheycameout,atthattimesomeofthepersonsfrom
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themobhadattackedthemandtheyattackedtheMuslim personsintheMahollaandpeltingstonewascontinuous andhouseswereburntbyfiringdrystalksofCastorSeeds, bundleofgrassandfirewoodandpersonswereinjuredand 11personswerediedandinjuredpersonsweretreatedin theHospitalandthenwenttoGhetiyavas.Thechildrenof the 11 persons who have died were weeping and saying that,theirbrothers,sistersandfamilymembersarekilled. HelodgedthecomplaintbeforePolice. Inhissecondtime deposition,hehasnarratedthesamefacts,inadditionto thathehasdeposedthat,theincidentcontinuedtill08.30 to09.00P.M.tillthePolicecame.11personswerebrutally killed. Police took the persons from Maholla to Police StationonthewaytothePoliceStation,Yusufkhanwhose 11familymemberswerekilledmethim,toldhimaboutthe killingof11persons.Yusufkhantoldhimthat,11persons arekilledbeforehiseyes.Healsotookthenameofaccused. HelodgedthecomplaintbeforethePolice.Afterfirsttime deposition, his statement was recorded by S.I.T. on 12.05.2008. Again on 01.06.2008 his statement was recorded by S.I.T. In his statement before S.I.T. he has stated additional fact, which are not deposed before the Court earlier. Before S.I.T. he has named additional accused.Asperhissaythedepositiondated05.10.2002is correctonebutcertainfactremainedunstatedduetofear, astheywerewithoutPoliceprotection.Asperhissay,mob ofPatels'enteredintheMahollaatabout04.00P.M.When
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themobwasattackingtheMaholla,oneeldermemberfrom the Maholla Shri Ibrahimkhan Umarkhan went to the Police Station, on the way to the Police Station, he was attackedandhedidnotturnedback. [114] WhenweperusethedepositionofP.W.3Gulabkhanalias GulubhaiKayamkhanSindhi(Exh.70) hasdeposedthat, onthedayofincidentandatthetimeofincident,hewasin hishouse.Amobcameshoutingsloganstocut,beatthe Muslims.Mobcameatabout04.30P.M.Mobhadstarted burningthehousesandcausinginjuries,mobwasofabout 200 persons. This witness is declared hostile and after declaringhostile,hehasadmittedhisinjuriesanddeposed that,11personswereburntbythemobintheMaholla.In his crossexamination by learned advocate Shri G.N.Brahmbhatt, he has deposed that, the ornaments which were recoveredwith theremainswereofGoldand Silverandthosewereintheiroriginalposition.11persons whodiedintheincidentwerenotrelativeofthiswitness. Banubibiwaswearingearrings,oneearringwasshownto him by the Police, no ring was shown by the police, one gold ring was shown by the police to this witness, no remainswereshownbypolicetohim. Those11persons arenotalive,theydiedduetoburninjuries.Hecameto knowthisfactinReliefCamp.Itisdeniedbythiswitness that,priortoincidentduring08.00to08.30P.M.therewas stragglinginelectricity.Houseswereburntatabout04.30
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P.M. whenPolice cameatabout09.00P.M.,houseswere burning.Soonaspeltingofstonestartedatabout04.30,he along with his family members went to the Ahmedmiya's House. Till the police came, they were inside the Ahmedmiya'sHouse.Therewereabout60personsinthat house. All came out from this house and other persons from Maholla were inside their houses. Whether those persons came out from their houses or not, he has not seen. In Ahmedmiya's House, except family members of Yusufbhai, all other family members of Maholla were in Ahmedmiya'sHouse.Itisadmittedbyhimthat,thereisno suchopenspaceinwhich60personscangatheratatime, as all the houses in the Maholla were burning therefore, they came outfromAhmedmiya'sHouse.Therearethree differentwaysforcomingoutfromMaholla.Oneistowards KadaDarwaja,anotheroneistowardsPoliceStationand third one is towards Dipra Darwaja. None of 60 persons cameoutfromtheseways.Atabout09.15P.M.whenthey cameoutfromAhmedmiya'sHousetherewerehighflames andsmokefromthehousesandduetosuchhighflames there were burning. He along with his family members standing in the open chowk. At that time, he saw the personsandthosepersonswereontheroofoftheirhouses. HehadnotseenanyoneintheMaholla.HesawthePolice attheentranceofMaholla.ApersoncannotseePolicefrom thechowkwherehewasstanding.Forthefirsttimehesaw thePolicefromtheplacewherethechowkstarts,atthat
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time100personsfromthemobwereontheroofoftheir houses while about 100 persons were in between these witnessesandpolicepersons.Therewere10Stepsdistance between the witnesses and accused. They were armed hencewitnesseswereunderfear.Policetookthewitnesses toPoliceStation,whichtook10minutestimeandtheywere sitting in the open chowk of Police Station, at that time Yusufkhan was not with them. They stayed in the Police Station about hour. During that period neither Yusufkhan nor his family members came there. Mahmad IqbalAhmedkhanwaswiththem.Thereafter,theywentto Ghetiyavas.Hehasdeniedthat,policearrested30persons fromthemob.Hehadnotseenanyarrestedpersoninthe Police Station. He has admitted that, he has not stated beforethePoliceaboutthedeathof11personsduetoburn andtheiridentificationbyornaments.Itisalsoadmittedby him that, in his first statement, he has not stated that, these11personswereinthehouseofincident.Hissecond statementwasrecordedinGhetiyavas.Itisadmittedbyhim that,inhissecondstatementaboutthedeathof11persons duetoburnisstatedashecametoknowaboutthisfact fromotherperson.Itisadmittedbyhimthat,inhisanyof his statement before Police he has not stated that, mob came in the Maholla at about 04.30 P.M. and burn the houses.
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[115]
P.W.4 Aabidbhai Gulabkhan Sindhi (Exh.71) has deposedthat,onthedayandatthetimeofincidenthewas in his Maholla and in his house. A mob of about 200 personscameandtheywerepeltingstonesontheirhouses. Fromtheroofoftheirhousesandbypouringkerosenethey burntheirhouses.Mobcamewithdeadlyweaponslikeiron pipe,dhariya,sticksetc.andthemobwasshouting Sala bandiyaobaharniklo,jaanthimaarinakhishu.Inpelting stonesabout30Muslimswereinjuredand11personsdied due to burns. In his second time deposition he has narratedsamefactsasstatedearlier.Inadditiontothat,he has stated that, the mob was beating the witnesses. He himselfhasseenthatbeating.Hehadseenthekillingand beatingoffamilymembersofYusufkhanMuradkhanbythe mob. This incidentcontinuedupto 08.00to08.30P.M. Police came near Nazirmiya Kalumiya's house and took them to Police Station. NoPoliceOfficer camethere. The Police persons were standing at the entrance of Maholla andwereaskingtoaccompanythemtoPoliceStation.They went to Police Station and then to Civil Hospital for treatment then they were shifted to Ghetiyavas. His Statementwasrecordedon01.03.2002and10.03.2002by VisnagarPoliceandon24.05.2008byS.I.T.Hehasdeposed that,earlierhisdepositionisrecordedwhichiscorrectone butsomefactswerenotstatedbyhimduetofearasthere wasnopoliceprotectiontothem.Heisdeposingthat,he has seen the killing of 11 family members of Yusufkhan
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fromhismaternaluncle'shouse.Afterincident,hecameto knowaboutthedeathof11familymembersofYusufkhan. Hehasneverseenthose11personsaftertheincident.Mob wasburningtheirhousescausingdamagetotheirhouses, householdetc. [116] P.W.5 Zubedabibi Mahebubkhan Baloch (Exh.84) has deposedthat,onthedayofincidenthealongwithherson Hamirkhanwasinherhouseatabout04.30P.M.amobof about200personsarmedwithdeadlyweaponsenteredin theMaholla,shoutingslogansSalaMiyaoBandaobahar aavo.FirstmobburntthehouseofYusufkhanthereafter, otherhouseswerealsoburnt.HisfatherinlawAnvarkhan was injured, she was also injured, other Muslim persons fromMaholla werealsoinjured.Childreninthehouseof Dalubhai Bachubhai were weeping and saying that, their Grandmother,MotherandUncleareburntandevidenceis destroyed.InjuredwereshiftedtotheCivilHospital,Police came at about 09.00to10.00P.M.andhadarrestedthe persons.11personsdied.Noremainswereshowntoher. She is declared hostile. Thereafter, she has admitted the incident of burning. She has denied that, who have died hasbeendecidedonthebasisofremainsrecoveredeither from place of offence or from Malav Talav. In her cross examination by accused Nos.1 to 82 and 84, she has deposedthat,asthemobcameandstartedaffrayandthey went in the House of Ahmedbhai Lightwala and other
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persons from Maholla except the family members of Yusufkhan went inside the House of Ahmedbhai. Yusufkhan's house is situated after leaving six to seven housesfromtheHouseofAhmedbhai.Therewereabout60 persons in Ahmedmiya's house up to 09.30 P.M. At that time,thathousewasnotburnt.Other16to17houseswere burning. Just in front of the house of Ahmedmiya, by pouring kerosene puton fireand therewerehigh flames and other side of that flames accused were there. It is deniedbyhimthat,infrontofAhmedmiya'shouse,thereis openchowkandonly10to11personscanstandatatime. Someofthepersonsfromthemobwereontheterraceof housesandpeltingstones.Whenpolicecame,mobwasat theplaceofoffence. Ithasnothappenedthat,whenthey reachedattheentranceofMaholla,thenonlyPolicecame. Police came in the open Chowk falling in front of Ahmedmiya'shouseandaskedthemtocomeout.Injured wereshiftedtoHospitalandthereafter,theywereshiftedto Ghetiyavas. Two young girls, who were in the house of YusufkhanalsocamealongwiththemtoPoliceStationand they told that, members of their family are burnt. Police wasnotthere.Shehasnotstatedinherstatementabout thisfactbeforethePolice.Shehasalsonotinquiredabout this fact from any one. At the time of incident about 15 familymemberswereresidinginYusufkhan'shouse.Outof 15,twodaughtersandoneboynamelyBholasurvive.Two girls,whosurvivedareKarishmaandHafisabanu.During
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10daysneitherYusufbhainorBholaweretraceable.When twogirlsandBholacamethenonlytheycametoknowthat Yusufbhai is survived. During 10 days where Yusufbhai was,noonewashavingknowledge.Initiallytwogirlsand one boy Bhola were residing with her, thereafter, their maternalunclecameandtookthemwithhim.Itisdenied byherthat,shehasnotstatedbeforethePolicethat,mob came in the Maholla at about 04.30 P.M. and mob was armedwithdeadlyweaponsanditisdeniedbyherthat, she has not stated in any of her statement before Police that, mob came at about 04.30 P.M. armed with deadly weaponsandfirsttheyburntthehouseofYusufkhan.She has denied that, she has not stated before Police that, childrenfromGalumiyaBachumiya'shousecameweeping andsayingthat,theirGrandmother,motheranduncleare burntandevidenceisdestroyed. Asinearlierdeposition she is declared Hostile, her second time examinationin chiefcanonlybelookedforcorroborationpurpose.Inher secondtimedepositionshehasnarratedthesamefactsas narrated in her chief and crossexamination by prosecution. In addition tothat, shehas deposed about overt act by the mob that mob had committed loot and burnt the houses andmobwasintheMahollatill09.00 P.M. 11 persons from theMahollawerekilledandburnt. Those11personswerebelongingtoYusufkhanMuradkhan. Shewastoldaboutkillingof11personsbyKarishmaand Aarif.AtthattimeshewasinAhmedmiya'sHouse. Mob
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hadtriedtoburnthousesintheMahollaonebyone.When her house was burnt, she immediately went to Ahmedmiya'sHouse,itisonlywhenpolicecametheycame out. She does not remember whether the Children told about the killing of family members of Yusufkhan Muradkhan.Theyhavealsotoldthenamesof11personsto her.Shehasdeposedthat,earliershehasdeposedbefore the Court under fear and that deposition is not the complete deposition. In addition to her earlier deposition, she has deposed that, all the accused have burnt and killed. In her crossexamination by accused Nos.1 to 82 and 84 she has deposed that, she does not remember whether she has statedbeforeS.I.T.that, they wereread overthestatementstakenbyVisnagarPoliceStation.Itis denied by her that, she has not stated in her statement dated01.03.2002that,threeladiesweregivingKerosenetin tootheraccused.Shedoesnotrememberwhethershehas statedinherstatementdated01.03.2002abouttheinjury to Zubedabibi. She does not remember whether wife and childrenofGalubhaiBachubhaiwereinhishouse.Inher crossexaminationbyaccusedNo.83,shehasadmittedthat onnextdayoftheincidentVisnagarPolicehasrecordedher statementandshedoesnotrememberatthattimeshehas stated that incident occurred at about 08.30 P.M. It is admitted by her that her second time statement was recorded in Navavas. She does not remember whether in her statement dated 10.03.2002 she has stated that, her
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statementdated01.03.2002wasreadovertoher,whichis correctone.Shedoesnotrememberwhethershehasstated beforeS.I.T.thenamesofthepersonsfromthemob,which arewritteninherstatementarecorrectone.Inhercross examinationbyaccusedNo.85shehasdeposedthat,after incidentsheisresidinginGhetiyavasandtheyareunder Police protection and one house has been allotted by Islamic Relief Committee.Itisdeniedbyher that, sheis taughttostatebeforetheCourtthatPrahladbhaiGosaand Dahyabhai Tribhovandas Patel are threatening to her. At thetimeofincident,shewasintheMaholla. [117] P.W.6 Mahmadkhan Badarkhan Baloch (Exh.85) has deposedthat,atthetimeofincidenthewasinhishouse and his Rickshaw was lying in the Chowk. Other two Rickshaws of Ahmedmiya Hasumiya and Mahmadbhai DalubhaiwerealsolyingintheChowk.Atabout04.00P.M. a mob of about 200 persons entered in the Maholla and startedbeatingthepersonsfromMahollaandpersonswere peltingstones.Atabout09.00P.M.Policecameandinjured persons were shifted to Hospital. In his second time depositionhehasrepeatedthesamefactsandinaddition tothat,hehasdeposedthat,personsofPatelCommunity wereinthemob.Theirhouseholdswereburntandlooted bythemob.WhenthePolicecameat08.30P.M.thenonly therewaspeaceandtheyweretakentoPoliceStationand CivilHospital.Earlierdepositiondeposedbyhimiscorrect
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one but certain facts remained undisclosed as he was under fear. His statement was recorded by S.I.T. on 24.05.2008. In addition to his earlier deposition he has nothingtosay. [118] P.W.7AmzadkhanMahmadkhanBaloch(Exh.86) has deposedthat,heishavingAutoRickshawNo.GJ2T2014, onthedayofincidentatabout04.30P.M.hewasinhis house.Hisfatherandmotherwerealsowithhim.Atabout 04.00 P.M. a mob came and started affray. Mob was of about200persons,armedwithdeadlyweapons,shouting slogansthat,baadaoenenene nnemaaro,kapo,salgavi do. Mob had burnt the houses in the Maholla and also peltedstonesandhadthrownAcidBottlesandalsothrown burning bundle of grass. He sustained injury and other persons from Maholla have also sustained injuries. At about09.30P.M.PolicecameandtheyweretakentoPolice Station, aswellasshiftedtoCivilHospitalfortreatment. Thereafter,theywereshiftedtoGhetiyavas. Inhissecond timedepositionhehasstatedthesamefacts.Inadditionto that,hehasdeposedthat,houseswereburntbythemob andpersonsfromMahollawereinjuredbythemob.Mob was belonging to Patel community. Earlier there was no enmity with the persons who were in the mob. Due to Godhraincident,thisincidenttookplace.Atabout08.30 P.M. 4 to 5 police persons came, Police Inspector M.K.Patel and other Police Officers were not there. That
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police took them to Police Station. That, police had not inquiredinthatMaholla.Mobhadburntthehousesinthe Mahollaandalsoburntthepersonsalive.11personshave died. Those 11 persons were the family members of Yakubbhai and Yusufbhai. They were residing in the Maholla. Earlier deposition, which was recorded by the Courtintheyear2002wasdeposedbyhimwithoutPolice protection, he was under fear therefore, some facts remainedunstated.Hisstatementwasnotreadovertohim. [119] P.W.8ReshmabenSattarbhai(Exh.87)hasdeposedthat, onthedayofincidentshealongwithherGrandmotherand Grandfather was in her house. Her mother, brother and sisterswereatVisnagar.Theyreceivedthemessagethat, inthemarketshopsoftheMuslimsaredamaged.Amobof about 200 persons from Randal Mata's side came in the Maholla. Mob was armed with deadly weapons and attackedtheMahollaandalsoburntthehousesofMaholla therefore,theycameoutfromthehouse.Mobwasshouting to cut, burn the Muslims. Persons from Maholla were injured.Thereafter,theywentinthehouseofAhmedbhai Lightwala,asthepolicecamemobdisbursedandtheywere takentoPolicestation.Subsequently,shiftedtoHospital.In her second time deposition she has repeated the earlier factsasdeposedinherfirsttimedeposition.Inadditionto that, she has deposed that, 11 persons have died in the incident.Theywerebrutallykilledbycuttinginpiecesand
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thereafter,theywereburnt.Those11personswerefamily membersofYusufkhanandYakubkhan.Sheisunableto saynamesofthose11persons.Personsfromthemobhave killed the 11 persons and burnt the houses of Maholla. Occurrencewascontinuedupto08.00to09.00P.M.tillthe police came.Inherearlierdeposition,shehasstatedthe factsbutshewasunderfeartherefore,somefactsremained undisclosed.Therewasnopoliceprotection. [120] P.W.9 Rashidabibi Sattarbhai Baloch (Exh.88) has deposed that, on the day of incident and at the time of incident she was in Visnagar town and they received the messageaboutthedisturbanceinVisnagartown.Atabout 04.30P.M.amobofabout200personscamefromRandal Mata's Madh side. They were abusing and causing disturbanceintheMaholla.Theyburntthehousesinthe Maholla.Therefore,personsfromtheMahollawentinside one house of the Maholla. She was injured. She took treatmentinVisnagarHospital.Subsequently,shecameto knowaboutthedeathof11persons. Inhersecondtime depositionshehasnarratedthesamefacts.Inadditionto herearlierdepositionshehasaddedthat,atabout03.00 P.M.amobofabout150200personswerecausingdamage tothehouseofAkbarmiya,whichissituatedoutsidethe Dipra Darwaja and there was tense atmosphere in the Maholla.HerfatherIbrahimkhanwenttoPoliceStationto callthepolicebuthedidnotturnedback.Onnextdayshe
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came to know that, Ibrahimkhan was admitted in the Hospital. In the mob Patels' from Dipra Darwaja were involved.Shehadseenthemobcausingdestructioninthe Maholla,armedwithdeadlyweapons,causinginjurytothe personsintheMaholla.AllthehousesfromMahollawere burnt.Itisdeposedbyherthat,atthetimeofherearlier deposition, she was under fear. There was no police protection.S.I.T.hasrecordedherstatement. [121] P.W.10 Sugrabibi Mahmadkhan Baloch (Exh.90) has deposedthat,onthedayofincidentshewasinherhouse, amobofabout200personsarmedwithweapons,atabout 04.00 P.M. entered in the Maholla. Mob was shouting slogansBaadaonekapinakho,baadaoebaharaavo.Mob hadstartedbeatingthepersonsintheMahollaandthen caused damage to the properties in the Maholla. Houses were burnt and mob had pelted stones. Witnesses were injured,Rickshawwasburnt,atabout09.30Policecame and mob disbursed. The witness was shifted to Civil Hospital, Visnagar then to Ghetiyavas. Subsequently, she cametoknowaboutthedeathof11persons.Thewitness and other persons from Maholla were taken to Police Station.Inthepolicestationchildrenofthedeceasedwere weeping.Policehasrecordedherstatement.Sheisdeclared hostile.Inhercrossexaminationbyaccusedsideshehas statedthat,hersonisagedabout20years,drivingAuto Rickshaw. It is deniedbyher that,Policehad raidedher
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house many times for gambling. Her statement was recordedonnextday.Itisdeniedbyherthat,shehasnot statedbeforethePolicethat,Baadaonekapinakho,baado baharaavo.Itisdeniedbyherthat,shehasnotstated before Police that, when they were in Police Station, childrenofthedeceasedwerethereandtheywereweeping. Inhersecondtimedepositionshehasnarratedthesame facts.Inadditiontothat,shehasdeposedthat,atabout 03.0004.00P.M.mobofabout300400personscame shouting,themobcamefromDipraDarwajaside,itwasa mobofPatels'.Mobwasshoutingtocut,beatandburnthe Muslimsandtheylootedthehouses.Shehadnotseenany persondiedintheMaholla.Whentheirhousewasburnt, she went to Ahmedmiya'sHouseandshewasin Ground Floorupto09.0010.00P.M.Atabout09.00P.M.infront ofhouseofNazirmiya,policecameandthenonlytheycame outfromthehouseofAhmedmiyaandotherpersonsfrom MahollaalsocameoutthenonlyshesawthePolice.Atthat time there was no mob in the Maholla. They stayed one week in Ghetiyavas. Thereafter, they went to Dasaj in MuslimReliefCamp,wheretheystayedforsixmonths.In Ghetiyavas, police has recorded her statement. What is written by Police she is unable to say.Whatever she has statedinherearlierdepositioniscorrectandcompleteone afterthat,herstatementisrecordedbyS.I.T.Inhercross examinationbyaccusedNos.1to82shehasdeposedthat, mob was coming from the side of Nazirmiya's house
// 438 //
therefore,shewenttoAhmedmiya'sHouse.Itisdeniedby her that, she has not stated before Police in any of her statementorbeforeCourtthat,mobhadlootedandthey stayed in Ahmedmiya Hasumiya's house up to 09.00 10.00P.M.anditisonlyafterthepolicecame,theycame outfromAhmedmiya'shouseandtherewasnomobinthe Maholla. In her deposition by accused No.83 she has deniedthat,thereweremanypolicepersonsinChudivas. D.S.P. and Dy.S.P. were also there. In her cross examination by accused No.85, she has deposed that, at the time of incident she was staying in Dipra Darwaja. Duringwholeincident,personsfromthemobwerebeating them. [122] P.W.11AnvarhusenShabbirhusenPathan(Exh.91) has deposedthat,hecameatabout12.30inChudivasatabout 04.00P.M.about200personsarmedwithdeadlyweapons likeDhariya,Sword,Pipe,Sticks,BurningRagsetc.entered intheirMahollaandtheywereshouting Miyaoenekapo, baadaoe ne kapo. Witness from Chudivas were injured, houses were set on fire and in last house the Cylinder burst,Policecameatabout09.00P.M.andtookthemto Police Station then to Police Station and Ghetiyavas. In Police Station he came to know about the killing of 11 persons. This witness is declared hostile. In his cross examinationbyprosecutionhehasadmittedthat,hehas seen the killing and beating of Muslim Persons from
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Mahollaandalsoseenthesettingonfirethehouses.Inhis crossexaminationbyaccusedNos.1to82and84,hehas statedthat,hecameoutofhishouseatabout03.30P.M. on hearing the noise. Persons from mob were going and coming in the Maholla. During the incident, his family memberswentinsidethehouseofAhmedmiyaHasanmiya. Itisdeniedbyhimthat,hehasnotstatedinhisstatement that, at about 08.30a mob ofabout200persons armed withweaponsenteredintheMaholla,shoutingMiyaoene kapo,baadaoenekapo.Inhissecondtimedeposition,he has narrated the same facts. In addition to that, he has deposed that, incident started at about 04.00 P.M. and continued till 08.30 P.M. His statement was recorded by S.I.T.on24.05.2008.Headmitshisearlierdeposition.The 11personswhohavediedwerekilledbyusingarmsand duetosettingonfirethehousesbythemob.Hehasnever seenthose11personstilldatenoreverheardanyofthem alive.InhiscrossexaminationbyaccusedNos.1to82,he hasadmittedthat,hehadgiventhenamesof11persons who have died had included the name of Sugrabibi, KarishmaandIbrahimkhaninthenamesofthat11dead persons. It is admitted by him that, in his another statement,hehasdeclaredthat,Sugarabibi,Karishmaand Ibrahimkhanarealive.Itisadmittedbyhimthat,hecame toknowaboutthedeathof11personswhenhewasgiving statementbeforePolice.Itisadmittedbyhimthat,when thehouseswereburninghehasseentheinjuredpersons.
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Itisdeniedbyhimthat,hehasnotstatedbeforethePolice that, it is his believe that, 11 persons are killed. It is admittedbyhimthat,inhisearlierstatementbeforePolice, hehasstatedthat,11personsaremissingtilldatethereis no news about them and it is his believe that, they are killed. It is admitted by him that, he has not stated the namesofSuhana,AttaullakhanandAmanullakhanbefore S.I.T.Itisadmittedbyhimthat,inhistorybeforeDoctor,he has stated that, he was injured in pelting of stones and throwing of Acid. Sugarabibi is alive. In his cross examinationbyaccusedNo.83hehasdeposedthat,inhis statementbeforePolicedated01.03.2002,hehasstatedthe namesof9accusedandinhisstatementdated10.03.2002 another 8 names of accused were added on the basis of hearing.Itisdeniedbyhimthat,hewastoldbyMr.G.V. Barot,officeroftheS.I.T.that,threepersonsaremissing andtheirnamesarewronglywritten.Itisdeniedbyhim that, before S.I.T. he has stated that, the names of Karishmabanu Yusuf, Ibrahimkhan Umarkhan and SugrabibiJalalkhanarestatedaseithermissingordead. He has explained that, Karishma Yusufkhan and Ibrahimkhan Umarkhan alive while there was no lady in thenameofSugarabibi. [123] P.W.21ShabbirkhanIbrahimkhan(Exh.108)hasdeposed that, on the day of incident, on hearing the tense atmosphereandcurfewatSavalaDarwajaBusStand,he
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cametohishouseDipraDarwaja,hewasinChudivas,at about 04.30 P.M. he was eating, at that time a mob of Patels' shouting slogans, Shala badaoe ne marri nakho, kapinakhoandstartedpeltingstones,justlikerain.Mob was armed with deadly weapons, entered in the Maholla andsetonfirethehouses,duetofeartheywentinsidethe house of Ahmedmiya Hasumiya. Thereafter, mob had startedpeltingstones,throwingburningragsandcausing damagestotheirhousesandduetofear,hecameoutand thenhewasinjured.17houseswereburnt.Personsfrom mobwascontinuouslyshoutingBadaoenemarrinakho, kapi nakho. Thereafter, at about 08.30 P.M. police came andthenonlytheycameoutandthereafter,theyshiftedto CivilHospitalandthentoGhetiyavas. Inhissecondtime deposition,hehasnarratedthesamefactsasdeposedin hisearlierdeposition.Inadditiontothat,hehasdeposed that,thereareothertwopersonsinMahollaShabbirmiya Hasumiya and Amjadkhan Mahmadkhan, who were also drivingtheAutoRickshawandtheyallwereputtingtheir AutoRickshawinRandalMata'sMadhandatthetimeof incidentboththesepersonshaveputtheirAutoRickshaw inRandalMata'sChowk.Atthetimeofincident,whenhe came outfrom hishouse,oninquiryMahmadHanif told himabouttheburningofAkbarmiya'shouseandtheywere shouting to cut, beat the Muslims. In his chief examination,hehasstatedthat,MahmadHaniftoldthat, PrahladGosaandDahyaTribhovantoldthemobthat,why
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areyoudemolishingonehouse,whenthereisabigMaholla ofMuslims.HisfatherwenttoseekthehelpofPolicebut hedidnotturned.Subsequently,theycometoknowthat he was beaten. The 11 persons who have died in the incidentareneverseenbyhimafter28.02.2002.Hehasno knowledgeanyofthemisalive. [124] P.W.23 Ahmedmiya Hasumiya Belim (Exh.128) has deposedthat,onthedayandatthetimeofincidenthewas inDipraDarwajaChudivas.Atabout04.30amobofPatels' about200personsattackedontheirhousesandtheywere shouting to cut, beat and burn the Muslims. Thereafter, Patels' have started pelting stones and burning their houses.Mobwasarmedwithdeadlyweapons.Duetofear theywentinsidetheirhouses.Hishouseishavingonefloor andhewentonfirstfloor.Atabout04.30hesawfromthe Window that, mob was giving Sword blow to Banubibi Yusufkhan Pathan, Attaullakhan Pathan, Amanaullakhan YusufkhanPathanandmobhadburntthedeadbodiesby pouringkerosene.Itisonlyat09.00P.M.Policecameand disbursedthemobandinjuredweretakentoPoliceStation and Civil Hospital. In the incident 11 persons of their Maholla have died. In his second time deposition he has narrated the same facts as stated earlier. In addition to that,hehasdeposedthat,onthedayofincident,hecame backfromhisserviceatabout11.00O'Clock,atthattime there was tense atmosphere in the town, he and other
// 443 //
personsfromMahollawereinhishouse.Atabout2.00to 02.30 P.M. mob was breaking the house of Akbarmiya. PrahladbhaiGosaandDahyabhaiTribhovanbhaiPatelwere present, Hanif saw that Prahlad Gosa was showing Chudivas to the mob hence Hanif came to them, Shabbirmiya Hasumiya, Mahmad Hanif Dalumiya and other persons from Maholla came and saw that, Prahlad Gosa and Dahyabhai Tribhovan were telling why you are breakingonehouse,thereisChudivas,don'tbotherabout P.I.,hehadatalkwithhim,gotoChudivasandthenonly mobenteredintheMaholla,whenwitnessenteredinhis house,hetriedtocontactthePolicebytelephonebutcould not. Thereafter, persons from Maholla gathered and Ibrahimkhan Umarkhan told that, he is going to Police StationtocallthePolice,hewenttocallthePolicebuthe didnotturnedback.Subsequently,hecametoknowabout the injury of Ibrahimkhan. Thereafter, at about 04.00 04.30 P.M. mob attacked their Maholla, pelted stones, breakthehouses,onseeingthemob,hewenttothehouse of Shabbirmiya Hasumiya, mob armed with deadly weaponsenteredinthehouseofYusufmiyaandYakubmiya and were shouting to cut, beat then he saw from the Window of Shabbirmiya Hasumiya. That, from the back side door of Yusufmiya's house, mother of Yakubmiya Jinnatbibi,wifeofYusufbhaiBanubibi,sonsofYusufbhai Attaullakhan and Amanullakhan, Yakubbhai, Husenabibi, Aarifbhai, Aasifbhai, Suhanabibi, Jalalkhan
// 444 //
hissonMunaf,DaughterofYusufbhaiwerekilledbySword in Fakir Mahmad and Dalumiya's Naveli and by pouring kerosene, petrol they were burnt. He personally seen the incident from the window of first floor of the house of Shabbirmiya Hasumiya. There were 5 to 6 persons with him. Other persons were also injured in pelting stones. Theirhouseswereburnt.Whenthepolicecame,thenonly thecameoutandtakentoPoliceStationandHospitalfor treatment. Police inquired about the incident in Navavas. Policehasnotrecordedhisstatementproperly.Earlier,he hasdeposedbeforetheCourtiscorrectonebuttherewas nopoliceprotectiontohimtherefore,hewasunderfearand therefore,hehasnotnarratedthecompletefacts.S.I.T.has notrecordedhisstatement.Itisonlyonce,hemetS.I.T.at Gandhinagar.OtherpersonsfromMahollawerealsothere. S.I.T.inquiredabouttheincidentfromallthepersonsata time. [125] P.W.24 Shermahmad Dalubhai Sindhi (Exh.132) has deposedthat,onthedayandatthetimeofincidenthewas in his house. A mob of about 200 persons armed with deadlyweapons,shoutingsloganstocutbeattheMuslims, werepeltingstonesandmobwasdividedintwoparts,one mobwenttowardsbacksideofMahollaandanotherpartof mob came on front side. He went inside his house, Yakubkhan was in his house, he tried to come out from back side door of his house, at that time he, his wife,
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Husenabibi,twosons,Aasif,Suhana,Munafwereattacked bythemobandtheywerekilledbythemobandbypouring kerosene and petrol their dead bodies were burnt. Thereafter, mob went towards Yusufkhan Muradkhan's house. Wife of Yusufkhan Banubibi, his two sons Attaullakhan and Rahematullakhan and Jinnatbibi and AfsanaIbrahimbhaiweretakenoutfromtheirhouseand theywerekilledbythemobbygivingblowbySwordand thereafter, they were burnt by pouring kerosene. Their houses were burnt. They were inside the house of AhmedmiyaHasumiya,tillthepolicecame. Inhissecond timedepositionhehasnarratedthesamefactsasstatedin earlierdeposition.Inadditiontothat,hehasdeposedthat, therewaselectricityinhishousebutnotelephonefacility wasinhishouse.Onthedayofincident,whenhecame backtohishouse,atabout02.30P.M.houseofAkbarmiya Kalumiya was broken by the mob, at that time some persons were telling to broke other houses in Dipra Darwaja,thereaftermobhadattackedtheMaholla.Houses were attacked and burnt and 11 persons were killed. Prahlad Gosa and D.T.Patelwere instigating the mob. He came to know this fact from Mahmad Hanif and other persons.WhenhecameoutfromhisMaholla,hesawthat mob was setting on fire the house of Akbarmiya and shouting to cut, beat the Muslims. Prahlad Gosa and D.T.Patel other persons were shouting to cut, beat the MuslimsandthenhecamebacktoMaholla.Ibrahimkhan
// 446 //
went to call the Police but he did not came back. Subsequently,hecametoknowthat,hewasattackedby the mob. Mob had attacked the Maholla at about 04.30 P.M. Mob was of Patels' from Dipra Darwaja. After some timefromthebacksideofhishouse,voicesofscreaming forhelp werecomingtherefore,hesawfromthewindow that,mobkilled11personsofYusufbhaiandYakubbhai. HisSisterinlawandother4to5personswerewithhim. Duetofear,hecouldnotgotosavethem.Atwhattime11 persons were killed, he does not remember the time but therewaslight.WhenPolicecamethenonlytheycameout and they were taken to Police Station and then Hospital and then to Ghetiyavas. Further, he has deposed that, earlier deposition is correct one but there was no Police protectionandhewasunderfeartherefore,thedeposition wasincomplete,todayhehasdeposedcompletely.Tillto day he has not seen the 11 persons who have died, no burial ritual of those dead bodies were performed. His statementswererecordedbyVisnagarPoliceandS.I.T. [126] P.W.25 Mohmad Hanif Ahmedkhan Baloch (Exh.134) hasdeposedthat,onthedayandatthetimeofoccurrence hewasinhishouse.IntheTown,shopsofMuslimswere brokenandsetonfire.Thereafter,atabout04.3005.00 P.M.hewasinhishouse,amobofPatels'residentofDipra Darwaja about 200 to 300 persons, armed with deadly weaponsenteredintheMahollaandstartedpeltingstones
// 447 //
and due to fear he went in side the house. Therefore, to save himself he went in the house of Hanif Dalubhai Sindhi. From where he saw the mob killing Yakubkhan Muradkhan, Husenabibi Yakubkhan and Aasifkhan Yakubkhan, Aabidkhan Yakubkhan by giving blow by Sword.Thereafter,YusufkhanMuradkhan'swifecameout along with her two children Attaullakhan Yusufkhan and Amanaullakhan Yusufkhan. The mob snatched two sons from her and by giving Sword blow they were murdered. Thereafter, daughter of Yusufkhan Afsanabanu Ibrahimkhan and Grand daughter of Yusufkhan Suhanabibi and her son Munaf were also murdered by giving Sword blow and thereafter, by pouring petrol, kerosene they wereburnt. Thereafter,other persons from theMahollaburntthreehousesandrestofthehouseswere alsoburnt.AllthepersonsfromtheMahollacameatabout 09.00P.M.whenpolicecame.Inhissecondtimedeposition hehasnarratedthesamefacts.Inadditiontothat,hehas deposed that, afterhisfirstdepositionhisstatementwas recorded by S.I.T. in which he has stated that, his depositionbeforetheCourtiscorrectone.Whenfirsttime he deposed before the Court that, he was under fear therefore, he has not deposed before the Court properly. Further,hedeposedthat,theearlierdepositioniscorrect onebutduetofearsomefactswerenotstatedintheearlier deposition.The11personswhohavediedintheincident are not alive, he has not seen those persons after the
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incident. No burial rituals of those dead bodies were performed.In additiontothat,hedeposesthat,atabout 03.30P.M.MahmadHanifDalubhaiSindhicameandtold that, Prahlad Gosa and Dahyabhai Tribhovan were instigating the mob. They were instigating the mob in between the house of Akbarmiya Kalumiya and Randal Mata'sMadh. [127] P.W.26 Husenkhan Badarkhan Baloch (Exh.137) has deposedthat,onthedayofoccurrenceandatthetimeof incident he was not in his house.He had not seen any incident.Heisdeclaredhostile.Inhiscrossexaminationhe hasdeniedthat,atabout08.30P.M.amobofabout200 300 persons armed with deadly weapons entered in the Maholla and incident of burning of houses and killing of persons and burning of dead bodies occurred. He is not crossexamined by any accused. In his second time deposition, he has supported thecase of prosecution. As per settled law his second time deposition can only be considered as corroborative piece of evidence. In second timedepositionhehasdeposedthat,firsttimewhenhehas deposed,hehasdeposedproperly.Thereafter,nostatement wasrecordedbyS.I.T.Asdiscussedhereinabovenodoubt this witness is the Hostile witness but his second time depositioncanonlybeconsideredascorroborativepieceof evidencebutthesaidevidencecannotbethrownawayat all. If any evidence is reliable and get some weight,
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consideringthecircumstancesofthepresentcasekeeping in mind the observations made in the best bakery case, thatevidenceisrequiredtobeconsidered.Thus,keepingin mind above, when we consider the second time examinationinchief,hehasdeposedthat,atthetimeof incident,hewasinhishouse.Mobatabout04.30entered intheMaholla,shoutingsloganstocut,beat,mobwasof Patels'fromDipraDarwaja.Amobwasof60to70persons, mobhadsetonfiretheirhousesbypouringkeroseneand mobwasarmedwithweaponandtheykilledthepersons fromMahollabycuttingthem.Personsoffamilymemberof Shri Yusufkhan were killed, how many family members werekilled,hehasnoknowledge,about7to8personswere killed, his brother, sisterinlaw were killed. Witness was injured, his brothers Mahmadkhan Badarkhan and Fatehkhan Badarkhan were also injured. As the police camethenonlytheycameoutfromthehouse.Theywentto Police station then Civil Hospital and they were treated then went to Ghetiyavas. In his crossexamination by accusedNos.1to82,84and85,itisadmittedbyhimthat, he has stated before S.I.T. on 01.06.2008 that, his statement dated 08.03.2002, 10.03.2003 are read over to him. He might havestatedthestatementsbutwhen and whereitwasrecorded,hedoesnotremember.Duetoinjury onhisheadandback,sometimeshelooseshismemory andtherefore,heisunabletorememberthepersonswho wereinthemob.Inhiscrossexamination,itisadmittedby
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himthat,forthefirsttimebeforetheCourtheisdeposing that,hehasgivenhistorybeforetheDoctorthat,hewas injuredbytheSword.Inhiscrossexaminationbyaccused No.83that,whenhisstatementwasrecordedbyVisnagar Police, complaint was read over to him and they were shiftedtoCivilHospitalinonevehiclefromPoliceStation. [128] P.W.27AbdulkarimMahmadbhaiMansuri(Exh.140)has deposedthat,atthetimeofincidenthewasinhishouse. At about 03.30 P.M. a mob of about 400 persons armed with deadly weapon came and started pelting stones. Thereafter,mobtookhimandhiswifefromhishouseout and theywereinjured.MobwasofPatels'andhishouse wasransacked,utensils,ornamentswereransackedandon nextdaytheywenttoHospital. [129] P.W.28 Hanifabibi Abdulkarim Mansuri (Exh.141) has deposedthat,onthedayandtimeofincident,shealong withherhusbandwasinherhouse,atabout03.30P.M. mob of about 400500 persons came and injured them. Mobtookheroutbydraggingher.Personsinthemobwere fromDipraDarwajaarea.Herhouseholdornamentswere loots, about Rs.3,00,000/ damage was caused. In her second time deposition, she has deposed same facts. In addition to that, she has deposed that, at the time of incidenthersonwasnotwiththem.Whenthemobcame, shecamedownfromfirstfloorwhileherhusbandwason
// 451 //
groundfloor,mobenteredintheirhousebybreakingdoor. Some one from themobtriedtoinjuredher husbandby Guptiandsomeonefrommobinjuredherhusbandbystick. Therewasprofusebloodingandpersonsfromthemobhad forcedtofelldownandshewasinjured.Onnextdayshe took the treatment in Civil Hospital. She is unable to identifytheaccusedandsheisunabletosay fromwhere thepersonsofmobcame. [130] P.W.29 Hanifabibi Shabbirbhai Pathan (Exh.144) has deposedonoaththat,shewasinherhouse,atabout03.00 03.30 P.M. a mob about 10002000 persons came, shoutingslogans,armedwithdeadlyweapons,onhearing the noise she came out, when she came out she injured hence she rushed towards Maholla. Her house is on the backsideofMaholla.Personsfromthemobhaveransacked their houses. Their houses were burnt and persons from Maholla wereinjured.FamilymembersofYusufbhaihave diedduetoinjuries.SheisdeclaredHostile.Inhercross examination by theprosecutionshehasdeniedthat,she has stated before the Police that, mob entered in the Maholla and mob was armed with deadly weapons and accusedwhosenamesarementionedinthestatementwere thereandthatmobenteredintheYakubkhan'shouseand they were killed by giving Sword blow and after pouring kerosene,theywereburnttodeath.Itisdeniedbyherthat, shehasstatedbeforethePolicethat,atthattimeshecame
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outandmobhadpeltedstonehenceshewasinjuredand her sons were also injured. In her crossexamination by accused, she has deposed that, after incident she was stayinginGhetiyavas.Itisadmittedbyherthat,shehas notstatedbeforePolicethat,hersonwasinjuredbyPipe, she has denied that,shehasstatedbeforePolicethat, a mobofabout200300personsarmedwithdeadlyweapons enteredintheMaholla.Inhersecondtimedepositionshe has stated that, her earlier deposition is correct one. In addition to that, she has deposed adjoining to Chudivas, Patels' are residing, she know the Patels'. Due to injury they went to house of Shabbhirmiya Hasumiya, other persons from the Maholla were also there, they were on Groundfloor,atabout08.30P.M.Policecame,tookthemto Courtandshecametoknowaboutthekillingof11persons ofthefamilyofYusufkhan.DuringherstayatGhetiyavas, nostatementwasrecordedbyVisnagarPolice.Thereafter, shestayedatDasaj,therealsopolicehasnotinquiredher about the incident. S.I.T. has inquired her about the incident on 24.05.2008, she does not remember whether herstatementwasrecordedbyS.I.T.on01.06.2008.Inher crossexaminationbyaccusedNos.1to82shehasadmitted that, she has notstatedbeforeS.I.T.that on the dateof incidenthersonAnvarwentoutwithAutoRickshawand they all went to house of Shabbirmiya Hasumiya. In her crossexaminationbyaccusedNo.83,shehasdeposedthat, she has not received any financial assistance from the
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Government. In her crossexamination by accused No.85, shehasdeposedthat,sheknowAmjadkhanMahmadkhan Baloch,whotookhertotheadvocateandshehassignedin oneNoteBook. [131] P.W.30 Shabbirmiya Hasumiya Belim (Exh.146) has deposedthat,atthetimeofincidenthewasinhisMaholla, atabout04.00to05.00P.M.amobofPatels'about200 250personsenteredintheirMaholla,armedwithdeadly weapons, shouting miyaoene salaoene bahar kadho ane marroanekapisalgavimaarinakho.Hencepersonsinthe MahollawerescreamingforhelpandhewentinhisHouse andthemobstraightwaywentintheHouses.Onhearing thenoisetocut,beat,hewentonfirstfloorofhishouse. From there he saw the incident. That, Yakubkhan Muradkhan Pathan, his wife, two sons, mother, sisterin lawwerescreamingforhelpandmobattackedonthemand by giving Sword blow they were brutally killed and they were burnt in the Naveli. Thereafter, houses in the Chudivaswereburnt.Thereafter,therewasdarkhencehe cameout,healongwithYusufkhanwenttoPoliceStation, he was injured, took treatment from the Hospital. In the incident 11 persons were killed. In his second time deposition, he has stated the same facts. In addition to that,hehasdeposedthat,mobenteredintheMahollaand ransackedthepropertiesintheMahollaandalsoburntthe houses and due to fear he went inside his house. In
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addition to that, he has deposed that, to savethe family members of Yakubkhan, witnesses have also pelted the stonesfromtheirhousesbutthehousesofPatels'arein height and pelting of stones were continued in full form. Witnesseswereshoutingforhelpbutnoonecametosave them.About05.00to06.00hoursthisincidentcontinued. HehasnotgoneintheroomofPoliceInspectoralongwith MahmadIqbalandMahmadHanifDalu.Atabout10.00 11.00 P.M.he wentNavavasandtookthetreatmentfrom SulemanMansuri.OtherpersonsfromMahollawerealso treated by Dr.Suleman Mansuri. His statement was recorded by S.I.T. on 17.05.2008. In earlier deposition he wasunderfeartherefore,someofthefactremainunstated. Atthattime,therewasnoPoliceprotectiontohim.Further, he has deposedthat,hehasnotseenorheardabout11 personsaftertheincident. [132] P.W.31 Aarifkhan Yakubkhan Pathan (Exh.147) has deposedthat,atthetimeandonthedayofincidenthewas in his house. His family members were also with him. A mob about 200 persons armed with deadly weapons enteredintheMahollaatabout03.30P.M.andtheywere abusingtheMuslimpersonsofMahollaasBandiya.The personsfromthemobfirstlyenteredinhishouseandhas drawn out his Grandmother and Grandfather and killed them by giving Sword blow. His Grandmother was screamingforhelp.Hismother,fatherandbrotherscame
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out. They were also killed by giving Dhariya blow. On seeingkillingofhisparents,hewentinsideandfromthe window he saw killing of his brother Aasifkhan and Aabidkhan.Hissisteralongwithhimwasinsidethehouse. Thereafter,healongwithhisSisterAminabenwenttothe houseofAhmedbhaiLightvala.Heandhissistersustained injuriesandtheirhousewasransacked.Whenhewasin thehouseofAhmedbhaiLightvala,atabout05.00to06.00 P.M. he came out from that house and saw that, four personsofhisfamilyandsixpersonsofhisUncle'sfamily and Munaf were burnt in the Naveli and houses in the Maholla were set on fire. Only house of Ahmedbhai Lightvalaremainedunburnedastherewerepersonsinthat house,theyhadprotestedhencemobwentback.Therewas GasCylinderinhishouse.Theyfeltthat,GasCylindermay bebursthencetheycameout.Patels'fromtheterracewere throwingstones.Thereafter,Policecameandtheywentto Police Station. In his second time deposition he has narratedthesamefacts,asnarratedinearlierdeposition. In addition to that, he has deposed that, his earlier deposition before the Court is correct one. S.I.T. has recorded his statement as per his say. Nothing more he wantstodepose. [133] P.W.32 Mahmadhanif Dalubhai Sindhi (Exh.150) has deposed that, at the time of incident, he along with his familymemberswasinhishouse.Atabout03.00to04.00
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P.M.amobwasburningthehouseofAkbarmiyaKalumiya, situated outside the Dipra Darwaja Madh. Mob was of about 200300 persons. Thereafter, mob came towards RandalMata'sMadhandcauseddamagetohisRickshaw, which was lying in Randal Mata's Chowk. His Rickshaw wasburnt.Thereafter,mobenteredintheirMaholla,armed with deadly weapons and attacked on the house of YakubkhanMuradkhanandAminabibiJahangirkhanand triedtokillthem.Personstriedtocomeoutfromtheback sidebutintheNavelitheywereburnt.Atthattimehewas inhishouse.Hehasmentionedthenamesof11persons, who were burnt. In his second time deposition, he has narrated the same facts. In addition to that, he has deposed that, there are two parts of his house and also havingonefirstfloor.Therearetwowindowsinfirstfloor house. A person can pass from that window. His Auto Rickshawwasburnt.Householdswerealsoburnt,17to18 houses and his households were burnt and most of the personsofMahollawereinjured,11personsofthefamilyof YusufkhanMuradkhanwerekilled. Apersoncanseethe houseofAkbarmiyaKalumiyafromthechowk,wherehis AutoRickshawwaslying.Generallyapersonusingtheway whichpassesfromRandalMata'sMadhforpassing.House of Shabbirmiya Hasumiya, Ahmedbhai Hasumiya, Ahmedkhan Anvarkhan are having first floor, rest are having Groundfloor. For the whole day he was in his house.Atabout08.0009.00P.M.whenthePolicecame
// 457 //
thenonlytheycameout.Intheincident,Ibrahimkhanwas injuredandhewenttoPoliceStationtocallthePolicebut onthewayhewasbeatentherefore,hecouldnotgotohelp IbrahimkhanUmarkhan.Further,hehasdeposedthat,in hisearlierdepositioncertainfactsremainedunstatedashe wasunderfearashewashavingnoPoliceprotection.After theincident,hisstatementwasrecordedbyPoliceInspector M.K.Patel on 08.03.2002 and 10.03.2002 while his statementwasrecordedbytheS.I.T.on17.05.2008.Before S.I.T.he has statedthat,incidentstartedatabout04.30 P.M.notat08.30P.M.butPolicehasnotrecordedthesame factswhichwasstatedbyhim.Thereafter,Policetookhim toChudivas. [134] P.W.33 Anvarkhan Basirkhan Baloch (Exh.166) has deposedthatonthedayofincidenthewasinhishouse. They were having good terms with their neighbouring persons.Heheardthat,thosepersonsintheformofmob arecomingtoattacktheirMaholla.Therefore,hecameout, atthattimeamobofabout300personsarmedwithdeadly weapons,shoutingslogansmiyaonesaalaonemaarinakho anetemnagharonebaalinakho,camefromRandalMata MadhsideandattackedtheirMaholla.Hetriedtohavetalk with the persons of the mob and had requested them to keep the peace but the mob attacked him and came towardsMaholla.Hischildrenweretellinghimthat,noone willhearhimandhischildrentookhiminsidehishouse.
// 458 //
Another mob came from Kada Darwaja side, shouting sloganstocut,beattheMuslims.Againhehadrequested themobbutmobhadnotgivenanyheedtohimandmob had attacked the Mahollaandthepersonsfrom themob wentontheterraceoftheirhousesandstartedthrowing burning rags and killed the 11 persons of the family of YakubkhanandYusufkhan,bycutting,killingandburning them and those pieces of dead bodies were burnt, police came at about 09.00 P.M. Meanwhile the houses were burntanddamageswerecausedbythemob. [135] P.W.50 Saidabibi Mahmadhanif Sindhi (Exh.302) has deposedthat,atthetimeofincident,shewasinherhouse. AmobofPatels'Hindus'about200250personsenteredin the Maholla, started pelting stones, they were shouting sloganstocutbeattheMuslims,theywerehavingdeadly weaponsintheirhands.Peltingofstoneswerecontinued. HealsosustainedinjurieshencehewentonFirstFloorof hishouse.Mobhasstartedsettingonfirethehousesand by shouting slogans, they went to Dalumiya's Naveli. 11 personswerekilledbygivingblowsandthose11persons were screaming for help and dead bodies of those 11 personswereburntbypouringkeroseneandpetrolinthe NaveliofDalumiya.OtherhousesoftheMuslimswerealso burnt.Inhersecondtimedeposition,shehasnarratedthe same facts. In addition to that, she has stated that, the earlier deposition is correct one but due to fear, certain
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factsremainedunstatedastherewasnoPoliceprotection atthattime.Onreceivingthestoneinjuriesshealongwith herhusbandandchildrenwenttofirstfloorandtriedto closethewindowandatthattimeshesaw200300persons in the mob, going towards the house of Yusufkhan and Yakubkhan. That mob was beating by arms. They were having burning rags, burning tyres etc. Killing and burning of 11 persons, she has seen from the window. Whenshecamedown,herhousewasalsoburning.Restof the houses in the Maholla were also burning. After the incidentshehasnotseenanypersons,outof11persons whoarekilledintheoccurrence. [136] P.W.51 Aminabibi Ahmedkhan Baloch (Exh.303) has deposedthat,onthedayofincidentatabout04.3005.00 P.M. she was in her house. A mob of about 250300 persons armed withdeadly weapons,shouting slogansto cutbeattheMuslimscameandshewentinsideherhouse andthenwenttohouseofHasumiya.WhenthePolicecame then only she came out. In her crossexamination by accusedNos.1to82and84shehasstatedthat,whenshe cameoutandshesustainedstoneinjuries,sheenteredin thehouseofAhmedmiyaHasumiya. [137] P.W.52FaridabanuAhmedkhanBaloch(Exh.306) has deposedthat,onthedayofincidentamobofPatels',about 200300 persons, armed with deadly weapons, came at
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about 04.00 to 05.00 P.M. and started pelting stones on their Maholla therefore, she immediately came in the MahollaandwenttothefirstfloorofthehouseofDalumiya Sindhi. Mob had startedpelting of stones,setting on fire thehouses,shesawfromtheWindow,themobproceeded towards the Naveli of Dalumiya Sindhi and to save themselves,familymembersofYusufkhanandYakubkhan came out in the back side of Naveli, where the mob of Hindus' have by giving blows killed them and they were takenbydraggingthemtotheNaveliofDalumiyaSindhi wheretheywereburntbypouringkerosene.Thereafter,the mobhadsetonfirethehousesandransackedthehouses, when Police came,Police arrested 5 to 7 persons. Inher secondtimedepositionshehasnarratedthesamefacts.In addition to that, she has deposed that her statement by S.I.T. is recorded after her first deposition. Earlier depositioniscorrectonebutsomefactsremainedunstated duetofear.Attackstoppedatabout08.3009.00P.M.She alongwithotherpersonsinjuredintheincident. [138] P.W.58KarishmabanuYusufkhanPathan(Exh.502)has deposedthat,onthedayandtimeofincident,theyallwere sitting in their House. Patels' from their Maholla started pelting stones at about 04.30 P.M. and they burnt their houses, they were armed with deadly weapons and mob cameneartoherHouse.Herallfamilymemberswhowere sittingoutsideoftheirhouse,surroundedbythemob.Mob
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of Patels' community were beating Banubibi Yusufkhan, Afsanabanu, Attaullakhan, Amanaullakhan, Yusufkhan, Jinnatbibi, Suhanabanu and her son Munafbhai. She by hidingherself wentfromthehouseofIbrahimmiyatothe house of Shabbirmiya. At that time, she sustained stone injuries. She became unconscious. In the incident, 11 personsofherfamilyhavedied.Fromthedateofincident, tilltodayshehasnotseenorheardaboutanyofthat11 persons. Her statement was not recorded by Police, it is onlybyS.I.T.herstatementwasrecorded.Theirhousewas alsoburnt. [139] P.W.96 Ibrahimkhan Umarkhan Baloch (Exh.610) has deposed that, on the day of incident, mob of Patels' gathered and caused damage to the door of Akbarmiya Kalumiya. Persons from the Maholla asked him to go to informthePoliceforseekingprotection,hencehewentto Police, where he met Police Inspector M.K.Patel. Police Inspector M.K.Patel had told him that, he will not get Policeprotection,hencehecamebacktowardshishome.In thechowkhehadatalkwithHareshkumarNarottamdas about the Police protection, who told him to go to his house,thereisnonecessityofPoliceprotection.Hesawa mobstandingnearthehouseofTribhovandas,duetofear hewentnearSubJail,wherehewasinjuredandbecame unconscious.HewasshiftedtoCivilHospital.Hishousein Chudivas is in burning condition. He has visited the
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Chudivas after the incident. Noone is residing there. He came to know about the murder of 11 persons. After 28.02.2002hehadnotseenanypersonsfrom11persons. [140] P.W.125SabanabibiAnvarhusenPathan(Exh.678)has deposedthat,onthedayofincidentatabout04.30P.M. mobofPatels'about200300persons,armedwithdeadly weapons, shouting slogans to cut, beat the Muslims entered in the Maholla. Before that, mob burnt Auto Rickshawinthechowkandwhenthemobenteredinthe Maholla, she along with her family members went inside the house of Ahmedmiya. Mob ransacked their Maholla, persons in the Maholla were talking that, they heard PrahladbhaiGosatoldtokilltheMuslims.Shewasinthe houseofAhmedmiyaupto08.30P.M.ItisonlywhenPolice came,shecameout.Thereafter,shewenttoPoliceStation. AtthePoliceStationshecametoknowaboutkillingof11 persons of their Maholla. When the Police came in the Hospital,hersonArbazwasadmittedasanindoorpatient for15days. [141] P.W.127 Imrankhan Sabirhusen Pathan (Exh.681) has deposed that, at about 02.30 P.M. he was playing with other children in the Maholla, at that time about 200 persons,shoutingslogansmiyaonekapinakho,baadaone kapi nakho, armed with deadly weapons entered in the Maholla,mobwasofPatels'ofDipraDarwaja.Theystarted
// 463 //
pelting stones, throwing burning rags, they burnt their houses and they have beaten the persons from Maholla. Theywereusingtheirarmsandtheykilled11personsof family members of Yusufkhan. When the police came at about08.00P.M.thenmobdisbursed.Thereafter,theywere shifted to Hospital and Ghetiyavas. S.I.T. has taken his statementon24.05.2008.VisnagarPolicehasnotrecorded hisstatement. [142] P.W.135BashirnbibiGulmahmadSindhi(Exh.724) has deposedthat,Patels'ofDipraDarwajahadattackedtheir Mahollaatabout04.00P.M.andburnttheirhousesand they were shouting to cut, beat the Muslims. They were beating the persons of their Maholla and pelting stones. She was also injured. She took shelter in the house of Ahmedmiyaupto08.0009.00P.M.ItisonlywhenPolice came,theycameoutfromthehouseofAhmedmiya. [143] P.W.149 Arbaz Anvarhusen Pathan (Exh.778) has deposed that, he was staying with his parents in Dipra Darwaja,mobofPatels'cameandburnttheirhouses.He was injured and treated in the Hospital. In his cross examinationbyaccusedNos.1to82hehasstatedthat,he hasnoknowledgethatwhenhewasinjuredhewasinhis houseoratWindow.
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[144]
P.W.150 Aslambhai Kadarbhai (Exh.779) has deposed that,hewasstayingwithhisUncleYakubkhan'shouse. HisUncleandAuntdiedinthecommunalriots.Ontheeve ofBakriIdhewasinhisUncle'shouse.AmobofPatels' came,startedpeltingstones,hewasinjured,atthattime hewasinthehouse.Itwasdaytime,hetooktreatmentin theHospital.Inhiscrossexaminationitisadmittedbyhim that,whateverhehasstatedinchiefexaminationisstated forthefirsttime.Itisalsoadmittedbyhimthat,tillthe Policecame,hewasinthehouse.
[145]
P.W.162 Sohil Mahmad Hanif (Exh.825) has deposed that,atthetimeofincident,hewasinChudivas,mobof Patels'armedwithSword,DhariyaattackedtheirMaholla andburnttheirhousesand11personswerekilledbythe mob.Thereafter,hewenttoonehouse,hewastreatedin CivilHospital.Inhiscrossexamination.Itisadmittedby him that, he has not stated in his statement that, mob armed with Dhariya,Swordenteredin their Mahollaand housesweresetonfire,11personswerekilledandhewent insideonehouse.
[146]
P.W.180 Pathan Shabnoorbanu alias Shayaonara Yakubkhan (Exh.1345) has deposed that, at the time of incidentshewasinDipraDarwaja,amobofPatels'about 200 persons entered in their Maholla at about 04.00 to 05.00 P.M. and they caused damage to the persons and
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properties of the Maholla and they wereshouting to cut, beattheMuslims,theyalsopeltedstones,shewasinjured, thenshewentinthehouseofAhmedbhaiHasubhai,along withhisbrotherAarif. [147] P.W.18 Saiyed Nazirmiya Kalumiya (Exh.103) has deposedthat,onthedayofoccurrencehewasinhishouse, at about 04.00 05.00 P.M. a mob of about 200300 persons,shoutingsloganstocut,beattheMuslims,entered intheirMaholla,armedwithweaponslikeSword,Dhariya, kerosene and petrol gallons, they caused damage to the house of Aminabibi Jahangirkhan, there is one door in betweenthehouse,whichwasbrokenbythemandentered in the house of Yakubkhan Muradkhan and dragged Yakubkhan Muradkhan, Husenabibi Yakubkhan, Aasifkhan Yakubkhan, Aabidkhan Yakubkhan and they were killed by them by Sword, Dhariya. He himself had seen the incident and thereafter, after pouring petrol, kerosenethosedeadbodieswereburnt.Incidentstartedat about05.00P.M.andcontinuedupto08.30P.M.Atabout 08.30 P.M. police came.Exceptthemembersof family of Yakubhan,nootherpersonwaskilled.Afteroccurrencehe hasnotseenhisOrdi(Room). In his second time deposition, he has repeated the samefactsasnarratedinearlierdeposition.Inadditionto that,hedeposesthat,hehasnotdeposedthewholefacts
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in his earlier deposition because he was under fear. Further,hehasdeposedthat,atabout02.0002.30P.M. incidentwasstartedandatthattimehewasstandingin Maholla,otherpersonsfromMahollawerealsostanding,at thattimeSherMahmadDalubhaicameandtoldhimthat, houseofhisbrotherisburntandrobbed.Thenhecamein DipraDarwajachowk,nearthehouseofHargovankakaand sawthat,othermembersoftheirMahollawerethereand M.L.A.ShriPrahladbhaiGosaandDahyabhaiTribhovandas Patelwereinstigatingthemobbysayingthat,putfirethe entireMahollanotasinglehouse,hehadatalkwithPolice InspectorinthePoliceStationbyhearingthosewords,they went inside their Maholla, they were under fear, at that time Ahmedkaka told him to phone the Police, hence Ahmedkakawenttocallthepolicebyphone,hecameback and told that, it is not possible to contact the Police by phone, then Ibrahimkhan Umarkhan, an elder person of the Maholla told them that, don't fear and stay in the Maholla,hewillgotothePoliceStationtocallthePolice, hewenttothePoliceStationbutdidnotcameback.During that period, persons of their Maholla wereunder fear.At about 04.00 04.30 P.M. mob came shouting that, Muslimscomeout,theywillkillthemandbyshoutingso theyenteredintheMaholla.Aftertheattackhewentinside hishouse andclosedthedoorofhishouseandwenton the terrace. From the terrace, he had seen the incident occurredinthefrontsideofthehouseofYusufbhai. He
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had seen the cutting,beating the Jinnatbibi Muradkhan, Banubibi Yusufkhan, Husenabibi Yakubkhan, Afsanabibi Ibrahimkhan, Sohanabibi Zabidkhan, Munafkhan Zabidkhan, Yakubkhan Muradkhan, Aasifkhan Muradkhan, Aabidkhan Muradkhan, Attaullahkhan Yusufkhan,AmanaullakhanYusufkhan,theywerekilledby themob,whenhesawYusufkhanhewasonsecondfloorof hishouseandfromwindowhehadseenYusufkhan.After theincidenton06.03.2002hewastakentoChudivasby Police, when they reachedChudivas,theysawhalfburnt remains,sweeperswerecalledfromMunicipality,remains weretakenoutfromDalubhaiSindhi'sNaveli,hehasnot seen remains there, he stayed at about 1.1/2 hour, thereaftertheywenttoPoliceStation,inthePoliceStation he was shown the remains by the Police, Yusufkhan Muradkhanwaswithhim,theyhadidentifiedtheremains, asoftheirfamilymembers. [148] P.W.22 Yusufkhan Muradkhan Pathan (Exh.112) has deposedthat,on28.02.2002duetoBandhhewasinhis house along with his family members. At about 04.30 to 05.00P.M.amobofabout200personscamefromRandal Mata's Madh side, shouting slogans to cut, beat the Muslims.Onhearingthenoisehecamenearthehouseof Nazirmiya Kalumiya from where he has seen that mob standinginthechowk,justneartothehouseofBharatbhai Ishvarbhai and mob had started pelting stones therefore,
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thepersonsfromtheMahollahidthemselves anddueto fearwitnessfromtheroofofhiskitchenwenttowardsthe roofofhishousethenwenttothehouseofRanjitRama, thereisirongateinbetweenthehouseofRanjitRamaand his house, he hide himself behind that gate, mob was having arms like Dhariya, Sword, Short Spear, burning ragsandtheywerecausingdamageintheMaholla.After halfanhourmobwasarmedwithweaponsstandingjustin frontofthehouseofIbrahimkhanBadarkhan,Yakubkhan Muradkhan. Mean while Jinnatbibi Muradkhan Pathan, Banubibi Yusufkhan Pathan, Attaullakhan Yusufkhan Pathan, Amanaullakhan Yusufkhan Pathan, Suhanabibi, Zabirbhai Khilji, Munabbhai Zabirbhai Khilji, Suhanabibi Ibrahimbhai Belim came out side their house. The mob bitterly attacked upon them. At that time his son Attaullakhan, aged about 9 years, Amanaullakhan aged about 4 years were snatched and thrown out from their mother's hand. During that period Chiman Choksi had givenblowofSwordtohistwobrothers,whichhehasseen andotheraccusedhadkilledothersevenpersonsnamely Jinnatbibi Muradkhan Pathan, Banubibi Yusufkhan Pathan, Attaullakhan Yusufkhan Pathan, Amanaullakhan Pathan, Suhanabibi Jahingarbhai, Munabbhai Jahangirbhai,SuhanabibiIbrahimbhai.Hehadheardthe noise. His brother Yakubkhan Muradkhan, Husenabibi Yakubkhan,AasifkhanYakubkhan,AabidkhanYakubkhan cameoutoftheirhouse.Deadbodiesofsevenpersonswere
// 469 //
lyingthereandsaidsevenpersonswerealsokilledbygiving blowtothemandatthattimehewasbehindtheirongate. During06.00to07.00P.M.thesedeadbodiesintheformof piecesweretakenintheNaveliofBachubhaiandbyputting the dead bodies near the House of Nazirmiya and by pouringKerosene,Petrol,deadbodieswereburnt.Hehas seentheincidentandabout09.00P.M.Policecame,when policecamehecameoutandrequestedthePolicethat,11 deadbodieswerelyingthereandPolicetoldhimthat,itis their work, he is safe, he should come to Police station hencetheywenttoPoliceStation.Thereafter,theywentto Navavas. In his second time deposition, in chiefexamination, he has repeated the same facts, as narrated in his first deposition. In addition to that, he has deposed that, 11 personsofhisfamilywerekilledinfrontofhiseyesandthe Patels'ofDipraDarwajawereinthemob.Further,hehas deposedthat,deadbodiesof11personswerenotrecovered. ComplaintwaslodgedbyIqbalbhaiAhmedkhanBaloch.He had informed the complainant about the killing of 11 personsofhisfamily.WhentheyweregoingtothePolice station, on the way he informed about the killing of 11 persons to the complainant. Due to incident, his mental positionwasnotgoodhenceheaskedhisnephewtolodge thecomplaint.Remainsofhisfamilywereidentifiedbyhim in Chudivas. On 06.03.2002, he was not present in
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Chudivas when the police recovered the remains, he was also not present on 09.03.2002 when remains were recoveredfromMalavTalav.Further,hehasdeposedthat, his statement was recorded by the Police. The names of thoseaccused,whosenameswerenotmentionedinearlier depositionwerenamedbeforeS.I.T.Incidentcontinuedtill thepolicecame. [149] P.W.68SavitabenDahyalalPatel(Exh.533)hasdeposed that, on 28.02.2002 amobat about 300to400 persons camefromoutsideandattackedChudivas.Itisdeniedby her, that a mob of their Maholla had attacked Chudivas. She is hostile witness. In her crossexamination by prosecutor,shehasdeposedthatshedoesnotremember whether she has stated in her statement that, on 28.02.2002 at about 8.30 P.M. a mob about 200 to 250 persons armed with weapons entered in Chudivas and burntthehousesofMuslimswhowereinthemobshedoes notknow.InhercrossexaminationbyaccusedNos.1to82 she has deposed that, it is true that during day time incidentofpeltingstoneonthehousesofMuslimsaswell astheirhousesoccurred.Itisalsoadmittedbyherthat,in the evening lights of their houses were off. It is also admittedbyherthatatabout8.30P.M.amobofabout400 to 500 persons having sticks, Masals came in Chudivas fromRandalMata'sMadhsideandwenttowardsChudivas to Kada Darwaja and then Thakorvas within 10 minutes
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policecame,atthattimeherfamilymemberswereinside the house. She has no knowledge whether other persons fromMahollawereinsidethehouseoroutsidethehouses. [150] P.W.69DahibenKantilalPatel(Exh.534) hasdeposed that,sheistheresidentofRandalMata'sMadh.Sheisthe mother of accused No.22. As per her say at about 08.30 P.M. a mob of 400500 persons went towards Chudivas. She is Hostile witness. In her crossexamination she has admittedthat,shehasstatedinherstatementbeforePolice that, on 28.02.2002, at about 08.30 P.M. a mob about 200250personsarmedwithDhariya,Sword,Stickswent towards Chudivas and houses of Chudivas were burnt. WhenthemobwenttowardsChudivas,Policecameafter15 minutes,shehadnotheardscreamingfromChudivas,she had not seen the burning of houses in Chudivas, in her crossexaminationbyaccusedNos.1to82,shehasdeposed that,allthefamilymemberswereinsidethehouse,during wholeday. [151] P.W.70 Madhavlal Ranchhoddas Patel (Exh.535) has deposedthat,heistheresidentofDipraDarwaja,inhis crossexaminationbyaccusedNo.83,hehasdeposedthat, at about 08.30 P.M. he heard the voices from Chudivas, thereafter,Policevehiclescame.
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[152]
P.W.71 Naranbhai Amthabhai Patel (Exh.536) has deposedthat,onthedayofincidentsince12.00Noon,he wasinhishouse,atabout04.0005.00P.M.disturbance inChudivasoccurred,atthattimehewasinhishouseand Policecameatabout08.30P.M.atthattimealsohewasin hishouse,fromhiswindowhehasseenthemobof200 300 persons, going towards Chudivas. On the day of incident there was light in his house. In his cross examinationbyaccusedNos.1to82hehasadmittedthat, nodisturbancewascausedatabout04.0004.30P.M.In hiscrossexaminationbyaccusedNo.83,hehasadmitted that,heheardthenoiseatabout08.30P.M.
[153]
P.W.72 Chiragkumar Sureshbhai Patel (Exh.541) has deposed that, accused No.36 is his father. He is Hostile witness. In his crossexamination by the prosecution he hasdeposedthat,hedoesnotrememberwhetherhehas statedbeforethePoliceon12.03.2002that,on28.02.2002 atabout08.30P.M.amobofabout200250personsarmed with weapons went towards Chudivas and burnt the housesofMuslimsinChudivas.Hisfatherwasinthehome forwholeday.
[154] P.W.74ShantabenBhogilal(Exh.543)hasdeposedthat, accused No.49 is her son, while accused No.19 is her secondson.On28.02.2002therewascurfewinthetown and therefore, all the family members were inside the
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house, at about 08.00 P.M. a mob of about 200 persons wenttowardsChudivas,mobwasarmedwithsticks,sheis Hostile witness. In her crossexamination by prosecution, shehasdeposedthat,itisnottruethatshehasdeposed beforethePolicethaton28.02.2002atabout08.30P.M.a mob of about 200250 persons armed with Dhariya, Swords, Sticks, Kerosene gallons, went towards Chudivas andhadbeatentheMuslimsandalsoburnttheirhouses. In her crossexamination by accused No.83, she has admittedthat,thepersonsfromthemobwereshoutingto cut,beatandthereafterPolicecame. [155] P.W.75 Nitaben Jageshkumar Patel (Exh.544) has deposedthat,onthedayofincidenttheywereinsidetheir house, they heard the voice of mob, mob went towards Chudivas,forwholenighttheywereinsidethehouse,after half an hour police came, after some days, she came to know about the incident. In her crossexamination by accused Nos.1 to 82 she has deposed that, her husband andfatherinlawwereinsidethehome,atabout05.30they received the message that, their shop is burnt by the Muslimstherefore,herhusbandandfatherinlawwentto their shop and firebrigadeandpolicecameandfirewas extinguishedandatabout11.00P.M.theycameback.In hercrossexaminationbyaccusedNo.83shehasadmitted that,duetosoundofSiren,shecametoknowthatpolice came.
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[156]
P.W.76 Kantibhai Kacharabhai Patel (Exh.550) has deposedthat,onthedayofincident,hewasinhishouse, heistheresidentofRandalMata'sMadh.Onthedayof incident,fromthewindowhesawthemobgoingtowards Chudivas.Itwasatimeof08.30P.M.HousesinChudivas wereburnt. He hadnotseenthefire.Hecametoknow aboutthedeathof11personsinChudivas.Inhiscross examinationbyaccusedNo.83,hehasadmittedthat,when themobcamethereafterpolicecame.
[157]
P.W.77BhikhibenBabulalPatel(Exh.551) hasdeposed that, on the day of incident, she was in her house. Her family members were also in the house, a mob of about 200250personscamefromMadhsideandwenttowards Chudivas,shehadnotseenthemobarmedwithweapons. SheistheHostilewitness.Inhercrossexaminationbythe prosecutorshehasdeposedthat, shedoesnotremember whether she has stated before the Police that, on 28.02.2002about20housesofMuslimsinChudivaswere burntand11personsweremurderedandbypouringthe keroseneonthedeadbodieswere burntandsomeother Muslimsustainedinjuries.
[158]
P.W.79 Taraben Kacharabhai Patel (Exh.558) has deposedthat,onthedayofincidentshewasinherhouse, her family members were also with her, She is Hostile witness. Inher crossexaminationbytheprosecutionshe
// 475 //
hasdeposedthat,shedoesnotrememberwhethershehas statedbeforethePolicethaton28.02.2002atabout08.30 P.M.amobof200250personsarmedwithDhariya,Pipe, Sticks, Swords, Kerosene Gallons went towards Chudivas andattackedtheMuslims.HousesofMuslimswereburnt andMuslimswereinjured.Shedoesnotrememberwhether incidentcontinuedfor4to5hours.Itisadmittedbyher that, Police came at about 08.30 09.00 P.M. then only attackwasstopped. [159] P.W.80 Manguben Amratbhai Patel (Exh.559) has deposedthat,sheistheresidentofDipraDarwaja,shehas noknowledgeabouttheincident,sheisHostilewitness,in her Crossexamination by prosecution she has deposed that,shedoesnotrememberwhethershehasstatedbefore thePolicethat,on28.02.2002atabout08.30P.M.amobof about200persons,armedwithweaponsDhariya,Swords, Sticks, Sort of Spear, Kerosene Gallons etc. came from Randal Mata's Madh side and went towards Chudivas, whereMuslimswerebeatenandtheirhouseswereburnt. InhercrossexaminationbyaccusedNos.1to82,shehas admitted that, at 08.30P.M. mobcame andin that mob Ravaliya, Rabari, Brahman, Vaniya, Thakor were in the mob.InhercrossexaminationbyaccusedNo.83,shehas admittedthat,shehasheardthenoiseof200250persons inthemob.ShehadalsoheardthesoundofPoliceSiren andfiring.
// 476 //
[160]
P.W.85KantabenKantilalPatel(Exh.579) hasdeposed that, she is the resident of Randal Mata's Madh. In her deposition she has deposed that, on the day of incident houses of Muslimsin Chudivaswere burnt and Muslims wereinjuredbythemob.
[161]
P.W.86 Maniben Babulal Patel (Exh.580) has deposed that,sheistheresidentofRandalMata'sMadh,shehas deposedthat,onthedayofincidentamobofabout200 250 persons attacked on Chudivas, houses of Chudivas were burnt by pouring kerosene, some Muslims from Chudivaswereinjuredandwerebeatenandburnt.
[162]
P.W.87HasumatibenVinodkumarPatel(Exh.581) has deposedthat,sheistheresidentofRandalMata'sMadh, she has not stated anything supporting the prosecution caseexceptthefactthat,beforetheincidenttherewere18 housesofMuslimsinChudivas.SheisHostilewitness.In her crossexamination by prosecution she has deposed that, it is not truethat, she has stated beforethe Police that in the evening she was in her house. Mean while a mobofabout200250personsarmedwithDhariya,Sword andSharpcuttinginstrumentswenttowardsChudivasand attackedthehousesinChudivas.Houseswereburnt.
[163]
P.W.88TarabenKaushikkumar(Exh.582) hasdeposed
// 477 //
that,sheistheresidentofRandalMata'sMadh.Shehas noknowledge abouttheincident.AccusedNos.18and21 are her relatives. Before Police, she has stated that, on 28.02.2002at about08.30P.M.amobofabout200250 personsarmedwithsharpcuttinginstrumentsenteredin ChudivasandhousesofMuslimswereburntandMuslims werebeaten. [164] P.W.101 Kapilaben Narayanbhai Patel (Exh.622) has deposed that, accused No.39 is her elder son. In the incident the houses of Chudivas were burnt and many persons were injured. She has no knowledge about the deathof11persons. [165] P.W.102 Nitaben Rohitkumar Patel (Exh.623) has deposed that, accused No.38 is her husband. She has deposedthat,inChudivasamobofabout200300persons attacked, houses were burnt and many persons were injured. [166] P.W.110 Kailasben Yogeshkumar Patel (Exh.638) has deposedthat, sheistheresidentofRandalMata'smadh. On the day of incident, she was in her house, at about 08.30P.M.therewasnolight,disturbancebythemobwas continued,accusedNo.52isherfatherinlaw.Inhercross examinationbyaccusedNos.1to82shehasadmittedthat, duetocurfewherallfamilymemberswereinthehouseup
// 478 //
to08.30P.M.therewaspeaceintheMaholla.Itisadmitted byherthat,mobcameatabout08.0008.30P.M.,mob wenttowardsChudivas. [167] P.W.12BijendrasinhRampratapsinh(Exh.96)hasstated in his deposition that, at the time of incident he was servingasGasmaninL.C.B.Police,Mahesana.Vehicleof L.C.B.P.I.ShriBhimavatwaskeptwithD.S.P.,Mahesana forStrikingForceandtheywerewithD.S.P.forpetrolling and they went to Visnagar. On receiving the wireless message they went to Dipra Darwaja along with D.S.P., VisnagarPolicewasalsowiththem,whentheyreachedat theplacetherewasamobhaving200persons,armedwith sticks, dhariya and were shouting to cut, beat, mob was warnedtodisburse,asthemobwasnotdisbursed,Lathi charge,TearGasShellsandfiringintheairasdiscussed earlierwereresorted. Thereafter,mobwasdisbursedbut seven persons from the mob were arrested, they were havingSword,dhariya,sticks.Thereafter,thepersonswho wereinsidetheburninghousesweretakenoutandinjured were shifted to Government Hospital, Visnagar and the personswhowerearrestedweretakentoPoliceStation.No IdentificationParadewasdoneatthattime. In his second time deposition, he has deposed the samefactsasdeposedinhisearlierdeposition.Further,in additiontohisearlierdeposition,hehasdeposedthat,the
// 479 //
person who were arrested were taken in Police vehicle. Some of the police persons went inside the Maholla and took the persons from Maholla, at that time D.S.P. had ordered Police Inspector M.K.Pateltotakelegalactions. Thereafter, D.S.P. as well as vehicle of the witness went back. Further, he has deposed that, he stayed in Dipra Darwaja about one hour and thereafter, they returned MahesanaandtheystayedinD.S.P.Officeforwholenight. [168] P.W.13RameshjiRajuji(Exh.97) hasdeposedonoath that,on28.02.2002hewasondutywithPoliceInspector M.K.Patel. Police Constable Mahendrasinh Bhairavsinh, HeadConstable Dashrathji Amthaji, Head Constable Varvaji Shankarji, Police Constable Babubhai Mansangbhai were with him. They were in petrolling as therewasGujaratBandhandtherewascurfewinVisnagar townduetocommunalrights.Theywereinpetrollingnear LalDarwaja,theyreceivedmessagefromControlRoomthat a mob of about 200 persons have gathered in Dipra Darwaja Chudivas and burning the houses of minor community,soontheyreceivedmessage,theyimmediately went at the place and at that time mob of about 200 persons,armedwithDhariya,Sword,Sticks,SharpCutting instrumentshadattackedthehousesofminorcommunity andwereshoutingtocut,beatandburnthemandpelting ofstonewascontinued.Therefore,theywarnedthemobto disburse. Mean while Dy.S.P. Jadeja, D.S.P. and Police
// 480 //
InspectorShriBhemavatalongwiththeirstaffmembers reached at the place, again mob was warned. The mob surroundedthepersonsofminorcommunity,duetofiring intheairmobdisbursed,theyarrestedsevenpersonsfrom the mob, and they took the injured from the burning housesandtookthemtoVisnagarCivilHospitalandrestof thepersonsfromtheMahollawereshiftedtosaferplace. Sevenpersons,whowerearrestedhecannotidentifythem, as it was night time. Flame were in high and they were taking the persons out from the houses. He had not arrestedanypersonfromthemob. In his secondtimedeposition, hehasdeposedthat, after his deposition on 22.06.2008 he has stated his statement before S.I.T.as per his say when they reached DipraDarwaja,Dy.S.P.JadejaandD.S.P.Gehlotwerenot present and they came subsequently. From the place of incident he had arrested Dhirubhai Bhikhabhai and said personwashavingSwordwithhimandSwordwashanded overtoPoliceInspectorandDhirubhaiwasaskedtositin thevehicleofP.I.Thereafter,healongwithMahendrabhai went to Chudivas and save the Muslim persons. Police Inspector M.K.Patel asked them to take those Muslim personstothePoliceStationandhencethoseweretakento Police Station and at the instance of Police Inspector M.K.Patel injured were shifted to Civil Hospital and treatment was given to injured. Doctor had noted their
// 481 //
instructions and after treatment injured were taken to Police Station at about 04.30 A.M. They reached in the Hospitalatabout11.00P.M.andfrom11.00P.M.to04.00 A.M. they were in the Hospital for treatment. No injured was admitted as an indoor patient. At about 05.00 A.M. injuredwereshiftedtoGhetiyaVasandotherplaces.
[169]
P.W.46 Anupamsinh Jaysinh Gehlot (Exh.226) has deposed that, on the day of occurrence police was in petrollinginsensitiveareas,hewasalsoinpetrollingnear Visnagar, he received the wireless message about the incidentoccurredatDipraDarwaja,onreceivingthesaid message he immediately instructed hisdriver totake the vehicle towards Dipra Darwaja and when he reached at DipraDarwajaMuslimsHousesweresurroundedbyabig mobandmobhadattackedthosehouses,PoliceInspector M.K.Patel,Dy.S.P.ShriJadejawerepresentthere,theyhave triedtodisbursethemob.PersonsfromMuslimcommunity whowereinsidetheirhousesaskedtocomeoutandfrom those burning houses about 10 persons were taken out andabout80personsfromnearbyMuslimareaweretaken out and they were sent to their relatives. Seven persons werearrestedfromtheplaceofoffence,thereafterhehad instructedPoliceInspectorM.K.Pateltotakeallnecessary legalactionsthenproceededforfurtherpetrolling.During hisstayattheplace,Muslimpersonshavemadegrievance
// 482 //
that, their family members aremissing therefore, he had instructedPoliceInspectorM.K.Pateltodotheneedful. In his second time deposition, he has narrated the samefactsasdeposedinearlierdeposition.Inadditionto that,itisdeposedbyhimthat,hereachedattheplaceof offence at about 09.00 P.M. When he reached at Dipra Darwaja,Chudivas,housesofMuslimswereburningand flame was on extremelevelandmobwasthereandmob couldbeseenfromallcorners. [170] P.W.47BachubhaVesaljiJadeja(Exh.227)hasdeposed that,Vijapurbeingthesensitiveareahewasthereonthe dayofGujaratBandh.Atabout11.15A.M.hereceivedthe messagefromMahesanaControltoreachatVisnagar,he reached at Visnagar at 12.00 Noon, at the entrance of Visnagar, near Savala Darwaja, shops of Muslim persons were broken and vehicles were lying in burnt condition. There was tense atmospherein Visnagar and curfew was imposedbySubDivisionalMagistrate.Policepersonswere engaged at communal points. In Visnagar town main market is the most communal point, S.T. Stand, Market Yard,SavalaDarwaja,VariyaliBhagole,PatniDarwajaetc. are the sensitive areas. They were in petrolling, at about 12.00NoonnearS.T.StandoneMuslimHostelwasburnt and students were inside the Hostel and there he along withotherstaffmemberswentthereandtookthestudents
// 483 //
outsideandshiftedthemtosaferplace.Onepersonwas seriouslyinjured,whowasshiftedtoGovernmentHospital, thereafter in Visnagar town there was tense atmosphere andshopsofHindusinMuslimareaandthewitnesswas inmainBazarandhewasprovidedsufficientprotectionfor shiftingtheirgoodsandhewaspresentinmainbazarat about 08.30 P.M. he received the message about the incidentoccurredatDipraDarwajahencehewentthere, there was a mob of 200250 persons, pelting stones, shoutingslogans,ExecutiveMagistratewaspresent,D.S.P. Came,PoliceInspectorM.K.Patelwaspresent,mobwas warnedtodisburse.Thesituationwasundertense.From theplaceofoffence,7personswerearrested.Housesofthe Muslimswereburningandpersonsfrominsidethehouses were screaming for help. Therefore, he and other staff memberswentinsideandtenpersonsweresavedandother persons were also takenout andthosewho wereinjured shiftedtoGovernmentHospitalandthepersonswhowere arrested from the place of offence were handed over to PoliceInspectorM.K.Patel,whohadtakenthemtoPolice Stationandcomplaintwaslodgedaccordingly.Duringthe course of investigation ithascomeoutthatincident had taken place after 08.30P.M.andstatementsofwitnesses were recorded by Police Inspector M.K.Patel and those statementswereverifiedbythiswitness.Hecametoknow aboutmissingof11persons.Beingthevisitationoffence, he had instructed to arrest the absconding persons. He
// 484 //
remained present in Visnagar town as the situation was tense. In his second time deposition he has narrated the samefactsasstatedinhisearlierdeposition.Inadditionto that,hedeposedthat,on06.03.2002therewasdebrisin Dipra Darwaja, Chudivas therefore, Sweepers were called from Visnagar Municipality to clean the Chudivas, F.S.L. Team also came there, after removing the debris Panchnama was drawn in the presence of F.S.L. Officers andthereafter,offenceundersection302,120B,201were added,personswhoarestayingthere,theyhadidentified remains of their relatives. On 09.03.2002, they went to MalavTalav,alongwithPanch,MamlatdarandF.S.L.Team, Panchnamawasdrawnthere,thereafter,theyhadrecorded thestatementsofwitnesses,AnvarHusainhadtoldthat11 persons are missing, still their whereabouts are not available therefore, again they went to the place but no deadbodyorsignofburnsordeadbodywasfound,hehad verified the statements ofthe witnessesand investigation started and they had inquired about the 11 missing persons on 15.05.2002, visitation was complete, Police InspectorM.K.Patelhadarrested50personswhileother 31wereabscondingandthepersonswhowereresidingat thesceneofoffencewenttootherplaces.Personsresiding near the Malav Talav were not available therefore, the persons who are having fields near Malav Talav, their
// 485 //
statementswererecorded.Thereafter,31personswerenot available and therefore, chargesheet was submitted by Police Inspector M.K.Patel, by obtaining Injury Certificates,Map,F.S.L.Reportsetc. Hehadverifiedthe complaint and statements of the witnesses but when he hadverified,doesnotremember.Whenhehassubmitted reportaddingSection302,hedoesnotremember. [171] P.W.48 Manubhai Karshanbhai Patel (Exh.228) has deposedthat,hewaspostedasPoliceInspectorofVisnagar atthetimeofoccurrence.Hewasinpetrollinginthetown as well as in nearby villages, at about 08.30 P.M. he received the message about the occurrence, immediately alongwithPolicePersonswenttoDipraDarwaja,Executive Magistratealsoreachedsubsequentlyatthattimemobof Hindus of about 200250 persons attacked Muslims' houses, they were burning the houses, pelting stones, therefore,heaskedmobtodisburse,asthemobwasnot disbursed, he took the permission from the Executive Magistrate,meanwhileDy.S.P.Jadeja,D.S.P.Gehlotalong withtheirstaffmembersreachedthere.HousesofMuslims wereburning,fromthereabout10personswererescued.In one house Gas Cylinder burst, from said house one Muslim Girl was taken out, in the incident persons of Muslim community were injured, they were shifted to Government Hospital and complaint was recorded and registered.Thereafter,theyhadinquiredisthereanyperson
// 486 //
in the area, but there was no person, from the place of incidentsevenpersonsfromthemobarmedwithweapons werearrestedbydrawingPanchnamaandMuddamalarms wererecoveredandon01.03.2002Panchnamaofsceneof offencewasdrawnfromtheplaceofincident,nodeadbody or any article was found, F.S.L. was called by wireless message, as there was grievance before D.S.P. that some personsarenottraceabletherefore,hehadinquiredabout thosepersonsattheplaceofincidentbutneitherthedead body nor any article was found there. It is only on 06.03.2002 F.S.L. Officers have visited the place and 5 human bones, knotted hair of one lady, ornaments of differenttypeswererecoveredandPanchnamawasdrawn accordingly. Thereafter, on 09.03.2002, on receiving the message,healongwithF.S.L.Officers,hisstaffmembers andPanchaswenttoMalavTalav,Panchnamawasdrawn there,remainsofboneswererecoveredandsenttoF.S.L. Thepersonswhowerearrestedfromtheplaceofoffence, whoarethosehedoesnotremember. [172] P.W.65 Mahendrasinh Bhairavsinh (Exh.518) has deposedthat,atthetimeofoccurrence,hewaswithPolice InspectorM.K.Patelandtheywereinpetrolling,therewas Gujarat Bandh, curfew was imposed, they have done petrollingondifferentplacesandatabout08.00P.M.they wenttoPoliceStationandtheyhavereceivedthemessage about attack by Hindus' in Dipra Darwaja, they
// 487 //
immediately went to Dipra Darwaja at about 08.30 P.M. therewasamobofHindus',having200250persons,they were pelting stones, houses of Muslims' were burning, persons in the mob were having Sword, Dhariya, sticks, Pipeetc.theytriedtodisbursethemob.Theyhavearrested the seven persons from the place. In seven persons Vishnubhai Shivrambhai Patel, Bipinbhai Babubhai, Dhirubhai Bhikhabhai, Ajaybhai were there. In his statement dated 04.03.2002, he has stated the names of seven person. Those seven persons were taken in Police vehicle. He along with Rameshji, Police Inspector M.K.Patel,Varvaji,Dashrathjiwentinsidethehouseofthe Muslims and about 25 persons were saved from Muslim MahollathentheyweretakentothePoliceStationandthe Muslim persons were sent to Civil Hospital for treatment whilethepersonswhowerearrestedweretakentoPolice Station.InhispresencePoliceInspectorM.K.Patelorany other officer has not noted the names of 25 Muslim persons. The arms which were recovered from seven personswerehandedovertoPoliceInspectorM.K.Patel. Thereafter, Panchnama at Malav Talav was drawn on 09.03.2002. On 06.03.2002 he went to Chudivas, where Panchnama was drawn and knotted hairs of one lady, ornamentswererecovered,humanbonesandcontrolsand, whichwererecoveredfromMalavTalavweresenttoF.S.L.
// 488 //
[173]
P.W.83 Dashrathsinh Amthaji (Exh.572) has deposed that,onthedayofincidenthewaswithPoliceInspector M.K.Patel, they werein petrolling for whole day,at Dipra Darwajatheyreachedatabout08.35P.M.,whentheywere onDarbarRoad,theyreceivedcontrolmessageaboutthe disturbance in Dipra Darwaja, when they reached Dipra Darwajatherewasmobofabout200250persons,armed withweaponslikeDhariya,Sticks,burningrags,Kerosene Gallon etc., when they reached other Police persons like Dy.S.P. Jadeja and D.S.P. Gehlot were present, mob was shouting to cut, beat, there was fire in the houses of Chudivas, they have sorted out the injured persons from the persons running hither and thither and they were takentoPoliceStationand7personsfromthemob,armed withweaponswerearrestedandtheyweretakeninPolice vehicle.Healongwithhisstaffmemberswerestandingout sidetheChamberofPoliceInspectorM.K.Patel,Rameshji andMahendrasinh,Constablestooktheinjuredpersonsto theHospital.Atabout11.30P.M.complaintwasgivenfor registration till then this witness was there. Thereafter, again with Police Inspector M.K.Patel, he went for petrollingforwholenight.Nextdayon01.03.2002healong with Police Inspector M.K.Patel went to Chudivas, two Panchas and Writer Parbatsinh were with them. They reachedthereatabout10.0011.00A.M.Panchnamawas drawn at the scene ofoffenceandthepersons who were coming from outside were restrained. Nothing was
// 489 //
recovered from the place of offence, thereafter again they went for petrolling, again on 06.03.2002 they went to ChudivasalongwithF.S.L.Persons,Municipalitypersons, Photographer,FingerExpertetc.Hehasdeposedaboutthe execution of Panchnama dated 06.03.2002 thereafter, on 09.03.2002 they went Malav Talav along with F.S.L. Persons, Photographer, Executive Magistrate, Dy.S.P. Shri Jadeja, two panchas etc. for drawing Panchnama and Panchnamawasdrawnaccordingly.Atthattimetherewere nopublicpersonsatMalavTalav. [174] P.W.144AmrutbhaiBhikhabhaiBhimavat(Exh.767)has deposedthat,atthetimeofoccurrencehewasworkingas L.C.B.P.I.,atabout07.4509.00P.M.hereceivedmessage fromD.S.P.abouttheoccurrenceinDipraDarwaja,hewas asked to reach there hence, he along with Staff team reachedatDipraDarwaja,whereamobwasgatheredand housesofMuslimsinChudivaswereburnt,therewasabig fire, mob was disbursed by using the force by Police InspectorM.K.Patel.Dy.S.P.ShriJadejawasalsothere, persons inside the houses were screaming for help. Therefore,byenteringinthehouses10personsweretaken out from those houses. During that period one Gas Cylinderburstandtherewasbigfire.Duringsaidperiod sevenpersonswerearrestedbyPoliceInspectorM.K.Patel, thosesevenpersonswerearmedwithweapons.Thereafter, hewenttowardsVillageUmta.
// 490 //
[175]
P.W.147 Babubhai Mansangbhai Chaudhari (Exh.772) hasdeposedthat,onthedayofoccurrencehewasinthe teamofPoliceInspectorM.K.Patel,astherewasGujarat Bandh,theywereinpetrollingsince08.00A.M.Atabout 08.30P.M.theywereonDarbarRoad,theyreceivedabout theincidentofDipraDarwaja,immediatelyPoliceInspector M.K.PatelinstructedtotakethevehicletoChudivas,when they went Chudivas, disturbance was continued, it was 08.30 to09.00P.M.,about200250personswerearmed withweapons,burningrags,kerosenegallons,atthattime Dy.S.P.andD.S.P.alongwiththeirstaffmemberscameat Chudivas,mobwaspeltingstonesandcausingdisturbance andsevenpersonswerearrestedfromthemob.S.I.T.has recordedhisstatementon22.06.2008.
[176]
P.W.157 Varvaji Shankarji Chavada (Exh.811) has deposedthat,atthetimeofoccurrence,hewaswithPolice InspectorM.K.PatelasGunman.Theywereinpetrolling indifferentplacesduringtheday.Manyincidentofburning andcausingdamagetothepropertyoccurredinthetown. Theywereinpetrolling,Dy.S.P.Jadejawasalsowiththem, whenever they receivedthemessageabouttheinjuredor deceased, they shifted them to the Hospital. He was on duty up to 2.00 O'Clock. During the petrolling Head Constable Dharamshibhai Jakshibhai was injured near MuslimHostel.
// 491 //
[177]
WhenweperusetheF.I.R. itcorroboratesthesayofthe witnesses that mob of about 200 persons, armed with deadly weapons, like pipe, sticks, swords, dhariya etc. enteredintheMahollaandstartedpeltingstonesandthey were abusing the Muslims by saying sala miyao bahar aavo, mob was very much excited and were beating the witnesses,meanwhilePolicecame.
[178]
When we peruse the History, given before the Doctor P.W.42Dr.BhaveshVrajlalNayak(Exh.185)hasstatedin hisdepositionthat,on28.02.2002hewasonhisdutyas Medical officer of the General Hospital, Visnagar. Husenkhan Badarkhan Baloch (Exh.137), Fatehkhan Badarkhan Baloch (Exh.61), Karishmabanu Yusufkhan Pathan (Exh.502), Aslambhai Kadarbhai (Exh.779), Aminabibi Jahangirkhan Pathan, Saidabibi Mahmadhanif Sindhi (Exh.302), Sohil Mahmad Hanif (Exh.825), Amzadkhan Mahmadkhan Baloch (Exh.86), Faridabanu Ahmedkhan Baloch (Exh.306), Aminabibi Ahmedkhan Baloch (Exh.303), Anvarhusen Shabbirhusen Pathan (Exh.91), Sabanabibi Anvarhusen Pathan (Exh.678), Anvarkhan Basirkhan Baloch (Exh.166), Shermahmad Dalubhai Sindhi (Exh.132), Arbaz Anvarhusen Pathan (Exh.778), Hanifabibi Shabbirbhai Pathan (Exh.144), Sugrabibi Mahmadkhan Baloch (Exh.90), Aarifkhan Yakubkhan Pathan (Exh.147), Imrankhan Sabirhusen
// 492 //
Pathan (Exh.681), Reshmaben Sattarbhai (Exh.87), Rashidabibi Sattarbhai Baloch (Exh.88), Pathan Shabnoorbanu alias Shayaonara Yakubkhan (Exh.1345) and Shamimbanu Aniskhan Pathan (Exh.1350) were broughttohimatabout11.00P.M.Theyweretreatedby him. They themselves have given the History about the peltingofstoneandthrowingofAcidbythemobwhereas Ibrahimkhan Umarkhan Baloch (Exh.610) was also broughttohimatabout05.30P.M.on28.02.2002.Hewas treatedbyhim.HehimselfhasgiventheHistoryaboutthe injurybyDhariyablow.GulabkhanSabirkhanPathanwas alsobroughttohimatabout05.30P.M.on28.02.2002.He wastreatedbyhim.HehimselfhasgiventheHistoryabout the injury due to assault by the mob. This witness has furtherstatedon01.03.2002at07.20A.M.hewasonhis dutyas Medical officeroftheGeneralHospital,Visnagar. HanifabibiAbdulkarimMansuri(Exh.141)andAbdulkarim Mahmadbhai Mansuri (Exh.140) were brought to him at about 07.20 A.M. They were treated by him. They themselveshavegiventheHistoryaboutthepeltingofstone bythemob. [179] P.W.43 Dr.Bharatkumar Babubhai Solanki (Exh.212) hasstatedinhisdepositionthat,on01.03.2002hewason his duty as Medical officer of the General Hospital, Mahesana.IbrahimkhanUmarkhanBaloch(Exh.610)was broughttohimatabout02.15P.M.Hewastreatedbyhim.
// 493 //
HehimselfhadgiventheHistoryabouttheinjurybySword blow. [180] Inthisregardwhenweconsidertheargumentsadvanced bySpecialProsecutorShriM.K.Brahmbhatthasarguedin respect of History given by the witnesses before Medical Officer that, at the relevant time it was very difficult for MedicalOfficertoquestioneachandeverypatientandnote down his/her history in detail. On the other hand the injured persons were also under fear and terror and in such unpredictable circumstances the injured persons werenotinpropermentalstatetospeakwiththemedical officer and doctorwasalsomuchmoreconcernedtothe primaryjobofgivingthetreatmenttotheinjuredpersons andinthecircumstances,thetreatmentwasalsooffirst aidinnature.AstheMedicalOfficerwashavingthecrowd of patient from morning to late hours of night. Record showsthat,crowdofinjuredpersonsfromChudivaswere attendedbytheDoctoratlatehoursofnightonrelevant date.Underthesecircumstances,itisverylikelythatthe error in description by the doctor in noting the history given by the patients and even the injuries might have taken place when there is no case of defence that the injurieswerenotsustainedbythewitnessesinincidentof thisCrimeinChudivas.
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[181]
It is argued by learned advocate Shri B.S.Patel that, KarishmabanuhadgonetotheHospital,shehasdisclosed theinjuriesbypeltingstonesandthrowingofAcidbutshe did not disclosed the death of any family member. Shri B.S.Patelhasarguedthat,mostofthewitnesseshasgiven the History of injury by Acid throwing but there is no evidence supporting this kind of injury. Further, it is arguedbyhimthat,inhistorywitnesseshavenotgiventhe names of accused, if they had seen the accused in the mob, they would have certainly named the accused in history. Further, no specific role is attributed to any accused by any witness in history before the Medical Officer nor even any witness has mentioned about the weaponinthehandsofanyaccused.
[182]
Itiswellsettledthat,historygivenbytheinjuredhimselfis admissible in evidence. History beforetheMedicalofficer canonlybeconsideredascorroborativepieceofevidence and it is required to be considered in the light of other evidenceonrecord. Onrelyinguponthecaseof SMT.LICHHAMADEVIv. STATEOFRAJASTHAN,reportedin1988CriminalLaw Journalpage1812 inwhichithasbeenobservedthat, statement of disinterested person Medical Officer that, deceased told him that her motherinlaw has burnt her acceptedthoughhehasnotrecordedthesameinMedical
// 495 //
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,hewasinterestedinorinimicaldeposed towards the accused. Further, on relying upon another caseofSTATEOFGUJARATv.BHIKHAGOVAHARIJAN, reportedin1 996(1)G.L.R.PAGE292 inwhichithas been observed that, Medical officer while recording history of the injury not mentioning name of assailant underthepretextthatsuchwasthepractice.Practicewas deprecated with observations that, it is the duty of the MedicalOfficertotakedownwhatevervoluntarilyfallsfrom the lips of the victim. It would also be the duty of the MedicalOfficertoinquireandfindoutfromtheinjuredthe name of assailant, if possible. It is indeed the first and foremost duty of such doctor to take down whatever voluntarilyfallsdownfromthelipsoftheinjuredformingit part of case papers and if injured person does not volunteerofhis/herownnamingtheassailanttheninthat case,itisequallythefurtherdutyoftheconcerneddoctor to inquire and find out from him as to who was the assailant because atthatstagewhatoughtwenotknow that but for the last statement of injured recorded by doctorhemayultimatelycometotheinjurytherewouldbe nothing no other piece of evidence to tress and connect with the accused with the crime under such demanding andnottobetakenchancewiththecircumstancesifthe
// 496 //
doctorattendingtheinjuredremainsjustwoodenpassive placid unconcerned, mechanical he would be simply inadvertentlyplayinginthehandshelpingtheaccusedto gounpunished. Nodoubtitisfirstandforemostdutyofthemedical officertotreattheinjuredpersonandthatheiscertainly notpoliceofficertorecordthecomplaintbutatthesame timeinallmedicolegalcasemedicalofficerattendingupon the treating injured when has opportunities to know the materialfactsmoreparticularlythenamesofassailantshe would not be justified in not recording the same on the groundthathisfirstandlastjobwasonlytogivemedical treatmentonlytotheinjuredandthathehadnoconcern orbusinesswhatsoevertodoanythingfurtherbyrecording the names of assailants. In the cited rulings it is also observedthat,themedicalpapersindicatingthathistoryof theincidentwasgivenbyfatherofthedeceasedcreating doubtwhetherinjuredwasinfitstateofmindwhenthe complaintwasgiven.Inthatcircumstancesitwasstatedby thefatherofthedeceasedthat,doctorwaspresentwhen thecomplaintwasgiven.Underabovecircumstancesitwas held doubtful. Considering above position of law now we havetoconsidertheHistorygivenbythewitnessesbefore theDoctors.
// 497 //
[183]
In the above circumstances if in the history before the doctor, it is mentioned that, injuries were sustained in pelting stones that required to be considered for corroborationwiththeversionofthewitnessesaboutthe injuries. Nonexplanation of injuries can not discard the historymentionedbeforetheDoctor.Therefore,intheabove circumstancesifthehistoryisgivenbythepatientthatis admissibleandreliableone.Insuchagravecircumstances ifnamesofaccusedarenotgivenbythewitnesses inthe historynordetailsaboutthedeathofpersonsorinjuries are mentioned i.e. quite natural. Witnesses were under terror and they were not in proper mental state and the situation was such that, Medical Officer was much concerned togive treatment tothewitnessesrather than recordingdetailedhistoryi.e.alsonaturalone.Intheabove circumstances the arguments advanced on behalf of accused side in respectof history given bythe witnesses beforeDoctorisnotacceptable.Simplyinhistoryinjuries by pelting stone is mentioned. Witnesses have deposed before the Court about the incident of pelting of stones, which is corroborated by medical evidence and history before doctor. Therefore, that evidence is required to be consideredandthatcorroboratestheevidenceofwitnesses regarding injury causedtothem inpelting stonesandin theincident.Thus,thefactsnarratedintheF.I.R.aswell asinHistorybeforeMedicalOfficercorroboratestheversion ofwitnessesandthoseversionsarereliable.
// 498 //
SofarashistoryregardinginjurybythrowingAcidis concerned,thereisnotasinglewitnessdeposingaboutthe AcidthrowingnorthereisanyinjurybyAcidtoanyperson. MedicalevidenceisalsosilentabouttheinjuryduetoAcid throwing.Therefore,inthehistoryinjurybyAcidthrowing is mentioned that does not get any support from any evidence therefore, that portion in the history cannot be reliedupon. [184] To appreciate the evidenceofinjuredeyewitnesseswhen weperusetheMedicalevidenceLearnedSpecialProsecutor Shri M.K.Brahmbhatt, appearing on behalf of the prosecutionhasarguedthat,inthepresentincidentmany witnesses have sustainedinjuries,whichissupportedby Medicalevidence.MedicalCertificatesareproducedinthe previoustrialaswellasinthepresenttrial.Someofthe witnesses were treated privately, not in the Government Hospital. Their Medical Certificates are not available and therefore, they could not be produced. The injuries describedbythewitnessesmaynottallywiththeMedical Certificateforthereasonsthat,theincidentwasthedayof excitement and chaos. Number of persons were injured during the day at different places in different incidents. TheywerebroughttotheGovernmentHospitalandthere was one Medical Officer. There were so many injured witnessesfromChudivasalso.Consideringtheworkloadof
// 499 //
theMedicalOfficerthattoo,atthelatehoursoftheday, thereispossibilityofcommittingofmistakeinmentioning the injuries in the certificate. Therefore, variations in regardinjuriesinthedepositionofwitnessesaswellasin theMedicalCertificateandmedicalevidenceareboundto be. [185] WhileShriB.S.Patel,learnedadvocate,appearingonbehalf ofaccusedNos.1to82and84hasarguedthat,witnesses wereexaminedbyDr.NayakandbeforeDr.Nayaktheyhave narrated the fact that, they sustained injuries due to peltingofstoneandthrowingofAcid.Acidistotallyabsent in the incident. In that circumstances, they might have sustainedinjuriesinotherincidentwheretheAcidmustbe used. Further, all the medical certificates suggest simple injuries. Noneofthewitnesseshavesustainedanyburn injuries which creates doubt about the presence of this witnesses doubtful. There are some witnesses who have not gone to the Hospital and they were examined by Dr.Mansuri.ItissubmittedbyShriPatelthat,tobecomea witness in the incident, they might have chosen Dr.Mansurifortheirowntreatment.Dr.Mansuridoesnot possess any degree, he is a compounder. Looking to his evidence, he is not maintaining the record regarding the treatment.ItisfurtherarguedbyShriPatelthat,lookingto the evidence of Dr.Mansuri it appears that, injured witnesses might havesustained injuries in quarrel. Even
// 500 //
the witnesses have not disclosed before Dr.Mansuri that, they were attackedbythe mobor any one from them is killed.Thereisdifferencebetweenattackandquarrel.None oftheaccusedhavesustainedanyinjuryeitherbydeadly weaponorbysharpcuttinginstrumentorinpeltingstone. It is submitted by Shri Patel that, as per the case of prosecutiontherewasrainofthestonesfromtheterrace and roof while the accused were in the chowk, in that circumstances none of the accused has sustained any injuryofstone.Aspertheprosecutioncase,allthehouses have been put to fire but none of the accused have sustained any injury.Thus,itissubmittedbyShriPatel that,theinjuriesmentionedinthemedicalevidenceaswell as injuries narratedbythewitnessesdoesnottally with each other, which creates doubt about the injuries sustained by the witnesses. There is possibility that, witnesses might have sustained injuries in some other incidentasthereweremanyincidentsinVisnagartownon thedayofoccurrence. [186] Consideringtheargumentsadvancedonbehalfofboththe sides,whenweperusetheevidenceonrecord, P.W.42 Dr.Bhavesh Vrajlal Nayak (Exh.185) has stated in his deposition that, on 28.02.2002 he was on his duty as Medical officer of the General Hospital, Visnagar. Husenkhan Badarkhan Baloch was brought to him at about 11.00 P.M. He was treated by him. As per his
// 501 //
depositionhewasfullyconscious,hehassustainedinjury CLWonLeftLeg,approximately1Cm.X5Cm.Asperhis opinion said injury can be possible by hard and blunt substance and if no complication arise, it can be cured within4to6daysandthisinjuryispossibleinpeltingof stones. In support of this deposition he has produced Medical Certificate, vide Exh.168, which supports the depositionofthiswitnessabouttheinjuriessustainedto this witness. When we peruse the evidence of injured witness Husenkhan Badarkhan Baloch, during his first time deposition he was declared Hostile and before declaring as Hostile, he has denied the injury in pelting stones. In his crossexamination he has denied that, he hasstatedbeforethePoliceabouthisinjuryonheadand backandonLeftlegbelowkneeandonLeftShoulder.In hissecondtimedepositionhehasdeposedaboutinjuryon headbySword.Inhiscrossexaminationbyaccusedside, hehasadmittedthat,hehasstatedbeforeS.I.T.that,due to injury on the back side on head and on back due to pelting of stones and bricks, he does not remember the incident.Itisadmittedbyhiminthecrossexaminationby accusedNo.83that,hewastakentoGovernmentHospital bythePolice.Thustheinjuryasnarratedbythewitness differsfromtheinjurynarratedbytheMedicalOfficer. [187] P.W.42Dr.BhaveshVrajlalNayak(Exh.185) hasstated inhisdepositionthat,on28.02.2002hewasonhisduty
// 502 //
as Medical officer of the General Hospital, Visnagar. Fatehkhan Badarkhan Baloch was brought to him at about 11.00 P.M. He was treated by him. As per his depositionhewasfullyconscious,hehassustainedinjury CLWonRightLeg,approximately1Cm.X5Cm.Asperhis opinion said injury can be possible by hard and blunt substance and if no complication arise, it can be cured within4to5daysandthisinjuryispossiblebytheblowof iron rod. In support of this deposition he has produced Medical Certificate, vide Exh.187, which supports the depositionofthiswitnessabouttheinjuriessustainedto this witness. When we peruse the evidence of injured witness Fatehkhan Badarkhan Baloch, he has deposed that,hesustainedinjuriesonRightLegandLeftThighand on Head. He sustained injuries in throwing of pieces of stones. During his first time deposition he was declared Hostile. In his crossexamination he has denied that, he sustainedinjuriesduetopeltingofstonesbuthasstated that,hesustainedinjuriesonLeftThighduetostickblow. In his second time deposition, he has deposed that, he sustained injuries on Right Leg, Left Leg and on Head. Thus,injuryofLeftlegtallieswithmedicalevidencewhile otherinjuriesdiffers. [188] P.W.42Dr.BhaveshVrajlalNayak(Exh.185) hasstated inhisdepositionthat,on28.02.2002hewasonhisduty as Medical officer of the General Hospital, Visnagar.
// 503 //
Karishmabibi Yusufkhan Pathan was brought to him at about 11.00 P.M. She was treated by him. As per her deposition she was fully conscious, she has sustained injury Diffuse Tender Swelling Abrasion on Leg, approximately 1 Cm. X 5 Cm. As per his opinion said injury can be possible by pelting of stones and if no complicationarise,itcanbecuredwithin2to4days.In support of this deposition he has produced Medical Certificate,videExh.188,whichsupportsthedepositionof thiswitnessabouttheinjuriessustainedtothiswitness. When we peruse the evidence of injured witness, in her deposition,shehasstatedthat,shesustainedinjurieson Head in pelting stones. Thus, injury as narrated by the witness differs from the injuries narratedby the Medical Officer. [189] P.W.42Dr.BhaveshVrajlalNayak(Exh.185) hasstated inhisdepositionthat,on28.02.2002hewasonhisduty as Medical officer of the General Hospital, Visnagar. AslambhaiKadarbhaiSindhiwasbroughttohimatabout 11.00P.M.Hewastreatedbyhim.Asperhisdepositionhe wasfullyconscious,hehassustainedinjuryAbrasionon Right Index Finger,approximately 0.5Cm.X0.5Cm.As per his opinion said injury can be possible in pelting of stonesandifnocomplicationarise,itcanbecuredwithin 3 days. In support of this deposition he has produced Medical Certificate, vide Exh.189, which supports the
// 504 //
depositionofthiswitnessabouttheinjuriessustainedto this witness. When we peruse the evidence of injured witness,inhisdeposition,hehasstatedthat,hesustained injuriesonHeadinpeltingstones.Thus,injuryasnarrated by the witness differs from the injuries narrated by the MedicalOfficer. [190] P.W.42Dr.BhaveshVrajlalNayak(Exh.185) hasstated inhisdepositionthat,on28.02.2002hewasonhisduty as Medical officer of the General Hospital, Visnagar. AminabibiJahangirkhanPathan wasbroughttohimat about 11.00 P.M. She was treated by him. As per his deposition she was fully conscious, she has sustained injuryAbrasiononLeftForehead,approximately1.0Cm.X 0.5Cm.andAbrasiononRightLeg1Cm.X0.5Cm.Asper hisopinionsaidinjurycanbepossiblebyhardandblunt substancebuthedoesnotagreethat,saidinjuriescanbe possible by giving blow of Iron rod. In support of this deposition he has produced Medical Certificate, vide Exh.190, which supports the deposition of this witness abouttheinjuriessustainedtothiswitness.Onserviceof summons it is brought on record that, Aminabibi Jahangirkhandiedon07.05.2003duringthependencyof trial of this Case and therefore, her deposition was not recordedandsaidDeathCertificateofAminabibiisordered tobeexhibited.
// 505 //
[191]
P.W.42Dr.BhaveshVrajlalNayak(Exh.185) hasstated inhisdepositionthat,on28.02.2002hewasonhisduty as Medical officer of the General Hospital, Visnagar. Saidabibi Mahmadhanif Sindhi was brought to him at about 11.00 P.M. She was treated by him. As per his deposition she was fully conscious, she has sustained injuryCLWonLeftparietalregion,approximately1.0Cm. X0.5Cm.andDTSonLeftHand.Asperhisopinionsaid injury canbepossiblebyhardandbluntsubstanceand he agree that, said injuries can be possible in pelting of stones. In support of this deposition he has produced Medical Certificate, vide Exh.191, which supports the depositionofthiswitnessabouttheinjuriessustainedto this witness. When we peruse the evidence of injured witness, in her deposition, she has stated that, she sustained injuries on Head in pelting of stones. Thus, injuryasnarratedbythewitnesstallieswiththeinjuries narratedbytheMedicalOfficer.Sheissilentaboutsecond injuryonherLeftHand.
[192]
P.W.42Dr.BhaveshVrajlalNayak(Exh.185) hasstated inhisdepositionthat,on28.02.2002hewasonhisduty asMedicalofficeroftheGeneralHospital,Visnagar.Sohil MahmadHanif wasbroughttohimatabout11.00P.M. Hewastreatedbyhim.Asperhisdepositionhewasfully conscious,hehassustainedinjuryDTSAbrasiononHead 1.0Cm.X0.5Cm.andDTSAbrasiononRightLeg0.5Cm.
// 506 //
X0.5Cm.Asperhisopinionsaidinjurycanbepossibleby hardandbluntsubstanceandifnocomplicationarise,it can be cured within 4 to 6 days. He agree that, said injuriescanbepossibleinpeltingofstones.Insupportof this deposition he has produced Medical Certificate, vide Exh.192, which supports the deposition of this witness about the injuries sustained by this witness. When we perusetheevidenceofinjuredwitness,inhisdeposition, he has stated that, he sustained injurieson Leg and on Head andhewastreatedinCivilHospital.Thus,injuries as narrated by the witness tallies with the injuries narratedbytheMedicalOfficer. [193] P.W.42Dr.BhaveshVrajlalNayak(Exh.185) hasstated inhisdepositionthat,on28.02.2002hewasonhisduty as Medical officer of the General Hospital, Visnagar. AmzadkhanMahmadkhanBalochwasbroughttohimat about 11.00 P.M. He was treated by him. As per his depositionhewasfullyconscious,hehassustainedinjury CLWonForeheadleftside1.0Cm.X1.0Cm.andAbrasion onLeftAnkle1.0Cm.X1.0Cm.andAbrasiononLeftKnee 1 Cm. X 0.5 Cm. As per his opinion said injury can be possible by hard and blunt substance and if no complicationarise,itcanbecuredwithin4to6days.He agreethat,saidinjuriescanbepossiblebystickandpipe blow. In support of this deposition he has produced Medical Certificate, vide Exh.193, which supports the
// 507 //
depositionofthiswitnessabouttheinjuriessustainedby this witness. When we peruse the evidence of injured witness,inhisdeposition,hehasstatedthat,hesustained injuriesonHeadduetostickblow andhewastreatedin Civil Hospital. In his second time deposition he has deposed about injury on Left Leg by stick blow. Thus, injuriesasnarratedbythewitnesstallieswiththeinjuries narratedbytheMedicalOfficer. [194] P.W.42Dr.BhaveshVrajlalNayak(Exh.185) hasstated inhisdepositionthat,on28.02.2002hewasonhisduty as Medical officer of the General Hospital, Visnagar. FaridabanuAhmedkhanBaloch wasbroughttohimat about 11.00 P.M. She was treated by him. As per his deposition she was fully conscious, she has sustained injuryCLWonLeftHand,approximately0.5Cm.X0.5Cm. Asperhisopinionsaidinjurycanbepossiblebypeltingof stonesandifnocomplicationarise,itcanbecuredwithin 4to6days.Insupportofthisdepositionhehasproduced Medical Certificate, vide Exh.194 which supports the depositionofthiswitnessabouttheinjuriessustainedto this witness. When we peruse the evidence of injured witness, in her deposition, she has stated that, she sustained injuries on Left Hand and on forehead due to pelting stones. Thus, injury as narrated by the witness differs from the injuries narrated by the Medical Officer. Medicalevidenceissilentaboutherheadinjury.
// 508 //
[195]
P.W.42Dr.BhaveshVrajlalNayak(Exh.185) hasstated inhisdepositionthat,on28.02.2002hewasonhisduty as Medical officer of the General Hospital, Visnagar. Aminabibi Ahmedkhan Baloch was brought to him at about 11.00 P.M. She was treated by him. As per his deposition she was fully conscious, she has sustained injuryCLWonForeheadapproximately1.0Cm.X0.5Cm. and Abrasion on Left Leg 1 Cm. X 0.5 Cm. As per his opinion said injury can be possible by hard and blunt substance and if no complication arise, it can be cured within4to6days. Insupportofthisdepositionhehas producedMedicalCertificate,videExh.195,whichsupports thedepositionofthiswitnessabouttheinjuriessustained to this witness. When we peruse the evidence of injured witness, in his deposition, she has stated that, he sustainedinjuriesonForehead.Thus,injuryasnarrated by the witness tallies with the injuries narrated by the MedicalOfficer.
[196]
P.W.42Dr.BhaveshVrajlalNayak(Exh.185) hasstated inhisdepositionthat,on28.02.2002hewasonhisduty as Medical officer of the General Hospital, Visnagar. AnvarhusenShabbirhusenPathanwasbroughttohimat about 11.00 P.M. He was treated by him. As per his depositionhewasfullyconscious,hehassustainedinjury CLWonRightLegThirdToeandCLWonHeadonRight
// 509 //
Parietal and Left Parietal 1.0 Cm. X 0.5 Cm. As per his opinion said injury can be possible by hard and blunt substance and if no complication arise, it can be cured within4to6days.heagreesthat,saidinjuryNo.1canbe possible by Dhariya and injury No.2 can be possible by IronRod. Insupportofthisdepositionhehasproduced Medical Certificate, vide Exh.196, which supports the depositionofthiswitnessabouttheinjuriessustainedby this witness. When we peruse the evidence of injured witness,inhisdeposition,hehasstatedthat,hesustained injuriesonHeadandonBackduetoDhariyablowandhe wastreatedinCivilHospital.HeisHostileWitness.Inhis crossexamination, he has admitted that, on his Lt. foreheadandononRightsideonparietalregioninjurywas causedbyDhariyaandonBackside,injurywascausedby IronRod.Thus,injuriesonforeheadandonparietalregion arecorroboratedbyMedicalevidencewhileinjurycaused onbackisnotcorroboratedbytheMedicalevidence. [197] P.W.42Dr.BhaveshVrajlalNayak(Exh.185) hasstated inhisdepositionthat,on28.02.2002hewasonhisduty as Medical officer of the General Hospital, Visnagar. Sabanabibi Anvarhusen Pathan was brought to him at about 11.00 P.M. She was treated by him. As per his deposition she was fully conscious, she has sustained injuryCLWonForeheadapproximately1.0Cm.X0.5Cm. andCLWonface0.5Cm.X0.5Cm.andCLWonHead0.5
// 510 //
Cm. X 0.5 Cm. As per his opinion said injury can be possiblebyhardandbluntsubstancelikeIronRodandif nocomplicationarise,itcanbecuredwithin4to6days. In support of this deposition he has produced Medical Certificate,videExh.197,whichsupportsthedepositionof thiswitnessabouttheinjuriessustainedtothiswitness. When we peruse the evidence of injured witness, in his deposition,shehasstatedthat,shesustainedinjurieson Head due to pelting ofstones,onFace,upper andlower portionofRightEyeandLowerPortionofRightEye.Thus, injuryasnarratedbythewitnesstallieswiththeinjuries narratedbytheMedicalOfficer. [198] P.W.42Dr.BhaveshVrajlalNayak(Exh.185) hasstated inhisdepositionthat,on28.02.2002hewasonhisduty as Medical officer of the General Hospital, Visnagar. Anvarkhan Basirkhan Baloch was brought to him at about 11.00 P.M. He was treated by him. As per his depositionhewasfullyconscious,hehassustainedinjury CLWonForehead1Cm.X1Cm.,CLWonLeftForearm1.0 Cm.X0.5Cm.andCLWonrightleg0.5Cm.X0.5Cm.As per his opinion said injury can be possible by hard and blunt substance and if no complication arise, it can be curedwithin4to6days.Asperhisopinionsaidinjuries canbepossiblebytheIronroadorbyDhariya.Insupport ofthisdepositionhehasproducedMedicalCertificate,vide Exh.198, which supports the deposition of this witness
// 511 //
about the injuries sustained by this witness. When we perusetheevidenceofinjuredwitness,inhisdeposition, hehasnotstatedanythingabouttheinjuriessustainedby him.Thus,thiswitnessremainedsilentabouttheinjuries sustained by him and therefore, there is no question of tallyofinjurieswiththeMedicalEvidence. [199] P.W.42Dr.BhaveshVrajlalNayak(Exh.185) hasstated inhisdepositionthat,on28.02.2002hewasonhisduty as Medical officer of the General Hospital, Visnagar. Shermahmad Dalubhai Sindhi was brought to him at about 11.00 P.M. He was treated by him. As per his depositionhewasfullyconscious,hehassustainedinjury CLWonForehead1.0Cm.X0.5Cm.andCLWonForehead 1.0Cm.X0.5Cm.Asperhisopinionsaidinjurycanbe possible by hard and blunt substance and if no complicationarise,itcanbecuredwithin4to6days.In support of this deposition he has produced Medical Certificate,videExh.199,whichsupportsthedepositionof thiswitnessabouttheinjuriessustainedbythiswitness. When we peruse the evidence of injured witness, in his deposition, he has stated that, he sustained injuries on Head.Inhissecondtimedepositionhehasdeposedabout injuryonLipbyIronRodandonHeadbyweaponlikePipe. Thus,injuriesasnarratedbythewitnessdonottallywith theinjuriesnarratedbytheMedicalOfficer.
// 512 //
[200]
P.W.42Dr.BhaveshVrajlalNayak(Exh.185) hasstated inhisdepositionthat,on28.02.2002hewasonhisduty asMedicalofficeroftheGeneralHospital,Visnagar.Arbaz Anvarhusen Pathan was brought to him at about 11.00 P.M.Hewastreatedbyhim.Asperhisdepositionhewas fullyconscious,hehassustainedinjuryCLWonForehead 1.0Cm.X0.5Cm.Asperhisopinionsaidinjurycanbe possible by hard and blunt substance and if no complicationarise,itcanbecuredwithin4to6days.In support of this deposition he has produced Medical Certificate,videExh.200,whichsupportsthedepositionof thiswitnessabouttheinjuriessustainedbythiswitness. When we peruse the evidence of injured witness, in his deposition, he has stated that, he sustained injuries on Head.Thus,injuriesasnarratedbythewitnesstallieswith theinjuriesnarratedbytheMedicalOfficer.
[201]
P.W.42Dr.BhaveshVrajlalNayak(Exh.185) hasstated inhisdepositionthat,on28.02.2002hewasonhisduty as Medical officer of the General Hospital, Visnagar. Hanifabibi Shabbirbhai Pathan was brought to him at about 11.00 P.M. She was treated by him. As per his deposition she was fully conscious, she has sustained injuryAbrasiononLeftFoot1Cm.x1Cm.andCLWon RightHand1Cm.x0.5Cm.Asperhisopinionsaidinjury canbepossiblebyhardandbluntsubstancelikepeltingof stoneandifnocomplicationsarise,itcanbecuredwithin
// 513 //
4to6days.Insupportofthisdepositionhehasproduced Medical Certificate, vide Exh.201, which supports the depositionofthiswitnessabouttheinjuriessustainedto this witness. When we peruse the evidence of injured witness, in her deposition, she has stated that, she sustainedinjuriesonHeadduetopeltingofstones.Thus, injury as narrated by the witness do not tally with the injuriesnarratedbytheMedicalOfficer. [202] P.W.42Dr.BhaveshVrajlalNayak(Exh.185) hasstated inhisdepositionthat,on28.02.2002hewasonhisduty as Medical officer of the General Hospital, Visnagar. Sugrabibi Mahmadkhan Baloch was brought to him at about 11.00 P.M. She was treated by him. As per his deposition she was fully conscious, she has sustained injury CLW on Forehead 1.0 Cm. x 1.0 Cm. As per his opinion said injury can be possible by hard and blunt substancelikepeltingofstoneandifnocomplicationarise, it can be cured within 4 to 6 days. In support of this deposition he has produced Medical Certificate, vide Exh.202, which supports the deposition of this witness about the injuries sustained to this witness. When we perusetheevidenceofinjuredwitness,inherdeposition, this witness has stated that, she sustained injuries on Headduetopeltingofstones.Thus,injuryasnarratedby the witness tallies with the injuries narrated by the MedicalOfficer.
// 514 //
[203]
P.W.42Dr.BhaveshVrajlalNayak(Exh.185) hasstated inhisdepositionthat,on28.02.2002hewasonhisduty as Medical officer of the General Hospital, Visnagar. Aarifkhan Yakubkhan Pathan was brought to him at about 11.00 P.M. He was treated by him. As per his depositionhewasfullyconscious,hehassustainedinjury CLWonHead1.0Cm.X0.5Cm.,AbrasiononLeftEye0.5 Cm.x0.5Cm.andAbrasiononLeftAnkle0.1Cm.x0.5 Cm.Asperhisopinionsaidinjurycanbepossiblebyhard andbluntsubstanceandifnocomplicationarise,itcanbe curedwithin4to6days.Insupportofthisdepositionhe has produced Medical Certificate, vide Exh.203, which supportsthedepositionofthiswitnessabouttheinjuries sustainedbythiswitness.Whenweperusetheevidenceof injuredwitness,inhisdeposition,hehasstatedthat,he sustainedinjuriesonHead,LeftEyeandLeftAnkle.Thus, injuriesasnarratedbythewitnesstallieswiththeinjuries narratedbytheMedicalOfficer.
[204]
P.W.42Dr.BhaveshVrajlalNayak(Exh.185) hasstated inhisdepositionthat,on28.02.2002hewasonhisduty as Medical officer of the General Hospital, Visnagar. Imrankhan Sabirhusen Pathan was brought to him at about 11.00 P.M. He was treated by him. As per his depositionhewasfullyconscious,hehassustainedinjury CLW on Occipital Region of Head 1.0 Cm. X 0.5 Cm.,
// 515 //
approximately. As per his opinion said injury can be possible by hard and blunt substance and if no complicationarise,itcanbecuredwithin5to7days.In support of this deposition he has produced Medical Certificate,videExh.204,whichsupportsthedepositionof thiswitnessabouttheinjuriessustainedbythiswitness. When we peruse the evidence of injured witness, in his deposition, he has stated that, he sustained injuries on Headbystickblow.Thus,injuryasnarratedbythewitness tallieswiththeinjurynarratedbytheMedicalOfficer. [205] P.W.42Dr.BhaveshVrajlalNayak(Exh.185) hasstated inhisdepositionthat,on28.02.2002hewasonhisduty as Medical officer of the General Hospital, Visnagar. Reshmaben Sattarbhai Baloch was brought to him at about 11.00 P.M. She was treated by him. As per his deposition she was fully conscious, she has sustained injuryCLWonForehead1.0Cm.x1.0Cm.andC.L.W.On Head1.0Cm.x1.0Cm.Asperhisopinionsaidinjurycan be possible by hard and blunt substance like Dhariya reverseBlowandifnocomplicationarise,itcanbecured within5to7days. Insupportofthisdepositionhehas produced Medical Certificate, vide Exh.205, which supportsthedepositionofthiswitnessabouttheinjuries sustainedtothiswitness.Whenweperusetheevidenceof injuredwitness,inherdeposition,shehasstatedthat,she sustained injuries on Head, Forehead and on Leg by
// 516 //
Dhariya blow. Thus, injury as narrated by the witness tallieswiththeinjuriesnarratedbytheMedicalOfficer.In her second time deposition she has stated that, she has sustainedinjuriesonforeheadbyDhariyablowandonLeg byPipeblow. [206] P.W.42Dr.BhaveshVrajlalNayak(Exh.185) hasstated inhisdepositionthat,on28.02.2002hewasonhisduty as Medical officer of the General Hospital, Visnagar. Rashidabibi Sattarbhai Baloch was brought to him at about 11.00 P.M. She was treated by him. As per his deposition she was fully conscious, she has sustained injuryCLWonForehead3.0Cm.x1.0Cm.andC.L.W.on Head2.0Cm.x1.0Cm.Asperhisopinionsaidinjurycan be possible by hard and blunt substance and if no complicationarise,itcanbecuredwithin5to7days. In support of this deposition he has produced Medical Certificate,videExh.206,whichsupportsthedepositionof thiswitnessabouttheinjuriessustainedtothiswitness. When we peruse the evidence of injured witness, in her deposition,shehasstatedthat,shesustainedinjurieson HeadbyPipeblowwhereasinhersecondtimedeposition, shehasstatedthat,shehassustainedinjuryonForehead byDhariyablow.Thus,injuryasnarratedbythewitness tallieswiththeinjuriesnarratedbytheMedicalOfficerin respectofplaceofinjurybutsofarasthearmbywhich injurysustaineddiffers.
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[207]
P.W.42Dr.BhaveshVrajlalNayak(Exh.185) hasstated inhisdepositionthat,on28.02.2002hewasonhisduty as Medical officer of the General Hospital, Visnagar. Ibrahimkhan Umarkhan Baloch was brought to him at about 11.00 P.M. He was treated by him. As per his depositionhewasfullyconscious,hehassustainedinjury CLWonLeftHandForearmnearelbow2.0Cm.X1.0Cm. x0.5Cm.approximately.Asperhisopinionsaidinjurycan be possible by hard and blunt substance and if no complicationarise,itcanbecuredwithin5to7days.In support of this deposition he has produced Medical Certificate,videExh.207,whichsupportsthedepositionof thiswitnessabouttheinjuriessustainedbythiswitness. When we peruse the evidence of injured witness, in his deposition, he has stated that, he sustained injuries on HeadbySwordblowandonhandbySwordandPipeblow. Thus,injuryasnarratedbythewitnessdosnotfullytally with the injury narrated by the Medical Officer. As per MedicalCertificate,thiswitnesshasnotsustainedinjury onHeadandthus,injuryonheaddifferswiththemedical evidence.
[208]
P.W.43 Dr.Bharatkumar Babubhai Solanki (Exh.212) hasstatedinhisdepositionthat,on01.03.2002hewason his duty as Medical officer of the General Hospital, Mahesana. IbrahimkhanUmarkhanBalochwasbrought
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tohimatabout12.00Noon.Hewastreatedbyhim.Asper his deposition he was fully conscious, he has sustained fracture injury on Left Ulna and there was no fracture injury on Skull. In support of this deposition he has producedMedicalCertificate,videExh.213,whichsupports thedepositionofthiswitnessabouttheinjuriessustained bythiswitness.HehasalsoproducedtheCasePaperof IbrahimkhanUmarkhanBalochatExh.214and Transfer Paper at Exh.215. From the documentary evidence produced on record at Exh.216 it transpires that, said injuredhadtakendischargeagainstmedicaladvice. [209] P.W.42Dr.BhaveshVrajlalNayak(Exh.185) hasstated inhisdepositionthat,on01.03.2002hewasonhisdutyas Medical officer of the General Hospital, Visnagar. Hanifabibi Abdulkarim Mansuri was brought to him at about 07.20 A.M. She was treated by her. As per his deposition,hehassustainedinjuryCLWonForehead1.0 Cm.x0.5Cm.,approximatelyandDTSonLeftleg.Asper hisopinionsaidinjurycanbepossiblebyhardandblunt substance and if no complication arise, it can be cured within 4 to 6 days. In support of this deposition he has produced Medical Certificate, vide Exh.486, which supportsthedepositionofthiswitnessabouttheinjuries sustainedbythiswitness.Whenweperusetheevidenceof injuredwitness,inherdeposition,thiswitnesshasstated that,shesustainedinjuriesonHeadduetofallingdownon
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Otla.Thus,injuryasnarratedbythewitnesstallieswith theinjurynarratedbytheMedicalOfficer. [210] P.W.42Dr.BhaveshVrajlalNayak(Exh.185) hasstated inhisdepositionthat,on01.03.2002hewasonhisdutyas Medical officer of the General Hospital, Visnagar. AbdulkarimMahmadbhaiMansuriwasbroughttohimat about 07.20 A.M. He was treated by him. As per his depositionhewasfullyconscious,hehassustainedinjury CLW on Head Parietal Region 3.0 Cm. x 1.0 Cm. Bone deep. As per his opinion said injury can be possible by hardandbluntsubstanceandifnocomplicationarise,it can be cured within 4 to 6 days. In support of this deposition he has produced Medical Certificate, vide Exh.487, which supports the deposition of this witness about the injuries sustained by this witness. When we perusetheevidenceofinjuredwitness,inhisdeposition, hehasstatedthat,hesustainedinjuriesonHeadbyGupti blow.Thus,injuryasnarratedbythewitnesstallieswith theinjurynarratedbytheMedicalOfficer. [211] P.W.42Dr.BhaveshVrajlalNayak(Exh.185) hasstated inhisdepositionthat,on28.02.2002hewasonhisduty as Medical officer of the General Hospital, Visnagar. Gulabkhan Sabirkhan Pathan was brought to him at about 05.30 P.M. He was treated by him. As per his deposition he has sustained injury CLW on Occipital
// 520 //
Region1.0Cm.x0.5Cm.approximately.Asperhisopinion saidinjurycanbepossiblebyhardandbluntsubstance andifnocomplicationarise,itcanbecuredwithin4to6 days. In support of this deposition, he has produced Medical Certificate, vide Exh.604, which supports the depositionofthiswitnessabouttheinjuriessustainedby thiswitness.Sofarasexaminationofthisinjuredwitness is concerned, during the trial of this case the learned PublicProsecutorhaspassedPursisatExh.1336,bywhich it is declared by the prosecution that, the Injury Certificate,producedonrecordatExh.604isofGulabkhan SabirkhanbutitisthepetnameofAnvarkhanSabirkhan, whoisexaminedasP.W.11atExh.91.Thus,aspersayof prosecution the Injury Certificate,producedon recordat Exh.196ofAnvarhusenSabirhusenPathanandExh.604of Gulabkhan Sabirkhan Pathan are of the same persons. But on perusal of documentary evidence produced on record at Exh.196 it appears that, the name of injured personisAnvarhusainSabirkhanPathanandageofthe injuredpersonis25yearsoldandnatureofinjuriesare CLWonRightLegThirdToeandCLWonHeadonRight Parietal & Left Forehead 1.0 Cm. x 0.5 Cm. whereas on perusal of documentary evidence produced on record at Exh.604 it appears that, the name of injured person is Gulabkhan Sabirkhan Pathan and age of the injured personis50YearsoldandnatureofinjuriesareCLWon occipital region 1.0 Cm. x 0.5 Cm. Thus, apparently it
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appears that, thereissomemisconceptionon therecord anditdoesnottranspirethat,boththeseinjurycertificates areofthesamepersons.Duringthecrossexaminationof thiswitness,hehasadmittedthat,noentrywasmadein the M.L.C. Register, while issuing the Injury Certificate Exh.604. Thereafter, on 21.06.2012, the Special Public ProsecutorhaspassedPursisatExh.1368statingtherein that,earliertheyhavesubmittedPursisdeclaringthat,vide Exh.1336 they have declared that, Gulabkhan Sabirkhan PathanandAnvarhusenSabirkhanPathanbutondetailed inquiry it has come to the notice that, the Certificate producedatExh.604isinrespectofinjuredGulabkhan Sabirkhan Pathan, who is the resident of Village Savala and said person has not sustained injury in the alleged incidentandtherefore,theydonotrelyupontheMedical Certificate, produced at Exh.604 and the learned advocates, appearing on behalf of the accused persons have also made endorsement accordingly and therefore, thisdocumenthasnoevidentialvalueinthiscase. [212] P.W.42Dr.BhaveshVrajlalNayak(Exh.185) hasstated inhisdepositionthat,on28.02.2002hewasonhisduty as Medical officer of the General Hospital, Visnagar. Shamimbanu Aniskhan Pathan was brought to him at about 11.00 A.M. She was treated by him. As per his depositionshehassustainedinjuryCLWonLeftLegThird Toe0.5Cm.x0.5Cm.,approximately.Asperhisopinion
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saidinjurycanbepossiblebyhardandbluntsubstance andifnocomplicationarise,itcanbecuredwithin4to6 days. In support of this deposition he has produced Medical Certificate, vide Exh.605, which supports the depositionofthiswitnessabouttheinjuriessustainedby this witness. When we peruse the evidence of injured witness,inherdeposition,theinjuredwitnesshasstated that,shesustainedinjuriesonLeftLegToe.Thus,injury asnarratedbythewitnesstallieswiththeinjurynarrated by the Medical Officer. During the crossexamination of thiswitness,hehasadmittedthat,noentrywasmadein the M.L.C. Register, while issuing the Injury Certificate Exh.605. [213] P.W.42Dr.BhaveshVrajlalNayak(Exh.185) hasstated inhisdepositionthat,on28.02.2002hewasonhisduty as Medical officer of the General Hospital, Visnagar. PathanShabnoorbanualiasShayaonaraYakubkhanwas brought to him at about 11.00 A.M. She was treated by him.Asperhisdepositionshewasconsciousandshehas sustainedinjuryCLWonHeadandLeftParietalRegion0.5 Cm. x 0.5 Cm., approximately. As per his opinion said injurycanbepossiblebyhardandbluntsubstanceandif nocomplicationarise,itcanbecuredwithin4to6days.In support of this deposition he has produced Medical Certificate,videExh.606,whichsupportsthedepositionof thiswitnessabouttheinjuriessustainedbythiswitness.
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When we peruse the evidence of injured witness, in her deposition, the injured witness has stated that, she sustained injuries on Head. Thus, injury as narrated by thewitness tallywiththeinjurynarratedbytheMedical Officer. Duringthecrossexaminationofthiswitness,he has admitted that, no entry was made in the M.L.C. Register,whileissuingtheInjuryCertificateExh.606. [214] P.W.94 Dr.Nilesh Jayantibhai Dixit (Exh.607) and P.W.95 Dr.Kiritbhai Dahyabhai Patel (Exh.608) have stated in their respective deposition that, they have preparedtheDischargeCardproducedonrecordatMark 528/7 of Arbazkhan Anvarhusen Pathan, who was admitted in the Lions General Hospital, Mahesana on 06.04.2002 and discharged from the Hospital on 18.04.2002 on 28.02.2002 and on 10.04.2002 he was operatedbyboththesedoctorsbutboththesedoctorshave notconfirmedtheirsignaturesontheDischargeCardand therefore,saiddocumentisnotexhibited. [215] P.W.119Dr.AbdulrahimmiyaUsmanAkhumji(Exh.664) has stated in his deposition that, he is practicing at HimmatnagarandheisM.S.GeneralSurgeon.Onreferring document, produced at Mark 528/8, he has stated that, oneBashiranbibiGulabkhanSindhiwasexaminedbyhim andonexaminationitisfoundthat,shewassufferingfrom BreastCancerandshewasoperatedbyhim,byadmitting
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herasanindoorpatientfor10daysandshewastreatedby herintheeighthmonthof2002andon27.03.2007hehas issuedMedicalCertificate,whichisproducedonrecordat Exh.665. He has further stated that, operation was successful and she was free from cancer disease. This witnessisnotcrossexaminedbytheotherside. [216] P.W.146SulemanbhaiNoormahmadMansuri(Exh.771) has stated in his deposition that, on 28.02.2002 he was residingatNavavasandbeforethat,hewasservinginthe Dispensary of Dr.Rasiklal Shah and has worked as Compounder for about 20 years and he is having equipments of primary treatment. He has stated that, at thenighthours of28.02.2002hehasgiventreatmentto some persons but he does not know whether they are HinduorMuslimandhasnotmaintainedanyrecordabout them. He has further stated that, out of the persons to whomhehasgiventreatment,heknowsonlyIqbalbhaiand hehasnotinquiredaboutthehappeningofincident.P.W.2 MahmadIqbalAhmedkhanBaloch(Exh.66)hasduring his second time deposition, in crossexamination by accused Nos.1 to 82, admitted that, on 28.02.2002, at about 09.30 P.M. he has taken treatment from Doctor SulemanMansuri,residinginNavavas. P.W.4AabidbhaiGulabkhanSindhi(Exh.71),P.W.23 AhmedmiyaHasumiyaBelim(Exh.128),P.W.25Mohmad
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HanifAhmedkhanBaloch(Exh.134),P.W.30Shabbirmiya Hasumiya Belim (Exh.146) and P.W.32 Mahmadhanif Dalubhai Sindhi (Exh.150)havestatedintheirrespective depositions that, after the incident, they have taken primary treatment from Sulemanbhai but in support of theirrespectivecase,theyhavenotproducedanyMedical Certificate/InjuryCertificate. Considering the arguments advanced on behalf of both the sides in the light of medical evidence, medical certificatesandevidenceofinjuredeyewitnesses,itiswell settledthat,standardofversionofinjuredeyewitnessis veryhigh.Aninjuredpersonwillneverthinkoftoinvolve false person by leaving therealculprit.Medical evidence canonlybeconsideredascorroborativepieceofevidence,it isnotasubstantivepieceofevidence.Here,asdiscussed earliersomeinjuriestothewitnessesandmedicalevidence tallieswiththeversionofinjuredwitnesses.Insomeofthe cases, some of the injuries are tally and some of the injuries are not tally. In some cases, injury do not tally withtheversionofinjuredwitness.Insuchcircumstances, when we evaluate the version of the witnesses, in the circumstances prevailing at that time the tense atmosphere,houseswereburning,apersonhavingnoroof andthatthewitnessesarecomingfromminorcommunity. In all these circumstances if some injury tally with the version of witnessandsomeinjury donottally with the
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versionofwitnessthatisquitepossibleandnaturalone. Onthecontraryitsuggestanaturaldepositionandnota tutoredone.Intheabsenceofsuchdifferenceit maybe tutored one. Here, there is no burn injury, most of the injuries are caused in pelting stone as narrated in the history.Theinjuriestothewitnessessuggestthepresence ofthosewitnessesintheMaholla,muchcorroboratedby evidenceofMedicalOfficer.Thereisnoreasontodisbelieve theversionoftheMedicalOfficerandMedicalCertificate. Thus,thedepositionsofthewitnessesregardinginpelting stoneismuchcorroboratedbytheMedicalevidence,which istrustworthyandreliableoneanditistobekeptinmind along with the evidence of injured eyewitnesses while appreciatingtheevidenceofthewitnesses. [217] Whileappreciatingevidence,itwouldbenormalreaction of witnesses to see as to what was happening when the stoneswerebeingpelted,sloganswerebeinggiven,andto seewhowerethepersonsformingthemob.Itisonlyafter knowingwhattheyweredoing,thewitnesseswouldknow to what extent they were in danger. Usually a person under such a tense atmosphere observes better and remembersclearly.Theevidenceofthewitnessisrequired tobeappreciatedwithextracareandcaution.Hereinthe presentcasetheincidenthaslastedforalongperiodmore than one hour. There was sufficient opportunity to the witnesses to see the offenders. More particularly in a
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circumstanceswhenthemobwasfromthesamelocality. Duration of incident manner and opportunity to observe theincidentisrequiredtobeconsideredwhileappreciating theevidenceonidentification,therecannotbearejection ofevidenceonthegroundthattheywerenotabletosee themob.Therewaseverypossibilityforthewitnessesto seethepersonsinthemobasmobwasforalongperiodin the Maholla. Once the accused are well known to the witnesses. [218] 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.But therecanbenodisputethat,largenumberofpersonswere thereinthemob.Theareaandspaceoccupiedbysucha bigmobwouldbeconsiderableanditwouldbefutiletosay that,mobcouldbeseenfromanyparticularpointonlyor thatitcouldnotbeseenfromanotherparticularpoint.The positionofapersoninthemobcanbeataveryfarplace fromthatofanotherinthesamemobasthemobwasnot
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standingbutmovinghitherandthitherinChudivas.The evidence shows the presence of mob at the place of occurrenceduringtheperiod.Theeyewitnesseswerealso present. Under these circumstances there is nothing to indicatethat,theclaimofhavingseenthesomeofaccused among the mob of rioters as made by the eyewitnesses withintheirevidencerelatestoanyparticularpointoftime. Theevidenceofeyewitnessescannotbeconstruedsoasto meanthat,whatsoeverwereobservedbythemaspersons inthemobofriotersweresoobservedonlywhentheywere insidetheAhmedmiya'shouseortheirownhouseorsome other house in Chudivas they did not see anyone. Thus, theconclusionisthereforeirresistiblethat,thereisnothing in the evidence which would indicate that it was not possible for theeyewitnessestohaveseeoridentifyany persons in the mob of rioters. Evidence indicates that, therewaseverypossibilityoftheeyewitnessesbeingable toseethemob,atleastsomepersonsinthemobduring thetimeforwhichmobwasthere. [219] Thecontentionofimpossibilityoftheeyewitnesseshaving seenthemoborsomepersonsinthemobasadvancedis concernedthemobwasabout200to300.Itisevidentthat therewasincidentofpeltingstonesinthatcircumstances itwouldbeanormalbehaviourofwitnessestoseewhat washappeningswhenthestoneswerepeltedandslogans were being given. At any rate a common reaction of a
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humanbeingwouldbetotrytoascertainastofromwhere howseriousandofwhatnaturethedangerexists.When themobwouldbecollectedandgivingslogans,itwouldbe quitenaturalforthewitnessestofirsttrytoseeastowhat washappeningsandinthatprocessobviouslytoseewho werethepersonsformingthemob.Itisonlyafterknowing what theyweredoingthewitnesseswouldknowtowhat extenttheyareindanger. Prioracquaintancemaynotbeinferredfromthefact thataccusedandwitnessesaretheresidentsofthesame localityornearbyarea.Hereisaspecificcaseofwitnesses thatwitnessesandaccusedbelongtotheDipraDarwaja. Itisnotindisputethatduringtheperiodofpresent incident number of cases of serious offences were being registered and there was serious law and order problem which thepolicewasfacing.Itwasnotpossibletomake 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 bykeepingaboveevidenceinthemind.
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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. [220] Thebasicsuppositionaboutthebehaviourorreactionor perceptionofthewitnessesregardingtheincidentwillbe wrongly presumed if we expect that they should have mentionedspecificallyinspiteofthesituationprevailingat that time. We have to give a thought how a witness will expressastowhathadhappened.Theattackwasindeed by a Hindu mob with no particular enmity towards any particular victim. The actions of individual accused were onlyapartoftheactionsofthemobandnaturallywere preciseasactionsofthemobbythevictimsandwitnesses. Insuchcircumstanceshistoryasgiveninmedicalpapers isproper,whetheranybodyfromthemobwasknownto the witnesses was matter which could be stated by the witnessesonlyonspecificquestiontothem,inthelightof
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evidenceastotheconditionofinjured,tenseatmosphere, heavyburdenonthepolice,MedicalOfficer,itisimpossible toholdthatanyattempttoelicitthisspecificinformation againsttheoffendersweremadeorinjuredwitnesseswere in a position at the material point of time to give such evidence. In the situation that was prevailing at the materialtime,itwasimpossibleforInvestigatingOfficerto coollyandcalmlyelicitsuchdetailsfromthevictimswho wereundersuchtenseatmosphereandinjured.Therefore, evidence of eye witnesses requires to be carefully scrutinized as Dipra Darwaja is a big area, some of the accused are from other society area which are far from Dipra Darwaja in the absence of evidence that witness knowsaccusedpriortoincident.Noburdencanbeshifted upon accused for non doing Identification Parade. First prosecution has to establish that witness and accused know each other prior to incident but here no such positionforallaccused.Hencethispointwillbediscussed atthetimeofinvolvementofaccused. [221] In the present case it cannot be ignored that communal riotsstartedasareactioncausedbythebeliefthatKar sevakhadbeenburnttodeathbyMuslims.Theriotsare said to be retaliatory action. Therefore, there is nothing surprisingifmethodofburningisadopted.
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[222]
Therewasnoreasonforanyofthepersonfromthemobto go to Chudivas. In Chudivas only the witnesses were residing. It was not a public place or public way for a personpassingandrepassingaperson.AnyPersoncanbe expectedinChudivasforparticularpurposeonly.Specially insuchatenseatmosphereitisnotthesayofanyofthe accused that, he had been there for any other purpose. Furthertherewasnopreviousenmitybetweenthevictims andaccused.Whythewitnesseswilltrytofalselyimplicate theneighbouringpersonsbyleavingtheactualculprits.
[223]
Nowcomingtothedefenceoftheaccusedside,oneofthe defenceoftheaccusesideisthat,atthetimeofincident, no witness was present in Chudivas, they had already vacatedChudivas,onthatdayinearlyhours.Theevidence of injuries sustained by witnesses adduced by the prosecution side and the deposition of Police witnesses, speciallyD.S.P.,Dy.S.P.andotherpolicepersonsthat,they took the witnesses out from the burning houses corroborates the version of eyewitnesses about their presenceinChudivas.Thereisnopreviousenmitywiththe witnessandspeciallywiththepolicewitnesses,whythey will falsely indulged the innocent persons in such a heinous crime particularly when the evidence of police witnesses suggest that, witnesses as well as injured witnessesweretakentoPoliceStationfromChudivasand fromtheretheyweretakentoHospitalandaftertreatment
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they were shifted to safer place like Navavas and Ghetiyavas. Thus, this is the strongest evidence of the presenceoftheinjuredeyewitnessesintheMaholla. Oneofthemaindefenceoftheaccusedsideisthat,it is highly impossible to have 200300 persons mob in Chudivasatatime.Forthispurposewhenweconsiderthe situationofChudivasaswellascaseofprosecution,itis not the case of prosecution that, mob of about 200300 personswasatoneplaceinChudivasatatime.Thereare two to three Naveli, open chowk admeasuring 540.Sq.Ft. approximately between said houses and also open space admeasuring32x25Sq.Ft.Approximatelyonthebackside of houseNos.19,20and21. Inthatcircumstances,itis quite possible to have 200300 persons in Chudivas. We cannot expect from the mob that, to stand at one place, mobwillcertainlymovefromhitherandthitherandinthat circumstances,itisquitepossibletohavethemobof200 300personsinwholeareaofChudivas.Thus,thisdefence of accused side is not acceptable. Another defence of accusedsideisthat,burningofhousesbyburningbundles of grass and household looted is concerned, it is an exaggeration.Butwhenweconsiderthisevidence ofthis witness,itcannotbeconsideredasanexaggeration.Onthe contrary it can beconsideredasclarificationhowandin what manner the houses wereburnt and that cannot be discarded.
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Sofarasopportunitytoseetheincidentisconcerned, from the evidence of P.W.1 Fatehkhan Badarkhan Baloch (Exh.61) it transpires that, on seeing the mob entering in Chudivas, he went inside the house of Ahmedmiya. Thus, before he entered in Ahmedmiya's house, he was having sufficient opportunities to see the mob, as he was intheMaholla.Inthatcircumstancesif thiswitnessissayingthat,hehadseenthemob,entering intheMaholla,armedwithdeadlyweapons,burningrags, dhariyaandtheywerepeltingstonesi.e.quitereliable.If theintentionofthiswitnesswastoindulgefalselytoanyof theaccused,hewouldhavecertainlyattributedovertactto theaccusedpersonsbutheisdeposingthat,hehadnot seen, who had thrown the stones. One of the defence of accusedsideisthat,hecouldnotseetheburningofhouse ofLuckyCyclewala. First in the Maholla house of Lucky Cyclewala was burntthereafter,mobcameintheMaholla.Itisdeniedby himthat,hecannotseetheburningofthehouseofLucky Cyclewala.Whenthathousewasburnthewasintheopen spaceonhishouse.Atthattime25to50Patels'fromDipra DarwajawerestandingintheOpenChowk.9Personswere armed with the Dhariya, Sword etc. Earlier he was not having any relation with those nine persons. From the deposition of this witness, it has come out that, Auto
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Rickshawand housesweresetonfireanddamageswere causedtotheproperties.Thisfactismuchsupportedfrom thePanchnama,evidenceofsomeoftheHinduwitnesses andPoliceWitnessesandtherefore,thereisnoreasonto disbelieve this witness on this point. No doubt, after incidentintheyear2002,thiswitnessissayingthat,he wenttoGhetiyavasandhenevermetwithanyaccused,it does not amount ofdisappearanceoffear inthemindof witness. So far as submission before Nanavati Panch is concerned, he has stated that, he does not remember whether he made anysubmissionbeforeNanavatipanch. Witnesswasshownoneletterandonseeingthatletter,he hasidentifiedhissignatureintheletteranddeposedthat, saidletterwasgivenbyhimtoNanavatipanch,whichisin theformofaffidavitbeforeNotary.Itisdeniedbyhimthat, onthedayofincident,earlyinthemorningtheyleftthe area and went toGhetiyavas. Theapplication, which was preferredbeforeNanavatiPanchisproducedvideExh.1055 andaffidavitisproducedonrecordatExh.1056butboth the documents are exhibited only for signature purpose. Those documents are not proved according to law. Therefore,noreliancecanbeplacedonthisapplications. [224] Whenweevaluatetheevidenceof P.W.2MahmadIqbal AhmedkhanBaloch(Exh.66) inhiscrossexaminationon behalfofaccusedNos.1to82and84,hehasdeposedthat, he is having three houses in Ghetiyavas. His father is
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servinginG.E.B.PriortoincidenthewasresidinginDipra Darwaja.HeisservingintheshopofRafikAbdulMansuri, whoistheresidentofVillageKada.Complaintwaslodged atabout10.00P.M.Afterhewasinjured,policecameafter one and half hour. He was taken to House No.7 of Ismailbhaiandafteroneandhalfhour,houseofIsmailbhai wasburnt.Rickshawswhichareburnt,theywerelyingin theMuslimMahollaandthoseRickshawsweretakenoutof Dipra Darwaja. It is admitted by him that, house of Kalumiya Nannumiyawasclosed,out of 18 housesthere were Gas Connection in five houses, none of them Gas Cylinder was burst, before they went to Police Station, when they went to Police Station thereafter one Gas Cylinder was burst in the Maholla. In his cross examinationbyaccusedNo.1to82hehasdeposedthat,he does not remember whether Ibrahimkhan Baloch was injured at about 02.00to02.30P.M. and acomplaint in thatrespectwaslodgedbythiswitness.Aspersayofthis witness,hereceivedthemessageaboutIbrahimkhanafter 4to5days. Thiswitnesswasinjurednearthehouseof Shabbirmiya.Hewasnotinjuredwhenhecameoutfrom his house. He was injured at about 04.30 to 05.00 P.M. Afterhewasinjured,hewasinthehouseofShabbirmiya Hasumiya. That house was burnt at about 08.00 P.M. therefore,tosavehislife,hecameoutfromthathouseand atthattimehewasattacked.Hedoesnotremembertosave theirliveswherehisfamilymemberswere.Atabout08.30
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P.M. there was electricity in Chudivas. In Shabbirmiya's house there were about 45 persons, some of them were injured. He had not asked about them about his injury. DoorofShabbirmiya'shousewas7Ft.inheightand4Ft. in width. From Shabbirmiya's house he rushed towards Randal Mata Madh. Other persons from Shabbirmiya's house were also rushing behind him. He does not remember at that time how many houses in the Maholla wereburning.HedoesnotrememberwhetherYusufkhan Muradkhan was with them in Shabbirmiya's house, whether any of 11 persons who have died was in Shabbirmiya'sHouse.Noburialritualswascarriedoutin respectofdeathof11persons.Remainswereidentifiedby Yusufkhan in his presence. From the Police station they went to Navavas while family members of Mahmad Hanif wenttoGhetiyavas.MahmadHanifremainedwithhimat Navavas. Whether any injured person stayed in Navavas during the night, he has no knowledge. On the next of incident, he came to know that his family members and familymembersofMahmadHanifwereinGhetiyavas.They stayedinNavavasforabout3andhalfmonthsto4months. Thereafter,MahmadHanifalongwithhisfamilymembers went to Ishaqpura, Kheralu, after two months he met Mahmad Hanif. Police called Yusufkhan Muradkhan. He also went with Yusufkhan Muradkhan on 06.03.2002 at about09.00P.M.Further,inhiscrossexaminationhehas stated that, at the time of earlier deposition he hadnot
// 538 //
soughtforPoliceprotectionandhewasunderfear.Tillhe madestatementbeforeS.I.T.that,hehasnotinformedto any Government agency, Police agency or in the Court aboutfearorthatcertainfactsremainedunstatedinthe Complaintorinearlierdeposition. Itisnotstatedbefore S.I.T.thatmobwasbigandhetoldYusufbhaitocometo Police station to lodge the complaint but the mental conditionofYusufbhaiwasnotgood.Duringsixyearshe hasnotstatedbeforeanyauthoritythat,investigationwas notproperlyconducted.Itisdeniedbyhimthat,incident started at about 04.00 P.M. is not stated either in the ComplaintorinfirsttimedepositionorbeforeS.I.T.inthe statement dated 12.03.2008 that, a mob of about 200 persons armed with Dhariya, Sword, Kerosene Tins etc. entered in the Maholla and they were shouting Muslims come out and also shouting that, they will kill them nor statedeitherindepositionbeforecourtorbeforeS.I.T.orin thecomplaintthat,whenthePolicecameattheentranceof Mahollaandaskedthat,theyarethepoliceandonhearing thevoice,MuslimpersonsofMahollacameoutandwentto the Police Station. It is denied by him that, in his complaintaswellasdepositionbeforetheCourt,hehasnot statedthat,Yusufbhaitoldhimthat,11personsarekilled beforehiseyesandhealsotoldthenameofthedeceased aswellasaccused.Hedoesnotrememberwhetheratthe timeofrecordingofcomplaint,depositionbeforetheCourt orstatementbeforeS.I.T.hehasstatedthat,atthetimeof
// 539 //
lodgingthecomplaint,MohmadHanifwaswithhim.Itis deniedbyhimthat,hehasnotstatedinthecomplaintthat, IbrahimkhanwenttocallthePolice,hewasattackedonthe wayandhedidnotturnedback. Hedoesnotremember whetherhehasstatedeitherinthecomplaintordeposedin hisdepositionorstatedinhisstatementbeforeS.I.T.when the family members of Yusufbhai were beaten, children inside the house were screaming for help, three lady accusedweregivingkerosenegallontothemalemembers to use that kerosene for burning thedead bodies.In his crossexaminationbyaccusedNo.83hehasdeniedthat,in his complaint he has not stated that, police took the persons,whowerestandingattheentranceofMaholla.He doesnotrememberwhetherhehasstatedbeforeS.I.T.orin complaintthat,whenhewasgivingthecomplaintinPolice Inspector'sChamberB.J.P.Leaderswerepresentandthey weredictatingtheComplaint.Itisdeniedbyhimthat,he hasnotstatedbeforetheS.I.T.thatYusufkhanhasgiven thenamesofaccusedpersonstothePolice,whokilledthe 11 persons. He doesnot remember that,he has stated before S.I.T. whether thenamesin thecomplaintarenot written as per his say. It is denied by him that, he has statedbeforeS.I.T.that,whenhesignedthecomplaint,he had not read the complaint and he was not having knowledgeaboutthenamesofaccused.Itisdeniedbyhim that, he has stated before S.I.T. that when first time he came to the court to depose then only he came to know
// 540 //
thatnamesinthecomplaintarenotwrittenasperhissay. Itisadmittedbyhimthat,hehasstatedbeforeS.I.T.that, when he went to the Visnagar Police Station, Yusufkhan waswithhim.Itisdeniedbyhimthat,underpressureby S.I.T.hehasdeposedthefactsagainsttheaccusedNo.83. Itisdeniedbyhimthat,heistellingliethaton06.03.2002 and 09.03.2002 Police Inspector M.K.Patel has called themandhealongwithYusufkhanwenttohisChamber. HehadnotseenPoliceInspectorM.K.Patelinthemob. ForthefirsttimehesawPoliceInspectorM.K.Patelwhen hewenttolodgethecomplaint.Itisdeniedbyhimthat,he saw Police Inspector M.K.Patel at about 08.30 P.M. in Chudivasarea.UptowhattimeD.S.P.wasinChudivas,he doesnotremember.BeforeD.S.P.cameotherPolicepersons reachedChudivas.Itisadmittedbyhimthat,afterlodging thecomplaint,injuredwereshiftedtotheCivilHospitaland after treatment they were sent to Ghetiyavas or Navavas. Whenhewaslodgingthecomplaint,injuredwereshiftedto theHospital.Hehadnotaccompaniedtheinjuredpersons toCivilHospital.HewenttoNavavasalongwithMahmad Hanif Dalubhai Sindhi. At that time there was tense atmosphere in the town. He does not remember that, he alonewillinglywenttolodgethecomplaint.Itisdeniedby himthat,PoliceInspectorhasnotrecordedthestatement as per his say. It is not true that, Police Inspector M.K.Patel was asking him and Writer was writing the complaint.Itisdeniedbyhimthat,hehasgiventhetimeof
// 541 //
incidenttothePoliceat08.30P.M.Hedoesnotremember whetherthecomplaintwaswritteninthePoliceStationin the presence of M.L.A. Shri Prahladbhai Gosa and police waswriting thecomplaintbyaskinghimandthisfactis stated by the witness after seven years of his first time deposition. Further, he has deposed that, when he came out from his house he saw D.S.P. at the entrance of Chudivas, he does not remember whether Dy.S.P. Shri Jadejaandother23policepersons,werethere.Hedoes not remember that, whether Collector and other Muslim LeadersandDefenceMinisterMr.JeorzFarnandizmethim andhetoldthat,thecomplaintisnotwrittenasperhissay. Hedoesnotremember,whetheratthetimeofincident,all thepersonsofChudivasweresittingtogether.Hedoesnot remember whether at the time of commission of crime, many persons of Maholla were in side the house of Ahmedbhai Hasubhai. He does not remember whether Mamlatdar Shri Rathod came at the place of offence. He doesnotrememberwhetherhisstatementwasrecordedby Nanavati Panch. He does not remember whether Training CenterisrunninginModasaCitytotrainthewitnesses.It isdeniedbyhimthat,heistrainedinthatcenterhowto deposebeforetheCourt.Itisdeniedbyhimthat,hewas threatenedbyShriBarottomakestatementasperhissay andhewastoldthat,hewillbegivenreliefamountifhe willmakestatementasperhissay.Hedoesnotremember that, S.I.T. declared that if any person informs how the
// 542 //
dead bodies were taken to Malav Talav, they will be paid prizeforthat.InhiscrossexaminationbyaccusedNos.1 to82and84hehasstatedthat,heknewPrahladbhaiGosa as he is politician. In his crossexamination by accused No.85, he was shown his own handwriting, which is producedvideMark1000/1.Headmitshissignaturebut hedoesnotrememberwhetherhehasreadthatwritings.It is admitted by him that, Islamic Relief Committee has allotted houses to the victims. Before incident he was having7to8houses,3inChudivasand4inGhetiyavas, LalDarwaja.Hishouseswereburntandtherefore,hewent to Navavas. It is admitted byhim that, personsfrom the mobhadnotenteredintheHouseofShabbirmiyaandthe personswhowereinsidetheShabbirmiya'shousewerenot injured bythe mob.Itisadmittedbyhimthat,whenhe enteredinthehouseofShabbirmiya,mobhadenteredwith deadlyweapons,keroseneandPetrolgallonsetc.butthey have not burnt the house of Shabbirmiya till night. Mob hadnotcauseddamagetothehouseofShabbirmiya.When hecameoutfromhishouse,therewaslightandmobwas there.Ithasnothappenedthat,mobhadsurroundedhim and attackeduponinhaphazardmanner.Whenhecame outfromhishouse,hewasatadistanceof25Ft.fromthe mob. Mob had attacked him, due to injury he fell down eventhoughmobwasbeatinghim.Immediatelyhewentto the Shabbirmiya's house. It is denied by him that, this complaintisgivenattheinstanceofMuslimleadersaswell
// 543 //
asinthecollusionofhigherpoliceofficers. Thus from the above crossexamination of the complainant,nothingcomesoutfromwhichadoubtcanbe createdaboutthepresenceofcomplainantinChudivas,on thecontraryitismuchclarifiedincrossexaminationthat, beforeincidenthewasstayinginChudivasthoughhaving another house in Ghetiyavas. His injuries are also supportedincrossexamination,burningofAutoRickshaw and house of Ismailbhai is also supported in cross examination.SofarasburstofGasCylinderisconcerned, incrossexaminationithasmadeclearthat,thatincident occurredafterthewitnesseswenttoPoliceStation.Sofar asinjuriestoIbrahimisconcerned,ithasmoreclarifiedin crossexaminationthat,hecametoknowabouthisinjuries after4to5days.Thus,thesayofprosecutionthat,Ibrahim wasinjured,isreliableone.Thefactwhereandwhenthis witnesswasinjured,ismoreclarifiedincrossexamination bythiswitness.Hewasinjuredwhenhecameoutfromhis houseandwenttoShabbirmiya'shouse.Thefactslikeafter theincidentthewitnesswenttoPoliceStation,lodgedthe complaint and then went to Navavas and Ghetiyavas are much established in crossexamination also. In the circumstances when the most of the facts of the Chief examination of this witness are also brought in cross examination then there is nothing that remains to disbelievethesayofthiswitnessabouttheincidentinhis
// 544 //
chiefexamination that is in a case when he is the complainant, he immediately lodge the complaint and narrated the incident in the complaint also. Thus, the storyofthiswitnessregardingpeltingofstones,settingon firethehouses,presenceofmobintheMaholla,abusing andshoutingbythemob,causinginjuriestothewitnesses etc. are well establishedin thedeposition ofthiswitness therefore, there is no reason to disbelieve thesay of this witnessabouttheincident,whichhehasnarratedinhis chiefexaminationexceptthefactswhicharenotbelievedby this court as discussed earlier. So far as contradictions andomissionswhicharebroughtonrecordfromthecross examinationofthiswitnessareofsuchanaturewhichare naturaloneunderthecircumstancesinwhichcomplaintas wellasstatementsofthiswitnesswererecordedandthatis too,insuchagraveandtenseatmosphere.Consideringthe mental and physical condition of the complainant, it is quiteimpossibletoacceptfromhimthedetailsofincident. The main gist of the incident, is narrated by the complainant and contradictions, omissions and discrepancies in such a circumstances becomes insignificant and immaterial, on that count credibility of theevidenceofwitnesscannotbedoubted. [225] P.W.3 Gulabkhan alias Gulubhai Kayamkhan Sindhi (Exh.70)isthehostilewitness.Asperthedepositionofthis witness,soonaspeltingofstonesstarted,hewentinside
// 545 //
thehouseofAhmedmiya.Thus,hewashavingopportunity to see the mob before he went inside the house. His presenceintheMahollaisnaturalone,heistheresidentof Maholla,whenhecameoutfromthehouseofAhmedmiya, therewerehighflamesandsmokeandtheywerestanding intheopenchowk.Fromthisdeposition,itiscorroborated that,housesweresetonfireandhecouldseethemoband mob was armed with weapons. He is the resident of Chudivas and therefore, his presence in Chudivas is natural one. His evidence can only be considered for corroborationpurposebeingHostileone. [226] P.W.4 Aabidbhai Gulabkhan Sindhi (Exh.71) is the resident of Chudivas, his presence in the Maholla is genuine one. He is deposing about setting on fire the houses and pelting stones, abusing and shouting by the mob.Inhiscrossexaminationhehasadmittedthat,hehas notstatedbeforethePolicethat,someofthepersonsfrom themobwerepeltingstonesfromtheirhouses.Whenthis witnesswasinjured,atthattimehewasinchowk,situated inChudivasalongwithhimtherewere5to6personsfrom their Maholla. His father, one Majidkhan, Behlim AmzadbhaiandHanifwerethere.Theywereinjuredbythe mobandthereafter,alongwithhisfatherandotherpersons oftheMahollawentinthehouseofAhmedbhaiandstayed thereupto09.15P.M.Theycameoutonlyatabout09.15 P.M. when the house of Ahmedbhai was burning. It is
// 546 //
admittedbythiswitnessthat,thepersonswhowereinside the Ahmedbhai's house were not injured. But the other personswhocameinAhmedmiya'shouseafterhim,were injured.Till09.15P.M.theywereinsidethehousebutthey hadnotalkabouttheirinjury.ComplainantMahmadIqbal wasalsothere.Itisdeniedbyhimthat,whentheywere sittingthere,theydecidedthat,complaintshouldbegiven by Mahmad Iqbal. It is denied by him that, the names whicharegivenbythecomplainantinthecomplaintwere decidedbythem. Inhiscrossexaminationhehasdeposedthat,hehas admittedthat,whentheincidentstarted,allpersonsfrom MahollagatheredinthechowkandAhmedbhaiHasubhai werenotthere.Itisadmittedbyhimthat,firsttheyheard the noise to cut, beat therefore, the persons who were sittingintheMahollawereunderfearandduetofearthey wentinsidetheirhouses.Healongwithhisfamilymembers alsowentinsidehishouse.Doorofhishousewasopen.He doesnotrememberthat,mobabout200personsenteredin thechowkatatime.After20minutesfrom04.30P.M.they had startedburningthehouses.Hishousewasburntat about05.00to06.00P.M.Hishouseishavingonedoorand Groundfloorconstructiononly.Mobhadstartedburning hishousefrombackside.Personsfromthemobclimbed uponhishouse,hesawthem.Hewashavinghouseofone room only. Due to burning of their house, all his family
// 547 //
memberswenttowardsChowk,thentheyhadnotseenthe mob. Then they went to Shabbirmiya Hasumiya's house, whichishavingGroundFloorplusfirstfloor.Otherpersons fromMahollawerealsothere.Whenthepolicecameand asked them to come out, they came out. It has not happened that, hisfamilymemberswenttothehouseof AhmedmiyaHasumiyanortothehouseofShabbirmiya.He does not remember whether complainant was in Shabbirmiya'shouse.Itisdeniedbyhimthat,noonecan seeYusufkhan'shousefromShabbirmiya'shouse.Doorof Shabbirmiya's house is falling towards chowk. When he wasinjured,heisunabletosay.TherearePatels'houses surrounding their houses, having two to three floors. He does not remember that, he has stated before the Police that, police had arrested some persons from theplaceof incident.Itisdeniedbyhimthat,inhisstatementdated 01.03.2002hehasstatedthat,policefiredintheairand mob tried to run away and police had arrested some persons.Whenhisstatementwasrecordedon10.03.2002, he is unable to say. Therewas no opportunity to remain presentinburialritualsceremonyofthesaid11persons. Hehasnoknowledgeabouttheburialritualsof11persons. Itisadmittedbyhimthat,inhisearlierstatementandin hisearlierdeposition,hehasnotstatedthat,duetoinjury therewasprofusebloodingandduetogiddiness hewent insidehishouse.Itisdeniedbyhimthat,hehasnotstated beforeVisnagarPolicethat,hehimselfhasseenkillingof
// 548 //
family members of Yusufkhan Muradkhan. He does not remember whether at the time of recording statement by S.I.T.hisbothearlierstatementswerereadovertohim.Itis admittedbyhimthat,inhisstatementbeforeS.I.T.dated 24.05.2008 he has stated that, both the statements, recordedbyVisnagarPolicearereadovertohim,whichare correctandasperhisstatement.Itisadmittedbyhimthat, inhisstatementdated10.03.2002,beforeVisnagarPolice hehasstatedthat,hisstatementdated01.03.2002isread overtohim,whichiscorrectone.Inhiscrossexamination byaccusedNo.83hehasdeniedthat,inhistwostatements before Visnagar Police and in deposition he has stated abouttheoccurrenceofincidentatabout04.30P.M.Itis admittedbyhimthat,hehasnotstatedinearlierstatement andearlierdepositionthat,mobwashavingpetrolgallons. Itisadmittedbyhimthat,hehasnotstatedbeforeS.I.T.or anyPolicestatementorbeforeCourtthat,policecamenear thehouseofNazirmiyaKalumiya. NoPoliceOfficercame. Police Inspector M.K.Patelwasnot thereandthepolice who were standing at the entrance asked them to accompanythepolice.Itisdeniedbyhimthat,hehasnot stated either his statements or in earlier deposition that, police had not taken them to Civil Hospital. He took the treatmentfromDr.Suleman.Itisadmittedbyhimthat,in hisearlierdepositionandstatementbeforeS.I.T.hehasnot statedthat,hesawkillingoffamilymembersofYusufkhan bythemobfromhismaternaluncle'shouse.Hehasdenied
// 549 //
that,hehasnotstatedbeforeS.I.T.that,after28.02.2002 heneverwenttoChudivas.Hedoesnotrememberthat,in his statement dated 01.03.2002 before Police Inspector M.K.Patel he has stated that, Police has arrested some personsfromthemob.Itisadmittedbyhimthat,atabout 08.30P.M.hewasinhishousebutitisdeniedbyhimthat, atthattimemobcameandstartedpeltingstones.Hedoes not remember whether Police Inspector M.K.Patel along with other police came in vehicle and police had fired to save the Muslims of Chudivas. He is unable to say that, how many persons came out from Chudivas. When Mahmad Iqbal lodged the complaint, they were sitting in the compound of PoliceStation.Inhiscrossexamination byaccusedNo.85hehasdeposedthat,hecametoknow abouttheriotsatabout02.30to03.00P.M.Hewasinthe Maholla.Hedoesnotrememberwhenthemobcamefirst theystartedbeating.Itisadmittedbyhimthat,firstmob started burning thehouses. Heisunable to say atwhat time he was beaten by the mob. He does not remember whenhefelldownforfivetotenminutes,whetherpersons fromthemobhadbeatenhim.Whenhebecameconscious hewasintheMaholla.MobwasalsointheMaholla,armed withdeadlyweapons. Aftertheincidenttheywereshifted to Ghetiyavas then Islamic Relief committee has allotted housetohim.Heisstayingthere.Itisdeniedbyhimthat, soon as they came to know about the riots and tense atmospheretheywenttoGhetiyavas.
// 550 //
Considering the crossexamination of this witness, possibilityofseeingtheincidentbythiswitness,cannotbe doubted,itwasthenaturalbehaviourofthewitnesstosee whatishappening,whenthemobenteredintheMaholla andmobwaspeltingstoneandshoutingslogansandasa commonreactionofahumanbeingeverypersonwouldtry toascertainastofromwhereandhowseriousandofwhat nature thedangerexists.Ifthiswitnessfirsttriedtosee whatishappeningsandhesawthepeltingstones,shouting slogans, which is supported by other evidence is reliable one. Medical evidence supports the injuries to the witnesses, which corroborates the version of this witness about the injuries in pelting stones but so far as burns injuries are concerned, there is not a single person who sustained burns injuries and therefore, the say of this witnessabouttheburnsinjuriesanddeathof11persons due to burns injuries is not supported by any other evidence.Ifhealongwithotherpersonsduetofearwentin sidetheirhouses,thenthereisnothingunnaturalinsuch a grave and seriousatmosphere,everyoneliketogotoa saferplace.Fromthecrossexamination,itselftranspires the burning of houses by the mob in Chudivas, as his house was burnt, he went to the house of Shabbirmiya, there is nothing unnatural as Shabbirmiya's house was having ground floor andfirstfloor,beforethat,ifhehad seen the incident, that is natural one. He is not
// 551 //
corroboratingthefactthat,mobwashavingpetrolgallons, there is contradictions in his depositions about the narration of killing incident. We cannot expect from this witnessthat,hewillmentioneachandeverythinginhis statement in such a grave and prevailing circumstances. This witness is having no previous enmity with any accused.Hehasnotfalselyattributedanyovertacttoany accused.Thoughtherearesomecontradictions,omissions, exaggerationsinhisdepositionbutthosearenaturalone, which suggest that, this witness is not tutored one and giving natural evidence. Thus, from crossexamination nothing comes out from which we can disregard the narration of the incident in his chiefexamination. The evidence of this witness is supported by the Police witnessesandothereyewitnesses,medicalwitnessesetc. thereisnoreasontodisbelievethiswitnessonthatcount. [227] P.W.5 Zubedabibi Mahebubkhan Baloch (Exh.84), consideringthewholeevidenceofthiswitness,sheisthe Hostile witness. Her evidence is to be considered for corroborationpurpose.Shewasinherhouseatthetimeof incident.Herpresenceatthetimeanddayofoccurrencein Chudivas is natural one. There is nothing in cross examination from which we can discard her presence in Chudivas.ShehassupportedenteringofmobinChudivas with deadly weapons, pelting of stones, abusing and shouting slogans, burningofhouses,ifshehasseenthe
// 552 //
mobenteringintheMaholla,thatisquitenatural.Itisthe normal reaction ofapersontoseewhat washappenings when the stones were being pelted, slogans were being shoutedandtoseewhoarethepersonsformingthemob.It isonlyafterwhattheyweredoingthewitnesswouldknow to what extent he was in danger under such a tense atmosphere any witness observes better. In that circumstancesifthiswitnessisnarratingabovefactsand that too, in crossexamination mostly there is denial, nothing comes out from which we can discard pelting of stones, burning houses, shouting of slogans, entering of mobetc.Onthecontraryinhercrossexamination,ithas come out that 16 to 17 houses were burnt by pouring keroseneandtherewerehighflamesandmobwerepelting stonesfromtheterrace.Wholecrossexaminationsupports thesayofthewitnessabouttheincident.Sofarasovertact bythemobregardingcommittingoflootisconcerned,itis corroboratedbyotherevidenceandthesayofthiswitness about the loot can only be considered for corroboration purpose as it is statedafter declaring him Hostile. There was sufficient opportunities for the witness to see the offenders,durationofincident,mannerandopportunities toobservetheincidentwassuchthat,thiswitnesscould easily observe the incident. So far as omissions, contradictions and discrepancies those are of natural in nature and minor discrepancies. In the absence of those discrepancies and contradictions, a person can think the
// 553 //
deposition as tutored one. On the contrary, these contradictions, discrepancies suggest the natural deposition.Further,thereisnoconsistentimprovementsin her deposition and the arguments of accused side in respectofimpossibilitytoseethemobisunrealistic.Seeing orobservingthemobisnotthesamethingasobservinga singlestationaryobject.Therewerelargenumberofmob, consideringtheareaandspaceoccupiedbythemobwas considerable,itwouldbefutiletosaythat,mobcouldbe seenbythewitnessfromanyparticularpointandthatit couldnotbeseenbythewitnessfromanotherparticular point. The evidenceofthewitnessshowsthepresenceof mobintheChudivas,duringthetimeofoccurrence,which iswellsupportedbypolicewitnessesandalsouptosome extent supported by Patel witnesses. Therefore, if the witnessclaimsthat,shehadseentheincidentthatisquite natural, it cannot be construed that, she was inside the house therefore, it was not possible for her to see the incident. There was sufficient light of flames as well as some natural light, in that circumstances seeing of the incidentbywitnessisacceptable. [228] P.W.6 Mahmadkhan Badarkhan Baloch (Exh.85) is supporting the prosecution case in respect of entering of mob,burning,beating,abusingandshouting,mobarmed with deadly weapons, pelting of stones etc. In his cross examinationbyaccusedNos.1to82,hehasdeposedthat,
// 554 //
atabout10.00A.M.hecamebackfromtheMarket.During 04.00 P.M. to 09.00 P.M. he was oftenly going to Ahmedmiya's House or in the Chowk. Pelting of stones started at about 04.30 to 05.00 P.M. Burning of Houses started at about 05.00 P.M. Except the house of Ahmedmiya,otherhouseswereburnt.Allthepersonswho were in the house of Ahmedmiya, they were in the open spaceofthehouse.Tillthepolicecame,theywerethere.It is denied by him that, he has not stated in his Police Statementthat,mobcameatabout04.00P.M. InhiscrossexaminationbyaccusedNos.1to82,itis admitted by him that, on the death of Muslim there is systemprevailingofburialrituals. Butnoburialritualof said11deadbodieswereperformed.Hehadnotseenany deadbody.Itisadmittedbyhimthat,hehasstatedbefore thedoctorthat,hesustainedinjuryduetopeltingofstones and throwing of acid. It is admitted by him that, when beating, killing and burning was going on, at that time policecame.InhiscrossexaminationbyaccusedNo.83,he hasadmittedthat,hisstatementwasrecordedbyVisnagar Police on 01.03.2002 and 10.03.2002 and after six years S.I.T. has recorded his statement on 24.05.2008. It is deniedbyhimthat,atthetimeofrecordingofstatementby S.I.T., his earlier statement was read over to him. It is deniedbyhimthat,hehasstatedbeforeS.I.T.thatinboth theearlierstatementsthereischangeintimeofoccurrence
// 555 //
whilerestoffactsaresameandcorrectone.Itisdeniedby him that, Police Inspector M.K.Patel had written the namesofsevenpersons,asperhissay.Itisadmittedby him that, Police Inspector M.K.Patel had recorded his injury as per his say. It is denied by him that, on 10.03.2002 he had declared another six names before PoliceInspectorM.K.Patelandhehaswrittenthesame.It is admitted by this witness that, after this incident, Collectorcameandaskedabouttheincidentandhetold whatever facts writtenbyPoliceInspector M.K.Patelare correctone. Nothingnewwassubmittedbeforethesetwo officers.Itisdeniedbyhimthat,theremainsandarticles whichwererecoveredatthesceneofoffencewereshownto himbyVisnagarPolice.Overandabovedeathof11persons he heard about the death of another three Muslims persons.HewasnotcalledbyS.I.T.toidentifythesethree persons.InhiscrossexaminationbyaccusedNos.1to82 and84hehasdeposedthat,hecanseefromthedistance of10Ft.Itisadmittedbyhimthat,atthetimeofincident therewasnolightintheMahollaandpolicewasstanding intheChowkandpolicetookthepersonsfromtheMaholla intheChowk.InhiscrossexaminationbyaccusedNo.85 hehasdeposedthat,hedoesnotrememberatwhattimehe wasinjuredbythemob,whenthemobcame,hewasinthe house. He does notrememberthat,onhearing thetense atmosphere and riots in Visnagar town, they went to Ghetiyavasbefore02.00P.M.Itisadmittedbyhimthat,he
// 556 //
isallottedonehousebyIslamicReliefCommittee. So far as presence of this witness at the time of incident, in Chudivas is concerned, he is resident of Chudivas,consideringthecircumstances,ifheisclaiming hispresenceinChudivas,thatisquitenaturalone.Asper normalreactionofwitness,hemighthaveseenwhatwas happeningwhenthestoneswerebeingpelted,sloganswere beingshoutedandwhowerethepersonsformingthepart of mob and only after seeing the seriousness of the incident,hecouldknowtowhatextenthewasindanger. Here theincidentlastedformorethanonehour,witness was having sufficient opportunities to see the incident, durationofincident,modeandmannerandopportunities toobservetheincidentistheimportantfactor,fromwhich wecanconcludethat,witnesshasseenbeating,peltingof stones, burning and looting of houses, entering in the Maholla,abusingandshoutingtheslogansandmobwas having deadly weapons. No doubt, there are some improvementsinthedepositionofwitnessbutnoattempt wasmadebytheaccusedtobringbeforetheCourtthose improvementsasfalse.Therewaslargenumberofmobin theMaholla.ConsideringtheareaandspaceofMaholla,it wasquitepossibletohave200300personsintheMaholla, atatimeanditisnotsothat,witnesshadseenthemob from particular place. From the evidence of this witness, presenceofmobattheplaceofoccurrenceisestablishedat
// 557 //
that time other eyewitnesses were present, they have supportedthesayofeyewitnesses.Itcannotbeconstrued that, witness had seen the incident from the House of Ahmedmiya.AsheoftenlywasgoingtoAhmedmiya'shouse orintheopenchowk.Incrossexaminationofthiswitness, except bear denial there is nothing from which we can concludethat,thiswitnessisstatingfalseaboutthesetting onfirethehouses,peltingofstones,shoutingslogans,mob armedwithdeadlyweaponsincident.Onthecontrarywhen we peruse the whole crossexamination impliedly, it is supportingthesayofthewitnessinrespectofincidentas perprosecutioncase.Admittedlytherewasnolightinthe MahollaandPoliceandpersonsofMahollawereinchowk, witness is unable to tell the time of incident. So far as contradictions, omissions and discrepancies which are brought on record in crossexamination are of such a nature, which suggest that the witness is deposing in naturalmannerandnotatutoredperson.Further,thereis no consistent improvements in his deposition and the argumentsofaccusedsideinrespectofimpossibilitytosee themobisunrealistic.Seeingorobservingthemobisnot the same thing as observing a single stationary object. Therewerelargenumberofmob,consideringtheareaand spaceoccupiedbythemobwasconsiderable,itwouldbe futiletosaythat,mobcouldbeseenbythewitnessfrom anyparticularpointandthatitcouldnotbeseenbythe witnessfromanotherparticularpoint.Theevidenceofthe
// 558 //
witnessshowsthepresenceofmobintheChudivas,during thetimeofoccurrence,whichiswellsupportedbypolice witnessesandalsouptosomeextentsupportedbyPatel witnesses. Therefore, if the witness claims that, he had seen the incident that is quite natural, it cannot be construedthat,hewasinsidethehousetherefore,itwas notpossibleforhimtoseethewholeincident.Therewas sufficientlightofflamesaswellassomenaturallight,in thatcircumstancesseeingoftheincidentbywitnesstillhe wentinsidethehouseisacceptable. [229] P.W.7AmzadkhanMahmadkhanBaloch(Exh.86) when we consider the defence of accused side in cross examination mostly denial are brought on record. In his crossexamination, he has admitted that, on the day of incident at about 10.00 A.M. hecameback to hishouse and his Rickshaw was in chowk. His statement was recordedon01.03.2002and10.03.2002.Itisdeniedbyhim that,hehasnotstatedbeforePolicethat,mobarmedwith deadlyweaponscameat04.30P.M.Itisalsodeniedbyhim that, he has not statedbeforethePolicethat, baado ne maaro,kapo,salgavido.Itisalsodeniedbyhimthat,he has not stated before the Police that, mob had thrown burning bundle of grassand acidbottles. Asper hissay earlierhewashavingrelationswithaccusedpersons.Itis admitted by him that, after one week Police had raided GhetiyavasandarmswererecoveredfromGhetiyavasand
// 559 //
inthatincidentheistakenasanaccused. InhiscrossexaminationbyaccusedNos.1to82,he has deposed that, no case is pending against him in Visnagar Court. It is denied by him that, arms were recoveredfromhiminGhetiyavas.Duringcombingbythe PoliceandcasewastriedvideCriminalCaseNo.68/2002. Itisadmittedbyhimthat,hewasintheJailwithother accusedfor15days.Duringthose15dayshehadnotseen anyaccusedofthiscase.Itisdeniedbyhimthat,hehas notstatedbeforePolicethat,mobwasshouting bandiya onemaarinakhao. Itisdeniedbyhimthat,hehasnot stated in his any of the statement that, due to Godhra incident,Patels'haveattackedonthem.Noburialritualsof 11deadpersonswereperformed.Hehadnotseenthedead bodies. He came to know about the death of 11 persons subsequently.Itisdeniedbyhimthat,beforeDoctorhehas givenhistorythat,mobhadattackedandpeltedstonesand acid was thrown. It is denied by him that, in all three statementshehasnotstatedthat,11personswereburnt alive and those 11 persons were the family members of Yusufbhai andYakubbhai.Itisadmittedbyhimthat,he hasnotstatedbeforetheS.I.T.that,atthetimeofearlier depositionhewasunderfear.Hehasnoknowledgeabout thePanchnamadated06.03.2002and09.03.2002,which weredrawninthepresenceofF.S.L.Officers.Itisdeniedby himthat,hehasidentifiedthreeaccusedonlybecausethey
// 560 //
werewithhimintheJail.Itisdeniedbyhimthat,hehas not stated in the deposition that, who has injured his father.Itisadmittedbyhimthat,noneoftheaccusedof the present case was studying with him nor any of the accused is driving the Rickshaw with him. After the incident, he came Visnagar town after 12 months. To deposebeforetheCourthecamestraightwayfromVillage Kakoshi.HehadnotsoughtPoliceprotectionatthetimeof first deposition. During thewholeincidenthewasinthe house of Ahmedmiya and other 60 persons from the Maholla were also there. Telephone was not working. No person from Maholla had tried to go to Police Station straightway.During04.00to09.00P.M.tilltheincident occurred persons from the Maholla were screaming for help. In his crossexamination by learned advocate Shri B.G.Patel, he has stated that, after six years of his deposition,hisstatementisrecordedbyS.I.T.Itisdenied byhimthat,hehasnotstatedbeforeMr.Barotthathecame todeposeunderPoliceprotection.Itisdeniedbyhimthat, inhisstatementbeforeS.I.T.hehasnotstatedthat,Police had recorded his statement dated 01.03.2002 and 10.03.2002. It is denied by him that, he has not stated before S.I.T. that, Police Inspector M.K.Patel was not present.ThisfactiswrittenbyS.I.T.Officer.Statementwas notreadovertohim.Itisdeniedbyhimthat,hehasnot informedaboutthisfacttoanyGovernmentOfficer. Itis denied by him that, Police Inspector M.K.Patel has
// 561 //
recordedhisstatementdated01.03.2002anditwasverified by Dy.S.P. Shri Jadeja. It is denied by him that, his statement dated 10.03.2002 was recorded by Police InspectorM.K.PatelandDy.S.P.hasverifiedthesame.It isdeniedbyhimthat,inhisstatementdated10.03.2002he hasnamedsixaccusedpersons.Thosenamesarewritten by the Police. It is denied by him that, in his statement dated10.03.2002hehasstatedthenamesoffouraccused persons.Itisadmittedbyhiminhisearlierdepositionhe hasmentioned13namesasanaccused.Itisdeniedbyhim that, in his statement dated 01.03.2002, 10.03.2002 and deposition dated 22.10.2002 he has conspired to involve moreandmoreaccusedpersons.Itisdeniedbyhimthat, hehasgivenadditionalnamesofpersonsasanaccused.It isadmittedbyhimthat,on28.02.2002duetoriotscurfew wasimposedandduetocurfewhewasinhishouse.Itis denied by him that, before recording statement, S.I.T. Officers were teaching him how to make statements and they were threatening the witness. It is admitted by him that, their houses were burnt, they were injured, meanwhilepolicecameandafterfiringmobdisbursed.Itis denied by him that, at the time of his statement dated 01.03.2002howmanypersonsfromChudivasweremissing hewashavingnoknowledge.Itisdeniedbyhimthat,inhis statementshehasstatedaboutmissingof11persons.Itis admitted by him that, before S.I.T. he has not declared aboutthedeathof11persons.Deadbodieswerenotshown
// 562 //
tohim.Hewasnotcalledforidentificationofdeadpersons. InhiscrossexaminationbyaccusedNo.85,hehasdeposed thathedoesnotrememberwhetherhewasarrestedduring raidbythePoliceandhewasintheJailandhowmany accused persons were there with him in the Jail. It is deniedbyhimthat,hewasintheMahollatherefore,itwas notpossibleforhimtoseewhatishappeningoutsidethe Maholla.Itisdeniedbyhimthat,onthedayofoccurrence he was not in Maholla. It is admitted by him that, one houseisallottedtohimbyIslamicReliefCommittee. Butthefactthat,afteroneweekoftheincident,his house in Ghetiyavas was raided by the Police and arms wererecoveredfromhim.Bybringingthisfactonrecord, defencesidehastriedtoattackthereliabilityofversionof thiswitness.ButthefactofenteringofmobintheMaholla, pelting of stones, burning of the houses, abusing and shoutingslogans,mobarmedwithdeadlyweaponsetc.are wellcorroboratedfromthePanchnamasaswellasfromthe depositionsofothereyewitnessestherefore,onthebasisof thisfact,thecredibilityoftheversionofthiswitnessinthis regarddoesnotweakened.Onthecontrary,hehasdeposed thatnosuchcaseisnowpendingagainsthim.Asperhis say, during the whole incident he was in the house of Ahmedmiya. If this witness was inside the house of Ahmedmiyabutitisnotthesayofthiswitnessthat,hehad seentheincidentfromthehouseofAhmedmiya.Fromthis
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fact,possibilityofseeingofincidentbeforehewentinside the house of Ahmedmiya cannot be ruled out. There are other denials in respect of other facts of this incident. Nothingcomesoutfromwholecrossexaminationtodiscard the credibility of the version of this witness, presence of this witness in Chudivas cannot be doubted. So far as contradictions, omissions and discrepancies which are brought on record in crossexamination are of such a nature, which suggest that the witness is deposing in naturalmannerandnotatutoredperson.Further,thereis no consistent improvements in his deposition and the argumentsofaccusedsideinrespectofimpossibilitytosee themobisunrealistic.Seeingorobservingthemobisnot the same thing as observing a single stationary object. Therewerelargenumberofmob,consideringtheareaand spaceoccupiedbythemobwasconsiderable,itwouldbe futiletosaythat,mobcouldbeseenbythewitnessfrom anyparticularpointandthatitcouldnotbeseenbythe witnessfromanotherparticularpoint.Theevidenceofthe witnessshowsthepresenceofmobintheChudivas,during thetimeofoccurrence,whichiswellsupportedbypolice witnessesandalsouptosomeextentsupportedbyPatel witnesses. Therefore, if the witness claims that, he had seen the incident that is quite natural, it cannot be construedthat,hewasinsidethehousetherefore,itwas not possible for himtoseetheincident.Therewasevery possibilityforthewitnesstoseethemobandthenormal
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reactionofthewitnesscanbeconsideredtoseeastowhat washappeningwhenthemobenteredintheMahollaand therewaspeltingofstones,sloganswerebeingshouted,it isonlyafterknowingtowhatextenthewasindanger,he triedtosavehimself,thatcanbeconsideredasnaturaland normal behaviour. There was sufficient opportunities for the witness to see the mob, as the mob was for a long periodintheMaholla.Therewassufficientlightofflames aswellassomenaturallight,inthatcircumstancesseeing oftheincidentbywitnessisacceptable. [230] P.W.8 Reshmaben Sattarbhai (Exh.87) has deposed in hercrossexaminationbyaccusedNos.1to82and84has deposedthat,shestudiedatPatanupto10 thStandardand oftenlyshewasvisitingVisnagar.Shewashavingrelations with theaccusedpersonswhomshehasidentified.Mob cameatabout04.30P.M.,peltingstones,burningstarted atabout05.00P.M.ShehasnotstatedbeforePolicethat,a mob of about 200 persons armed with weapons came at about08.30P.M.,whentheirhouseswereburnttheywere in the house of Ahmedbhai. They went to Ahmedbhai's house, after their houses started burning. About 50 persons were inside the Ahmedmiya'shouse.Policecame andthentheycameout.Itisadmittedbyherthat,when they came out, police started firing and mob disbursed therefore,wherethepersonsfrommobwent,theyhavenot seen. It is admitted by her that, a Criminal Case of
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duplicatecurrencynotesisregisteredagainsthisfather.It isdeniedbyherthat,shehasstatedbeforethePolicethat, theyreceivedtelephonicmessageduringdaytimeaboutthe disturbanceinthevillage.Itisdeniedbyherthat,shehas notstatedbeforethepolicethat,mobwasshoutingtocut, burntheMuslims. InhercrossexaminationbytheaccusedNos.1to82 shehasadmittedthat,adjacenttohouseofIbrahimkhan, houseofAminabibiJahangirkhanissituated.Itisadmitted byherthat,forgoingtoAhmedbhaiHasubhai'shousefrom her maternal Grandfather's house, there were 4 to 5 houses.MalemembersofMahollawerecomingandgoing outofMaholladuringtheincident.Shehasadmittedthat, during 01.30 P.M. to 04.30 P.M. there was peace in the Maholla. It has not happened that, she was playing hide and sick game, mean while they received the message about the disturbance and attack upon the Muslims. Therefore, she came to her house. Persons from Maholla gatheredandaftertheysustainedinjuriestheywentinside the Ahmedmiya's house. It has not happened that, after theywentinsidetheAhmedmiya'sHouse.Shehasnotseen YusufkhanMuradkhanandMahmadIqbalinthehouseof Ahmedmiya.ShabbirmiyaDalumiyawaswiththem.Girls, children and other 20 to 25 persons were on First Floor whilemalememberswereonGroundFloor.Atabout10.00 P.M.shecameoutfromAhmedmiya'sHouse,atthattime
// 566 //
somePatelpersonswerestandinginthechowkandhouses intheMahollawereburning.Atthattimeshehadnotseen thePolice.Shehasadmittedthat,inherstatementbefore PoliceorS.I.T.orindepositionbeforeCourt,shehasnot stated that, when she was in Maholla, her maternal Grandfather Ibrahimkhan, maternal Grandmother Sugarabibi, maternal uncle Shabbirkhan, Shabbirmiya Hasumiya, Mahmad Hanif Dalumiya were with her. It is admitted by her that, she has not stated in any of her statement that, persons from Maholla were going and coming from Randal Mata's Madh side. She has denied that,shehasnotstatedbeforethePoliceorS.I.T.that,her maternalGrandfatherIbrahimkhanUmarkhanBalochtold that,heisgoingtocallPoliceandhewenttoPoliceStation, thereafter, after one hour incident occurred and her maternal Grandfather did not turn back. In her cross examinationbyaccusedNo.83shehasdeposedthat,she does not remember whether the statement dated 01.03.2002and10.03.2002weregivenbyheratherown will. It isdeniedbyherthat,shehasstatedbeforeS.I.T. that, at about 04.00 P.M. mob of Patel community had attacked the Maholla and till the Police came, it was continued. Rest of the facts stated before the Visnagar Policearecorrectone.Inhercrossexaminationbyaccused No.85shehasdeposedthat,shedoesnotrememberfrom wherethemobcame,whowereinthemob,atwhattime theywentintotheHospital.Itisdeniedbyherthat,earlier
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deposition is given by her at the instance of Muslim Leaders. Her presencein Chudivascannotbedoubtedatthe timeofoccurrenceasshewasstayingwithherGrandfather andGrandmotherandotherfamilymembers.Inhercross examinationmostlydenialsarebroughtonrecord.Shehas admittedaboutthecaseregisteredagainsthisfather.But this is not the fact from which we can discard the deposition of this witness. As per her say when their houses were burnt, she went to house of Ahmedbhai. Meaning thereby, she was having opportunity to see the mobtillshewentinsidetheAhmedmiya'shouse.Thefacts, whicharestatedbyherinChiefexaminationareaskedin crossexamination also and she has answered repeatedly the same. So far as contradictions, omissions and discrepancies which are brought on record in cross examinationareofsuchanature,whichsuggestthatthe witnessisdeposinginnaturalmannerandnotatutored person.Theevidenceofthewitnessshowsthepresenceof mobintheChudivas,duringthetimeofoccurrence,which iswellsupportedbypolicewitnessesandalsouptosome extent supported by Patel witnesses. Therefore, if the witnessclaimsthat,shehadseentheincidentthatisquite natural, it cannot be construed that, he was inside the house therefore, it was not possible for him to see the incident.Therewaseverypossibilityforthewitnesstosee
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the mob and the normal reaction of the witness can be consideredtoseeastowhatwashappeningwhenthemob entered in the Maholla and there was pelting of stones, sloganswerebeingshouted,itisonlyafterknowingtowhat extenthewasindanger,hetriedtosavehimself,thatcan beconsideredasnaturalandnormalbehaviour.Therewas sufficientopportunitiesforthewitnesstoseethemob,as the mob was for a long period in the Maholla. In that circumstances seeing of the incident by witness is acceptable. [231] P.W.9 Rashidabibi Sattarbhai Baloch (Exh.88) has admittedthat,during04.30P.M.to09.00P.M.shewasin Ahmedmiya's house and incident of pelting stone was in full form from all side. Itisadmittedby her that, some persons from the Maholla were injured in pelting stones. After the incident they went to Ghetiyavas, Reshma was alsowithher.Itisdeniedbyherthat,shehasnotstatedin herstatementthat,mobarmedwithweaponscameinthe Mahollaatabout04.30P.M. InhercrossexaminationbyaccusedNos.1to82and 84that,inherstatementbeforePoliceS.I.T.shehasnot stated that, house of Akbarmiya was damaged at about 03.00 P.M. House ofAkbarmiyaissituatedoutsideDipra Darwaja.TherewastenseatmosphereintheMahollaand her father IbrahimkhanwenttoPoliceStationtocallthe
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policebuthedidnotturnedbackandonthenextdayshe came to know about hospitalization of her father. It is deniedbyherthat,inherstatementbeforeS.I.T.orPolice shehasnotstatedthat,duetoattackbymobsheentered in one house. During attack some persons from Maholla wereonGroundfloorwhereassomepersonswereonthe First Floor of the House of Ahmedmiya Lightwala. It is denied byherthat,shehasstatedbeforeVisnagarPolice Station that, during whole incident she was inside the houseofherGrandfather,shedidnotcameoutfromthe house. She does not remember whether Yusufkhan Muradkhan had accompanied Ibrahimkhan to call the Police.InhercrossexaminationbyaccusedNo.83shehas admittedthat,inherstatementbeforeS.I.T.shehasstated that, rest of the all facts stated in earlier statements are correct.InhercrossexaminationbyaccusedNo.85shehas deposedthat,shedoesnotrememberthatatabout04.00 P.M. where she was and who were in the mob. She has deniedthat,sheistaughthowtodeposebeforetheCourt. In crossexamination mostly denials are brought but the contradictions, omissions and discrepancies which are brought on record in crossexamination are of such a nature, which suggest that the witness is deposing in naturalmannerandnotatutoredperson.Theevidenceof the witness shows thepresence of mob in the Chudivas, duringthetimeofoccurrence,whichiswellsupportedby policewitnessesandalsouptosomeextentsupportedby
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Patel witnesses. Therefore, if the witness claims that, he had seen the incident that is quite natural, it cannot be construedthat,hewasinsidethehousetherefore,itwas not possible for himtoseetheincident.Therewasevery possibilityforthewitnesstoseethemobandthenormal reactionofthewitnesscanbeconsideredtoseeastowhat washappeningwhenthemobenteredintheMahollaand therewaspeltingofstones,sloganswerebeingshouted,it isonlyafterknowingtowhatextenthewasindanger,he triedtosavehimself,thatcanbeconsideredasnaturaland normalbehaviour.Therewassufficientopportunityforthe witnesstoseethemob,asthemobwasforalongperiodin theMaholla.Inthatcircumstancesseeingoftheincident bywitnessisacceptable. [232] P.W.10SugrabibiMahmadkhanBaloch(Exh.90)though sheisthehostilewitness,shehassupportedthefactsof mobenteredintheMahollawitharms,shoutingslogans, pelting of stones, causing damages to properties by burning, witnesseswereinjuredandAutoRickshawwas burnt.Inhercrossexaminationdenialsarebrought.From the crossexamination of this witness itself it comes out that,onseeingthemobcomingfromthesideofNazirmiya's house, she went insidetheAhmedmiya'shouse,meaning thereby,shewashavingopportunitytoseethemobtillshe entered in the Ahmedmiya's house. It is the normal reactionofthewitnesstoseethemob,whatwashappening
// 571 //
in the mob, when incident of pelting stones, shouting slogans,settingoffireofthehousesetc.occurred.Itisonly whenshecametoknowaboutthedangeroftheactofthe mob,wentinsidetheAhmedmiya'shouse,shewashaving sufficientopportunitiestoseethemobasthemobwasin Chudivasforlongtime,therefore,thewholeargumentsfor theaccusedsideinrespectofimpossibilitytoseethemob isunrealistic.Theareaandspace,occupiedbythemobis considerableone.Itisfutiletosaythat,mobcouldbeseen from one particular point and not from other point. As position of a person in mob varies from one place to anotherplace.Presenceofmob,presenceofthiswitness, presenceofothereyewitnessesfullysupportstheburning, pelting stones, mob entered armed with deadly weapons, abusing and shouting therefore, if there are some improvements, contradictions, omissions, brought in the crossexamination that suggest, the natural deposition of thewitnessratherthantutoredone.Therefore,thesayof accusedthat,itwasnotpossibleforthewitnesstoseethe mobforincidentisnotacceptable. [233] P.W.11 Anvarhusen Shabbirhusen Pathan (Exh.91), though this witness is hostile, but he is supporting the entering of mob armed with deadly weapons, shouting slogans,settingonfirethehouses,hispresenceatthetime of incident, in Chudivas is natural one, as he is the residentofChudivas,consideringthetenseatmosphere,a
// 572 //
personwouldstayinhishousei.e.naturalone.Onseeing themob,hewentinsidetheAhmedmiya'shouse,meaning therebytillhewentinsidetheAhmedmiya'shouse,itwas quite possible for him to see the mob. The general behaviour of a person would be to see the mob, what is happeninginthemob,itisonlyafterknowingthedanger to him, he will go to save himself. Here the same thing happened. This witness went inside the Ahmedmiya's house, he was having sufficient opportunities to see the mob. In his crossexamination denials are brought on record.Nothingelsecomesoutfromhiscrossexamination fromwhichwecandiscardtheevidenceofthiswitness,in respectofpeltingstones,burninghouses,enteringinthe Maholla, shouting slogans etc. There was sufficient opportunitiesforthewitnesstoseethemob,asthemob wasforalongperiodintheMaholla.Inthatcircumstances seeingoftheincidentbywitnessisacceptable. [234] P.W.21ShabbirkhanIbrahimkhan(Exh.108)hasdeposed inhiscrossexaminationbyaccusedNos.1to82whenhe came inside the Maholla, he had not seen Patels' in the mob. Then he went to his house straight way. Only at 09.00 09.30 P.M. he came out from his house, at that time he was beaten. When he came out of his house, personsfromMahollawerealsooutoftheirhouses.Asper hissay,hehasnotstatedbeforethePolicethat,onseeing theburningoftheirhouses,theyshoutedthenthepersons
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fromMahollagathered. Itisdeniedbyhimthat,hehas statedbeforethePolicethat,duetofeartheywentinside the house of Ahmedmiya Hasumiya. It is denied by him that,hehasstatedbeforethepolicethat,whentheywere intheirhouse,mobtriedtobreaktheirhouse.Itisdenied byhimthat,hehasnotstatedbeforethePolicethat,the personsfrommobwerecontinuouslyshoutingBadaoene marrinakho,kapinakho.Itisdeniedbyhimthat,hehas notstatedbeforethepolicethat,whentheycameoutfrom theMaholla,policecame.Itisdeniedbyhimthat,hehas notstatedbeforethePolicethat,whentheywereinPolice Station,twochildrencameandtoldhimthat,theirmother fatherarekilled,11personsarekilled.Itisdeniedbyhim that, he has not stated before the Police that, in the incident, Sugrabibi Ibrahimkhan, Iqbalkhan Ahmedkhan and Gulubhai Kayamkhan were injured. It is denied by himthat,hehasnotstatedbeforethePolicethat,atabout 04.30P.M.hewastakinghisfood,atthattimeamobof Patels'enteredintheMaholla.Itisdeniedbyhimthat,he hasnotstatedbeforethePolicethat,11houseswereseton fire. When he went to House of Ahmedmiya Hasumiya, SaiyedNazirmiyawasnotpresent. In his crossexamination by accused Nos.1 to 82 he hasadmittedthat,hehasnotattendedanyburialrituals ceremonyofanydeadpersons,whodiedintheoccurrence. Sugrabibiishismother,itisadmittedbyhimthat,inhis
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statement before S.I.T. dated 24.05.2008, he has stated that,thereisnoladyinthenameofSugrabibiJalalkhan. Jalalkhanisresidingleavingthreehousesfromhishouse andwifeofJalalkhanisBanubibi.Hedoesnotremember whetherhehasstatedbeforePolicedated02.03.2002that, Karishma Yusufkhan, Ibrahimkhan Umarkhan and SugrabibiJalalkhanaremissingordied.Itisadmittedby her that, Karishmabibi Yusufkhan and Ibrahimkhan Umarkhan are still alive. Sugrabibi Ibrahimkhan is also alive. It is denied by him that, in his statement dated 02.03.2002statednamingthe11personseitherasmissing ortheyhavenotreceivedanymessageaboutthemanditis hisbeliefthat,theyhavedied.Itisadmittedbyhimthat, as the houses were burnt, persons from Muslim families were shouting. It is admitted by him that, his house is situatedadjoiningthehousesofAhmedkhan.After8days of incident he came out from his house and went to Visnagar City and had inquired about his father but he couldnottraceouthisfather.Itisadmittedbyhimthat,on the assumption that, 11 persons from Yakubkhan family have died, he has stated thenameof Karishmabanu. He hasnotstatedbeforePoliceaboutthedeathofSugrabibi. NostatementwasrecordedbyVisnagarPolice.Itisonlyon 24.05.2008, his statement was recorded by S.I.T. It is deniedbyhimthat,inhisstatementbeforeVisnagarPolice hasnotstatedthat,atabout04.00P.M.hewastakinghis foodatthattime,heheardthenoiseandoninquiryhewas
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toldthat,houseofAkbarmiyawassetonfireandPrahlad Gosa and Dahya Patel were telling to kill and burn the Muslims. When he went inside the Maholla, he was told that, house of Akbarmiya is damaged and Prahlad Gosa and Dahya Tribhovanweretelling themobthat, why are youdemolishingonehouse,whenthereisabigMahollaof Muslims. It is admitted by him that, he has not stated before Visnagar Police, S.I.T. or in his earlier deposition that, when his father returned he told him those people hadbeatenhim.Hecameafteroneweek.Itisadmittedby himthat,hehasstatedbeforeS.I.T.that,thereisnospace intheCivilHospitaltherefore,hecouldnottaketreatment fromCivilHospital. As he is the resident of Chudivas, his presence consideringthetenseatmosphereonthedayofoccurrence in Chudivas is reliable one. In his crossexamination, denials are brought on record. Nothing new comesfrom which we can doubt the presence of this witness in Chudivas.Aspersayofthiswitness,onseeingthemob,he wentinsidetheAhmedmiya'shouse,meaningthereby,he was having sufficient opportunity to see the mob, till he went inside the house of Ahmedmiya. In that circumstancesifthemobwasarmedwithdeadlyweapons and abusing and shouting and pelting stones were continuousandhouseswereburntwhichisseenbythis witness, i.e. reliable one, credit worthy. There are
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contradictions,omissionsbroughtonrecordbutthoseare suchwhichdoesnoteffectthecredibilityoftheversionof thiswitness.Onthecontrary,itsuggeststruthfulversionof the witness rather than tutored one. Hence, there was sufficientopportunityforthewitnesstoseethemob,asthe mob was for a long period in the Maholla. In that circumstances seeing of the incident by witness is acceptable. [235] P.W.23 Ahmedmiya Hasumiya Belim (Exh.128) has deposedthat,Itisdeniedbyhimthat,hehasnotstated beforethePolicethat,hesawtheincidentfromtheWindow of first floor of his house. The house in which he hide himselfthatwascompletelyburnt,whentheycameoutat thattime8to9houseswereburning.Itisdeniedbyhim that, he has not stated in his police statement that, at about 04.00 to 04.30 mob of Patels' about 200 persons enteredintheMaholla,shoutingthesloganstocut,beat theMuslimsandburnthehouseshencetheywentinside hishouse.Itisdeniedbyhimthat,hehasnotstatedbefore thePolicethat,hehidehimselfinfirstfloorofhishouse andsawtheincidentofkillingBanubibiandothersfrom theWindow. InhiscrossexaminationbyaccusedNo.1to82,itis admittedbyhimthat,on28.02.2002noleavereportwas submitted by him in his office. It is true that, when he
// 577 //
came back from office, he was in his home. He has not deposedinearlierdepositionnorbeforePolicethat,onthe dateofincidenthewenttohisoffice.Heisunabletosay that, the door of the house of Yusufkhan is open but whetheritwasopenpriortoincident,heisunabletosay. FromthehouseofShabbirmiya,thatdoorcanbeseen.At thetimeofincident,whetherthatdoorwasclosedoropen, heisunabletosay. Onthedayofincidenttherewasno lightatabout07.00P.M.,whenIbrahimkhanwenttoPolice Station at about 05.00 P.M. after one hour Swords were usedandatabout05.3006.00P.M.mobstartedburning the houses, after one and half hour he came out of his houseandother2030personscameoutfromthathouse, whenthePolicecame.SherubhaiDalubhaisustainedburn injury.HisShirtwasburnt.Hedoesnotrememberwhether hehasstatedbeforeVisnagarPoliceStationthat,hesaw the incident from the terrace of his house. He does not rememberwhetherhehasstatedinhisapplicationtoP.I. Visnagarthat,hesawtheincidentfromthewindowofhis house. It is denied by him that, in his statement dated 17.05.2008beforeS.I.T.hehasstatedthat,atthetimeof incidenthewasontheterraceofhishouseaftersustaining stone injuries. He went to his brother's house, which is havingfirstfloor.Itisadmittedbyhimthat,hehasstated beforetheS.I.T.that,hesawkillingofLadies,Gentsand Children by giving Sword blow in the Naveli, near Nazirmiya's Ordi and by pouring kerosene, petrol, those
// 578 //
wereburnt.Itisdeniedbyhimthat,hehasstatedbefore Visnagar Police on 01.03.2002 that, the house of Saminabibi Jahangirkhan and Yakubkhan Muradkhan wereattackedandwindowsanddoorswerebrokenandby enteringintheHouseofYakubkhan,Husenabibi,hertwo sons Aasifkhan and Aabidkhan and Yakubkhan MuradkhanwerekilledbygivingSwordblowandtheywere burntbypouringkeroseneandpetrol.Itisdeniedbyhim that, in his application, he has stated that, he saw the incidentfromthewindowofhishouse.Itisdeniedbyhim that,onthedayofincidentfromEveningtoNight,hewas ondutyandonnextdayhewenttoNavavas.Itisadmitted by him that, in statement before Visnagar Police, before S.I.T., in the application andin earlier deposition hehas not stated that, at about 02.30 03.00 P.M. house of AkbarmiyawasbrokenandatthattimePrahladGosaand Dahya Tirbhovan were showing the whole Maholla of Chudivas and Mahmad Hanif saw it and he told Shabbirmiya,MahmadHanifDalumiyaandhecameatthe entranceofMahollaandtheysawthat,PrahladGosaand Dahya Tribhovan were telling why are you breaking one house, there is whole Maholla of Chudivas, don't bother about Police Inspector,I havetalked withhim, yougoto ChudivasandthenmobenteredintheMaholla,onseeing it,hewentinsidehishouseandtriedtocallthepoliceby telephone, persons from Maholla gathered and Ibrahimkhan Umarkhan went to call the Police and
// 579 //
subsequently, he came to know about the injuries to Ibrahimkhan Umarkhan. It is admitted by him that, on seeingthemobhewentonthefirstfloorofShabbirmiya's house.Itisadmittedbyhimthat,atthattimemobentered inthehouseofYusufmiyaandYakubmiyaandtheywere cutting and beating them, he saw this incident from the windowofShabbirmiyaHasumiya'shouse.Itisadmittedby himthat,thosewhowerekilledtheywerenotburntinthe houses, they were burnt in the Naveli of Dalumiya, by pouringkerosene,whenhesawtheincidentfromWindow, whowereotherpersonswithhim,heisunabletosay. In his crossexamination by accused No.83, he has deposed that,hehasnotmadeanycomplainttoDy.S.P.aboutthe instigationbyPrahladGosaandDahyaTribhovannorany complaintwasmadetoD.S.P.ShriGehlot.Inhisstatement beforeS.I.T.orinhisearlierdepositionhehasnotstated about the instigation by Prahlad Gosa and Dahya Tribhovan. He does not remember whether D.S.P. Gehlot waspresentatthetimeofincidentandhadinquiredabout theincidentfromthepersonsfromMaholla.Hedoesnot rememberwhetherTalukaMagistrateShriRathodwasalso presentandwasinquiringformhimabouttheincident.He also does not remember whether Police Inspector M.K.Patel was present. He does not remember, he has statedbeforeS.I.T.that,inhisdepositiondated14.02.2003 somefactsarenotstatedbyhimbeforetheCourtashewas underfearandtherewasnoPoliceprotectiontohim.Itis
// 580 //
deniedbyhimthat,incidentoccurredatabout08.30P.M. InhiscrossexaminationbyaccusedNos.1to82and84he hasdeniedthat,therewasnolightintheMaholladuring 04.30P.M.tonextdaymorning.Thereisnostaircasefor going to terrace. In his crossexamination by accused No.85,hehasstatedthat,hehasnotmadeanyapplication beforeNanavatiPanch.Hehasnotsentanyaffidavitbefore Nanavati Panch. Police were oftenly coming to him for takinghisandotherpersons'signature.Oneapplicationis showntohimfromtherecord,onseeingithehasadmitted that,inthatapplicationnothingmentionedabouttheany criminal act of Prahlad Gosa and Dahya Tribhovan. He went to Gandhinagar along with Yusufkhan Muradkhan andotherpersonsfromtheirMaholla,whenheenteredin his house, first he heard the voice from Randal Mata's Madh side. It is admitted by him that, from 02.30 P.M. whenhesawthemobto04.30P.M.mobhadnotenteredin the Maholla. No attempts were made by them to contact any Leader or to inform the Police or any other leading persontotellthetenseatmosphere.Itisadmittedbyhim that,beforetwothreedaysofthisincidenttherewasBakri Id,generallyinBakriId,Muslimsusedtotakenonvegand theyusedtokeeplargeknife.Theyhadnotusedthatlarge knifeonthedayofincident.Mobwashavingburningrags, petrol,keroseneetc.buthadnotsprinkledit,immediately after some time they sprinkled petrol kerosene on their houses,theyputthegallonsontheroadandfirstsawthat,
// 581 //
where they can burn easily and after 15 minutes they burnt.Therewerehighflamesinthehouses.Mobhadnot attacked thembyenteringintheir house.Therewas no previousenmitybetweenmobandYusufkhan'sfamily.Itis denied by him that, on the day of incident they have vacatedtheMahollaatabout12.00Noon.Itisadmittedby himthat,hehadnotgiventhenamesofthesetwoaccused due to fear, he had no telephone talk with these two accusednotmetanywhere,nodisputetookplacebetween thesetwoaccusedandwitness.For10to12days,hestayed in Navavas thereafter, he stayed in Mahesana and he is carryinghisnormallife.Itisadmittedbyhimthat,hehas notseenthepersonsinthemobbyenteringinthemob,he sawthepersonsfromthedistance. ThepresenceofthiswitnessinChudivasatthetime ofoccurrencecannotbedoubted,asheistheresidentof ChudivasandnaturallywhenthemobenteredinMaholla, hewouldhaveseenwhatthemobisdoing.Itisonlyafter feelingdangertohispersonandproperty,hewentinside the house. From this we can gather he was having sufficient opportunity to see the mob. In his cross examination, contradictions, omissions, discrepancies are tried to be brought on record but those are such which cannotdiscreditthecreditworthinessofthedepositionof thiswitnessabouttheseeingofmob,burningthehouses, pelting stone inside, abusing and shouting slogans,
// 582 //
entering in the Maholla armed with deadly weapons and that too, in the circumstances when other Muslim witnessesaswellasHinduwitnessesandPolicewitnesses supportthisfact.Itisthenormalreactionofthewitnessto see the mob, what was happening in the mob, when incidentofpeltingstones,shoutingslogans,settingoffire of the houses etc. occurred. It is only when he came to knowaboutthedangeroftheactofthemob,wentinside the Ahmedmiya's house, he was having sufficient opportunitytoseethemobasthemobwasinChudivasfor longtime,therefore,thewholeargumentsfortheaccused sideinrespectofimpossibilitytoseethemobisunrealistic. Theareaandspace,occupiedbythemobisconsiderable one. It is futile tosay that, mobcouldbeseen from one particularpointandnotfromotherpoint.Aspositionofa person in mob varies from one place to another place. Presenceofmob,presenceofthiswitness,presenceofother eyewitnesses fully supports the burning, pelting stones, mob entered armed with deadly weapons, abusing and shouting therefore, if there are some improvements, contradictions, omissions, brought in the cross examination that suggest, the natural deposition of the witness rather than tutored one. Therefore, the say of accusedthat,itwasnotpossibleforthewitnesstoseethe mobforincidentisnotacceptable.
// 583 //
[236]
P.W.24ShermahmadDalubhaiSindhi(Exh.132) hasin his crossexamination by Mr.G.N.Brahmbhatt, deposed that,atabout02.30P.M.hewenttoPanGallaandatthat time there was CurfewinVisnagar townbutthepersons fromtheirMahollaweremovinghereandtherebuttillthen no incident occurredat about 04.30 P.M. His house was burnt at about 06.00 P.M. Thereafter, they went to Ahmedmiya's house. Ahmedmiya's house was burnt at about 09.00 P.M. Up to 09.00 P.M. persons from the Maholla were in the Ahmedmiya's house and when they cameoutfromthehouseofAhmedmiya,otherhousesof Mahollawereburnt.Theywerescreamingforhelp.Persons fromMahollawenttohaveatalkwiththePatels'butwhen theycameback,theywereinjuredduetopeltingofstones. Ibrahimkhan went to the Police Station at about 05.30, police came after 03.00 04.00 hours. The incident of cuttingthepersonsoccurredatabout06.00P.M.atthat timetherewasnodark,theywereburntaftercuttingthem. Itisadmittedbyhimthat,inhisPoliceStatement,hehas statedthat,atabout08.30P.M.amobofabout200300 persons armed withdeadly weapons,shouting tocut the MuslimsenteredintheMaholla.Itisadmittedbyhimthat, he has stated before the Police that, mob entered in the house of Yakubkhan. It is admitted by him that, in his PoliceStatement,hehasnotstatedthatmobdividedinto two parts. It is admitted by him that, soon as pelting of
// 584 //
stones started, he entered in his house and closed the doorsandwindows. InhiscrossexaminationbyaccusedNos.1to82,itis deposedthat,ithasnothappenedthat,hehidehimselfin Ahmedmiya'sHouseandsomepersonsfromtheirMaholla went to have a talk with the Patels'. It has also not happened that, Ibrahimkhan went to Police Station at about05.30buthadnotturnedback.Ithasnothappened that, Ibrahimkhan came back at about 06.30 P.M. then onlytheincidentofcuttingandkillingofpersonsoccurred. Therewere4to5personsinMahollainhishouse,tillthe police came, they were in their house. He does not remember his brother Hanif had seen the burnt dead bodiesintheNaveliwhilegoingtothehouseofAhmedbhai Hasubhai.IthasnothappenedwhenhisbrotherHanifand otherpersonswereinsidetheAhmedmiya'shouseandat thattimethathousewasburnt.Hehasadmittedthat,he does not remember whether, he has stated before S.I.T. that,hesawtheincidentfromtheeasternsidewindowof firstfloorofhishouse.Heheardthevoicesofscreamingfor help.FromtheNavelifallingtowardsKadaDarwaja,hehas admittedthat,exceptscreamingandkillingof11persons, hehasnoknowledgeaboutotherhappenings.Hedoesnot remember whether he has stated before Police that, at about08.0008.30amobofabout200persons,armed withdeadlyweaponsenteredintheMaholla.Itisdeniedby
// 585 //
him that, he has stated before Visnagar Police that, by enteringinthehouseofYakubkhan,Husenabibi,histwo sonsAasifandAabidandYakubkhanwerekilledbygiving blowofSwordandtheirdeadbodieswereburntbypouring kerosene.Itisadmittedbyhimthat,hehasstatedbefore VisnagarPolicethat,soonastheirhouseswereputonfire, they came out. It is denied by him that, he has stated beforeVisnagarPolicethat,hehasstatedthat,complaintof MahmadIqbalAhmedkhanwasreadovertohim,whichis correct one. He does not remember whether, in his applicationdatedNil,hehaswrittenthat,whenthemob came, his family members were on the back side of his houseandfromthebacksidedoorofhishouse,whenthey sawSuhanabibiandMunafwerekilledandtheywereset on fire by pouring kerosene, he has denied that, he has mentioned in the application that, he, Yusufkhan, Nazirkhan, Ahmedmiya, Shabbirmiya, Mahmad Hanif, Ahmedkhan, Mahmadkhan, Aminabibi, Aasif and Nafasa had seen the incident. It is denied by him that, in his statementbeforePolice,depositionbeforetheCourtandin hisapplicationdatedNilorstatementbeforeS.I.T.hehas not stated that, at the entrance of Maholla, house of AkbarmiyaKalumiyawasbrokenbythemob.Atthattime, somepersonsweretellingwhyyouarebrokingonehouse, thereareotherhousesinMahollaofDipraDarwaja,burn themandthereafter,mobhadattackedtheMaholla.Itis admittedbyhimthat,inthefirsttimeintheCourtheis
// 586 //
stating that, Prahlad Gosa and D.T.Patel were instigating themob.Itisdeniedbyhimthat,hehasnotstatedbefore the Visnagar Policeor in any ofhis application or before S.I.T.that,whenhesawfromthewindowhisbrotherHanif, Sisterinlaw Farida and other 5 to 7 persons were with him.Itisdeniedbyhimthat,forthefirsttimeheistelling thisfactthat,hesawtheincidentfromwindowbutdueto fear he could notgotosavethem.Itisadmittedbyhim that,forthefirsttimeintheCourthehasdeclaredthat, when the police came andaskedthem tocomeout then only theycameoutoftheirhouses.Itisadmittedbyhim that, he has not stated before S.I.T. that, in earlier depositionhehasnotstatedthewholefactsastherewas nopolice protectionandhewasunderfear.Inhiscross examinationbyaccusedNo.83,hedoesnotrememberthat, inhisstatementdated10.03.2002hehasstatedthat,his statementdated08.03.2002wasreadovertohim,whichis correctone.Itisdeniedbyhimthat,incidentoccurredat about08.30P.M.Itisdeniedbyhimthat,hehasstated before Visnagar Police that, incident occurred at about 08.30P.M.Hedoesnotremember,whetherhehasstated before Police Inspector M.K.Patel the names of nine personsarewritteninhisstatementbyPoliceInspector M.K.Patel.Hedoesnotrememberwhethertheninenames which he had given to Police Inspector M.K.Patel were namedindepositionbeforeCourt.Headmitsthat,before S.I.T.hehasgiventhenameofnineaccusedbeforeS.I.T.
// 587 //
He admits that, before S.I.T. he has named additional accusedbeforeS.I.T.Itisadmittedbyhimthat,beforeS.I.T. hehasnamednineaccusedaftersixyears. Hedoesnot remember whether S.I.T. has written the names of nine accusedjusttosatisfythem.Itisadmittedbyhimthat,he waitedfor7to8daysformakingstatementbeforePolice, he had never seen Police Inspector M.K.Patel, Police InspectorM.K.Patelhasnotrecordedhisstatement. ThiswitnessistheresidentofChudivas,hispresence inChudivasisnaturaloneandcannotbedoubted,hewas in Ahmedmiya's house, till he went inside the house of Ahmedmiya,itisnaturalonethat,hewouldhaveseenthe mob, burning houses, shouting and abusing, pelting stones,causinginjuriestothewitnessesetc.Inhiscross examination contradictions, omissions are brought on recordbutthosearenotonmajorpoints,fromwhichthe wholeversionofthiswitnesscanbediscarded.Thoseareof suchanaturefromwhich,wecaninferthegenuinenessof theversionofthewitness.Naturallyafterenteringinthe Ahmedmiya'shouse,tillthepolicecame,hewasinsidethe Ahmedmiya's house, during that period what was happened,itwasnotpossibleforhimtoseebutpeltingof stones, burning houses in Chudivas, entering of mob armedwithdeadlyweapons,abusingandshoutingbythe mob was seen byhim,that can easily bebelieved. Asin naturalcourse,apersonwouldtrytoseethemobwhatis
// 588 //
happeningsinthemob,whatthemobisdoing,itisonly afterseeingthegravityofcrime,hewouldhavegonetothe house of Ahmedmiya. That is the natural reaction. No doubt there are some consistent improvements in the depositionofthewitnessbutfromthoseimprovements,the whole deposition of the witness cannot be discarded. For that,wehavetofollowthegrainandchaffpolicytherefore, theevidence,whichiscreditworthy,truthfulandreliable onearerequiredtobeacceptedandtheimprovementsare required to be ignored. On the strength of the improvements we cannot discard the whole evidence. Therefore,thesayofaccusedthat,itwasnotpossiblefor thewitnesstoseethemobforincidentisnotacceptable. [237] P.W.25 Mohmad Hanif Ahmedkhan Baloch (Exh.134), inhis crossexaminationbyaccusedNos.1to82,hewas shown one application, which was submitted before Judicial Magistrate, Visnagar, he admits his writings and signature in that application. It is admitted by him that, after his statement was recorded, he had preferred the applicationbeforetheMagistrate,whenmobenteredinthe Maholla, he was in hishouse,hecameoutofhishouse after10minutes,whenthemobcame,hestraightwaywent inside the house of Hanif Dalumiya and closed the door and till the police came, he was inside the house of Mahmad Hanif Dalumiya. During that period how many timedoorwasopenedorclosed,heisunabletosay.Infirst
// 589 //
floortheywerefivepersons,hesawtheburningofhouse fromthewindowoffirstfloor.Ithasnothappenedthat,he hadseentheincidentfromthebacksideofthehouseof MahmadHanifDalubhai.Ithasnothappenedthat,hehas seen the whole incident from hishouseand first hewas standing in the open chowk and on seeing the mob, he went inside the house. He has admitted that, in his statement before Police dated 08.03.2002, he has stated that,atabout08.30P.M.mobof200300personsresiding nearbyDipraDarwajaarmedwithdeadlyweaponsentered in the Maholla and they were shouting to cut, beat the Muslimstherefore,hewentinside.Allthepersonsinthe mob from Randal Mata's Madh and Dipra Darwaja. It is deniedbyhimthat,hesawthecuttingandbeatingfrom hishouse.Itisdeniedbyhimthat,hehasstatedbeforethe Policethat,afterallhouseswereburnthecameoutofhis house. Itis deniedbyhim that,inhisapplicationbefore Magistrate,hehasstatedthat,mobenteredintheMaholla, armedwithdeadlyweaponshencehehidehimselfbythe sideofhishouse.Itisdeniedbyhimthat,hehasnotseen theincident.Itisdeniedbyhimthat,theincidenthasnot occurredatabout04.3005.00P.M.buthasstatedso.It isdeniedbyhimthat,inhisstatementbeforePoliceand application before Magistrate, he has stated that to save himself he went inside the house of Mahmad Hanif Dalumiya Sindhi but in fact he had not gone inside the houseofMahmadHanifDalumiyaSindhi.Itisdeniedby
// 590 //
himthat,hehasnotstatedbeforethePolicethat,boththe sonsofBanubibiweresnatchedbythemobandtheywere killedbygivingSwordBlow. Itisdeniedbyhimthat,he hasnotstatedbeforethePolicethat,atabout09.00P.M. whenthePolicecamethenonlythepersonsfromMaholla cameout. InhiscrossexaminationbyaccusedNos.1to82,he hasdeposedthat,hedoesnotrememberwhetherhehad attended burial rituals of any of 11 dead persons. It is admitted by him that, first he heard the noise at about 03.0003.30P.M.,priortothattherewaspeace.Atabout 03.00 03.30 P.M. all their family members were in the Maholla.MostofthefamilymembersoftheMahollawerein theChowk.IbrahimkhanUmarkhanwasalsopresent.Soon astheyheardthenoiseduetofear,theyrushedtowards theirhouses,healongwithhisfamilymemberswereinthe chowkandother4to5personsfromtheMahollawerealso inthechowk.ThosepersonswerefromMuslimcommunity. WhenthemobcamenearKalumiya'shousethenonlythey went inside their house. His house is having first floor. WhenhewenttoHanifDalumiya'shousetherewere5to7 persons of their community, he does not remember how much time he stayed there. Till the police came, he was thereonfirstfloor.Further,hedeposedtill08.03.2002he wasinNavavas,duetofearhewasthere.Hehadnotstated to any officer about the incident. He does not remember
// 591 //
whether he has stated before Visnagar Police in his statementdated08.03.2002that,atabout08.30P.M.mob ofPatels'about200300personswhoareresidentofnearby area of Dipra Darwaja, armed with deadly weapons, shouting slogans to cut, beat entered in the Maholla therefore,heenteredinhishouseandsaw.Itisadmittedby himthat,inhisstatementbeforeVisnagarPoliceorbefore S.I.T.hehasnotstatedthat,hehadseentheincidentfrom thewindowofMahmadHanif.Itisadmittedbyhimthat, beforeS.I.T.hehasstatedthat,hehadseentheincident fromthewindowofthehouseofMahmadHanif.Hedoes not remember whether, he has stated in the application that, mob entered in the Maholla, with deadly weapons hencehehidehimselfbythesideofhishouseandsaw.Itis admittedbyhimthat,theincidentofcutting,beatinghas notoccurredinthewayfallingjustinfrontofthehouseof Kalumiya. As per his say, this incident occurred in the Naveli, passing towards Kada Darwaja. It is admitted by himthat,duetofearhehasnotstatedwholefactsinthe earlier deposition. It is admitted by him that, in his statement before S.I.T. he has not stated that, Mahmad Hanif Dalubhai Sindhi told him that, Prahlad Gosa and DahyabhaiTribhovanwereinstigatingthemob,inbetween the house of Akbarmiya Kalumiya and Randal Mata's Madh. Further,hehasdeposedthat,intheYear2002he wasunderfearbutwhenS.I.T.hasrecordedhisstatement, he was not under fear. In his crossexamination by
// 592 //
accusedNo.83,hehasdeposedthat,hedoesnotremember whetherinearlierdepositionhehasstatedthat,Visnagar Policehasnotrecordedhisstatementasperhissayand whether any complaint that regard is made to Dy.S.P. or D.S.P. He does not remember, whether P.I. Rajput has recordedhisstatementon16.02.2004.Itisdeniedbyhim that, he has stated before Visnagar Police Station in his statement dated 10.03.2002 that, the statement dated 08.03.2002wasreadovertohim,whichiscorrectone.Itis deniedbyhimthat,hehasstatedinhisstatementthat,at about 08.30 P.M. mobabout200300personsenteredin theirMahollatherefore,hewentinhishouse.Itisdenied byhim that, S.I.T.hastemptedhimtostateaspertheir say,theywillcompensatehim.Inhiscrossexaminationby accusedNo.85,hehasstatedthat,hesawtheburningof thehouseofAkbarmiya,whichissituatedoutsideDipra Darwaja.Itwasnotpossibletoseethefactofanyperson inthemob.Itisadmittedbyhimthat,onlynoisetocutand beattheMuslimswerecoming. ThepresenceofthiswitnessinChudivas,atthetime of occurrence is natural one. Contradictions, omissions, exaggerations, discrepancies, inconsistencies are brought on record by the accusedsidebutthosearenotof such nature on which we can discard whole deposition. When themobenteredinMaholla,hewasinhishouse.Hecame outofhishousefor10minutes,thenwenttothehouseof
// 593 //
Mahmad Hanif and till the Police came, he was in the houseofMahmadHanif.Meaningthereby,beforehewent inside the house of Mahmad Hanif, he was having opportunitytoseethemob.Inthenaturalcourse,hewould haveseenwhatthemobisdoing,whatishappenings,what aretheslogansetc.Itisonlyafterknowingtheseriousness oftheoffence,hewouldhavegoneinsidethehouse.Thatis thenaturalconductofawitness,therefore,ifthiswitness is saying that, he had seen the mob armed with deadly weapons, burning thehouses,peltingofstones,shouting and abusing etc. are acceptable. Therefore, the say of accusedthat,itwasnotpossibleforthewitnesstoseethe mobforincidentisnotacceptable. [238] P.W.26HusenkhanBadarkhanBaloch(Exh.137)isthe hostilewitness.Inhisfirsttimedepositionnothingcomes outsupportingtheprosecutioncasewhilehissecondtime deposition can only be considered for corroboration purpose.Heissupportingtheincidentofburning,pelting of stones, entering of mob in the Maholla, abusing and shouting,armedwithdeadlyweaponsetc.Saidevidenceis corroborated by the evidence of other witnesses, which supportstheprosecutioncaseonthispoint. [239] P.W.27AbdulkarimMahmadbhaiMansuri(Exh.140)has inhiscrossexaminationdeposedthat,whenthemobcame healongwithhiswifewentonfirstfloor andfromthird
// 594 //
floor he came down on next day. His house, Kalumiya's house,Jamalmiya'shouseweredamaged,nootherhouse wasdamaged,hewenttoPoliceon06.05.2002.itisdenied byhimthat,hehasnotstatedbeforePolicethat,atabout 03.30mobofabout400personscame.Itisalsodeniedby himthat,hehasstatedbeforePolicethat,amobofabout 200300 persons armed with deadly weapons came at about 08.30 P.M. He is not crossexamined by other accused.Presenceofthiswitnesscannotbedoubted.Inhis crossexamination nothing comes out from which we can disregardthesayofthiswitnessaboutenteringofmobin the Maholla with weapons, pelting stones, burning and ransacking of houses etc. Therefore, the say of accused that,itwasnotpossibleforthewitnesstoseethemobfor incidentisnotacceptable. The presence of this witness in Chudivas is on the terraceforwholenight.Somecontradictionsandomissions arebroughtonrecord,incrossexamination.Butthefact that the mob entered in the Maholla, armed with deadly weapons, burnt the houses cannot be discarded on the strengthofthosecontradictionsandomissionsasthisfacts arewellestablishedfromotherevidencealso.Therefore,up tothatextent,hisevidenceisrequiredtobeaccepted. [240] P.W.28HanifabibiAbdulkarimMansuri(Exh.141) has admittedthat,herhouseisnotinChudivas.Itisadmitted
// 595 //
byherthat,afterincident,shealongwithherhusbandwas onterraceforwholenightandonnextdayatabout05.00 A.M.theywenttoHospital,thenwenttoherson'shouse andtillthepolicecameforrecordingstatement,theywere inherson'shouse.Itisdeniedbyherthat,shehasstated before the Police that, incident occurred at about 03.30 P.M. Her statement was recorded on 06.05.2002. During twomonths,shehasnotreceivedthemessageaboutthe murderofMuslimPersons.Itisdeniedbyherthat,shehas statedbeforethePolicethat,shealongwithherhusband wasdrivenoutbythemob.Shewillinglysaysthat,thisfact isstatedbyherhusband.Itisadmittedbyherthat,she has not stated before the Police that, she is having first houseinDipraDarwaja,havingfirstfloor.Whenthemob came,shecamedown,herhusbandwasinGroundfloor andmobbrokethedoor.Shealongwithherhusbandwas standingonthedoorofherhouse.Someonefromthemob triedtoinjureherhusbandbyGuptiandsomeonetriedto injureherhusbandbygivingstickblowandshewasforced tofelldownandshewasinjured.Itisadmittedbyherthat, she has stated before Police that, at about 08.30 P.M. a mobofabout250300persons,armedwithdeadlyweapons enteredintheMaholla.Itisdeniedbyherthat,onseeing themobsheclosedherhouse.Itisadmittedbyherthat, shehasstatedbeforePolicethat,afterthemobwentback, shealongwithherhusbandwentonterrace.
// 596 //
Considering the crossexamination of this witness, simplydenialsarebroughtonrecord.Nothingnewcomes outfromwhich,doubtcanbecreatedaboutthepresenceof this witness inDipraDarwaja.Fromtheevidenceofthis witness,ittranspiresthat,sheisresidinginDipraDarwaja onroadsideandshealongwithherfamilymembers,was on terrace for whole night. Looking to her evidence, she alongwithherhusbandwasdraggedoutbythemob,her husbandwasgivenstickandGuptiblowbuttheMedical CertificateisnotsupportingtheinjuriesbyGupti,itonly suggest injuries by stick blow. P.W.27 Abdulkarim Mahmadbhai Mansuri (Exh.140) also saying that, he and hiswifewereinjured,heisnotsayingabouttheinjuriesby Gupti. Thus,injurytoP.W.27AbdulkarimMahmadbhai Mansuri(Exh.140)issupportedbyMedicalevidenceandby these two witnesses. So far as injuries by Gupti is concerned, it is an exaggeration. From the deposition of this witness as well as deposition of P.W.28 Hanifabibi AbdulkarimMansuri(Exh.141),theirhousewasransacked and damages were caused to their house for Rs.3000/. From the crossexamination of both these witnesses, nothing comes out from which a doubt can be created aboutaboveversiontherefore,itisreliableone.Sofaras contradictions,exaggeration,omissionswhicharebrought in crossexamination is concerned, those are of minor in nature,whicharenotgoingtoadverselyaffecttheoriginal fact about dragging, injuries and ransacking, therefore,
// 597 //
those are required to be ignored. Simply because this witness has not stated before Police that, her house situated first in the Dipra Darwaja, having groundfloor and firstfloor, we cannot infer the noncredibility of the versionofthiswitness,onthiscount. The presence of this witness in Chudivas is on the terraceforwholenight.Somecontradictionsandomissions arebroughtonrecord,incrossexamination.Butthefact that the mob entered in the Maholla, armed with deadly weapons, burnt the houses cannot be discarded on the strength of those contradictions and omissions as those facts are well established from other evidence also. Therefore,uptothatextent,herevidenceisrequiredtobe accepted. [241] P.W.29 Hanifabibi Shabbirbhai Pathan (Exh.144) her presenceofthiswitnessinChudivasisgenuineone,asshe istheresidentofChudivas,sheishavingopportunitytosee themobasonhearingthenoise,shecameoutfromher house,atthattimeshewasinjured,thenshewasrushed towardstheMaholla.Herhousewasransackedandburnt and persons from Maholla were injured and family membersofYusufkhanwerediedduetoinjuries.Shewas having opportunity to see the mob therefore, if she is statingsaidfact,thatisreliableone.Shehasnotattributed any specific role to any accused, if she really intends to
// 598 //
falselyinvolvetheaccused,shewouldhaveattributedsome overtacttotheaccused.Nodoubtsheishostilewitness, herevidencecanbeconsideredforcorroborationpurpose. Nothingcomesoutfromcrossexaminationtodisbelieveher say about the incident, as stated in chiefexamination. Therefore,thesayofaccusedthat,itwasnotpossiblefor thewitnesstoseethemobforincidentisnotacceptable. [242] P.W.30ShabbirmiyaHasumiyaBelim(Exh.146) hasin his crossexamination by accused Nos.1 to 82, admitted that, from his birth he is residing in Chudivas. He was studyingwith Patels'ofDipraDarwaja.Theywerehaving good terms with each other. He was carrying Auto Rickshaw. On the day of incident he has kept his Auto RickshawintheRandalMataChowk,whenhewasinthe market,hesawtheburningofshopsofMuslimcommunity. Curfew was imposedatabout10.30A.M.Whenhecame backtohishouse,atthattimenoonehasdisruptedhim.It is admitted by him that, at the time of incident he was residing in Ahmedmiya Hasumiya's house, from there houseofYusufbhaiandYakubbhaiareinthesamerowand therewerefivetosixhousesinbetweenthem.Andonthe back side of his house, Ahmedbhai was staying in his house. He saw the mob coming in the Maholla at about 04.0005.00P.M.OnemobcamefromKadaDarwajaside andanothermobcamefromRandalMata'sMadhside,they gatheredinRandalMata'schowkandbyshoutingslogans
// 599 //
theywerepeltingstones,onseeingthemob,hewentinside the house and adjoining persons also came in his house andclosedthedoor.About40personswereinhishouse. About8to10personswentonfirstfloor.Therewasnoone inthehouseofAhmedmiya,allhisfamilymemberscamein hishouse.ItisonlywhenthePolicecame,thenonlythey cameout.WhenthePolicecameandtheycameout,pelting ofstonescontinued,hesustainedinjuriesduetopeltingof stones. They went to Police Station by passing Randal Mata'sChowk.Hisstatementwasrecordedafterninedays. It is denied by him that, he has not stated before Police that,personsintheVillageweresettingonfiretheshopsof the Muslims and at about 04.00 to 05.00 P.M. Patels of 300400personsenteredintheMaholla,armedwithdeadly weapons, shouting miyaoenesalaoenebaharkadhoane marroanekapisalgavimaarinakho.Itisdeniedbyhim that,hehasnotstatedbeforePolicethat,inhisMaholla, persons were screaming for help hence he went on first floor of his housefrom wherehesawtheincident.Itis denied by him that,hehasnotstatedbeforePolicethat, YakubkhanMuradkhanPathan,hiswife,twosons,mother, sisterinlawwerescreamingforhelpandmobattackedon them and by giving Sword blow they were brutally killed andtheywereburntintheNaveli.Thereafter,housesinthe Chudivaswereburnt.Thereafter,therewasdarkhencehe cameout,healongwithYusufkhanwenttoPoliceStation. Itisdeniedbyhimthat,hehasnotstatedbeforethePolice
// 600 //
that, daughter and son of daughter of Yusufkhan were killedbycuttingthem. InhiscrossexaminationbyaccusedNos.1to82,he hasstatedthat,hehasnotattendedtheburialritualsof said 11 persons. It is admitted by him that, he has not statedbeforeS.I.T.that,mobwhenstartedpeltingstones, he went in the ordi of his terrace of his house. It is admitted by him that, there was telephone facility in the houseofAhmedmiya.Itisalsoadmittedbyhimthat,there are persons belongingtoother caste,whoareresidingin theMaholla.Itisadmittedbyhimthat,fromKadaDarwaja tohishouse,itisnotpossibletocarryAutoRickshawto his house. It is denied by him that, he has not stated beforeS.I.T.that,mobenteredinthehouseofYakubkhan Muradkhan and Yakubkhan Muradkhan, his wife Husenabibi, his twosonsAasifkhan andAabidkhanwere brutally killed by giving Sword blow and thereafter by pouring kerosene, dead bodies were burnt. He does not rememberthat,inhisstatementdated08.03.2002hehas stated that, as the houses were burnt, they came out of theirhouses.Itisadmittedbyhimthat,during04.30P.M. to08.30P.M.personswhowereinsidethehouseweregoing andcominginhishouse.Duringthosefivehourshewasin his house. He has no knowledge whether Ibrahimkhan Umarkhan came to his house and he went to Police Station.HehasseenIbrahimkhanafter15days.Whether
// 601 //
family members of Ibrahimkhan were in his house or in theirhouse,hedoesnotremember. Duringthecourseof crossexamination,witnessisshown11photographsfrom thecustodyofadvocateappearingonbehalfofaccused.It isstatedbythewitnessthat,heisunabletosaywhoisthe ownerofthosehouses.Itisdeniedbyhimthat,noonecan see the house of Yakubkhan and Yusufkhan from his house.Itisdeniedbyhimthat,hehasnotstatedbefore Visnagar Police that, when the mob has ransacked his house,hewasoutofhishouse.Itisdeniedbyhimthat,he has not stated before Visnagar Police or in his earlier deposition that, the accused who are named earlier had givenSwordblowtothefamilymembersofYakubbhaiand Yusufbhaiandtheywerekilledbytheaccusedbycutting themintopiecesandthentheyweretakentoDalumiya's Naveli. It is also denied by him that, he has not stated beforeVisnagarPolicethat,threeladiescamewithkerosene gallonsandhandedovertomalemembers,whopouredthe keroseneandburntthepersons.Itisadmittedbyhimthat, this fact is not stated by him before S.I.T. He does not remember whether, he has stated before Visnagar Police that, just to save the family members of Yusufkhan and Yakubkhan,theyhadpeltedstonesbutthehousesofother side are in height and from there pelting of stones was continued. Witness had shouted for help but the nearby houses belongs to accused side but no one went to help them.Hedoesnotrememberwhetherhehasstatedbefore
// 602 //
VisnagarPolicethat,policecameandaskedthemtocome out,atthattimehishousebeingthelasthouse,themob willburnthathouseandduetothatfearhecameoutfrom hishouse.Hedoesnotrememberwhosehousewasburnt firstbythemob.Hedoesnotrememberatwhattime40 personscameinhishouse.Hishousewasburntafterthey went to Police Station and after the Police came in the night,whetherAhmedmiya'shousewasburntornot,heis unable to say. When he came out of his house, other houses were burning and there were high flames from those house. In his crossexamination by accused No.83, hehasadmittedthat,hehasnotstatedbeforeS.I.T.that, duetofearhecouldnotdeposecompletelybecausethere wasnopoliceprotection.Hehasdeniedthat,hehasnot statedbeforeVisnagarPolice,S.I.T.orearlierintheCourt that, he saw the incident from the Window. He does not remember whether on 01.03.2002, Visnagar Police InspectorcameinNavavasandrecordedhisstatement.He admits that, Policetookabout 10personsintheJeepto Civil Hospital for treatment. When he was in the Police Station he has not seen the Yakubkhan Muradkhan and YusufkhanMuradkhan.Itisadmittedbyhimthat,forone weekhehadnottriedtoPoliceInspectorM.K.Patel.He washavingknowledgeaboutthedeathof11personsinthe incident.Itisdeniedbyhimthat,hehasnotinformedthe F.S.L.Officersaboutthedeathof11persons.Itisadmitted by him that, on 08.03.2002 firsttimeheinformedPolice
// 603 //
InspectorM.K.Patelaboutthedeathof11personsinthe incident.Itisadmittedbyhimthat,hehasnotinformedto the society persons that 11 persons have died in the incident.EvenhehasnotinformedDy.S.P.aboutthedeath of11persons.HedoesnotrememberwhetherCollectoror D.S.P.wereinformedaboutthedeathof11persons.Itis deniedbyhimthat,inhisstatementdated19.03.2002,he has stated before Police Inspector M.K.Patel that, his statementdated08.03.2002isreadovertohim,whichis correct one. It is admitted by him that, in the statement before Police his Auto Rickshaw Number is written. It is deniedbyhimthat,hehasstatedbeforeP.I.that,during daytimeatabout12.00NoontherewasCurfewinVisnagar town at that time hecametoknow aboutthemurder of Muslimshencehewenttohishouse.Itisdeniedbyhim that,hehasstatedbeforethePolicethat,atabout08.30 mobabout200persons,residingofDipraDarwajaentered intheirMaholla.Itisadmittedbyhimthat,hehasstated before the Police that, mob entered in the house of Yakubkhan Muradkhan and by using sharp cutting instrumentskilledHusenabibiandhersonsAasifkhanand Aabidkhan by giving blow and thereafter by pouring kerosenetheywereburnt.Itisadmittedbyhimthat,inhis statementbeforePolicehehasstatedthenamesofinjured persons,whichwerewrittenbythePolice.Itisdeniedby himthat,the11personswerekilledbythemobintheir house. Itisadmittedbyhimthe,incidentofkillingof11
// 604 //
persons was occurred just in front of Dalumiya Bachumiya's house.Itisdenied by him that,he has not informedthisfacttoVisnagarPolice.Hedoesnotremember whetherhehasstatedbeforeS.I.T.thathesawthekillingof family members of Yusufkhan and Yakubkhan. It is admitted by him that,duetofear hewentin hisHouse. OtherpersonsfromMahollaalsocameinhishouse.Heis havingterraceonhishouse,thereisnostaircase,nofirst floorinhishouse.AllfamilymemberswereinhisHouse. HisbrotherAhmedbhaiandhisfamilymemberswerealso inhishouse.OnhearingthevoiceofPolicetheycameout. Thepersonswhowereinjuredwereshoutingforhelp.Itis admittedbyhimthat,hehadnotgonetohelpthem.Inhis crossexaminationbyaccusedNo.85,itisadmittedbyhim that,upto02.30inthechowkhehasnotseenanyone. Before 15 days there was function in the house of Dahyabhai Parshottambhai Patel and all members of Chudivaswerecalledinthatfunction,therewasnoenmity betweenthemandYusufbhaiandYakubbhai.Itisadmitted byhimthat,thehouseofNazirmiyaisfirstandthereafter, house of Yusufbhai and Yakubbhai is situated. Mob had notattackedthehouseofNazirmiya.Adjacenttohouseof Nazirmiya, house of Fatehkhan Badarkhan is situated. Nonefromthemobenteredinthathouse.Hewasstanding out side the Maholla. Mob had not tried to enter in his house nor he was beaten by the mob. Mob was having burningragsinhishands.Mobsetonfirethehousesin
// 605 //
the Maholla. The houseinwhichthiswitnesswas,other memberswerealsointhathouse,personsfrommobhave nottriedtoenterinthathouse.Ithasnothappenedthat, duetopeltingofstones,personswereinjured. Ithasnot happenedthat,whenmobcametheyalsopeltedstones,it has not happened that, mob had driven out the persons fromotherhousesnorkilledthem.Itisadmittedbyhim that,mobwassobigthat,theywerehavingsufficientitems toburnthehouses.Theywerehavinggallonsburningrags etc.Itisdeniedbyhimthat,onthedayofincidentdueto feartheyhadlefttheChudivasandatthetimeofincident therewasnooneintheChudivas. He is the resident of Chudivas, his presence in the Maholla,atthetimeofincidentisnaturalone,astherewas tenseatmosphereinthetownduetoGodhrariots,shehas anopportunitiestoseethemob,itisnormalreactionof thewitnesstoseewhatwashappeningswhenthemobwas peltingstones,shoutingslogansandwhoarethepersons formingthemob,itisonlyafterknowingwhattheywere doing the witness have felt the danger, here the incident was blasted for more than one hour and therefore, this witnesshassufficientopportunitytoseethemob,duration of incident, manner and opportunity are the important factorsaboutthepresenceandseeingtheincidentandmob by this witness. In that circumstances, if this witness is tellingaboutpeltingstones,enteringofmobintheMaholla,
// 606 //
burning the houses, abusing and shouting slogans and mob was armed with deadly weapons. In his cross examination nothing comes out from which we can conclude that, this witness had not seen pelting stones, burning the houses, abusing and shouting slogans, enteringofmobwithdeadlyweaponsManyquestionsare asked in crossexamination, but from those questions, credibility of this witness in respect of above evidence cannot be doubted. Denials are also taken in his cross examination, so far as contradictions, omissions, discrepancieswhicharebroughtincrossexaminationare concerned, those are not of such a nature from which a doubtcanbecreatedabouttheversionofthiswitnesson aboveevidence. ThiswitnessistheresidentofChudivas,hispresence inChudivasisnaturaloneandcannotbedoubted,hewas inhishouse,tillhewentinsidehishouse,itisnaturalone that, he would have seen the mob, burning houses, shouting and abusing, pelting stones, causing injuries to thewitnessesetc.Inhiscrossexaminationcontradictions, omissionsarebroughtonrecordbutthosearenotonmajor points,fromwhichthewholeversionofthiswitnesscanbe discarded.Thoseareofsuchanaturefromwhich,wecan infer the genuineness of the version of the witness. Naturallyafterenteringinhishouse,tillthepolicecame, he was inside his house, during that period what has
// 607 //
happened,itwasnotpossibleforhimtoseebutpeltingof stones, burning houses in Chudivas, entering of mob armedwithdeadlyweapons,abusingandshoutingbythe mob was seen byhim,that can easily bebelieved. Asin naturalcourse,apersonwouldtrytoseethemobwhatis happeningsinthemob,whatthemobisdoing,itisonly afterseeingthegravityofcrime,hewouldhavegonetohis house. That is the natural reaction. No doubt there are some consistent improvements in the deposition of the witnessbutfromthoseimprovements,thewholedeposition of the witness cannot be discarded. For that, we have to follow the grain and chaff policy therefore, the evidence, whichiscreditworthy,truthfulandreliableoneisrequired to be accepted and the improvements are required to be ignored. On the strength of the improvements we cannot discardthewholeevidence.Therefore,thesayofaccused that,itwasnotpossibleforthewitnesstoseethemobfor incidentisnotacceptable. [243] P.W.31AarifkhanYakubkhanPathan(Exh.147) hasin his crossexamination by accused Nos.1 to 82, deposed that after 9 to 10 days his statement was recorded. It is denied by him that,hehasstatedbeforethePolicethat, theywereintheHouseatabout08.30P.M.mobcameand had ransacked Maholla and abused the Muslim persons from the Maholla. It is denied by him that, he has not statedbeforethePolicethat,thepersonsfromthemobfirst
// 608 //
enteredinhishouseandbydrawingouthisGrandmother and Grandfather killed them by giving Sword blow. His Grandmother was screaming for help hence his mother, fatherandbrotherscameout.Itisdeniedbyhimthat,he has not stated before the Police that, he along with his SisterAminabenwenttothehouseofAhmedbhaiLightvala. Heandhissistersustainedinjuriesandtheirhousewas ransacked. When he was in the house of Ahmedbhai Lightvala,atabout05.00to06.00P.M.hecameoutfrom thathouseandsawthat,fourpersonsofhisfamilyandsix personsofhisUncle'sfamilyandMunafwereburntinthe Naveli and houses in the Maholla were set on fire. Only houseofAhmedbhaiLightvalaremainedunburnedasthere werepersonsinthathouse,theyhadprotestedhencemob wentback.TherewasGasCylinderinhishouse.Theyfelt that,GasCylindermaybursthencetheycameout.Patels' fromtheterracewerethrowingstones. InhiscrossexaminationbyaccusedNos.1to82he has admitted that, at the time of recording statement by S.I.T.hisearlierstatementwasreadovertohimandhehas stated that, those statements are correct one. After the incident,hewenttoDelvada.Hehasdeposedthat,atthe timeofincidenthewasstandingintheOrdi,whichisjust on the back side of his house. From the house of Ibrahimbhai,hewenttothehouseofAhmedbhaiLightvala. HehasnotstatedbeforethePolicethat,duetofearhewas
// 609 //
standingnearthewall.HehasnotstatedbeforethePolice on08.03.2002that,mobenteredintheirHouseandkilled hisfamilymembersbygivingSwordandDhariyablowand thereafter,bypouringkerosene,petrolonthedeadbodies, they burnt the dead bodies. Due to fear, he went in the housessituatedonthefrontsideofhishouseandhewas standingadjacenttowallfromwherehesawtheincident.It isadmittedbyhimthat,restofhisfamilymemberswerein the Yusufkhan's house and he saw that, seven persons were burnt in the Naveli. Other four persons were also burntintheNaveli.Itisadmittedbyhimthat,whenthese 11personswereburnt,hewasinthehouseofAhmedmiya. Itisadmittedbyhimthat,deadbodieswereburntinthe Naveli, situated in between Shabbirbhai Hasumiya and Mahmad Hanif's houses. In his crossexamination by accusedNo.83,hehasadmittedthat,hisstatementdated 10.03.2002wasrecordedbythePoliceasperhissay.Itis deposedbyhimthat,atthetimeofearlierdepositionthere wasnoPoliceprotectiontherefore,hewasunderfearand hehasnotidentifiedtheaccused. ThiswitnessistheresidentofChudivas,hispresence inChudivasisnaturaloneandcannotbedoubted,hewas inhishouse.Tillhewentinsidehishouse,itisnaturalone that, he would have seen the mob, burning houses, shouting and abusing, pelting stones, causing injuries to thewitnessesetc.Inhiscrossexaminationcontradictions,
// 610 //
omissionsarebroughtonrecordbutthosearenotonmajor points,fromwhichthewholeversionofthiswitnesscanbe discarded.Thoseareofsuchanaturefromwhich,wecan infer the genuineness of the version of the witness. Naturallyafterenteringinhishouse,tillthepolicecame, he was inside his house, during that period what has happened,itwasnotpossibleforhimtoseebutpeltingof stones, burning houses in Chudivas, entering of mob armedwithdeadlyweapons,abusingandshoutingbythe mob was seen byhim,that can easily bebelieved. Asin naturalcourse,apersonwouldtrytoseethemobwhatis happening in the mob,whatthe mob isdoing,it isonly afterseeingthegravityofcrime,hewouldhavegonetohis house. That is the natural reaction. No doubt there are some consistent improvements in the deposition of the witnessbutfromthoseimprovements,thewholedeposition of the witness cannot be discarded. For that, we have to follow the grain and chaff policy therefore, the evidence, whichiscreditworthy,truthfulandreliableoneisrequired to be accepted and the improvements is required to be ignored. On the strength of the improvements we cannot discardthewholeevidence.Therefore,thesayofaccused that,itwasnotpossibleforthewitnesstoseethemobfor incidentisnotacceptable. [244] P.W.32MahmadhanifDalubhaiSindhi(Exh.150)hasin hiscrossexaminationbyaccusedNos.1to82itisadmitted
// 611 //
that,hecannotseehouseofYusufkhanMuradkhanfrom hishouse.Hewashavinggoodrelationswithaccused.On thedayofincidentandonpreviousdayhewasnotunder fear. He was driving his Auto Rickshaw. It is only on 28.02.2002 he put his Auto Rickshaw in Randal Mata's Madh. He cannot see Auto Rickshaw in Chowk from his house. Other two Auto Rickshaws were also lying in the Chowk.Upto03.30P.M.hewassittingoutsidehishouse. Mob came from Randal Mata's Madh side, another mob camefromKadaDarwajaside.MobofKadaDarwajacame after one hour. When themobcamefrom DipraDarwaja side,hewasinhishouse,whenhewenttoAhmedmiya's house,atthattimemobwas15Ft.awayfromhim.Itis deniedbyhimthat,hehasnotstatedbeforethePolicethat, familymembersofYakubkhanwereburntintheNaveliby putting them one by one. He saw the burning of dead bodieswhenhewentintheAhmedmiya'shouse.Thereis no window in the house of Ahmedmiya. There was mob standingjustinfrontofAhmedmiya'shouse. InhiscrossexaminationbyaccusedNos.1to82,itis admittedbyhimthat,apersonsittinginhishouse,cannot see thehouse of YusufkhanandYakubkhan.Further,he hasdeposedthat,apersoncanseefromboththewindows situatedonfirstfloorofhishousetheopenspaceofhouse of Yusufkhan and Yakubkhan. He has seen the incident fromthewindowsituatedtowardstheNaveliofthehouseof
// 612 //
Yakubkhan.Whenhesawtheincident,therewasdarkness but in the flame of burning, he saw the incident. When Policecame,hewasinsideAhmedmiya'shouse.Whenhe sawtheincidentthreehouses adjacenttohishouseand thehouseofYakubkhanwerealsoburning.Thefirstfloor ofhishouseinwhichthiswitnesswas,wasalsoburning. Onseeingtheburningofhouses,hestayedfor10minutes onfirstfloor,whichissituatedjustfrontofthehouseof Gulabkhan. His wife and children were also with him. Whenhecameoutfromhishouse,hesawallthehousesin the line of Gulabkhanwereburning andtherewerehigh flamesfromthosehouses.Asperhissay,thepersonsfrom theMahollawereintheirhouses.Atabout03.3004.00 P.M.hecameinthechowk,other5to7personsfromtheir Societyhavealsoaccompaniedhim.Onhearingthenoise they went there. He saw outside Dipra Darwaja. Mob of about200personswereshouting.Soonasmobenteredin theMadh,hewentinhisMaholla.Whenhecameinhis houseafter23hours,hishousewasburnt.Itisadmitted byhimthat,whenhecameout,hesawthatwholeMaholla wasburning. Itisadmittedbyhimthat,hehasnotseen anydeadbody.Hehasnotstatedinhisstatementdated 10.03.2002 that, his statement dated 08.03.2002 is read over to him, which is correct one. It is admitted by him that,fromhishousewhatishappeningintheDalumiya's Naveli, he cannot see. He does not remember whether GoatswerealsoburntinChudivas.Itisadmittedbyhim
// 613 //
that, he has not stated in any of his statement that, PrahladbhaiGosaandDahyabhaiTribhovandasPatelwere presentinPoliceStationon28.02.2002andalsotheywere present when the house of Akbarmiya was burnt. It is admitted by him that, he has not stated in any of his statementthat,IbrahimkhanUmarkhanwasinjured.Itis deniedbyhimthat,hehasnotstatedbeforeVisnagarPolice that,IbrahimkhanUmarkhanwenttothePoliceStationto seekthehelpofPolice.Itisadmittedbyhimthat,hehas notstatedinanyofhisstatementandinearlierdeposition that,whenthemobwascausingdamageandsettingonfire thehouseofAkbarmiyaKalumiyaatthattimePrahladbhai GosaandDahyabhaiTribhovandasPatelwerepresentand they were telling to the mob that, they should go to the Maholla. In his crossexamination by accused No.83, he has admitted that, his statement dated 01.03.2002, 10.03.2002aregivenbyhimwillingly.Itisdeniedbyhim that,hehasnotstatedbeforetheVisnagarPolicethat,by comingdownfromfirstfloor,whilegoingtoShabbirmiya's house,hesawtheburningofdeadbodiesintheNaveliby pouring petrol, kerosene etc. It is admitted by him that, beforeS.I.T.hehasnotstatedthat,atthetimeofearlier deposition he was under fear as there was no Police protectiontohim. Itisdeniedbyhimthat,hehasstated beforeVisnagarPoliceon08.03.2002that,priortoincident he was in his house. It is denied by him that, he has createdthisfactthat,hesawtheincidentfromthewindow
// 614 //
ofthehouseofShermahmad.Inhiscrossexaminationby accused No.85 he was shown one application, he admits hissignatureinthatapplicationandalsoadmitsthat,that applicationwaspreferredbeforeNanavatiPanch. Inthose applicationsitisnotmentionedthat,PrahladbhaiGosaand Dahyabhai Tribhovandas Patel were present in the Police Stationandalsonotmentionedwhatcriminaloffencehave been done by them. It is denied by him that, soon as Curfewwasimposed,theywenttoNavavasandGhetiyavas and11personswerenotkilledinChudivas.Itisdeniedby himthat,itisdecidedbythemwhoshouldbeinvolvedin theoffenceandthereafter,thenameofpersonswerestated. Heisnotconnectedwithanypoliticalperson. ThiswitnessistheresidentofChudivas,hispresence inChudivasisnaturaloneandcannotbedoubted,hewas inhishouse,tillhewentinsidehishouse,itisnaturalone that, he would have seen the mob, burning houses, shouting and abusing, pelting stones, causing injuries to the witnesses etc. It is evident that, house of Yusufkhan Muradkhancannotbeseenfromhishousetherefore,when thiswitnesswentinsidehishouse,itwasnotpossiblefor himtoseewhathashappenedinthehouseofYusufkhan MuradkhanorintheNavelifallingtowardsbacksideofthe house of Yusufkhan Muradkhan Pathan. Therefore, his evidenceregardingkillingof11personsbygivingblowsto the11personscannotbeacceptedintheeyeoflaw.From
// 615 //
thedepositionofthiswitness,ittranspiresthat,itwasnot possibleforhimtoseewhathashappenedinthehouseof YusufkhanorintheNavelifallingtowardsbacksideofthe houseofYusufkhanPathan.Further,itwasnotpossiblefor him to see the AutoRickshaw standing in Randal Mata Chowk, Therefore, his say that, his AutoRickshaw was burntanddamagedbythemobrequirescorroborationfrom otherevidencebutasperhissaywhenthemobcame,he was sitting out side his house and the mob came from RandalMataMadhside,whereothertwoAutoRickshaws were standing. In such a circumstances it was quite possibleforhimtohavealookofdamagescausedtohis Rickshaw by the mob. However, his say about the screaming for help can be accepted and burning of dead bodiesbypouringkerosene,petroletc.canbeseenfromhis housebutdeathof11alleged persons hasalreadybeen discussedinearlierpartofthisJudgementanddeathof11 personsisnotbelievedinthatcircumstances,thisevidence ofkillingof11personsbygivingblowandburningofdead bodiesbypouringkerosene,petroletc.arenotacceptablein theeyeoflaw.Whenhesawtheincident,italsotranspires that,therewasdarknessbuttherewaslightoftheflameof theburningofthehouse.Therefore,ifthiswitnesssayshe saw the incident, in the flame of burning light, that possibilitycannotberuledout. Inhiscrossexamination contradictions,omissionsarebroughtonrecordbutthose arenotonmajorpoints,fromwhichthewholeversionof
// 616 //
thiswitnesscanbediscarded.Thoseareofsuchanature fromwhich,wecaninferthegenuinenessoftheversionof thewitness.Naturallyafterenteringinhis house,tillthe policecame,hewasinsidehis house,duringthatperiod whathashappened,itwasnotpossibleforhimtoseebut peltingofstones,burninghousesinChudivas,enteringof mobarmedwithdeadlyweapons,abusingandshoutingby themobseenbyhim,caneasilybebelieved.Asinnatural course, a person would try to see the mob what is happening in the mob,whatthe mob isdoing,it isonly afterseeingthegravityofcrime,hewouldhavegonetohis house. That is the natural reaction. No doubt there are some consistent improvements in the deposition of this witnessbutfromthoseimprovements,thewholedeposition of the witness cannot be discarded. For that, we have to follow the grain and chaff policy therefore, the evidence, whichiscreditworthy,truthfulandreliableoneisrequired to be accepted and the improvements are required to be ignored. On the strength of the improvements we cannot discardthewholeevidence.Therefore,thesayofaccused that,itwasnotpossibleforthewitnesstoseethemobfor incidentisnotacceptable. [245] P.W.33AnvarkhanBasirkhanBaloch(Exh.166) inhis crossexamination by accused Nos.1to 82, he has stated that, he is having Lever and Heart disease. Out of 17 houses in Maholla he ishaving 4houses. Atthe timeof
// 617 //
incident there were 13 to 14 persons in his house. It is deniedbyhimthat,hehasnotstatedbeforethePolicethat, whenthemobcametoattacktheirMaholla,onhearingthe samehecameoutofhishouseandhehadtriedtohavea talkwiththemandhadrequestedthemtokeeppeace.And his sons were telling him that,no onewillhear you and theytookhiminsidethehouse,meanwhilehewasinjured bythemob.OnhearingtheincidentD.S.P.,Dy.S.P.cameto theirMaholla. ThiswitnessistheresidentofChudivas,hispresence in Chudivas is natural one and cannot be doubted. It transpiresfromhisdepositionthat,soonasmobcame,he cameoutfromhishouseandsawthemobenteringinthe Maholla with deadly weapons, pelting stones, burning housesinChudivas,abusingandshoutingbymobetc.He went in his house, till he went inside his house, it is natural one that, he would have seen the mob, burning houses, shouting and abusing, pelting stones, causing injuries to the witnesses etc. In his crossexamination contradictions,omissionsarebroughtonrecordbutthose arenotonmajorpoints,fromwhichthewholeversionof thiswitnesscanbediscarded.Thoseareofsuchanature fromwhich,wecaninferthegenuinenessoftheversionof thewitness.Naturallyafterenteringinhishouse,tillthe police came,he wasinsidehishouse,duringthatperiod whathashappened,itwasnotpossibleforhimtoseebut
// 618 //
peltingofstones,burninghousesinChudivas,enteringof mobarmedwithdeadlyweapons,abusingandshoutingby themobseenbyhim,caneasilybebelieved.Asinnatural course, a person would try to see the mob what is happening in the mob,whatthe mob isdoing,it isonly afterseeingthegravityofcrime,hewouldhavegonetohis house. That is the natural reaction. No doubt there are some consistent improvements in the deposition of the witnessbutfromthoseimprovements,thewholedeposition of the witness cannot be discarded. For that, we have to follow the grain and chaff policy therefore, the evidence, whichiscreditworthy,truthfulandreliableoneisrequired to be accepted and the improvements are required to be ignored. This witness is deposing a newfact that second mobcamefromKadaDarwajaside,whichisnotthecaseof prosecution nor any evidence has been brought by the prosecutioninthedepositionofanyotherwitness,thereis nootherevidence,supportingthisfacttherefore,thesayof this witness that, another mobcamefrom KadaDarwaja sideisnotacceptableintheeyeoflaw.Sofarashissay that, he saw the killing of Yakubkhan and Yusufkhan familybycutting,burning.Lookingtothesituationofhis house and place of incident of cutting and burning the deadbodies,asallegedisconcerned,itisnotpossibleto seefromthehouseofthiswitness.Therefore,theversionof thiswitnessinthisregardcannotbeaccepted.Therefore, thesayofaccusedthat,itwasnotpossibleforthewitness
// 619 //
toseethemobforincidentisnotacceptable. [246] P.W.50SaidabibiMahmadhanifSindhi(Exh.302)hasin her crossexamination by accused Nos. 1 to 82, it is admittedthat,shesustainedstoneinjuriesandshewent inside her house and she was inside the house till the Policecame.Shesawfromthewindowfallingtowardsthe houseofDalubhaiandatthattimeherchildrenwerewith her.Whetherherhusbandwaswithherornot,shedoes not remember. She saw her husband standing in the chowk. Her husband was injured. Police came at about 08.30P.M.hencethemobdisbursed.Ithasnothappened that, the persons from their Maholla gathered in the Ahmedmiya Hasumiya's house. Her husband has not deposed in his deposition that, when attack started they wentinsidethehouseofAhmedmiya.Itisadmittedbyher that, 11 persons were of the family of Yusufkhan Muradkhan,theywerekilledandburntintheNavelifalling onthe back side ofthehouseofYusufkhanMuradkhan. She has not seen any person beating in the chowk. Incidentofcuttingoccurredatabout06.00P.M.Itisnot admittedbyherthat,noelectricitysupplywascontinued during 05.00 to 06.00 P.M. On the day of incident there wasnoelectricityaswiresofDipraDarwajasidewerecut off.Itisadmittedbyherthat,shehasseentheincidentin the flame of burning of houses. Police has recorded her statement. It is denied by her that, advocates from
// 620 //
Ahmedabad, leaders of their caste and Vajirkhan Pathan came to their Maholla. On receiving the stones, she immediatelywenttoherhouse.Shehadseentheincident fromthewindowofChowk.FromNavelifromwhere,when andhowthemobwent,shehadnotseen.Onreceivingthe message of Police, they came out and Yusufkhan Muradkhan also came. She was having no relations with theaccusedpersons,whoarenamedinchiefexamination buttheyaretheresidentsofDipraDarwaja. InhercrossexaminationbyaccusedNos.1to82she hasstatedthat,atthetimeoffirstdepositionshehasnot received any threating from any person and she has deposedwillingly,withoutanypressure.Itisadmittedby herthat,therewasnowindowinherfirstfloor.Ontheday of incident there was no light. It is denied by her that, during whole incident her husband was in the house of Ahmedmiyaandshealongwithherchildrenwasinsideher house.Itisadmittedbyherthat,whentheincidentstarted and till the Police came her husband and children were withherinsidethehouseonthefirstfloor.Itisadmittedby her that, houses of Usman Mohmad, Allahrakha, Ibrahimkhan,YakubkhanandYusufkhanwerenothaving anyfloor.Shehasstatedthat,whenthemobcameshewas atthedistanceof10to12Ft.andshehadseenthemob fromtheroadjustinfrontofherhouse.Shehadnotseen Aminabibi,IbrahimkhanandUsmanAhmedinthechowk
// 621 //
fromherhouse.Itisadmittedbyherthat,ifanypersonis shoutinginherhouse,itcanbeheardfromPoliceStation. Themobhadshoutingandstartedpeltingstones.Peltingof stonescontinuedaboutonehour.Simultaneouslyburning, causing damage to the houses were also continued. Her housewasburntatabout08.30P.M.11personswerekilled atabout06.0006.30P.M.Shehadseenkillingofthose personsintheflameofburning.Allhousesinthelineof her house were burning.Sheisunabletosaythat,from which way Police came, when she saw,Police was in the chowkthenonlyshealongwithherhusbandandchildren came out. It is admitted by her that, when Doctor had askedher,shetoldabouttheattackbythemob,peltingof stonesandthrowingofAcid.Herhusbandcametoherat about 10.00 P.M. She stayed in Navavas for about 12 Months but during that period, she had never seen the Police.Shehasadmittedthat,whateverdepositionshehas deposedinchiefexamination,thesamefactsarenarrated byherbeforeS.I.T.Shehasdeniedthat,shehasnotstated beforeS.I.T.that,shehasnotdeposedcompletelybeforethe CourtduetofearastherewasnoPoliceprotectionwithher. Itisdeniedbyherthat,shehasnotstatedthenamesof11 persons inher statementbeforeS.I.T.Itisdeniedbyher that, she has notstatedbeforeS.I.T.that,atthetimeof incidentherhusbandwaswithher.Atthetimeofincident shewasunconsciousforsometime.Shehasnoknowledge whetheranypersonhadinformedthePolicebytelephone
// 622 //
fromAhmedmiyaHasumiya'shouse.Itisadmittedbyher that, S.I.T. has asked all the persons at a time. It is admittedbyherthat,atthetimeofincidentmobofabout 200300personscame,duetofear,shewentonfirstfloor ofherhouse.InhercrossexaminationbyaccusedNo.85, shehasstatedthat,whenthemobcameshewasatDipra Darwajabutmobhadnotstartedbeatingthem. ThiswitnessistheresidentofChudivas,herpresence inChudivasisnaturaloneandcannotbedoubted,shewas inher house,tillshewentinsideherhouse,itisnatural onethat,shewouldhaveseenthemob,burninghouses, shouting and abusing, pelting stones, causing injuries to the witnesses etc. It is evident that, house of Yusufkhan Muradkhan cannot be seen from her house therefore, when this witness went inside her house, it was not possibleforhertoseewhatwashappeninginthehouseof YusufkhanMuradkhanorintheNavelifallingtowardsback side of the house of Yusufkhan Muradkhan Pathan. Therefore,herevidenceregardingkillingof11personsby givingblowstothe11personscannotbeacceptedinthe eyeoflaw.Fromthedepositionofthiswitness,ittranspires that,itwasnotpossibleforhertoseewhathashappened inthehouseofYusufkhanorintheNavelifallingtowards backsideofthehouseofYusufkhanPathan.However,her say about the screaming for help can be accepted and burningofdeadbodiesbypouringkerosene,petroletc.can
// 623 //
beseenfromherhousebutdeathof11alleged persons has already been discussed in earlier part of this Judgementanddeathof11personsisnotbelievedinthat circumstances, this evidence of killing of 11 persons by giving blow and burning of dead bodies by pouring kerosene, petroletc.arenotacceptableintheeyeoflaw. When she saw theincident,italsotranspiresthat,there was darkness but there was light of the flame of the burning of the house. Therefore, if this witness says she saw the incident, in the flame of burning light, that possibilitycannotberuledout.Inhercrossexamination contradictions,omissionsarebroughtonrecordbutthose arenotonmajorpoints,fromwhichthewholeversionof thiswitnesscanbediscarded.Thoseareofsuchanature fromwhich,wecaninferthegenuinenessoftheversionof thewitness.Naturallyafterenteringinher house,tillthe policecame,shewasinsideherhouse,duringthatperiod whathashappened,itwasnotpossibleforhertoseebut peltingofstones,burninghousesinChudivas,enteringof mobarmedwithdeadlyweapons,abusingandshoutingby themobwasseenbyher,thatcaneasilybebelieved.Asin naturalcourse,apersonwouldtrytoseethemobwhatis happening in the mob,whatthe mob isdoing,it isonly afterseeingthegravityofcrime,shewouldhavegonetoher house. That is the natural reaction. No doubt there are some consistent improvements in the deposition of this witnessbutfromthoseimprovements,thewholedeposition
// 624 //
of the witness cannot be discarded. For that, we have to follow the grain and chaff policy therefore, the evidence, whichiscreditworthy,truthfulandreliableoneisrequired to be accepted and the improvements are required to be ignored. On the strength of the improvements we cannot discardthewholeevidence.Therefore,thesayofaccused that,itwasnotpossibleforthewitnesstoseethemobfor incidentisnotacceptable. [247] P.W.51 Aminabibi Ahmedkhan Baloch (Exh.303), this witness is the resident of Chudivas, her presence in Chudivas is natural one and cannot be doubted. It transpiresfromherdepositionthat,soonasmobcame,she wasinherhouseandsawthemobenteringintheMaholla with deadly weapons, pelting stones, burning houses in Chudivas,abusing andshouting bymobtocut,beatthe Muslimsetc. ShewentinthehouseofHasumiya,tillshe went inside her house, it is natural one that, she would haveseenthemob,burninghouses,shoutingandabusing, pelting stones, causing injuries to the witnesses etc. She sustainedinjuriesinpeltingstones.Naturallyafterentering in the house of Hasumiya, till the police came, she was insidethehouseofHasumiya,duringthatperiodwhathas happened,itwasnotpossibleforhertoseebutpeltingof stones, entering of mob armed with deadly weapons, abusingandshoutingbythemobseenbyher,caneasilybe believed. Asin naturalcourse,apersonwouldtrytosee
// 625 //
themobwhatishappeninginthemob,whatthemobis doing,itisonlyafterseeingthegravityofcrime,shewould havegonetothehouseofHasumiya.Thatisthenaturalre action. Therefore, the say of accused that, it was not possibleforthewitnesstoseethemobforincidentisnot acceptable. [248] P.W.52 Faridabanu Ahmedkhan Baloch (Exh.306) has inhercrossexaminationdeposedthat,whenshesustained stone injury, she was standing just in front of house of AhmedmiyaHasumiya.Itisadmittedbyherthat,shehad seentheincidentfromFirstFloor.Saidabibiwaswithher. As per her deposition from the window, two persons can easilyseetheincidentatatime.SheandSaidabibiwere watchingtheincidentonebyone.Witnesshadseenwhole incidentofkillingfromtheWindow.Itisadmittedbyher that, thereafter Saidabibi had seen the incident from the Window.Againthewitnesshadseenfromthewindow,at thattimeHindus'weretakingthedeadbodiesintheNaveli. SheandSaidabibihadseenthewholeprogrammeoneby one.Aspersayofthiswitness,shehadseentheburningof deadbodiestowardsrightsideofDalumiya'sHouse.Mob burntthedeadbodiesbyputtingthedeadbodiesinpiled manner. She saw the burning of dead bodies, where the dead bodies were burnt, that place is such no Auto Rickshawcanpassthroughit.Inhercrossexaminationby ShriBrahmbhattonbehalfofaccusedNos.1to82,shehas
// 626 //
stated that, killing and burning of persons incident occurred at about06.00P.M.whilePolicecameatabout 08.3009.00P.M. InhercrossexaminationbyaccusedNos.1to82,she hasadmittedthat, complainantisherelderbrother.She does not remember whether she had informed to her brotherMahmadIqbalaboutthekillingof11persons.No statement was recorded by any Police except S.I.T. It is admitted by her that, she has stated before S.I.T. that, Patels'hadthrownburningrags,burningtyresfromtheir adjoininghousesandhousesofMuslimsofChudivaswere burntandatthattimemobenteredintheirMaholla.After 10 minutes, when the incident started, she went to the houseofSaidabibi.Atthattime,personswererushinghere and there. She has no knowledge where her family memberswere.Itwasonlynightwhenshecameout,she sawherfamilymembers.Sheisunabletosaythat,shehas statedbeforeS.I.T.that,themobattackedthepersonsand killedbydeadlyweaponsandbydraggingthedeadbodies in the Naveli and after pouring keroseneandpetroldead bodieswereburnt.Shedoesnotrememberwhethershehas stated before the Doctor that, mob attacked by pelting stonesandbythrowingAcid.Inhercrossexaminationby accusedNo.83,shehasstatedthat,ontheseconddayand thirdday,VisnagarPolicecameinGhetiyavasforrecording theStatementandatthattime,Muslimleaderswerethere.
// 627 //
InhercrossexaminationbyaccusedNo.85,shehasstated that,shedoesnotrememberwherewassheandwhowere inthemob. ThiswitnessistheresidentofChudivas,herpresence inChudivasisnaturaloneandcannotbedoubted,shewas inher house,tillshewentinsidethehouseofDalumiya Sindhi,itisnaturalonethat,shewouldhaveseenthemob, burning houses, shouting and abusing, pelting stones, causing injuries to the witnesses etc. It is evident that, houseofYusufkhanMuradkhancannotbeseenfromthe houseofDalumiyaSindhiandtherefore,whenthiswitness went inside the house of Dalumiya Sindhi, it was not possibleforhertoseewhatwashappeninginthehouseof YusufkhanMuradkhanorintheNavelifallingtowardsback side of the house of Yusufkhan Muradkhan Pathan. Therefore,herevidenceregardingkillingof11personsby givingblowstothe11personscannotbeacceptedinthe eyeoflaw.Fromthedepositionofthiswitness,ittranspires that,itwasnotpossibleforhertoseewhatwashappened inthehouseofYusufkhanorintheNavelifallingtowards backsideofthehouseofYusufkhanPathan.However,her say about the screaming for help can be accepted and burningofdeadbodiesbypouringkerosene,petroletc.can beseenfromthehouseofDalumiyaSindhibutdeathof11 allegedpersonshasalreadybeendiscussedinearlierpart ofthisJudgementanddeathof11personsisnotbelieved inthatcircumstances,thisevidenceofkillingof11persons
// 628 //
by giving blow and burning of dead bodies by pouring kerosene, petroletc.arenotacceptableintheeyeoflaw. When she saw theincident,italsotranspiresthat,there was darkness but there was light of the flame of the burning of the house. Therefore, if this witness says she saw the incident, in the flame of burning light, that possibilitycannotberuledout.Inhercrossexamination contradictions,omissionsarebroughtonrecordbutthose arenotonmajorpoints,fromwhichthewholeversionof thiswitnesscanbediscarded.Thoseareofsuchanature fromwhich,wecaninferthegenuinenessoftheversionof the witness. Naturally after entering in the house of DalumiyaSindhi,tillthepolicecame,shewasinsidethe house of Dalumiya Sindhi, during that period what was happened,itwasnotpossibleforhertoseebutpeltingof stones, burning houses in Chudivas, entering of mob armedwithdeadlyweapons,abusingandshoutingbythe mob was seen by her, that can easily be believed. As in naturalcourse,apersonwouldtrytoseethemobwhatis happeningsinthemob,whatthemobisdoing,itisonly afterseeingthegravityofcrime,shewouldhavegonetothe houseofDalumiyaSindhi.Thatisthenaturalreaction.No doubt there are some consistent improvements in the deposition of this witness but from those improvements, the whole deposition of the witness cannot be discarded. For that, we have to follow the grain and chaff policy therefore,theevidence,whichiscreditworthy,truthfuland
// 629 //
reliable one is required to be accepted and the improvementsarerequiredtobeignored.Onthestrength oftheimprovementswecannotdiscardthewholeevidence. Therefore,thesayofaccusedthat,itwasnotpossiblefor thewitnesstoseethemobforincidentisnotacceptable. [249] P.W.58KarishmabanuYusufkhanPathan(Exh.502)has in her crossexamination by accused Nos.1 to 82, stated that,herfamilymemberswenttowardsdifferentdirections fromtheirhouse.Whenshewasinherhouse,shehadnot seen the Patels' in Naveli. A Auto Rickshaw cannot pass throughit.ItisnotpossiblefortwoAutoRickshawtopass at a time from the way, falling in front of Shabbirmiya's house. It is admitted by her that, no Patels were on the backsideoftheirhouse.Peltingofstonesstartedfromthe terraceofthehousesandthepersonsonthegroundfloor werealsopeltingthestones.Whenthefamilymembersof thewitnesswereattacked,shewasintheNaveli.Incident of killing of her family members took place for about 5 Minutes. When attack took place, adjoining houses were burning.Itwasabout7.00P.M.NoneofthehouseofPatel wasburning.ShewastakenbyherfatherbeforeS.I.T.for recordingofherstatement.Shehasnoknowledgewhether anydamagesarepaidtoherbytheGovernment. Inher crossexaminationbyaccusedNo.83,shehasstatedthat, on the next day of incident she went to the House of Iqbalbhai, where she stayed for about one month.
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Thereafter,shewentintheReliefCamp.Itisadmittedby herthat,personsfromhercommunityhavedeclaredheras diedormissing.Itisadmittedbyherthat,S.I.T.Officers have called her along with other family members. There were 4 to 5 Police Officers, who had inquired about the incident.Itisadmittedbyherthat,Policecamelittlelateat the place of offence. It is denied by her that, D.S.P. and Collectorcamethereatthetimeofincident.Inhercross examination by accused No.85, she has stated that, she doesnotrememberwhether,shehidedherselfinherhouse andwhowereinthemob. Presence of this witness in the Maholla and in the houseofYusufkhancannotbedoubted.Thiswitnessisthe residentofChudivas,herpresenceinChudivasisnatural oneandcannotbedoubted,shewasinherhouse,tillshe wentinsidethehouseofDalumiyaSindhi,itisnaturalone that, she would have seen the mob, burning houses, shouting and abusing, pelting stones, causing injuries to the witnesses etc. It is evident that, house of Yusufkhan Muradkhan cannot be seen from the house of Dalumiya Sindhi and therefore, when this witness went inside the houseofDalumiyaSindhi,itwasnotpossibleforhertosee whatishappeningsinthehouseofYusufkhanMuradkhan orintheNavelifallingtowardsbacksideofthehouseof Yusufkhan Muradkhan Pathan. Therefore, her evidence regarding killing of 11 persons by giving blows to the 11
// 631 //
persons cannot be accepted in the eye of law. From the deposition of this witness, it transpires that, it was not possibleforhertoseewhatwashappenedinthehouseof YusufkhanorintheNavelifallingtowardsbacksideofthe houseofYusufkhanPathan. However,hersayaboutthe screaming for help can be accepted and burning of dead bodies by pouring kerosene, petrol etc. can be seen from the house of Dalumiya Sindhi but death of 11 alleged persons hasalreadybeendiscussedinearlierpartofthis Judgementanddeathof11personsisnotbelievedinthat circumstances, this evidence of killing of 11 persons by giving blow and burning of dead bodies by pouring kerosene, petroletc.arenotacceptableintheeyeoflaw. When she saw theincident,italsotranspiresthat,there was darkness but there was light of the flame of the burning of the house. Therefore, if this witness says she saw the incident, in the flame of burning light, that possibilitycannotberuledout.Inhercrossexamination contradictions,omissionsarebroughtonrecordbutthose arenotonmajorpoints,fromwhichthewholeversionof thiswitnesscanbediscarded.Thoseareofsuchanature fromwhich,wecaninferthegenuinenessoftheversionof the witness. Naturally after entering in the house of DalumiyaSindhi,tillthepolicecame,shewasinsidethe house of Dalumiya Sindhi, during that period what was happened,itwasnotpossibleforhertoseebutpeltingof stones, burning houses in Chudivas, entering of mob
// 632 //
armedwithdeadlyweapons,abusingandshoutingbythe mob was seen by her, that can easily be believed. As in naturalcourse,apersonwouldtrytoseethemobwhatis happeningsinthemob,whatthemobisdoing,itisonly afterseeingthegravityofcrime,shewouldhavegonetothe houseofDalumiyaSindhi.Thatisthenaturalreaction.No doubt there are some consistent improvements in the deposition of this witness but from those improvements, the whole deposition of the witness cannot be discarded. For that, we have to follow the grain and chaff policy therefore,theevidence,whichiscreditworthy,truthfuland reliable one are required to be accepted and the improvementsarerequiredtobeignored.Onthestrength oftheimprovementswecannotdiscardthewholeevidence. Therefore,thesayofaccusedthat,itwasnotpossiblefor thewitnesstoseethemobforincidentisnotacceptable. [250] P.W.96IbrahimkhanUmarkhanBaloch(Exh.610)hasin his crossexamination,admittedthat,from northerndoor of his house, house of Yakubmiya cannot be seen. It is admitted by her that, house of Umarkhan Bashirkhan is situated just infrontofhishouse.Itisadmittedbyhim that, while standing between his house and Umedmiya's house,apersoncannotseetheRandalMata'sMadh.Itis admitted by him that, when the mob came, he was not standing in between the northern side door of his house and house of Umarkhan. It is admitted by him that,
// 633 //
towardsrightsideofKalumiya'shouseandinRandalMata Chowk,therewereabout10to15persons.Hehadatalk withPoliceInspectorM.K.Patelforabout2to4Minutes. Hewasattackedatabout03.30to04.00P.M.Hestayedin the Hospital for about 7 days. Thereafter, he went to his Sister'shouse.Itisadmittedbyhimthat,inthathouse28 persons of his family werestaying. Itis admitted by him that,hehasnotmadeanycomplaintabouttheincident.He hasdeposedthat,hehaslodgedcomplaintbeforeS.I.T.on 06.08.2008.Itisadmittedbyhimthat,on28.02.2002,at about04.00to05.00P.M.PolicetookhimtoVisnagarCivil Hospital, where he had given history of Dhariya blow on him.Itisdeniedbyhimthat,hehasgivenhistorybefore theDoctorthat,hewasattackedbyDhariyablow.Hehad not attended the burial rituals of any person out of 11 persons, who were killed. In his crossexamination by accusedNo.83,hehasstatedthat,atabout02.30P.M.he went to Police Station. It is denied by him that, in his complaint before Police that, when he went to Police Station,therewasonlyonePoliceConstableinthePolice Station. He metPoliceInspectorM.K.PatelinthePolice Station.Hehasadmittedthat,hegotassistancefromthe PoliceinshiftingtoHospital.Itisadmittedbyhimthat,for three years he stayed at Kakoshi but no complaint was givenbyhimduringthatperiod.Thereafter,alsohehadnot given any complaint before Visnagar Police Station. S.I.T. Officershaverecordedhisstatementaftersixyears.
// 634 //
Fromthedepositionofthiswitness,presenceofthis witnessintheChudivasatthetimeofoccurrencecannot be doubted, but this witness is not deposing specifically abouttheburning,peltingofstone,onlysayingaboutthe damagescausedtothehouseofAkbarmiyaKalumiyaand he saw his house burning condition. Nothing else comes outfromthedepositionofthiswitness. [251] P.W.125SabanabibiAnvarhusenPathan(Exh.678) has inhercrossexaminationbyaccusedNos.1to82,shehas statedthat,theywerenothavinganyrelationwithPatels'of DipraDarwaja.Itisadmittedbyherthat,before04.00P.M. therewaspeaceintheMaholla.5060personswereinside the house of Ahmedmiya. Mahamd Tabir, Mahmad Iqbal, HanifDalubhaiwerealsowiththem.YakubandYusufwere notwiththem.Itisdeniedbyherthat,shehasnotstated before Police that, first Auto Rickshaw was burnt by the mob,thereafter,theycausedinjurytothepersonsoftheir Maholla. She does notremember whether she hasstated before S.I.T. that, mob had ransacked their houses. She does not remember whether she has stated that, the persons in Maholla were talking that, Prahladbhai Gosa told to kill the Muslims. In her Crossexamination by accusedNo.83,shehasstatedthat,shedoesnotremember that,onnextdayandthirddayofincident,Policecamein Ghetiyavas for inquiry. She does not remember whether
// 635 //
PoliceInspectorhadrecordedstatementsof4to5persons inGhetiyavas.InhercrossexaminationbyaccusedNo.85 she has deposed that, she is unable to say who had attacked first as she was inside the House. When the incident occurred she was in her house. Thereafter, she wentinthehouseofAhmedmiya. ThiswitnessistheresidentofChudivas,herpresence inChudivasisnaturaloneandcannotbedoubted,shewas inthehouseofAhmedmiya,tillshewentinsidethehouse ofAhmedmiya.Itisnaturalonethat,shewouldhaveseen the mob, burning houses, shouting and abusing, pelting stones, causing injuries to the witnesses etc. Further, it wasnotpossibleforhertoseetheAutoRickshawstanding in Randal Mata Chowk, Therefore, her say that, Auto Rickshaw was burnt and damaged by the mob requires corroborationfromotherevidencebutasperhersaywhen the mob came, she was sitting out side the house of Ahmedmiya and the mob came from Randal Mata Madh side, where other two AutoRickshaws were standing. In suchacircumstancesitwasquitepossibleforhertohavea lookofdamagescausedtohisRickshawbythemob.Inher crossexamination contradictions, omissions are brought onrecordbutthosearenotonmajorpoints,fromwhich thewholeversionofthiswitnesscanbediscarded.Those are of such a nature from which, we can infer the genuineness of theversionofthewitness.Naturally after
// 636 //
enteringinthehouseofAhmedmiya,tillthepolicecame, shewasinsidethehouseofAhmedmiya,duringthatperiod whatwashappened,itwasnotpossibleforhertoseebut peltingofstones,burninghousesinChudivas,enteringof mobarmedwithdeadlyweapons,abusingandshoutingby themobwasseenbyher,thatcaneasilybebelieved.Asin naturalcourse,apersonwouldtrytoseethemobwhatis happeningsinthemob,whatthemobisdoing,itisonly afterseeingthegravityofcrime,shewouldhavegonetothe house of Ahmedmiya. That is the natural reaction. Therefore,thesayofaccusedthat,itwasnotpossiblefor thewitnesstoseethemobforincidentisnotacceptable. [252] P.W.127 Imrankhan Sabirhusen Pathan (Exh.681) has in his crossexamination by accused Nos.1 to 82 denied that, he has stated before S.I.T. that 200300 persons, armed with deadly weapons entered in the Maholla, shoutingsloganstocut,beatandthenmobstartedpelting stones.Inwhosehandswhicharmwasthatheisunableto say.Hehasdeniedthat,hehasnotstatedbeforetheS.I.T. that,atabout02.30P.M.mobenteredintheMaholla.Itis admittedbyhimthat,hehasstatedbeforeS.I.T.that,mob wasshoutingtocut,beattheMuslims.Theywerearmed with deadly weapons and they thrown burning rags and theywerebeatingthepersonsofMaholla.Itisdeniedby him that, he has not stated before S.I.T. that, in the incident 11 persons of Yusufbhai are killed. He does not
// 637 //
rememberwhetherhehasstatedbeforeDoctorthat,hewas attacked by pelting stones and throwing acid. When he went to the house of Shabbirmiya, there were 2025 persons.InhiscrossexaminationbyaccusedNo.83,itis admittedbyhimthat,onseeingthePolice,theycameout. HedoesnotrememberwhetherNazirmiyaKalumiyawasin thehouseofShabbirmiya.ItisdeniedbyhimthatD.S.P., Dy.S.P., Mamlatdar came in the Chudivas. In his cross examination by accused No.85, he has deposed that, he doesnotrememberwhathashappenedintheincidentand who were in the mob. What overt act has been acted by whom. Atthetimeofoccurrencethiswitnesswasagedabout 12years,he washavingsufficientopportunitytoseethe mob, when the mob entered in the Maholla, armed with deadly weapons, shouting slogans, abusing the Muslims, burning the houses, pelting stones as this witness was playing in the Maholla, therefore, his presence in the Mahollaaswellasseeingthemobisgenuineone.Nodoubt atthetimeofoccurrencehewaschildbuthissayregarding pelting stones, shouting slogans, mob entered in the Maholla,armedwithdeadlyweapons,issupportedbyother witnesses in their deposition therefore, this part of depositionofthiswitnessisreliable,creditworthy,thereis no exaggeration in his deposition. If really he inclined to involve false accused, he would have certainly attributed
// 638 //
some overt act of the accused by specifying the arms in their hands but had not done so. So far as killing of 11 personsofYusufkhan'sfamilyisconcerned,heissilent.It isnotclearfromhisdepositionwhetherhehasseenkilling, cutting,burningof11persons,simplyheissayingthat,11 personsofYusufkhan'sfamilywerekilled.Fromwhereand inwhatmannerhehasseentheincidentofkilling,nothing specificisstatedbythiswitness,therefore,onthispointhe cannotbereliedupon.Inhiscrossexaminationdenialsare brought on record to show the contradictions and omissions,asthosefactsareprovedbyotherevidencethen inthatcircumstancesthosecontradictionsandomissions becomes of no value.His say aboutkilling of11persons incidentisnotreliable,assimplyheisstatingaboutkilling of11persons.Heisunabletosaywhathadhappenedin theincidentandwhatovertacthasbeenactedbywhom. Thus,byrelyingupontheevidenceofthiswitness,accused cannot be held guilty however, his deposition regarding burningofhouses,peltingofstones,enteringofmobinthe Mahollaarmedwithdeadlyweapons,abusingandshouting slogans is established by the prosecution by adducing evidencetherefore,thisportionofevidenceofthiswitness isreliable. [253] P.W.135BashirnbibiGulmahmadSindhi(Exh.724) has In her crossexamination by accused Nos.1 to 82 denied that,shehasstatedbeforeS.I.T.thatatabout08.30P.M.
// 639 //
PolicecameandshewastakentoCivilHospitalbyhersons and thereafter, she was taken to Vijapur and she was shiftedtoHimmatnagarHospital.Itisadmittedbyherthat, afterreceivingstoneinjury,shewenttoHospitalaftersixto eightmonths.Itisadmittedbyherthat,shehasnotstated beforeS.I.T.that,Patels'oftheirMahollahaveburnttheir housesandtheywereshoutingtocut,beattheMuslims.It is admitted by her that, she has not stated before S.I.T. that,theywerebeating.Itisadmittedbyherthat,shehas notstatedbeforeS.I.T.thatonsustaininginjuriesshewent tothehouseofAhmedmiyaandstayedupto08.00P.M.It is admitted by her that, she has not stated before S.I.T. abouttheinjuriestoherhusbandandsons.Inhercross examination by accused No.83, she has stated that, she stayedatGhetiyavasforfivedays. Sheistheinjuredeyewitness,itiswellsettledthat, aninjuredwitnesswillnottrytoindulgewrongpersonsin the incident,onthecontraryhewilltrytoseethat,real culprit should be punished. She is the resident of Chudivas,whenthemobhadattackedChudivas,shetook shelterinthehouseofAhmedmiya,meaningtherebyshe was having opportunity to see the mob until she went insidethehouseofAhmedmiya.Inhercrossexamination denialsarebroughtonrecordbutthosearesimpledenials, there is nothing in her crossexamination from which we can discard the deposition of this witness in chief
// 640 //
examinationregardingenteringofmobintheMahollawith deadly weapons, pelting stones, abusing and shouting slogans.Thosecontradictionsandomissionsareminorin nature and much attention cannot be given to those contradictions,omissionsetc.
[254]
P.W.149 Arbaz Anvarhusen Pathan (Exh.778), in the deposition of this witness, except entering of mob in the Maholla, burning of houses, injuries to this witness, nothingelseisstatedbyhim.
[255]
P.W.150 Aslambhai Kadarbhai (Exh.779), his presence intheMahollaatthetimeofoccurrenceisreliable,heis tellingaboutthekillingof11personsbutheisnottelling thedetailsofkilling,ingeneraltermshehasstatedabout the killing, however, in pelting stones he is injured. This factissupportedfromtheinjurycertificatesandwhythis witnesswilltelllie,ashewashavingnopreviousenmity withaccusedandthus,peltingofstones,enteringofmob andinjuriestothiswitnessisestablishedinhisdeposition. The denials which are brought on record in cross examinationaresuchwhichsuggestminorcontradictions andomissionsonthestrengthofthosecontradictionsand omissions, we cannot disregard the say of this witness regardingpeltingofstonesandinjuriestohim.
// 641 //
[256]
P.W.162 Sohil Mahmad Hanif (Exh.825) from the evidence of this witness, presence of this witness in Chudivas is established and mob armed with Sword, dhariya,enteredintheMaholla,burntthehousesisalso established.Sofaraskillingof11personsisconcerned,he isnotsayingthat,hehasseenthekillingof11persons. Thiswitnessistheinjuredeyewitness,thereisnoreason forhimtotelllieagainsttheaccused,ashewashavingno previousenmitywiththem.Thus,asstatedabovetothat extenthisdepositionisreliableone.
[257]
P.W.180 Pathan Shabnoorbanu alias Shayaonara Yakubkhan (Exh.1345) hasinher crossexaminationby accused side stated that, when she came out from her house, at that time her mother Husenabibi, her father Yakubkhan brother Aasif and Aabid, Grandmother Jinnatbibi,AuntBanubibiandhersonsAmanaullakhan and Attaullakhan, daughter Afsana and daughter of her Uncle Suhanabibi and her sons Munaf and Aarif were there.HerbrothertookhertoAhmedmiya'shouse.When theywenttoAhmedmiya'shouse,therewerepersonsbut noonehadobstructedthem.Therewereotherpersonsin thehouseofAhmedmiya,whenshewenttothehouseof Ahmedmiya, at that time there was darkness, when she cameoutfromthehouseofAhmedmiyaatthattimethere was no light, when police asked them to come out, they cameoutandatthattimeshesawtheburningofhousesin
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their Maholla. They were taken to Police Station and Hospital.HisuncleYusufkhanwasmeetherinthePolice Station.ShemetheruncleonnextdayinNavavas. ShewaspresentintheMahollaandsheissupporting the incident regarding damage, shouting slogans, pelting stones,injuriestoheretc.Whenweconsiderherevidence, shewashavingsufficientopportunitytoseethemob,what the mob is doing, before she went inside the house of AhmedbhaiHasubhai,shewasinjuredinpeltingstone,the injurieswhichshehasnarratedinherexaminationinchief aresupportedbytheMedicalOfficerinhisdepositionas wellascorroboratedbytheMedicalevidence.Inhercross examination, she isveryspecificthat,family membersof Yusufkhanwereinsidethehouseandshealongwithher brother went to Ahmedmiya's house, just to save them, meaningtherebytillsheleftthehouseofYusufkhan,family membersofYusufkhanwereinsidethehouse.Therefore,by placingrelianceuponherdeposition,itisdifficulttorely aboutthekillingofdeadpersonsasalleged.Further,inthe Medical Certificate, her age is shown as about 80 years while in her deposition she has deposed her age as 20 Years,whichcreatesdoubtwhethersheisthesameperson. Therefore,byrelyinguponthedepositionofthiswitness,we cannotconcludetheovertactoftheaccusedpersonsand accusedcannotbeconvictedonthebasisofherdeposition.
// 643 //
[258]
P.W.18SaiyedNazirmiyaKalumiya(Exh.103)hasinhis crossexaminationbyaccusedNos.1to50deposedthat, hewastakenforIdentificationParadeofremainsonnext dayofhisstatement.11personsofYusufkhanMuradkhan, the maternal uncle of witness died in front of back side doorofthehouseofIbrahimkhanUmarkhan.Atthetimeof incident,hewasonterraceofhishousefor04.00P.M.to 08.30P.M.Inhisfamilytherewerefourpersons,hiswife andtwochildren.Inhiscrossexamination,hehasdeposed that,whenhewasontheterrace,atthattimeburningrags werethrownfromtheterraceoftheHousesoftheHindu. HousesofRandalMata'sMadharelowinheightfromhis house,noburningragorstonewasthrowntohishouse. Thethrowingofburningragsandpeltingofstonesfromthe housesofHindubutwhowerethosepersons,hehasno knowledge. Before three days of incident, there was Id hencehiswifeandChildrenhadgonetoUnavaandhewas aloneinhishouse.OntheeveofIdgenerallythepersons whousedtoresideoutsideusedtocometheirnativeplace i.e.thegeneralprecedent.Itisdeniedbyhimthat,healso alongwithhiswifewenttoUnava.Staircaseofhishouse wasburningtherefore,hecamedownfromtheterraceof hishousetoSecondfloorandthentoToiletblock.Hecame downonlywhenthepolicecame.Theincidentofkillingand burningoccurredatabout6.00to7.00P.M.,mobwasnot shoutingexcepthisfamilyandMuradkhan'sFamily.Other Muslimpersonswereresidingthere.Whathadhappenedin
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theirhouses,hehadnotseen.During04.3008.30P.M. hehadnotseenthat.Itisdeposedbyhimthat,ifaperson sounds in his house, it can be heard at Police Station duringnighttimebutnotpossibleindaytime.Hehadseen burningthehousesbutwhosehouseswereburningthat he is unable to say that. He had not seen the persons coming out from those burning houses, when he came downfromtheterracewhetherwholeMahollawasburnt, he is unable to say, when he came down in the chowk, policewasthereandotherpersonsfromtheirMahollaalso camethere.Hehadnotseenhismaternalunclethere.He hadnottoldthepoliceabouthismaternaluncle,nopolice personwenttowardshismaternaluncle'shouse,whenthe policecameinRandalMata'schowk,publicranaway.He hadnotseenanypersoninthechowk,hewastakentothe Police Station, there was no injured persons present, he hadnotseentheinjuredpersonduringwholenight,onthe next day in Navavas, he came to know about injured person, how many persons in Ghetiyavas, he had no knowledge, there is one door between Navavas and Ghetiyavas, when he went to the Police Station Mahmad Iqbalwaswithhim,whenhiscomplaintwasrecordedhe was outside, he stayed for half hour there. Latif Bava Jodhpuri, Usmanbhai Lativala etc. persons from Muslim communitycametotakethemtoNavavas,atthattimehe wasupset.Further,hehasdeposedthat,hehadnarrated the incident what had happened in his maternal uncle's
// 645 //
house.Nodeadbodywasshowntohim.Hefeltthat,police is not properly investigating hence application was preferredbyhimtotheMagistrate. Hewasnotinjuredin theincident. InhiscrossexaminationbyaccusedNos.1to82,he has admitted that, he knows the difference between kerosenegallonandbottle.Hehasdeniedthat,hehasnot stated before S.I.T.about kerosenegallon, it isdeniedby himthat,inhisallstatements,hehasstatedaskerosene bottle. Before he reached at Police Station Latifbhai and Usmanbhaiwerethere,theyweresittinginthecompound, Mahmad Iqbal was inside the Police Station. During the whole night of incident, he had not seen Yusufkhan Muradkhan,onthenextdayhesawYusufkhanMuradkhan in Navavas. They stayed in Navavas in the house of Usmanbhai. He was having no knowledge where his maternal uncle stayed. He saw the police in the Maholla after twothree days, when the Police came to call him, Shabbhir Hasubhai, Mahmad Hanif Dalubhai and other MuslimpersonsfromNavavascamealongwithhim.They were sitting out side the Police Station. Thereafter, they wereaskedtogo.Thereafter,henevermettoPolice.Hewas under fear therefore, he has not stated before S.I.T. that Latifbhai JodhpuriandUsmanbhai Lativala tookthem to Navavas. It is admitted by him that, Yakubkhan and Yusufkhan, both are his maternal uncle, there is no
// 646 //
whereabouts about Yakubkhan. He has deposed that, he was killed before his eyes. It is admitted by him that, Yusufkhan and Yakubkhan were residing in two houses, fallingonthebacksideofHouseofAminaben.Onnextday ofincident,hewentattheplaceofoffenceandsawhisordi (room),whichwasfallen,Itisdeniedbyhimthat,inthe application before Magistrate, he has written that, on 28.02.2002 at about 05.00P.M. healong with hisfamily memberswasinhishouse,situatedinDipraDarwaja.Itis admitted by him that, in his earlier deposition and statementhehasstatedthat,4personswerekilled.Itis admitted by him that, he has not stated before S.I.T. or beforeVisnagarPoliceorinapplicationthat,hiswifealong withchildrenwenttoherparentalhome.Itisadmittedby him that, he has not stated before S.I.T. that, earlier deposition is proper one but it is incomplete, as he was under fear. As there was no police to taken him from Visnagar to Mahesana,itisadmittedbyhim that,before S.I.T.orbeforeVisnagarPoliceorinhisapplicationorinhis earlier deposition he has stated that, incident started at about02.0002.30P.M.andatthattimehewasstanding in the Maholla and Mahmad Dalubhai was came to him andstatedthat,houseofhisbrotherwasrobbedandthen hewenttochowk,otherpersonsfromtheirMahollawere also present, he saw M.L.A. Shri Prahladbhai Gosa and DahyabhaiTribhovandasPatelwhileinstigatingthemobto burnwholeMahollainsteadofonehouseandbyhearing
// 647 //
so he got fear and went in side his house. At that time Ahmedkakatoldtophonethepolice,hehimselfwentinhis housetophonethepolicebutcamebackandtoldthat,itis notpossibletocontactthepolicebyphoneandhencethe eldermemberoftheirMahollaIbrahimkhantoldthem,not tofear,stayinMaholla,hewillgotothePoliceStation.He wenttothePolicebutdidnotcomebackandpersonsin Mahollawereunderfear.Itisadmittedbyhimthat,before S.I.T.hehasnotstatedthat,PolicetookthemtoChudivas wherehesawhalfburnthousesandremainsofhalfburnt articles,sweeperswerecalledandremainswererecovered fromtheNaveliofDalubhaiSindhi.Hehasnotseenthose remainsbecausehewasweeping.Inhiscrossexamination byaccusedNo.83hehasadmittedthat,hehasnotstated beforeS.I.T.that,hewasontheterrace,whenpolicecame mobwentawayandtwopolicepersonswerestandingjust infrontofhishouse.Itisadmittedbyhimthat,atthetime ofincidentaccusedNo.83wasnotpresentinthemob.Itis denied by him that, when he went in Chudivas on 06.03.2002,Panchnamawaspreparedinhispresence.He hasnoknowledgewhetherPoliceInspectorM.K.Patelwas presentalongwithsweeperson06.03.2002.Itisdeniedby him that, Muddamal articles were taken out by the sweepersinhispresenceandtheywereshowntohim.Itis deniedbyhimthat,whentheywereinNavavas,statement ofotherpersonsfromtheirMahollawererecordedbyPolice InspectorM.K.Patel,hewasalsocalledbuthehasrefused
// 648 //
tomakestatementashewashavingnoknowledgeabout theincident.Itisdeniedbyhimthat,whenstatementwas recorded, complaint of the complainant was read over to him. It is denied by him that, in his statement dated 08.03.2002 he has stated that, complaint of Baloch Mahmad Iqbal Ahmed was read over to him, which is correct one. It is denied by him that, in his statement before S.I.T., he has admitted that his statement before Visnagar Police is read over to him. Further, he has deposedthat,hedoesnotrememberwhetherthenamesof accusedgivenbyhimtoPoliceInspectorM.K.Patelwere writtenbyPoliceInspectorM.K.Patelandhehadgiventhe namesofaccusedwhichwerearrestedbyPoliceInspector M.K.Patel from the place itself. It is denied by him that, Panchnamadated09.03.2002atMalavTalavwasprepared inhispresence.Itisdeniedbyhimthat,inhisstatement dated10.03.2002,hehasstatedthat, on09.03.2002on receiving the information F.S.L. Officers were called and remains were recovered near Malav Talav, which were showntohim.InhisdepositionbyaccusedNos.85hehas admitted that, earlier whatever he has deposed, he has deposedcorrectly,whenheheardthenoiseatabout2.30 P.M.,hehadnotfeltthat,itisnotpossibletostayinthe Maholla.Hewasnotunderthefearatthattime.Tillthe mobcameintheMaholla,hehasnotfeltthatmobwillkill them. They were taken by Usmanbhai and Latifbhai in Jeep.Itisdeniedbyhimthatcomplainantwasalsowith
// 649 //
himintheJeep.Whenheheardthediscussionatabout 2.30P.M.hehadnottriedtocallMuslimleadersnortried tomeetthem.Mobwasnotdisbursedatabout2.30P.M. Fromwherehehadseenthemobandheardthediscussion only2Minutesdistancewasthere,onseeingthemobhe was in the Maholla till the mob attacked he was in the Maholla. At about 04.30 P.M. second mob came, he was outsideofhishouse,onseeingthemobhewentinsidethe house, mob had started pelting stones, they were also peltingstones,peltingincidentoccurredabout10Minutes, at that time witnesses were not having weapons in their handwhilethepersonsinmobwerearmedwithweapons./ During pelting of stones, persons from the mob had not attackedtheMaholla.Therewas5Ft.distanceinbetween houseandmob.Duringpeltingofstones,mobenteredin theChudivas.Itisadmittedbyhimthat,heishavingfirst houseintheMaholla.Thepersonsfromthemobhavenot tiredtocauseinjurytohimbyweapons.Itisadmittedby him that, there is a way for passing to Chudivas from Randal Mata Madh to chowk then to Chudivas then towardsrightsidethereisaway.Hishouseishavingtwo doors,oneistowardsKadaDarwajaandanotheristowards DipraDarwaja.Atthetimeofincident,theywereinsidethe Maholla.Secondtimemobcameatabout04.30P.M.,which passfromdifferentsideofhishousethenwenttowardsthe house of Yusufkhan. Mob of about 200300 persons enteredintheMaholla.Morethan11personswereinjured
// 650 //
bythemob.Hesawcuttingofthepersonsbymob,persons fromthemobhadnottriedtotakethemfromtheirhouse andalsonottriedtoburnhim.Itisdeniedbyhimthat,at 11.00A.M.theyhadlefttheMaholla.Itisdeposedbyhim that, when he went to Gandhinagar Mahmad Hanif, Shabbirbhai Hasumiya, Shermahmad Dalubhai, Shabbirbhai Ibrahimbhai and other six to seven persons were with him. It is denied by him that, Islamic Relief Committeehaveprovidedhousestothemandaskedhimto involve more and more accused persons in the offence, whenhehasmadestatementbeforeS.I.T. hewashaving fullprotection.Further,afterhisfirstdepositionbeforethe Court,hehasnotmadeanyattempttomakeanyfurther statementbeforetheCourt.Further,hehasdeposedthat, inhisstatementbeforeS.I.T.hehasnotstatedthenameof M.L.A.ShriPrahladbhaiGosaandDahyabhaiTribhovandas Patel.Theapplicationwaspreferredbyhimseekingjustice, in that application he has not stated the name of DahyabhaiTribhovandasPatelandM.L.A.ShriPrahladbhai Gosa,ashewasunderfear.Itisdeniedbyhimthat,hehad takenactivepartbeforetheproceedingsinSupremeCourt. Theapplication,whichwassubmittedbyhimwastheonly application but he does not remember whether that applicationwassentbyhim.Itisdeniedbyhimthat,atthe instanceofTistaSetalvadandRaiskhanPathanandother Muslimleadershehastakenthenamesofaccused.Itis admitted by him that, office of Dahyabhai Tribhovandas
// 651 //
Patelissituatedjustinfrontofhisshop.Thisfactisstated before the court for the first time. It is admitted by him that, he has not declared this fact earlier in any of his statement. ThiswitnessistheresidentofChudivas.Considering thetenseatmosphereonthedayofoccurrencehispresence inChudivasisreliableone.Lookingtothelocationofhis house,hishouseissituatedattheentranceofMaholla,in thatcircumstances,ifthiswitnessissayingthat,hehad seen the mob armed with weapons, like Dhariya, Sword, sticks,petrolandkerosenetinsetc.thatcanbereliedupon because, normal reaction of a witness in such a circumstances would be to see as to what is happening whenthemobenteredintheMahollaandmobwaspelting stone, abusing and shouting slogans. It is only after knowingthat,dangertohispersonandpropertieswhenhe wentinsidethehouseonsecondfloor,thatisnaturalone. Here,inthepresentcasetheincidenthaslastedforlong period,practicallyformorethanonehour,thiswitnesswas having sufficient opportunity toseethemob,considering the duration of incident the manner and opportunity to observetheincidentwhenweconsidertheevidenceofthis witness,mobenteredintheMaholla,justfromfrontsideof his house and inthat circumstances, ifhehadseenthe mob, armed with weapons, shouting slogans, that is reliableone.Thiswitnessissayingthat,hesawthemob
// 652 //
causing damage to the house of Aminabibi, door was brokenbythemob.Lookingtothesituationofthehouses, itisquitepossiblethat,fromfirstfloororsecondfloorof NazirmiyaKalumiya'shouse,apersoncanseethehouseof Aminabibi, in that circumstances his say about the breakingofdoorbythemobinthecircumstanceswhenthe Panchnamaisspeakingaboutthedamagescausedtothe houseofAminabibiJahangirkhaniscreditworthy.Sofar assayofthiswitnessaboutenteringofmobinYakubkhan Muradkhan's house and by dragging Yakubkhan Muradkhan, Husenabibi Yakubkhan, Aasifkhan Yakubkhan,AabidkhanYakubkhanout andkillingthem bySwordisconcerned,houseofYakubkhanMuradkhanis falling towards northern side of house of Aminabibi Jahingarkhan, suppose the mob broken the door of the houseofAminabibiandenteredthroughthatdoortothe houseofYakubkhanMuradkhanPathan,inthatsituation apersonstandingonfirstfloororsecondfloorofthehouse of Nazirmiya Kalumiyacannot see what ishappenings in thehouseofYakubkhanMuradkhanPathanoracceptingit as it is that, family members of Yakubkhan Muradkhan PathanweredraggedoutintheNavelifallingtowardsback sideofthehouseofYakubkhanMuradkhanandYusufkhan Muradkhan, thenalsoconsidering thesituationandthat too, the houses of Yakubkhan Muradkhan, Yusufkhan Muradkhan, Aminabibi Jahangirkhan and Jinnatbibi Muradkhan were having roof and then after there were
// 653 //
shade in front of back side doors of the houses of Yakubkhan and Yusufkhan, it is difficult to see the happenings in the Naveli and in that circumstances, the sayofthiswitnessaboutthedraggingandkillingoffamily membersofboththefamiliesbySwordandDhariyacreates doubt.Whenweperusehisstatementdated08.03.2002,he issayingthat,incidentofkillingandburningofthealleged deceased persons occurred in the house of Yakubkhan Muradkhanandinhisstatementdated17.05.2008hehas statedthat,familymembersofYakubkhanMuradkhanand Yusufkhan Muradkhan tried to come out from the back side door of their houses, at that time in the back side Naveli, they were attacked and killed. In his second time deposition, he has stated that, he went inside his house andclosedthedoorofhishouseandwentonterraceand saw the incident occurred just in front of the house of Yusufkhan. He saw the killing of 11 persons by cutting them. He also saw Yusufkhan went from the roof of his house then on front side and then on back side. If this witness had seen the incident, why he was silent up to 08.03.2002.Further,thereisvariationinhisversionbefore theCourtandinhisstatementbeforethePolice,thereare two versions, one is incident occurred inside the house while subsequently, it is developed in the manner that, allegeddeceasedweretakenoutoftheirhouseandinthe Naveli incident occurred. Another version comes from anotherstatementthat,allegeddeceasedpersonstriedto
// 654 //
escapeandtheywerecordonedbythemobandthereafter, theywerekilled.Thus,therearedifferentversionsofthis witness.Onthestrengthofthisevidence,noaccusedcan be convicted about the killing of alleged 11 deceased persons unless it is corroborated by other evidence and fullyestablishedbytheprosecution.Sofarashissayabout seeing of pouring kerosene, petrol upon the dead bodies andthereafterthedeadbodieswereburntisconcerned,as perthecaseoftheprosecution,deadbodiesweretakenin the Naveli of Dalubhai Sindhi, where those dead bodies wereburnt.LookingtothesituationofDalubhai'sNaveli, fromthehouseofNazirmiyaKalumiyaSaiyed,thewidthof Naveliisabout3to4Ft.havinghousesonboththesides andinthatsituation,itisquiteimpossibletoseeevenfrom the terrace of Nazirmiya Kalumiya's house what is happening in the Naveli and therefore, the say of this witness about the pouring petrol, kerosene and burning thosedeadbodiesisnotreliableone.Sofarashissayin secondtimedepositionthat,hewasunderfearatthetime offirsttimedeposition,therefore,hecouldnotdeposefreely is concerned, in his first time deposition he has stated aboutkilling,burningof11allegeddeceasedpersonsthen inthatcircumstancesitisdifficulttoacceptthat,hewas under fear at the time of first deposition. From his deposition,ittranspiresthat,atthebeginningofincident, hewasstandingintheMaholla,alongwithotherpersonsof Maholla,meaningthereby,hewasoutofhishouseandit
// 655 //
wasquitepossibleforhimtoseetheinitialincident,tillhe went inside his house. So far as going of Ibrahimkhan Umarkhan,aneldermemberoftheMaholla,tothePolice Station and not came back is concerned, assuming it is truethenalsothisfactisnotgoingtoadverselyaffector prejudicethecaseofanyparty.Fromtheevidenceofthis witness,italsotranspiresthat,soonashewentinsidehis house,heclosedthedoor,ifhehadclosedthedoorofhis house,howhecouldseethefurtherincidenttillhewenton terrace.SofarasidentificationofremainsbyhiminPolice Stationon06.03.2002isconcerned,itishissaythat,he had identified the remains of his family members. This point is already discussed in the earlier part of this Judgement.Thus,thedepositionofthiswitnessaboutthe killingandburningof11allegeddeceasedpersons'incident isnotacceptablewhileburningthehouses,enteringofthe mob in the Maholla, armed with deadly weapons are acceptable. It has been brought in crossexamination of this witness that, when he was on terrace, burning rags werethrownfromtheterraceofthehousesofHindus',as houses of Randal MataMadh arelow inheight than the houseofthiswitness.Therefore,itisquitepossibletosee from the terrace of this house throwing of burning rags from the houses of Randal Mata Madh and that is acceptableandthatisalsoinasituationwhenthisfactis brought on record in crossexamination. It is also quite acceptable as his house was in height, no burning rags
// 656 //
were thrown towardshim.Thiswitnessisnotattributing overtactonanyofaccusedpersononthispointthoughhe could have easily attributed the same. Therefore, he is sayingwhowerepersonsthrowingburningragsorpelting stones,thereisnoexaggerationonthepartofthiswitness on this point. Therefore, throwing of burning rags and peltingstonesincident,asnarratedbythiswitnessisquite acceptable.Theoneofthedefenceoftheaccusedsideis that,thiswitnesswasnotpresentinChudivasontheday of occurrenceisconcerned,hehasdeniedthat,healong with his wife went to Unava on the eve of Id. There is nothing else to disprove his presence in Chudivas at the time of occurrence. In his crossexamination, it has broughtonrecordthat,PoliceStationfromhishouseistoo near,ifapersonshoutsinhishouse,itcanbeheardinthe Police Station, during nighttimebutnotpossibleonday time.Onthispointconsideringthetimeofincidentandthe distanceofPoliceStationfromthehouseofthiswitness,if itwasnotheardbyanyofthePoliceinPoliceStation,that is possible. Simply this witness is unable to say, whose houses were burnt, at what time he came down in the chowk, it cannot be disbelieved that, he was not present andhehasnotseentheincidentatall.Whenthiswitness wastakentoPoliceStation,hehadnotseenanyinjured person there, during whole night. For this, when we considertheevidenceatwhattimethiswitnesswastaken tothePoliceStation,ithasnotbroughtonrecord.Mahmad
// 657 //
Iqbalwas withhim inthePoliceStation,wholodgedthe complaint. It has also brought on record in cross examination that, an application was preferred before Magistrate,butthePolicehasnotinvestigatedproperly.In his crossexamination, the question regarding difference regarding gallon and bottle is asked, if in one statement Gallon word is used and in another statement Bottle word is used, that is not of much importance. It can be consideredasminordiscrepancies.Thefactremainsasitis that, kerosene was brought. This witness was in Police Station with the complainant. As per statement of this witness,YusufkhanMuradkhanwasnotthereinthePolice Station, while as per say of Yusufkhan Muradkhan and Mahmad Iqbal thecomplainant,YusufkhanMuradkhan was present in the Police Station. There are other facts, whicharebroughtonrecordbywayofdenialbutthoseare not of material contradictions, which can adversely affect thewholeevidenceofthewitness.Inhisstatementbefore S.I.T.thecontradictionsabouthispresenceontheterrace are brought on record but assuming this is not stated beforeS.I.T.eventhoughthefactremainsthat,hewasin hishouseandfromhishouse,itwasquitepossibletohave alook of the incidentasdiscussedearlier. Inhiscross examination, he has denied about identification and drawing of Panchnama of Muddamal Articles. He has denied that, drawing of Panchnamadated09.03.2002,in his presence and in the presence of F.S.L. Officers. But
// 658 //
from the other evidence, drawing of Panchnama dated 09.03.2002inthepresenceofF.S.L.Officersisestablished therefore, this denial has no effect. In his cross examinationithasbroughtonrecordthat,whenincidentof peltingofstonesoccurredforabout10Minutes,mobhad not attacked the Maholla. There was distance of 5 Ft. in betweenwitnessesandmobandduringpeltingofstones, mobenteredinChudivasbutnoneofthemobhadinjured him. It is brought on record in crossexamination that, whenhesawthekillingof11persons,whyhehasnottried to save them is concerned, in such a tense and grave atmosphere, no one would go and try to save 11 person against 200300 persons inthe mob, thatis natural one but seeing of killing 11 persons by this witness is not accepted therefore, no question survive to consider this fact.Therefore,thesayofaccusedthat,itwasnotpossible for the witness to see the mob for incident is not acceptable. [259] P.W.22YusufkhanMuradkhanPathan(Exh.112)hasin hiscrossexaminationbyaccusedNo.1to82and84stated thatthedeadbodieswereburntduring06.00to07.00P.M. Itisdeniedbyhimthat,during06.00to07.00P.M.there wasnoelectricity,whenhecameoutfromhishouse,other personsfromMahollawerealsostandingout.Themobwas atadistanceof20to25Ft.riotstookplaceatabout05.00 to06.00P.M.Beforetheincidentoccurred,hewasnotable
// 659 //
tocallhisfamilymembersbecauseboththedoorsofhis house were closed as the mob was shouting, his family members came out by opening the door. In front of his house there were 10persons,other persons of mobwere notpresentjust4to5Ft.awayfromthedoorofhishouse, familymemberswerekilled.That,incidentoccurredforhalf anhour.Duringthathalfanhourhehadnotaskedforany help from any person, he was silent. After the seven personswerekilled,Yakubkhancameoutandotherthree familymemberswerealsowithhim.Thosewerealsokilled bythemob. Hehadseentwopersonswerekilledjustin frontofthehouseofIbrahimkhan.Those11personswho arekilledwerescreamingforhelp.Whenthepolicecame thenonlyMuslimpersonsfromtheMahollacameout.The applicationwhichispreferredbyhimbeforetheMagistrate was attached with the statements of Mahmad Hanif, Ahmedmiya Hasumiya, Shermahmad Dalumiya and NazirmiyaKalumiya.Hisstatementwasrecordedon18 thtill then he was in Navavas. Navavas is 5 Kms. away from Police Station. He had informed the Police by telephone aboutthekillingof11personsbutPolicedidnotturn.On thirddayhewascalledbythePolice.Itisdeniedbyhim that,inhisstatementbeforethePolicehehasstatedthat, mobenteredinthehouseofYakubkhanandinthehouse HusenabibiYakubkhan,AasifkhanYakubkhan,Aabidkhan Yakubkhan and Yakubkhan Muradkhan were killed by givingSwordanddhariyablowandtheirdeadbodieswere
// 660 //
burntbypouringkeroseneandpetrol.Itisdeniedbyhim that, in his Police Statement dated 10.03.2002, he has stated that, on 05.03.2002 the application, in his handwriting,waspreferredbeforetheJudicialMagistrate, First Class and one letter, addressing to Police Inspector, Visnagarwasalsowrittenbyhim.Intheapplicationbefore theJudicialMagistrate,FirstClass,it wasmentionedby himthat,11personsarekilledandburntinthehousebut thesaidfactiswrittenbymistake.Inhisapplicationbefore PoliceInspector,hehaswrittenthat,hewentontheback sideofirongatetowardsPatelMahollaandhehidehimself onthatside.Healsoadmitsthat,inhisapplicationbefore Police,hehasstatedthatotherpersonsshoutingslogans, armedwithdeadlyweaponswerealsocomingtowardsthe Maholla and they had started breaking the grill and by breakingdoortheyenteredinthehouse.Itisadmittedby himthat,beforepolicehehasnotstatedthat,heheardthe shopsofMuslimsweredamaged.Itisdeniedbyhimthat, hehasstatedbeforethePolicethatatabout04.30to05.00 P.M.mobofabout200personscamefromRandalMata's Madhside,shoutingtocut,beattheMuslims.Itisdenied byhimthat,hehasnotstatedinhisPolicestatement,that onhearingsaidnoisehecameoutsidefromhishouseand was standing near the house of Nazirmiya Kalumiya, at thattimemobwasstandingnearthechowknearthehouse of Bharatbhai Ishvarbhai and mob had started pelting stonesandthepersonsintheMahollahadhidethemselves
// 661 //
and he due to fear from the roof of his kitchen went to terraceofhishouseandthenwentbehindtheirongate.It isdeniedbyhimthat,hehasnotstatedbeforethepolice that,10personsarmedwithdeadlyweaponswerestanding infrontofthehouseofYakubkhan. Itisalsodeniedby himthat,hehasnotstatedbeforethePolicethat,hisboth sonswerethrownoutastheirmotherwasbeatenbythe mob. Itisadmittedbyhimthat,hehasnotstatedbefore thePolicethat,onhearingthenoisehisbrotherYakubkhan Muradkhan, Husenabibi Yakubkhan, Aasifkhan YakubkhanandAabidkhanYakubkhancameoutfromtheir house and they were given blow at the place where the sevendeadbodieswerelying.Itisdeniedbyhimthat,he hasnotstatedbeforethepoliceorintheapplicationbefore theMagistratethat,thedeadbodiesintheformofpieces weretakennearthehouseofNazirmiyaatabout06.00to 07.00P.M.and thosedeadbodieswereburntbypouring keroseneandpetrol.Itisdeniedbyhimthat,hehasnot statedbeforethepolicethat,hehadrequestedthepolice that 11 dead bodieswerelying thereandpolicetoldhim that, itis theirworkandheissafe,heshouldgotothe PoliceStation. InhiscrossexaminationbyaccusedNos.1to82and 84, he has denied that, he has not stated the names of HasmukhbhaiSankalchand,SankalchandKachara,Satish Parshottam,BabuParshottam,AmrutMadhaandVishnu
// 662 //
IshvarbeforeS.I.T.orinearlierdepositionorinapplication before Magistrate. He has admitted that, before Visnagar Police and Court deposition and in application before Magistrate, he has named Ramanbhai Tribhovanbhai but that name was namedby mistake.Itisalsoadmittedby him that, before S.I.T. also name of Ramanbhai Tribhovanbhai is mentioned and name of Tribhovan is rectified as Girdharbhai but he has no knowledge about this rectification. He has no knowledge that, in his statement dated 16.02.2004 he has stated that, as the matterispendingbeforetheSupremeCourt,hehasdenied togivestatement.Itisadmittedbyhimthat,thereisno personasNitinbhaiRanchhodbhaiinspiteofthat,nameof NitinbhaiRanchhodbhaiismentioned. Hehasnopapers withhiminrespectofapplicationmadebeforeMagistrate. Hehasadmittedthat,hehasmadeoneapplicationtothe Chairman Raghvan, S.I.T. on 11.04.2008, where that application was prepared in Computer, he has no knowledge.Asperhissay,hehaswrittentheapplicationby himself.Whohadmadechangeintheapplication,hehas no knowledge. He has no knowledge that, along with his application,applicationsofHanifbhaiDalubhai,Nazirmiya Kalumiya,IqbalbhaiAhmedbhaiandAhmedbhaiHasubhai were attached. He has denied that, draftings of said applicationsaresimilartoeachotherandwerepreparedin one computer. It is admitted by him that, in his hand writtenapplication,hehasstatedthat,on28.02.2002 in
// 663 //
thecommunalriots,theirrelativesandotherMuslimswere killedand their deadbodiesweredisposedofandshops, cabinsandhousesofMuslimswerelootedandburntand in that connection First Crime Register No.60/2002 is registeredandinthatincident11personsoftheirMaholla were killed. In fact 11 persons of his family are killed insteadof11personsfromMaholla.Itistruethat,hehas notmentioned thenamesof11personsoffamily butfor that, he has deposed that in earlier deposition he has namedthe11personsandtherefore,hehasnotmentioned thenamesof11personsbeforetheS.I.T.Beforeincidentin the Chowk, Hanif Dalu, Hanif Ahmedkhan, Shabbirmiya Hasumiya,AhmedmiyaHasumiya,IbrahimkhanUmarkhan and he himself along with other persons of the Maholla weresittingintheChowk.Itisadmittedbyhimthat,just adjacent to iron gate, his house is situated but he went behindtheirongateinsteadofgoingtohishouse.Forthat, hehasexplainedthat,mobwasbreakingthefrontsideof hishouseandtherefore,hehasnotmadeanyattempttogo tohishouse,tosavehisfamilymembers.Whenthemob wasbreakingthefrontsideportionofhishouse,hewason backsideofhishouse,fromthegrillapersoncanseewhat is happening in the Naveli of the Maholla. He has no knowledgewhetherthemobcamefromhishouseorfrom frontsideportion.Whenhesawthemob,therewassnow light.Whenhesawthemobwhetherhouseswereburning or not, he has no knowledge but when the police came,
// 664 //
houses were burning. Whether Houses of Yakubkhan, Ibrahimkhan Umarkhan, Usmanmahmad, Shermahmad Dalubhai and Shabbir Mahmad or not, he has no knowledge. He has no knowledge whether there was electricity, when he came out from the Grill there was profuse bleeding on the way. When he went inside the houseofIbrahimmiya,therewasbleedingtillhewentPolice Stationandtherewasnofootwearinhislegs.Hehasnot shown the blood tothe Police or toany witness. Hewas sittingontheOtlaofPolicestation.Otherpersonswerealso sittingthere.Iqbalwenttolodgethecomplaint,thereafter theywenttoNavavas.Itisadmittedbyhimthat,itisnot possible for a persons to see from back side of iron gate where he was sitting. The mob entered in the house of Yakubkhan.FamilymembersofYakubkhanHusenabibi, Aasif,AabidandYakubbhaicameoutfromthebackside door and the saiddoorisfalling ontheway,whichcan easilybeseenfromtheirongatewherehewashide.Hehas no knowledge whether mob came from the house of Yakubkhan.Whetherthemobwasbehindthefourpersons of family of Yakubkhan. Mob wasbehindfour persons of Yakubkhan'sfamilyandattackeduponthem.Heisunable tosaythedistancefromwhichdistancehehadseenthe killingoffourpersons.Seventoeightpersonsofhisfamily members came out side from theback sidedoor of their house. Karishma is survived. Subsequently he came to knowthat,hewenttothehouseofAhmedbhaiHasubhai.
// 665 //
HehasseentheKarishmaalongwithotherfamilymembers coming out from their houseandbehindthem,mobwas attackingandtheywerescreamingforhelp.7deadbodies were lying from the house of Yakubkhan to Naveli of Dalumiya.Apartfrom10accusedpersons,therewereother personsalsofromthemobandtheycutthedeadbodiesin pieces. During the incident a persons in the mob were changing.Itisadmittedbyhimthat,hewasnotabletosee fromthebacksideofGrillwhathadhappenedtothedead bodiesintheNaveli.Hehadnotseentheburningofthe dead bodies in the Naveli. Whether the mob again came backtowardsgrillside,hehasnoknowledge. Itisdenied by him that, before S.I.T. that he along with his family memberstriedtocameoutfromthebacksidedoortothe Naveliastherewasattackbythemobonthefrontsideof his house. It isdeniedbyhimthat,hehasstatedbefore VisnagarPolicethaton01.03.2002that,mobenteredinthe houseofYakubbhaiandbygivingtheblowtoHusenabibi Yakubkhan and her two sons Aasif and Aabid and Yakubkhan and they were killed by the mob and burnt theirdeadbodies.Itisdeniedbyhimthat,hehasstated beforeVisnagarPoliceStationthat,asthemobburnttheir houses, they came out from their houses. He does not remember that, he has stated before the Visnagar Police that,mobfromRandalMatasideinjuredtheotherpersons bypeltingstones.Itisdeniedbyhimthat,inhisstatement dated 10.03.2002 before Visnagar Police, he has stated
// 666 //
that,statementdated08.03.2002iswrittenasperhissay and that is correct one. It is denied by him that, in the application before Magistrate, he has stated that, 11 personswerekilledandburntinthehouse.Itisdeniedby himthat,hehasstatedbeforeVisnagarPolicestationthat, atthetimeofincidenthealongwithhisfamilymembers wasinthehouse,allofsuddenmobcamehencehealone wentoutandhidhimselfbehindthegrill.Itisdeniedby him that, he has stated in the application that, mob enteredinhishouseandcauseddamageinthehouseand killed Jinnatbibi, Banubibi, niece Suhana, Afsana, Amanaullah,AttaullaandMunaf.Itisdeniedbyhimthat, inhisapplicationbeforePoliceInspector,hehasstatedthe names of Nazir Ahmed, Shabbhir, Sher Mahmad and Ahmedkhanaseyewitnesses.Further,hehasstatedthat, he has not stated before S.I.T. that a mob about 200 persons, armed with Dhariya, Sword, Kerosene, Burning rags came for that he has explained that, S.I.T. had not askedhimtherefore,hehasnotstatedthesaidfactbefore S.I.T.Further,hehasdeposedthat,beforeS.I.T.hehasnot statedthat,byavoidingthemobhefromthebacksideof hishousewentontheroofofToilet,thenwentbehindthe Grill and then hid himself behind the grill. In his cross examination he has deposed that no burial rituals of 11 personswereperformedbecausenodeadbodywasfound. InhiscrossexaminationbyaccusedNo.83,itisdeniedby himthat,Policehadarrested7personsfromtheplaceof
// 667 //
incident. It is denied by him that, at the instance of prosecutionsideheissayingthat,on06.03.2002 hewas shownremainsofbonesandlumpofmeat.Itisdeniedby himthat,on09.03.2002,policecalledhimatMalavTalav. It is denied by him that, F.S.L. Officers and Panch were presentatMalavTalavandRemainsofboneswereshownto himand Panchnamawasdrawnaccordinglyandhehad identifiedsixdeadbodiesonthestrengthofremainsfound fromMalavTalav.Itisdeniedbyhimthat,S.I.T.hastold himtosaythat,incidentoccurredatabout04.00P.M.Itis admitted by him that, before S.I.T. he has preferred applicationtoseekjustice.Hedoesnotrememberwhether otheraccusedwerearrestedbyS.I.T.andwereidentifiedby him.NeitherMuddamalwererecoveredbyS.I.T.norhewas shownanyMuddamalbyS.I.T.Inhiscrossexaminationby accused No.85 he has deposed that, he appeared before Justice K.G.Shah and Justice Nanavati Panch on 29.04.2003.Twoaffidavitswereshowntohim,whichwere preferredbeforeJusticeNanavati.Headmitshissignature inthoseaffidavits.Hedoesnotrememberwhetherhehas sentanycomplaintinVisnagarCourt,whichisregistered asInquiryNo.6/2002.Hedoesnotrememberwhetherany affidavitwasdonebyhimbeforeNotaryShriD.L.Parikh.He does not know advocate Shri Idrish A. Mansuri. He is denyingthat,hewasidentifiedbyAdvocateShriIdrishA. Mansuri.Further,itisdeposedbyhimthat,twohousesare giventohisfamilymembersbyIslamicReliefCommittee.It
// 668 //
isdeniedbyhimthat,earlierdepositionisdeposedbyhim attheinstanceofMuslimLeaders. This witness is the resident of Chudivas. Therefore, considering the tense atmosphere as well as time of incident and that there was Gujarat Bandh and Bharat Bandh on the day, the presence of this witness in the Chudivas is natural and reliable one. Looking to the location of his house, his house is situated towards southernside, adjacenttoNaveli,fallingbacksideofthe house of this witness. In that circumstances, if this witnessissayingthat,heheardthenoisecomingfromthe sideof NazirmiyaKalumiya'shouse,hecameoutandhe saw the mob standing in the chowkand pelting of stone andthepersonsfromChudivastriedtohidthemselves,to savethemselvesandthiswitnesstosavehimwentfromthe roof of his Kitchen, towards the roof of his house, then towardsthehouseofRanjitRamaandonthebacksideof irongatefallingbetweenthehouseofRanjitRamaandhis house.Thisconductofwitnesscanbeconsideredgenuine one.Everypersoninsuchasituationtrytosavehimself wherever he think safe. Therefore, this part of his depositioniscreditworthy,reliableone.Ifthiswitnessis saying that, he had seen the mob armed with Dhariya, Sword,shortspear,etc.,causingdamagestotheMaholla, i.e.alsoreliableone.Insuchacircumstancesnormalre actionofawitnesswouldbetoseewhatishappeningwhen
// 669 //
themobenteredintheMahollaandmobwaspeltingstones andabusingandshoutingslogans,itisonlyafterknowing thedegreeofdangertohispersonandproperties,hewent backsideofirongate,i.e.naturalone.Hereinthepresent case incident lasted for long period, practically for more than one hour. Thus, this witness has sufficient opportunity to see the mob, considering the duration of incident, the manner and opportunities to observe the incident, when we consider the evidence of this witness, mobenteredintheMaholla,armedwithweapons,shouting slogans,i.e.reliableone.Further,hesaythat,hesawthe personsfrommobcausingdamagestotheMaholla,i.e.also reliableone. Thisisthewitness,whosefamilymembersarealleged tohavebeenbrutallykilledintheincident.Asperhissay, atthetimeofincident,hewasstandingoutsidethehouse ofNazirmiyaKalumiyaandasthemobcametowardstheir Maholla,duetofearheclimbedoverhisKitchen,thento hishouseandthentothehouseofRanjitRama.Thereis onewallbetweenhishouseandthehouseofRanjitRama andthenafterthereisIrongrilldoor,wherehehidhimself andfromtherehesawtheincidentofkillingof11persons. Asperhissay,soonas7personsduetofearcameoutof theirhouse,theywereattackedbythemobandbygiving Swordblow,theyallwerekilled.Allegeddeceasedpersons were screaming for help, after hearing the voices
// 670 //
YakubkhanMuradkhan,hissonsAabidandAasifandwife Husenabibicameoutfromtheirhouseandtheywerealso killedbythemob,bycuttingthemattheplacewhereseven deadbodieswerelying.Hesawthisincidentfromtheback side of the grill, where he hide himself. Thereafter, in between06.00to07.00P.M.allthepiecesofdeadbodies were taken in the Naveli, falling towards the house of Bachubhaiandbypouringkeroseneandpetrol,theywere burnt.Inhissecondtimedeposition,hehasstatedthat,he saw the killing and burning of 11 persons of his family, whichhesawfromthebacksideofgrill,wherehehided himself. In his first time statement dated 08.03.2002, he hasstatedthat,incidentoccurredinsidethehouse,while in his statement dated 12.05.2008, he has stated that, allegeddeceasedpersonstriedtoescapefromthebackside Navelioftheirhouse,wheretheywerekilledandhesawthe incident.Inhisstatementdated10.03.2002,hehasstated abouttheidentificationofdeadbodiesbyvirtueofremains recovered from Chudivas while drawing Panchnama by F.S.L.on06.03.2002andrecoveryofremainsfromMalav Talav,whiledrawingPanchnamabyF.S.L.on09.03.2002. Thus,therearedifferentversionsinthedepositionsaswell asstatementsofthiswitness.Ononehand,heissaying that incident occurred inside the house whereas on the otherhandsayingthat,incidentoccurredonthebackside ofhouse.Heisposinghimselfbehindthegrill,fromwhere hehasseentheincident.Thus,thereisimprovementinthe
// 671 //
statement. In earlier statement, incident occurred inside thehousethenhowhehadseenthekillingandburning, thatisrequiredtobeconsidered,forthatsubsequently,he isimprovinghisversionbysayingthat,incidentoccurredin theNaveli.Nodoubt,hispresenceatthetimeofoccurrence inChudivasisnaturaloneandcannotbedoubted. When we evaluate the crossexamination of this witness, it is broughton recordthat,atthattimethere was no electricity, incident of burning and killing was occurredbetween06.00to07.00P.M.Itwasnotpossible for this witness to call and save his family members as personsfromthemobwereatadistanceof4to5Ft.only. Duration of incidentofkillingandburningisbroughtas halfanhour.Ifduringthathalfanhour,thiswitnesswas not able to sick help from any person to save his family members, that is quite possible but due to fear he was silent that also can be considered. In crossexamination, denialsarebrought,asdiscussedearlier,theversionofthis witness about the killing and burning amounts exaggerationashewassilentupto08.03.2002.Sofaras say of this witnessaboutseeing of pouring of petroland keroseneonthedeadbodiesandburningofdeadbodiesin theNaveliofDalumiyaSindhiisconcerned,thiswitnessis posing himself behind the iron gate, situated adjacent to thehouseofYusufkhanMuradkhanPathan.Thewidthof Dalumiya's Naveli is about 3 to 4 Ft., having houses on
// 672 //
bothsides,inthiscircumstancesitisnotpossibleforthe witnesstoseepouringkeroseneandpetrolandburningthe deadbodiesintheNaveliofDalumiya,apersoncannotsee theplaceofDalumiya,whereburningincidentallegedtobe takenplace, fromtheplacewherethiswitnesshadhide himself.Therefore,alsobysolelyrelyinguponthiswitness about seeing the burning and killing, accused persons cannot be convicted. So far as his say in second time depositionthat,hewasunderfearatthetimeoffirsttime deposition, therefore, he could not depose freely is concerned,inhisfirsttimedepositionhehasstatedabout killing,burningof11allegeddeceasedpersonstheninthat circumstances it isdifficulttoacceptthat,hewasunder fearatthetimeoffirstdeposition.Fromhisdeposition,it transpires that, at the beginning of incident, he was standing in the Maholla, along with other persons of Maholla,meaningthereby,hewasoutofhishouseandit wasquitepossibleforhimtoseetheinitialincident,tillhe went behind the iron gate. In his second time deposition denials are brought on record about the application preferred before theMagistrateaboutthecontents.There are some variations and contradictions and omissions in hisdepositionandstatements,whicharebroughtonrecord in the crossexamination but some of them are not on majorpoints,fromwhichthewholeversionofthiswitness canbediscarded.Thoseareofsuchanaturefromwhich, wecaninferthegenuinenessoftheversionofthewitness
// 673 //
uptosomeextent. Asinnaturalcourse,apersonwould trytoseethemobwhatishappeningsinthemob,whatthe mobisdoing,itisonlyafterseeingthegravityofcrime,he wouldhavegonebacksidetheirongate.Thatisthenatural reaction. Therefore, the say of accused that, it was not possibleforthewitnesstoseethemobforincidentisnot acceptable. In his second time crossexamination it has beenbroughtthat,hehasnoknowledgewhetherthemob camefromfrontsideofhishouse,whetherthehouseswere burning when he saw the mob, when the Police came, whetheratthattimehouseswereburning,evenhehasno knowledgewhethertherewaselectricityintheMaholla,at the timeof occurrence.Asperhissaytherewasprofuse bleedingintheNaveli,evenwhenthePolicecametherewas nofootwareinhisfoot,whyhewassilentaboutthisfact, hehasnotshownthebloodtothePolice,norstatedinhis statement, specially when this person was sitting in the Police station, at the time of lodging complaint therefore, this version of this witness also creates doubt about his seeingthekillinganddrawsthemindofaprudentperson towards exaggeration. Further, he has no knowledge whether the mob came from the house of Yakubkhan or mobwasbehindfourpersonsofthefamilyofYakubkhan and attack upon them, even he is unable to say the distance of seeing the killing of this four persons. This evidence also suggest exaggeration on the part of this witness. Further, if this witness had seen the Karishma,
// 674 //
along with other family members, in the circumstances whenfamilymembersarekilledhowtheKarishmasurvived that is not explained by this witness. This witness was having no knowledge about the fact that Karishma is survived. This portion of his evidence also creates doubt abouthisversionregardinghesawtheincidentofkilling and burning of 11 persons. Once he is admitting in his crossexaminationthat,fromthebacksideoftheirongate, hewasnotabletoseethedeadbodiesintheNaveli,even he had no knowledge whether mob again came in the Naveli. There are major contradictions and omissions broughtonrecordinhiscrossexaminationregardingthe killingandburningof11allegeddeadpersons.Therefore, thisversionthat,hesawthekillingandburningof11dead persons amount exaggeration and cannot berelied upon. So far as identification of remains, he was not called by PoliceatMalavTalavandhehadidentifiedthedeadbodies from the remains found from Malav Talav. So far as affidavits which were preferred before Justice Nanavati Commission, he is not supporting the contention of affidavits,onlysignaturessupported.Evenotherwisethose affidavits can be considered for contradiction and corroboration purpose only. Thus, the version of this witness regarding entering ofMob in the Maholla, armed with deadly weapons, abusing and shouting slogans, peltingofstonesandburningofhousesarereliableoneand acceptable and his other version regarding killing and
// 675 //
burningofalleged11deceasedpersonsisnotreliableone anditisconsideredasexaggerationandimprovementsand therefore,thatportionofhisevidenceisnotacceptable. [260] Thus,fromtheevidenceofwitnessesfromChudivas,either injuredeyewitnesses,injuredwitnessesandeyewitnesses it is established that, the mob having 200300 persons, armedwithdeadlyweaponsenteredintheChudivas,Dipra Darwaja,Visnagar,peltedstones,abusingtheMuslimsand shoutedslogansandransackedandburntthehouses.Over and above in support of their version and prosecution's case in this regard, when we consider the deposition of PatelandotherHinduwitnesses,theversionofwitnesses from Chudivas gets support from the evidence of Hindu witnesses that, there was a mob entered in Chudivas, burntthehouses,therewaspeltingstonesincident,tothat extent,onlytheyhavesupportedthecaseofprosecution. Now, considering the evidence of Police witnesses, on receiving the message the team of Police Inspector M.K.Patel went in Chudivas. P.W.13 Rameshji Rajuji (Exh.97), P.W.65 Mahendrasinh Bhairavsinh (Exh.518), P.W.83 Dashrathsinh Amthaji (Exh.572), P.W.147 Babubhai Mansangbhai Chaudhari (Exh.772), P.W.157 Varvaji Shankarji Chavada (Exh.811) were in the team of Police Inspector M.K.Patel. From their deposition it transpiresthat,whentheyreachedChudivas,atthattime there was burning of houses of minor community, there
// 676 //
was mob in the Maholla, mob was armed with Dhariya, Sword,Sticksandtheywereshoutingtocut,beatthemand there were pelting of stone incident also. This fact is concurrentlystatedbyallthesePolicePersons,evenwhen theD.S.P.alongwithhisteampersonswentinChudivas andaccordingtothemalso,houseswereburningandthey saved the persons from the houses, who were inside the burning houses, mobwasthere,asperthedepositionof P.W.13RameshjiRajuji(Exh.97)andearlierdepositionof PoliceInspectorM.K.PatelInvestigatingOfficer,someof the accused persons were arrested from the place of offence, which suggest entering of mob in the Maholla. FromthedepositionofPolicePersons,ithascomeoutthat, somearmswerealsorecoveredfromthepersonswhowere arrested from the Maholla. This also supports the say of eyewitnessesthat,mobwasarmedwithdeadlyweapons. Peltingofstonesincident,isalsosupportedbythePolice witnesses, shouting slogans and abusing fact is also supportedbythePolicewitnesses,D.S.P.,Dy.S.P.,isalso supportingtheburningofhouses,enteringofmobinthe Mahollaandarrestofsevenpersons,whowerearmedwith deadlyweapons. When we peruse the crossexamination of Police witnesses,P.W.12BijendrasinhRampratapsinh(Exh.96) hasinhiscrossexamineddeposedthat,afterfourdays,his statementwasrecorded.Further,hehasdeposedthat,he
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is unable to say that from which area they received the wirelessmessagebutafterreceivingthemessagewithinfive minutestheyreachedattheplace.HewasinL.C.B.Jeep. Their Jeep was following the Jeep of D.S.P. and they reachedatDipraDarwajaandtheirJeepwasadjacentto Dipra Darwaja, the mob was in the Chowk and in the Houses of Muslims before they reached Visnagar Police werethere.Hehasnoideaaboutotherwayforegressand ingress. Rest of the persons went in their houses. There wasnoLightinDipraDarwajaarea.About20to50police persons were there. Houses of Muslims were burning, policewentthere,healongwithD.S.P.wentthereandtook 2to3personsfromtheburninghouses.Duetodarkness, heisunabletosayhowmanyMuslimpersonsweretaken tosaferplace.WhentheyreachedintheMaholla,houses wereburnt. Inhisfurthercrossexaminationitisdeposedbyhim that,hedoesnotrememberwhetherhehasstatedbefore S.I.T. that, when they reached Dipra Darwaja,a mobof about200personsarmedwithsticks,pipes,Swords,were burningthehousesofMuslimsandshoutingtocut,beat. Further, he has deposed that, in Visnagar Chudivas, he hadseenDy.S.P.Jadeja. P.W.13RameshjiRajuji(Exh.97) hasinhiscross examination by accusedNos.1to85,deposedthat,when
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they went in the Muslim area, there were 50 persons in burnt condition and injured were shifted to the Hospital and they took four hours for treatment of injured. There wascurfewon28.02.2002since06.00A.M.whetherbreach ofcurfewcasesweredoneornot,hehasnoknowledge.Itis denied by him that, seven persons who were arrested duringthetimeandplaceofincident,theywerearrested duetobreachofcurfew.ComplainantBalochwastakento PoliceStationandthereafter,hewastakentoHospital. InhisfurthercrossexaminationbyaccusedNos.1to 82hehasadmittedthat,ifaHindudiesgenerallyheisto betakenforcremationtocrematoriumandifcrematorium isnot8available,itcanbecrematedonGovernmentwaste landandifaMuslimdies,heistobeburiedinGraveYard. Itisdeniedbyhimthat,onthedayofincidenttherewas curfewsince06.00A.M.Hehasdeposedthat,hedoesnot rememberwhetherinhisearlierdeposition,hehasdeposed thaton28.02.2002therewascurfewsince06.00A.M.and hewasinpetrollingsince06.00A.M.Itisadmittedbyhim that,onlyoncehetooktheinjuredfromChudivastoPolice Station.Itisnotinhisnoticethat,anypersonwasbrought inPoliceStationforbreachofcurfew.Itisnotinhisnotice except seven persons of this incident any other accused werebroughttothePoliceStation.Complainantwastaken toHospitalalongwithother20to25persons.Complaint waslodgedbeforesendinghimtoHospital.Whenheasked
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DhirubhaitositintheJeepofPoliceInspectorM.K.Patel therewasnootherperson,PoliceInspectorM.K.Patelwas standing out side his Jeep. Head Constable Varvaji, Babubhai Chaudhari was there. It is admitted by this witness that, M.K.Patel instructed Babubhai Chaudhari andDhirubhaitositinbigvehicleandtheSwordwasgiven byPoliceInspectorM.K.PateltoBabubhaitokeepitinbig vehicle.Therewereother5to6accusedpersonssittingin thebigvehicle.Hehasdeposedthat,hedoesnotremember whether in his earlier deposition and two statements he hasstatedthat,attheplaceofincident,hehadarrested onepersonnamelyDhirubhaiBhikhabhai,whowashaving SwordwithhimandtheSwordwasgiventoM.K.Pateland thereafter,healongwithMahendrabhaiwenttoChudivas andsavetheMuslimpersons. P.W.46AnupamsinhJaysinhGehlot(Exh.226)has inhiscrossexaminationbyaccusedNos.1to82deposed that,hestayedattheplaceofincidentataboutonehour. SomeoftheMuslimpersonshavetoldhimthat,someof their persons are burn by cutting therefore, he had instructed Police Inspector M.K.Patel to take complaint about11personswhoeverburntaftercuttingthem.Andhe was receiving progress on telephone. He had not gone through thecomplaint,notfollowedF.S.L.Personsatthe place.
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InhisfurthercrossexaminationbyaccusedNos.1to 82 hehasdeposedthat,hehasnoknowledgeaboutthe area of Dipra Darwaja. He went in Chudivas where the houses were burning. He had seen the flames of houses but he is unable to say at what time those houses were burnt but on hearing the screaming of Muslim persons, Policestaffmemberstookthemoutfromtheirhousesand during that time there was blast of one Cylinder in one house. He had instructed Police Inspector M.K.Patel to takealltheinjuredoutandtotakenecessarysteps.Hehad notpersonallyverifiedwhetheranypersonhasdiedinside those burnt houses. The blast of Gas Cylinder was so terriblethattherewasbigfire.Policepersonswentinside theburnthousestosavethepersons. P.W.47BachubhaVesaljiJadeja(Exh.227) hasin his crossexamination by accused Nos.1 to 82, deposed that, when he came to Visnagar, near Savala Darwaja, Rickshawandshopswereburnt,hestoppedthere.S.D.M. cameat12.00O'Clock.Therewasnomob,hehadtalked withtheS.D.M.toimposecurfew.HemetPoliceInspector M.K.Patelattheplaceofoffenceafter20.45Hours.Police InspectorM.K.Patelandotherofficershadregisteredthe cases of breach of curfew. Whether, this witness has mentioned about the incident in his Diary, he does not rememberastheDiaryisConfidential,heisnotreadyto producebeforetheCourt.ButheisreadytoshowDiaryto
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theCourt.WithhimtherewasanotherStaffJeep,inwhich GasmanandotherPolicehavingA.K.47Riffleswiththem, thiswitnesswashavingnoarm,onreceivingthewireless messagehewenttoDipraDarwaja.WhenheenteredDipra Darwaja,hesawthemob.Fromthedistanceof50to70 Mtrs.MamlatdarandCityPoliceInspectorM.K.Patelwas present.Hewentthereattheplaceofoffence,priortothat firing was already resorted and Tear Gas Shells were lobbed. He stayed up to 24.00 Hours. Yadi for treatment wasgivento2to4personsandrestoftheinjuredwere sentwithoutPoliceYadi.WhenhewenttoMuslimMaholla, mostofthehouseswereburning,tinshadewerelying.On thebackside,thereweretwotothreehouses,whichwere notfullyburned.Fromthere,theytookthepersonsoutand senttheinjuredtotheHospital.D.S.P.stayedthereabout1 to2hours,P.I.wasthere,after24.00Hours.Thereafter,on 1st,2nd,4th,6thandon9thhewenttoVisnagarPoliceStation inconnectionwiththisincidentandon01.03.2002inthe police station, he hasnotreceivedanyinformationabout cutting and killing of 11 persons but he received the messageaboutmissingofthosepersons.Forthefirsttime, hereceivedthemessageaboutthemurderof11personson 06.03.2002.Hehasnotgivenlatepermissiontosendthe MuddamaltoF.S.L.Itisadmittedbythiswitnessthat,as perPoliceManual,ifanyincidentofriotingoccursinhis presence,hehasrighttoorderforfiring.Thereisnoneed to wait for permission from Executive Magistrate. It is
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denied by him that, during the communal rioting police wasineffective.Asperhissaytheywerehavinglessstaff. On27th theyreceivedadditionalstaff,whowerepostedat VisnagarCommunalpoint.On27thhewasatVisnagar,itis onlyon28thhewenttoVijapur.Noincidentofburningthe housesoccurredinChudivas,DipraDarwajaduring12.00 to04.00P.M.Itisonlyinthenightincidentoccurred.Itis denied by him that, incident of burning the houses in Chudivasoccurredatabout03.3004.00P.M. InhisfurthercrossexaminationbyaccusedNos.1to 82,84and85,hehasadmittedthat,hehasadvisedPolice InspectorM.K.PateltoaddSec.302onthebasisofbones, lump of human meat, hair of Head and burnt cloths recovered from the place of offence. As per his say in Chudivas only 7 to 8 Muslim Houses were there, he is unable to say that on the eve of Id, Muslim used to eat mutton and before four days of occurrence, there was Id Festival.Itistruethat,generallyMuslimpersonsusedto take mutton. F.S.L. Officers have not instructed to add Sec.302. He does not remember till the chargesheet against82personswassubmitted,therewasnoevidence availableinrespectofdeathof11persons. Itisadmitted byhimthat,hedoesnotrememberthatthesevenaccused which were arrested by them, which of the accused was armed with which weapon. He has noted the names of sevenpersonsinhisDiarybuthedoesnotrememberthe
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fullnameofthosesevenpersons.Further,itisdeposedby himthat,the11personswhowerediedormissingnoone hasmadeanygrievancebeforehiminthisregard.Tillthe chargesheetissubmitted,noonehasmadegrievancethat M.L.A.ShriPrahladbhaiGosaandDahyabhaiTribhovandas Patelwerepresentinthenightofincident.Itisadmittedby him that, beforeS.I.T.hasdeposedthat,oneoldcouple wasburiedweretakenout,nofirefightercameattheplace as Fire Fighters were busy to extinguish the fire in the market. P.W.65 Mahendrasinh Bhairavsinh (Exh.518) has inhiscrossexaminationbyaccusedNos.1to82deposed that,hedoesnotrememberthatoutofsevenpersons,how many persons he has arrested. Before arresting those persons he was having no relations with those seven persons.Tillhistransfer,hecouldnotknowwhetherthere waspersonnamedAjayinsevenaccused.Itisdeniedby himthat,allthosesevenpersonsareresidingnearChowk. Hedoesnotrememberduringwholenightwhetherhehas arrestedanypersonsforbreachofcurfew.Itisadmittedby himthat,whentheyreachedattheplaceofoffence,D.S.P. andDy.S.P.werepresentthereandattheplaceofincident inallfourPolicevehicleswerethere,sevenarrestedpersons were taken in City Mobile and the weapons which were recoveredfromthesevenpersonswerekeptundertheseat, whichweaponswererecoveredfromwhomnoPanchnama
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waspreparedatthattime,allthesevenaccusedwerekept inLockupinPoliceStation.Itisadmittedbyhimthat,the distancebetweenthesceneofoffenceandPoliceStationis about 5 Minutes. It is admitted by him that, suppose somethinghappensinDipraDarwaja,apersonfromPolice Stationcanhearthenoise.Itisalsoadmittedbyhimthat, apersoncanseethesmokes,flamesofDipraDarwajafrom Police Station. Whole staff of Police Station was on duty, additional staff was also sought from Mahesana. It is admittedbyhimthat,hehasnotstatedbeforeS.I.T.that, hehasarrestedAjaybhai.Itisalsoadmittedbyhimthat, he has not stated in any of his statement that, seven persons,whowerearrestedweretakeninPolicevehicleand he along with Rameshbhai, Police Inspector M.K.Patel, Varvaji,DashrathjiwentinsidetheburninghousesofDipra Darwaja, he does not remember whether he has stated beforeVisnagarPoliceStationthat,theytook25personsto PoliceStationbywalk.Hedoesnotrememberwhetherhe has stated in his any ofthestatement that,thearrested personswereaskedtositinSecondPoliceVehicle. P.W.83DashrathsinhAmthaji(Exh.572)hasinhis crossexaminationbyaccusedNos.1to82,deposedthatit is true that, at the time of drawing the Panchnama the persons who shows the place of offence, his name is requiredtobementionedinthePanchnama.Itisalsotrue that,ifanyMuddamalisrecovereditistobeidentifiedby
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thirdperson.Itisadmittedbyhimthat,inhisstatement dated 22.06.2008 he does not remember whether he has statedthat,hesawthemobarmedwithDhariya,Sword,he doesnotrememberwhetherhehasstatedthat,hesawthe houses burning in Chudivas, he also does not remember whether he has statedthat,sevenpersonsfrom themob armed withweaponwerearrestedbythePoliceandthey weretakeninPolicevehicle.Hedoesnotrememberwhether he has deposed at the time of drawing Panchnama at Chudivas, knotted hairs, ornaments and meat were recovered. He does not remember whether he has stated before S.I.T. that from Malav Talav half burnt pieces of woodswererecovered. P.W.147 Babubhai Mansangbhai Chaudhari (Exh.772) hasinhiscrossexaminationbyaccusedNos.1 to 82, deposed that 7 persons who were arrested at the placeofoccurrence,theywereshiftedinSecondVehicleof Police,heisunabletosaythat,onthatdaymanypersons werearrestedforbreachofCurfew,whenhewasaskedby about M.L.A. Shri Prahladbhai Gosa and Dahyabhai Tribhovandas Patel he had replied that, he had not seen theminthePolicestation.Incrossexaminationbyaccused No.83, he has deposed that, it is true that, in Chudivas theyreachedfirst.Itisalsoadmittedbyhimthat,thework done by them for saving the life and property of minor community,theywereawarded.PoliceInspectorM.K.Patel
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was also awarded. It is also admitted by him that, after recording the complaint of this incident, they went for petrolling. Next day they went for Panchnama, F.S.L. Officerswerecalled,itisadmittedbyhimthat,thedistance betweenthePoliceStationMamlatdarOfficertoChudivas is about 3 Minutes. It is admitted by him that, if some incidentoccursinChudivas,noiseofthatincidentcanbe heardfromPoliceStation,smokecanalsoseenfromPolice Station. FromthecrossexaminationofP.W.12Bijendrasinh Rampratapsinh(Exh.96)nothingcomesoutfromwhichwe can disregard the evidence of this witness regarding burning, entering of mob armed with deadly weapons, peltingofstones,burningthehouses,injuriestowitnesses etc. In the crossexamination of P.W.13 Rameshji Rajuji (Exh.97) also there are denials, contradiction, omissions arebroughtonrecordbutthoseareofminorinnatureand on the basis of those contradiction and omissions we cannotdisregardthesayofthiswitnessregardingentering of mob in the Maholla, pelting of stones, shouting of slogansandburningofhouses.Inthecrossexaminationby accused No.83, it has been brought what attempts were madebyaccusedNo.83,duringthewholedayinVisnagar and about the uncontrolled position of Visnagar town on the day. Nothing else has been brought on record from which we can disregard the said facts. P.W.46
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Anupamsinh Jaysinh Gehlot (Exh.226), in his cross examinationalsocontradictionandomissionsarebrought onrecord,whichareofminornatureandnoteffectingthe main evidence regarding entering of mob in the Maholla, pelting of stones, shouting of slogans and burning of houses.P.W.47BachubhaVesaljiJadeja(Exh.227),inhis crossexamination also contradictions and omissions are tried to be brought on record, there is nothing adverse affecting the evidence regarding entering of mob in the Maholla,peltingofstones,shoutingofslogansandburning of houses. In the crossexamination by accused No.83, whatattemptsweremadebyPoliceInspectorM.K.Patel, duringthewholedayandthatthiswitnessbeingVisitation OfficerofthisoffencewasPoliceInspectorM.K.Patelare brought on record. Nothing major contradictions and omissionsarebroughtonrecordfromthatwecandisregard theaboveevidence.P.W.48ManubhaiKarshanbhaiPatel (Exh.228)istheInvestigatingOfficerofthiscase,hisfirst time deposition, as discussed earlier is required to be consideredwhilehissecondtimedepositionisrequiredto be ignored, as he is arranged as an accused, he is also reached in Chudivas along with his team, is also supportingtheenteringofmobintheMaholla,peltingof stones,shoutingofslogansandburningofhouses.During hislengthycrossexaminationnothinghasbeenbroughton recordformwhichwecandisregardsaidfact.Contradiction andomissions,whicharebroughtonrecordareofminorin
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naturefromwhichwecannotdisregardtheversionofthis witness, in respect of this fact. P.W.83 Dashrathsinh Amthaji(Exh.572)isalsocrossexaminedatlength,butin hiscrossexaminationalsonothingnewhasbeenbrought from which we can disregard the evidence of the prosecution regarding entering of mob in the Maholla, pelting of stones, shouting of slogans and burning of houses. Simply contradictions and omissions of minor nature are brought on record, which cannot create the doubt about the evident in Chiefexamination. P.W.147 BabubhaiMansangbhaiChaudhari(Exh.772)andP.W.157 Varvaji Shankarji Chavada (Exh.811) are also cross examined at length and in their crossexamination also, nothingnewhas beenbroughtonrecordonthebasisof whichwecandisregardtheirevidenceonthepointofthe enteringofmobintheMaholla,peltingofstones,shouting ofslogansandburningofhouses.AllthesePolicepersons arehavingnopreviousenmitywithanyoftheaccused,it istheboundeddutyoftheaccusedsidetobringonrecord why the Police witnesses telling lie against them but nothingincrossexaminationhasbeenbroughtbyaccused side to satisfy the court, that these police persons have intentionally depose againstthem.Presenceofthispolice persons at about 08.00 08.30 P.M. is natural as on receivingthemessageabouttheoccurrence,theyreached attheplace.Thus,thispolicepersonsaresupportingthe sayofeyewitnessesfromChudivas.FromthePanchnama
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of scene of offence dated 01.03.2002 and 06.03.2002 as wellasdepositionsofpanchwitnesses,asdiscussedearlier is supported the burning of houses, damages to the properties in the Chudivas.Thus from the depositions of injures witnesses, eyewitnesses, medical evidence, Patel witnesses, Police witnesses, Panchas, F.S.L., Videography, Photography etc. prosecution has fully established the incidentofenteringbymob/peltingstone. [261] Now as per the case of prosecution on 28.02.2002, on receiving the Wireless Message, Police persons went to Dipra Darwaja. There was mob and Police had tried to disbursethemobbutmobwasnotdisbursedhenceLathi charge was resorted even then mob was not disbursed henceD.S.P.hadorderedforlobbingofTeargasCellwere orderedandresortedaccordingly.Thereafter,alsomobwas notundercontrolhencefiringintheairwasdone.Forthis purpose, when we peruse the deposition of P.W.12 BijendrasinhRampratapsinh(Exh.96),hehasdeposedon oath that, at about 8.30 P.M. they received Wireless Messagethat,thehousesofMuslimsinDipraDarwajaare burntbythemob.Therefore,D.S.P.immediatelyreachedat the place and along with D.S.P. the witness along with otherPolicewitnesseswenttoDipraDarwaja.Atthattime therewasmobabout200personsshoutingtocut,beatthe Muslims. Mob was having Dhariya, sticks etc. in their handstherefore,hewarnedthemobtodisbursebutmob
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was not disbursed hence Lathicharge was resorted even then mob was not under control therefore, D.S.P. had ordered for lobbing the Teargas Cell therefore, he had lobbed 8 Teargas Cells. Thereafter, also mob was uncontrolled therefore, Visnagar Police had ordered for firing in the air and after firing in the air the mob was disbursed.Inhiscrossexamination,hehasdeposedthat, on receiving Wireless Message, immediately within five minutes they reached at Dipra Darwaja. There was one Chowk,mobwasinthehousesofMuslimsaswellasinthe Chowk also. Visnagar Police was present there. Approximately20to25Policepersonswerethere.Houses ofMuslimswereburning.D.S.P.alongwithPolicePersons wentthere.Insecondtimedeposition,hehasdeposedthe samefactswhileinsecondtimedepositionhehasadmitted that,whentheyreachedatDipraDarwaja,M.K.Pateland other police officersweretryingtodisbursethemoband theyhadlathichargedthemob.Itisalsoadmittedbyhim that, as the mob was not disbursed by lathicharge and lobbing of Teargas Cell, Police Constables Rameshji and Mahendrasinh of Visnagar Police Station fired in the air. When we peruse the deposition of P.W.13 Rameshji Rajuji (Exh.97), he has deposed on oath that, that they wereinpetrollingnearLalDarwaja,Visnagar,theyreceived messagefromControlthatnearDipraDarwaja,Chudivasa mobabout200personswasburningthehousesofminor community therefore, they rushed Chudivas, there were
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mobofabout200persons,havingDhariya,Sword,sticks etc. and they were shouting to cut, beat and burn the minor community and they were burning the houses of minor community, also they were pelting the stones and therefore,theyhavewarnedtodisbursemeanwhileD.S.P. and Dy.S.P. Jadeja, P.I. Bhimavat came along with their staff members, they asked the mob to disburse but mob wasnotdisbursedhenceofficerfromL.C.B.hadinstructed the Head Constable Bijendrasinh to log the Teargas Cell and he lobbed 8 TeargasCellseventhoughmobwasnot undercontroltherefore,P.I.M.K.Patelwarnedthemobeven then mob was not under control hence Lathicharge was resorted even though mob was uncontrolled hence P.I. M.K.PatelhadinstructedtheVisnagarPolicetofireinthe Airandtherefore,thiswitnesshadfiredfiveroundsinthe AirandMahendrasinhBhairavsinhhasfired10roundsin the Air and this witnesshasdepositedCartridges.Inhis crossexamination he has deposed that, after firing, mob went towards Kada Darwaja and Police Station. In his secondtimedeposition,hehasrepeatedthesamefactsas statedinhisearlierdeposition.Inadditiontothat,hehas deposedthat,theywereinstructedtofireintheAirbuthow manyroundsoffiretheyshouldfirewasnotinstructedby the officer. In his crossexamination, he has denied that during28.02.2002to04.03.2002blankcellsofcartridges werewithinhiscustody.Asperhissay,hehaddeposited thecellson28.02.2002alongwithhimMahendrasinhhad
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also deposited the blank cells of cartridges. On 28 th February, 2002, they had deposited blank cells before P.S.O.,whichwereproducedbeforeP.I.M.K.PatelbyP.S.O. On4th March,2002.Further,inhiscrossexaminationhe hasdeposedthat,Magistratewasinstructingforfiringas andwhennecessary.Itisadmittedbyhimthat,theyhad triedtodisburse themobasthemobwasnotdisbursed henceShriPatelhadorderedforlobbingtheTeargas.Itis alsoadmittedbyhimthat,theatmospherewassotense, there was no alternate except that of firing. P.W.46 Anupamsinh Jaysinh Gehlot (Exh.226) has deposed on oath, on receiving the message the Dipra Darwaja, Visnagar, where a mob had attacked the houses of Muslims.P.I.M.K.Patel,otherPoliceOfficers,Dy.S.P.Jadeja etc.werepresentandtheyweretryingtodisbursethemob andtheyhadorderedHeadConstableBijendrasinhtolog theTeargasCells.Mamlatdarwasalsopresentandwithhis permission firing was done. In his second time cross examination, he has deposed when he went to Dipra Darwaja,afterLathiCharge,within15to20minutes,mob wasdisbursedandbeforehereachedonthatplace,firing wasdonebythepolice.Itisadmittedbyhimthat,healong with his staff members had lathicharged the mob to disbursethemob.Itisalsoadmittedbyhimthat,P.I.Shri Patel and Dy.S.P. Jadeja has lathicharged the mob and Teargas Cell was lobbed and firing was done. P.W.47 Bachubha Vesalji Jadeja (Exh.227) has stated on oath
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that,atabout08.30theyreceivedthemessagethat,houses ofMuslimsinDipraDarwajaareburntandthereweremob ofmorethan200persons.Theywerepeltingthestones,as the situation was tense, Executive Magistrate was also present,D.S.P.alsocame,P.I.ShriPatelwasalsopresent. First they warned the mob to disburse but the situation was so tense that, with the permission of Executive Magistrate, M.K.Patel had instructed Police Constable Mahendrasinh Bhairavsinh and Rameshji Rajuji to fire. PoliceConstableMahendrasinhBhairavsinhhadfired10 roundsintheairwhileRameshjiRajujihadfired5rounds intheairandHeadConstableBijendrasinhhadlobbed8 Cells, lathicharge was done and thereafter, mob was disbursed. In his crossexamination, he has stated that before he reached at the place five round of fire were already fired. In his presence only 23 rounds were fired and Teargas Cells were lobbed. In his second time deposition,he hasdeposedthat,whenhereachedatthe placewiththepermissionoftheExecutiveMagistrate,Shri Patelhadorderedforfiringandfiringwasdoneaccordingly asperhisinstruction.Whenhereachedattheplace,D.S.P. alsocameandtheywarnedthemobbutthemobwasnot disbursed therefore, 8 Teargas Cells were lobbed even thoughmobwasnotundercontrolandtherefore,5rounds offiringwerefiredand10roundsoffiringof303werefired. D.S.P. and Mamlatdar werepresent. 2to 4 persons were injured in the firing. He had recorded the statement of
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Bijendrasinh, Rameshji Rajuji and Mahendrasinh and 15 firedcartridgeswererecoveredfromthem.Whenweperuse the first time deposition of P.W.48 Manubhai Karshanbhai Patel (Exh.228), he has deposed that, on receiving the message he along with other Police Officers went to Dipra Darwaja, Chudivas at about 08.30 P.M. ExecutiveMagistratealsocame,therewasamobofabout 200persons,theywerepeltingstones,burningthehouses ofMuslims,therefore,hehadwarnedthemobtodisburse butthemobwasnotdisbursedhencewiththepermission of Executive Magistrate, Teargas Cells were lobbed, lathicharge was done, as the mob was uncontrolled 15 roundsoffiringwerefiredintheAirandatthattimeD.S.P. Shri Gehlot and Dy.S.P. Shri Jadeja were present. His secondtimedepositionisrequiredtobeignoredasatthat time he is taken up as an accused. He is subsequently, joinedasanaccusedhencehisdepositioninthisregardis to be ignored. P.W.65 Mahendrasinh Bhairavsinh (Exh.518), has deposed that, they were in petrolling, at about08.00 P.M.theywenttoPoliceStation,wherethey receivedtheMessageabouttheincidentatDipraDarwaja, at about 08.30 P.M. they went to Dipra Darwaja, where there was a mob about 200 to 500 persons, they were pelting stones, burning houses of Muslims, they were having burning rags, Swords, pipes, sticks, dhariya etc., they had tried to disburse the mob, as the mob not disbursed lathicharge was done, 8 Teargas Cells were
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lobbed,P.I.hadorderedforlobbingtheCells,thereafter,10 Roundsfirewasdonebyhimintheairand5Roundswere firedbyRameshjiRajuji.Inhiscrossexaminationhehas admitted that, Shri Patel had instructed him to log the Teargas Cell to disburse the mob, as the mob was not disbursed,toprotectthelifeandpropertyofChudivas,they were ordered to fire in the Air. Dy.S.P. and D.S.P. were present, in spite of that mob was ransacking in the Maholla,itisonlyafterfiringmobwasdisbursed.P.W.83 Dashrathsinh Amthaji (Exh.572) has in his cross examination admitted that, on the instructions of M.K.Patel,lathichargewasdonetodisbursethemob.Itis alsoadmittedbyhimthat,asthemobwasnotdisbursed, MahendrasinhandRameshjiwereorderedtofireintheair. Itisalsoadmittedbyhimthat,duringprocess,D.S.P.and Dy.S.P. were present and they were helping Shri Patel. P.W.144AmrutbhaiBhikhabhaiBhimavat(Exh.767)has deposed that, on receiving the message they went to VisnagarDipraDarwaja,Chudivas,housesofMuslimswere burning, there was a mob therefore, P.I. M.K.Patel and Dy.S.P.ShriJadejacamethereandGasmanofD.S.P.had lobbed Teargas Cells. P.W.147 Babubhai Mansangbhai Chaudhari (Exh.772) has deposed on oath that, on receivingthemessage,atabout08.30theywenttoDipra DarwajaalongwithP.I.ShriPatelinRandalMataChowk. Therewere200to500personswerearmedwithburning rags,sharpcuttingarms,etc.atthattimeD.S.P.,Dy.S.P.
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andtheirstaffmembersalsocameatChudivas,mobwas pelting stones, P.I. M.K.Patel has instructed to MahendrasinhandRameshjitofireintheairandtheyfired intheairandthiswitnesswasinstructedtologtheTeargas Cells therefore, he lobbed two Teargas Cells. P.W.175 GautamkumarVishnubhaiBarot(Exh.912)hasadmitted inhiscrossexaminationthat,M.K.Patel,P.I.waspresentat the place and with him Rifle man and Gas man were present. Shri Barothasrecordedthestatementsof those police employees and has also recorded the statement of ExecutiveMagistrateShriK.J.Rathod. [262] P.W.1 Fatehkhan Badarkhan Baloch (Exh.61) has deposedthat,aftertheincidentafterfivetosixhoursPolice CameinMahollaandresortedfiring.Membersofthemob had thrown burning rag and the houses in the Maholla wereburnt.Inhissecondtimedepositionhehasdeposed that,atabout8.00to8.30P.M.Policecameandresorted firing hence the mob was disbursed. In his cross examination,ithascomeoutthatatabout08.00to08.30 Hours,firingwasresortedbythePolice. P.W.2Mahmad Iqbal Ahmedkhan Baloch (Exh.66) has deposed that about 09.30 P.M. Police came and Teargas Cells were lobbed.Asthemobwasuncontrolled,policehadresorted firing. In his second time deposition, at about 08.00 to 08.30P.M.D.S.P.cameandTeargasCellswerelobbedbut themobwasuncontrolledhencefiringwasresortedinthe
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Air.Inhiscrossexamination,hehasadmittedthat,inhis complainthehasstatedthat,duringtheincident,mobwas uncontrolledhencefiringwasresorted.Thisfactiswritten by P.I. in the complaint. Further, he has denied the fact that,Policehadlathichargedtodisbursethemob.Further, hehadheardthesoundoffiring.P.W.3Gulabkhanalias Gulubhai Kayamkhan Sindhi (Exh.70) was declared Hostilebytheprosecutionbutinhiscrossexaminationhe hasadmittedthat,atabout09.30Policecameattheplace of offence and resorted firing. P.W.4 Aabidbhai Gulabkhan Sindhi (Exh.71) has deposed in his second time deposition that, in his crossexamination he has admittedthat,hehadheardthesoundoffiring.Hehasno knowledge that, police had resorted 10 rounds firing. He hasalsoshownhisignorancethatpolicehadresortedthe firingtosavetheMuslimpersonsofChudivas.Hehasno knowledgewhetherPolicehadresortedfiring,lathichargeor Teargas Cells to disburse the mob. P.W.5 Zubedabibi MahebubkhanBaloch(Exh.84)hasdeposedthat,atabout 09.00 P.M. Police came and lobbed Teargas Cells, as the mobwasnotundercontrol,policehadresortedfiring.In her crossexamination,shehas statedthat,shedoesnot rememberthat,whetherpolicehadresortedfiringatabout 08.30P.M.butitisadmittedbyherthat,onhearingthe soundofPolicefiringtheycameout.P.W.6Mahmadkhan Badarkhan Baloch (Exh.85) has deposed that, at about
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09.00P.M.Policehadresortedfiring.Inhissecondtime deposition also he has deposed the same thing. P.W.7 Amzadkhan Mahmadkhan Baloch (Exh.86) has deposed that,atabout09.30P.M.policecameandresortedfiring. P.W.9RashidabibiSattarbhaiBaloch(Exh.88) hasin hersecondtimedeposition,shehasshownherignorance abouttheresortingoffiringandlobbingofTeargasCells. She has denied that, in her statement dated 01.03.2002, shehasstatedthat,PolicehadlobbedtheTeargasCellsas themobwasuncontrolled,Policehadresortedfiring.P.W. Police had lobbed Teargas Cells, as the mob was not disbursed, police had resorted firing. In her second time deposition,inhercrossexaminationshehasadmittedthat, shehasnotheardthesoundoffiring.Shehasdeniedthat, she has stated in her statement dated 01.03.2002 that, Policehadlobbedthecellsasthemobwasnotdisbursed, Police had resorted firing. P.W.11 Anvarhusen
ShabbirhusenPathan(Exh.91)hasdeposedonoathinhis second time deposition that, at about 08.30 Police came and resorted firing. P.W.21 Shabbirkhan Ibrahimkhan (Exh.108) has deposedthat,atabout 08.30Policecame, policehadlobbedTeargasCells.Thereafter,resortedfiring. Inhissecondtimedeposition,incrossexaminationhehas denied that, he has stated before Visnagar Police Station that,theirhouseswereburntandtosavethemPolicehad lobbedTeargasCells.
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[263]
P.W.8ReshmabenSattarbhai(Exh.87)hasdeposedthat, atthetimeofincidentPolicecameandfiredintheair.In her crossexamination she has admitted that, when she came out mean while police had fired and mob was disbursed.P.W.18SaiyedNazirmiyaKalumiya(Exh.103) has deposed that, at about 08.30 P.M. Police came and Teargas Cells were lobbed thereafter, Police had resorted firingjusttosavethepersonsfromMaholla.Inhissecond timedeposition,inthecrossexaminationhehasshownhis ignorance about the Lathicharge, lobbing of Teargas cells andfiringinairatabout08.30P.M. P.W.22Yusufkhan MuradkhanPathan(Exh.112)hasdeposedthat,whenthe Police came at about 09.00 P.M. and asked the mob to disburse but the mob was not disbursed hence Teargas CellswerelobbedbythePoliceeventhoughmobwasnot disbursed hence firing was resorted by the Police. In his secondtimedepositioninhiscrossexaminationbylearned advocateShriB.G.PatelonbehalfofaccusedNo.83,hehas deposed that, he does not remember whether Police had lobbedtheTeargasCellsorresortedfiringintheAir.P.W.23 Ahmedmiya Hasumiya Belim (Exh.128) has deposed that,atabout09.00P.M.Policecameandaskedthemobto disbursebutthemobwasnotdisbursedhencepolicehad lobbed the Teargas Cells and firing was resorted. In his crossexamination,hehasadmittedthat,whentheywere in the Chowk, police had resorted firing, mob was not present. P.W.24 Shermahmad Dalubhai Sindhi
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(Exh.132)hasdeposedthat,Policehadresortedfiringand mobwasdisbursed.P.W.25MohmadHanifAhmedkhan Baloch(Exh.134)hasdeposedthat,policecameandasked themobtodisbursebutthemobwasuncontrolledhence police had lobbed the Teargas Cells but the mob was uncontrolled hence police had resorted firing in the Air. Thenmobdisbursed.Inhissecondtimecrossexamination by learned advocate Shri B.G.Patel on behalf of accused No.83,hehasdeniedthat,onthedayofincidentatabout 08.30PolicehadresortedLathichargeasthemobwasnot disbursed, Teargas Cells were lobbed. Even though mob wasuncontrolledhencePolicehadfiredintheair.Hehas deniedthat,hehasstatedthisfactinhisstatementdated 08.03.2002. P.W.26 Husenkhan Badarkhan Baloch (Exh.137)hasdeposedthat,Policecameandresortedthe firingand then mobwasdisbursed. P.W.33Anvarkhan BasirkhanBaloch(Exh.166)hasdeposedthat,atthetime of incident, persons from the village called the D.S.P. by phone,D.S.P.cameandaskedthemobtodisburseasthe mob was not disbursed, Teargas Cells were lobbed and firingwasresortedintheAirthenonlymobwasdisbursed. P.W.70MadhavlalRanchhoddasPatel(Exh.535),P.W.71 Naranbhai Amthabhai Patel (Exh.536), P.W.76 Kantibhai Kacharabhai Patel (Exh.550), P.W.78 Revaben Ranchhodbhai Patel (Exh.557) and P.W.80 Manguben Amratbhai Patel (Exh.559) have deposed in
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their respective crossexamination that, they have heard the sound of police firing from their house. P.W.74 Shantaben Bhogilal (Exh.543) and P.W.75 Nitaben Jageshkumar Patel (Exh.544) have admitted in their respectivecrossexaminationthat,policecame andfired. P.W.125SabanabibiAnvarhusenPathan(Exh.678) has statedinhercrossexaminationbyaccusedNo.83that,she doesnotrememberwhetheratabout08.30P.M.firingwas resorted.Shehasdeniedthat,beforeS.I.T.shehasstated that, at about 08.00 to 08.30 police came and resorted firing.P.W.127ImrankhanSabirhusenPathan(Exh.681) hasinhiscrossexaminationbyaccusedNo.83statedthat, hehasnoknowledgeaboutthefiring. [264] SofarasevidenceregardingfiringandlobbingofTeargas Cells is concerned, as per say of Rameshji Rajuji and MahendrasinhBhairavsinh,theyhaddepositedblankcells ofcartridgesbeforeP.S.O.on28.02.2002videPanchnama drawn by the then Investigating Officer M.K.Patel, such Panchnama is produced on record vide Exh.73, that Panchnama was verified by Dy.S.P. Shri Jadeja. Panch ShankarbhaiMaganbhaiPatelisexaminedvideExh.521as P.W.66.,whoisdeclaredHostile,whoisnotsupportingthis fact.WhileanotherPanchKantibhaiChimanlalhasdied, whose Death Certificate is produced with the witness Summons, that Death Certificate is hereby ordered tobe exhibited. This Panchnama supports the say of both the
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witnesseshadfired5and10roundsrespectively,intheair. [265] Thus, considering above evidence, Muslim injured witnesses, Muslim eyewitnesses have deposed about the incidentregardingmobenteringinMahollahavingdeadly weaponsintheirhands,peltingstones,settingonfirethe houses in Chudivas, abusing Muslims, shouting slogans, firing, lobbing of teargas cells and lathicharge. These evidenceismuchsupportedbythePolicewitnesses,who reachedinChudivas.Theydonothaveanyenmitywithany persons, their depositions cannot be discarded simply becausetheyarePolicewitnesses,uptosomeextentPatel witnesses have also supported the incident occurred in Chudivas, Medical evidence, history before doctor, narrationinF.I.R.asdiscussedabovefullycorroboratesthe prosecution case. The only incident which is not trust worthy,reliableisaboutkilling,cuttingintopiecesandby pouringpetrol,keroseneetc.deadbodieswereburntand whichisnotbelievedbytheCourt.
EVIDENCE OF GOVERNMENT OFFICIALS :

[266] P.W.134IshvarbhaiBababhaiChaudhari(Exh.722) has in his second time deposition deposed that, the correspondenceinrespectofI.CR.No.60/2002arekeptin hisBranch.AsperorderpassedbytheHon'bleSupreme Court of India, S.I.T. is constituted and all the correspondence which is done between the Collector and
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S.I.T.arekeptwiththem.Theletterdated29.05.2008isin respectofinformationgivenbytheS.I.T.toCollectorand forwarding Letter isalso attached withit, which is dated 18.06.2008andothercorrespondenceisalsoattachedwith it such as letter dated 28.02.2002, written to Additional ChiefSecretary,HomeDepartment,Gandhinagar.Another letter dated 28.02.2002, written by Collector to Chief Secretary, Home Department, Gandhinagar, to provide additionalS.R.P.Force,LetterDated28.02.2002,writtenby Collector to Additional Chief Secretary, Gandhinagar Ashok Narayan, in respect of damages caused during Gujarat Bandh, Letter dated 01.03.2002, written by the CollectortoAdditionalChiefSecretary,HomeDepartment, informing the situation of Law and Order of Mahesana District, letter dated 28.02.2002 in respect of showing damage occurred in Mahesana District during Gujarat Bandh,informationshowingupto01.03.2002,letterdated 01.03.2002 seeking additional two companies of S.R.P. Group, letter dated 01.03.2002 informing the Law and Order situation of Mahesana District to Additional Secretary, Home Department, Gandhinagar and report dated07.03.2002regardingLawandOrdersituationfrom 27.02.2002to06.03.2002,acopyofletterdated28.02.2002 was also sent to Chief Minister. He has produced all the lettersvideExh.801to810.Whenweperusethedocuments vide Exh.801 to 810,alltheseletterssupportsthesayof thiswitness.InhiscrossexaminedbyaccusedNos.1to82,
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hehasadmittedthat,hehasnopersonalknowledgeabout theletterdated28.02.2002atwhattimethoseletterwere written.Consideringaboveallletters,whichareproduced videExh.801to810areproducedinofficialcapacityand thosearetheofficialcorrespondence,whichareadmissible inevidenceandincrossexaminedofthiswitnessnothing comes on record from which we can disbelieve the genuinenessofthosecorrespondencetherefore,prosecution has well established the correspondence produced vide Exh.801to810. [267] P.W.176SudhirbhaiHansrajKansara(Exh.1019)hasin his deposition produced Government Gazette dated 10.01.2000videExh.1021andResolutionofPresidentand VicePresidentareproducedvideExh.1022andResolution BookisproducedonrecordvideExh.1023.Whenweperuse all the three documents, those supports the say of the witness. Nothing comes out in crossexamination from whichwecandisbelieveallthethreedocuments.
NOTIFICATION U/S.135 OF THE B.P.ACT :[268] As per the case of prosecution at the time of incident, Notification under Section135ofB.P.Actwasinforce.In this regard P.W.134 Ishvarbhai Bababhai Chaudhari (Exh.722) has been examined by the prosecution. He is servingasClerkintheofficeoftheDistrictMagistrate.He has produced Notification dated 25.02.2002, which was
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published from their office. He has produced said document on record vide Exh.723. This witness is not crossexaminedbyanyoftheaccusedsideandtherefore, there is no reason to disbelieve the genuineness of this documentaswellasdepositionofthiswitness.Onverifying the record,it transpiresthat,theconcerneddocumentis alreadyexhibitedwiththeconsentofthepartiesasExh.82 hence one document is exhibited twice therefore, for the sake of conveniencenowthisdocumentisrequiredtobe readandreferredasExh.82.Thus,fromthedepositionas well as from the document produced vide Exh.82, prosecution has proved that, at the time of incident NotificationunderSection135ofB.P.Actwasinforce.The evidence adduced in this regard much supported by the documentaryevidenceisreliableandtrustworthy,thereis noreasontodiscardthisevidence.
CONSPIRACY :
[269] As per the case of the prosecution, accused are charged withallegationsofconspiracyunderSection120B. Itis argued by Shri M.K.Brahmbhatt, conspiracy washatched tocausebodilyinjuries,damagetopropertiesetc.Toprove conspiracytherecanbenodirectevidence,itcanonlybe inferredfromovertactandconductoftheaccusedafterthe incident. Conspiracy may be expressed or implied, part expressed or part implied, it can be inferred by circumstantialevidence.ReferringthedepositionofP.W.2
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Mahmad Iqbal Ahmedkhan Baloch (Exh.66), P.W.8 Reshmaben Sattarbhai (Exh.87) and P.W.9 Rashidabibi SattarbhaiBaloch(Exh.88),itarguedbyShriBrahmbhatt that,itsuggesttheintentionoftheaccused.Depositionof P.W.10 Sugrabibi Mahmadkhan Baloch (Exh.90) and P.W.11 Anvarhusen Shabbirhusen Pathan (Exh.91) who are the injured eyewitnesses, P.W.12 Bijendrasinh Rampratapsinh(Exh.96)suggestthat,membersofunlawful assembly were mentally agreed to the extent that, they armedwithdeadlyweaponsandtheobjectofmobwasto cause damage to the minor community. Intention and objectofaccusedwastospreadterrorinminorcommunity. Conspiracycanbeinferredfromthewordingsofaccused. Membersofonefamilywerekilledbeforehiseyes.P.W.22 YusufkhanMuradkhanPathan(Exh.112),whowashaving nopreviousenmitywiththeaccused.Thereisnothingon record to show prior enmity between the witnesses and accused.Referringtothedepositionsofallthewitnesses, including the Police witnesses, it is argued by Shri M.K.Brahmbhattthat,conspiracycanbeinferredfrompre and after conduct, wordings etc. from circumstantial evidence. Conspiracy was hatched amongst the accused. Accused Nos.84 and 85 have joined hands with accused No.83,asthepartofconspiracyandhadabatedthecrime bytakingactivepartininstigatingtheaccused.Attackon Chudivas, could have been materialized integrated instigationandconspiracybyaccusedNos.84and85,with
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the help of accused No.83 and accused No.83 under the directdictatorshipofaccusedNo.84and85,asapartof conspiracy between these three accused persons had investigated the unfair and bias investigation, with the registrationofthecomplaintbyaccusedNo.83.Insupport of his arguments, Shri M.K.Brahmbhatt has relied upon thefollowingcitations: (1) (2003)8SUPREMECOURTCASES461 NAZIRKHANANDOTHERSVS.STATEOFDELHI
Wherein it is held by the Honourable Supreme Court of Indiathat, Penal Code, 1860 Ss. 120B and 120A Criminal Conspiracy Ingredients and proof Held, essential ingredient of criminal conspiracy is the agreement to commit an offence Such an agreement can be proved eitherbydirectevidenceorbycircumstantialevidenceor bybothThus,conspiracycanbeestablishedbydirector circumstantial evidence Where the said agreement proved,held,proofofanovertactnotessentialTerrorist and Disruptive Activities (Prevention) Act,1987,Ss.3(1),(4)and(5)EvidenceAct,1872,S.10 (2) AIR1980SUPREMECOURT1382 STATE(DELHIADMINISTRATION)V.V.C.SHUKLA
Wherein it is held by the Honourable Supreme Court of Indiathat,
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Itistruethatinmostcasesitwillbedifficulttogetdirect evidenceofanagreementconspirebutaconspiracycanbe inferredevenfromcircumstancesgivingrisetoaconclusive or irresistible inference of an agreement between two or morepersonstocommitanoffence. (3) AIR1980SUPREMECOURT439 SHIVANARAYANLAXMINARAYANJOSHIV. STATEOFMAHARASHTRA
Wherein it is held by the Honourable Supreme Court of Indiathat, A conspiracy is always hatched in secrecy and it is impossible to adduce direct evidence of the same. The offence can be only proved largely from the inferences drawn from acts or illegal omission committed by the conspiratorsinpursuanceofacommondesign. (4) AIR1996SUPREMECOURT1744 STATEOFMAHARASHTRAV.SOMNATHTHAPA
Wherein it is held by the Honourable Supreme Court of Indiathat, (A) Penal Code (45 of 1860), S.120A CRIMINAL
CONSPIRACY Criminal conspiracy Ingredients Knowledgeofindulgenceinillegalactorlegalactbyillegal means Has to be established Goods or servicein questionnot capableoflegaluse Factthatparticular unlawfulusewasintendedNeednotbeestablished.
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[270]
WhilelearnedadvocateMr.B.S.Patel,appearingonbehalfof accused Nos.1 to 82 have argued that, it is a case of communalriots anditisacaseofcompletepolarization, one community attacked on the other community but in any case ofthe matter,thereisnomeetingofmind. The prosecution witnesses have disclosed that, therewas no enmity between them and the accused. On the contrary theywereresidingtogethersincenumberofyears.Thereis not asingle iota ofevidencebyvirtueofwhichitcanbe inferred that, people gathered, planned to attack and ultimatelytheplanhadbeenimplemented.Onthecontrary itisthecaseofprosecutionthat,itwasattackbythemob. Psychologically the mob never applies the mind. What is applicable is the mob psychology. The conspiracy can be hatchedbymeetingofmind,whichisnotpossibleforthe mob.Onthecontraryafternineyearsitisthecaseofthe prosecution that, accused Nos.84 and 85 instigated the mobtoattacktheChudivas.Theconspiracyandinstigation areworkingindifferentfields.Itisnotthecaseofanyone that, all the accused were together, decided to attack on Chudivas Maholla, which has resulted into the alleged unfortunateincident.Happeningofwhichisundercloudof doubt.Hence,itissubmittedbyShriPatelthat,Sec.120 (B)ofI.P.C.isnotapplicableinthepresentcase.
[271]
Consideringtheargumentsadvancedonbehalfofboththe sides,inthelightoftheevidenceadducedandproducedin
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the present trial the conspiracy is to be proved by the circumstantial evidence. The object of conspiracy is requiredtobeproved.Forthatobjectandpurpose,howthe conspiracywashatchedisalsoimportantingredient.Ifany linkismissinginthecircumstancesleadingtoconspiracy accusedcannotbeconvictedunderSection120BofI.P.C. For this purpose, I rely upon the Judgement of 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 those offence in addition to being liable for criminal conspiracybutthenonparticipantconspiratorscannotbe found guilty of offenceor offencecommittedbytheother conspirators. Thereishardly any scopefor applicationof principal agency in order to find conspirators guilty of substantiveoffencenotcommittedbythem.Asperthecase of the prosecution, the present incident is an act of preplannedconspiracy.Itiswellsettledthatallthepersons involved in the conspiracy are liable for conviction even though only some persons have acted in this conspiracy. Furtheritiswellsettledthat,therecanbenoconspiracy betweentheaccusedwithoutanyagreement.
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[272]
Forthispurposeoneofthemainpointofconspiracyplaced by the prosecution is that accused Nos.84 and 85 have joinedhandswithaccusedNo.83asthepartofconspiracy. For this purpose, when we peruse the evidence of prosecution side P.W.18 Saiyed Nazirmiya Kalumiya (Exh.103) hasinhissecondtimedepositiondeposedthat, ShermahmadDalubhaihadtoldhimabouttheburningof houseofhisbrother,thenhecameoutinDipraDarwaja Chowk and saw that, M.L.A. Prahladbhai Gosa and Dahyabhai Tribhovandas Patel instigating the mob why youareburningonehousewhilethereiswholeMaholla, burnt that, I had a talk with the Police Station. In his crossexamination by accused Nos.1 to 83, he has admitted that, he has not stated before Visnagar Police, S.I.T. and also not mentioned in the application without dated, nor has deposedin earlier deposition that, on the day of incident at about 02.00 to 02.30 P.M. incident startedandatthattime,healongwithotherpersonsfrom MahollawasstandingandShermahmadbhaiDalubhaitold himabouttheransackingandburningofhishousehence hecameinthechowkofDipraDarwajaalongwithother members of Maholla and saw that M.L.A. Prahladbhai Gosa and Dahyabhai Tribhovandas Patel instigating the mob why you are burning one house where there is a whole Maholla burnt that, I had a talk with the Police Station. In his additional chiefexamination by virtue of orderpassedbelowExh.962,hehasdeposedthat,heknow
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M.L.A. Prahladbhai Gosa and Dahyabhai Tribhovandas Patel prior to incident of Chudivas, as Prahladbhai Mohanbhai Gosa was M.L.A. while Dahyabhai TribhovandasPatelwashavinghisoffice,adjacenttoshop ofthiswitness.DahyabhaiTribhovandasPatelwaselected inthe Municipality.Inhiscrossexaminationbyaccused No.85,hewasshownoneapplication,thatapplicationwas preferred by him for seeking justice, he has made explanationthat,hewasunderfeartherefore,hehasnot mentionedthenameofDahyabhaiandPrahladbhaiinthat application. There was no pressure from any person for nonmentioning those names in the application. He is unabletosaywhetherthecontentsofthatapplicationare correct or not. It is denied by him that, he is taught to name the M.L.A. Prahladbhai Gosa and Dahyabhai TribhovandasPatelastheyarepolitician. P.W.23AhmedmiyaHasumiyaBelim(Exh.128)has inhissecondtimedepositiondeposedthat,hehasdeposed that,atabout02.3003.00P.M.amobwasbreakingthe house of Akbarmiya. M.L.A. Prahladbhai Gosa and DahyabhaiTribhovandasPatelandtheywerepresentthere. Mahmad Hanif saw that, M.L.A. Prahladbhai Gosa was instructing the mob by showing his finger towards Chudivas,MahmadHanifcametohimandtoldthisfactto them,atthattimeMahmadHanifDalumiya,Shabbirmiya HasumiyaandothermembersofChudivascameandthey
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cameoutofChudivasandsawthat,M.L.A.Prahladbhai GosaandDahyabhaiTribhovandasPatelwereloudlysaying that, why you are breaking one house where there is a whole Maholla, burnt that, I have a talk with the Police Inspector, don't botherhim,gotoChudivas.Further,he hasdeposedthat,hehasnotstatedthisfactinhisearlier depositionastherewasnopoliceprotection,hewasunder fear. InhiscrossexaminationbyaccusedNos.1to82,he hasadmittedthat,inhisstatementsbeforeVisnagarPolice, beforeS.I.T.andintheapplicationdatedNilaswellasin his earlier deposition, he has not stated that, M.L.A. PrahladbhaiGosawasinstructingthemobbyshowinghis fingertowardsChudivas,MahmadHanifcametohimand told this fact to them, at that time Mahmad Hanif Dalumiya, Shabbirmiya Hasumiya and other members of Chudivas came and they came out of Chudivas and saw that, M.L.A. Prahladbhai Gosa and Dahyabhai TribhovandasPatelandtheywereloudlysayingthat,why youarebreakingonehousewherethereisawholeMaholla, burnt that, I have a talk with the Police Inspector, don't botherhim,gotoChudivas.Inhiscrossexaminationby accusedNo.83hehasstatedthat,hehasnotlodgedany complaint before Dy.S.P. that M.L.A. Prahladbhai Gosa and Dahyabhai Tribhovandas Patel were instigating the mobandweresayingthat,therearemanyhousesinthe Maholla,northeyhavelodgedanycomplaintbeforeD.S.P. aboutsuchinstigation.Itisadmittedbyhimthat,M.L.A.
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Prahladbhai Gosa and Dahyabhai Tribhovandas Patel are theB.J.P.Leaders.Itisdeniedbyhimthat,toinvolveinthe offence with the help of law, he is deposing before the Court.Inhisadditionalchiefexaminationbyvirtueoforder passed below Exh.962, he has deposed that, he know M.L.A. Prahladbhai Gosa and Dahyabhai Tribhovandas Patel prior to incident of Chudivas, as Prahladbhai Mohanbhai Gosa was M.L.A. while Dahyabhai Tribhovandas Patel was having his office, outside Dipra Darwaja.DahyabhaiTribhovandasPatelwaselectedinthe Municipality. In his crossexamination by accused No.85, oneapplicationwasshowntothewitness,asperhissay thatapplicationwasgivenbyhimtothePolice,headmits that,inthatapplicationnameofM.L.A.PrahladbhaiGosa andDahyabhaiTribhovandasPatelarenotmentioned,nor it is mentioned that, they have committed any criminal offence, when that application was given, he does not remember. P.W.24 Shermahmad Dalubhai Sindhi (Exh.132) has in his second time deposition, he has deposed that, house of Akbarmiya Kalumiya is situated outside Dipra Darwaja, M.L.A. Prahladbhai Gosa and Dahyabhai Tribhovandas Patel were instigating, that his brother Mahmad Hanif had told him before other persons of MahollaAhmedbhai,Hanif,Shabbirbhaiandother5to6 persons were there, thereafter, he came out along with
// 715 //
otherpersonsofMahollaandsawthat,theywereburning the house of Akbarmiya. M.L.A. Prahladbhai Gosa and Dahyabhai Tribhovandas Patel and other persons were shoutingtoburnandcutthem,thereafter,hecamebackto hisMaholla,InhiscrossexaminationbyaccusedNos.1to 82,hehasadmittedthat,forthefirsttimehehasdeclared that, M.L.A. Prahladbhai Gosa and Dahyabhai TribhovandasPatelwereinstigatingthemob.Inhisfurther chiefexaminationbyvirtueoforderpassedbelowExh.962, hehasdeposedthat,heknowM.L.A.PrahladbhaiGosa priortotheincident,ashewasM.L.A.atthattimeandhe was not knowing Dahyabhai Tribhovandas Patel, prior to theincident. P.W.25 Mohmad Hanif Ahmedkhan Baloch (Exh.134)hasinhissecondtimedeposition,deposedthat, at about 02.30 03.00 P.M. Mahmad Hanif Dalubhai Sindhicameandtoldthat,M.L.A.PrahladbhaiGosaand DahyabhaiTribhovandasPatelareinstigatingthemobby showing their fingers towards Maholla, they were instigating the mob in between Randal Mata's Madh and AkbarmiyaKalumiya'shouse.Inhiscrossexaminationby accused Nos.1 to 82, he has admitted that, he has not statedbeforeS.I.T.that,MahmadHanifDalubhaicameand told that, M.L.A. Prahladbhai Gosa and Dahyabhai Tribhovandas Patel are instigating the mob by showing their fingers towards Maholla, they were instigating the
// 716 //
mob in between Randal Mata's Madh and Akbarmiya Kalumiya's house. In his further chiefexamination by virtueoforderpassedbelowExh.962,hehasdeposedthat, he know M.L.A. Prahladbhai Gosa and Dahyabhai TribhovandasPatelpriortotheincident. P.W.30 Shabbirmiya Hasumiya Belim (Exh.146) hasinhissecondtimedepositiondeposedthat,afterthe incidentwhentheywenttoPoliceStation,MahmadIqbal andMahmadHanifDalumiyawentintheroomofP.I.,he also went inside the room of P.I. to lodge the complaint, there P.I. along with M.L.A. Prahladbhai Gosa and Dahyabhai Tribhovandas Patel was sitting, at that time Dahyabhai Tribhovandas Patel was President of Visnagar Municipality.MahmadIqbalandMahmadHanifwereinthe room,whilehecameoutfromtheroomandsitontheOtla from where, he was not able to see Mahmad Hanif, Mahmad Iqbal, P.I.,M.L.A.Heisunabletosaywhathas happenedinsidetheroom.Subsequently,hecametoknow aboutthe lodgingofcomplaintbyMahmadIqbal. Inhis crossexamination by accused Nos.1 to 82 he has stated that,hedoesnotremember,whetherhehasstatedbefore Visnagar Police or before the Court in his first time deposition that, Mahmad Iqbal and Mahmad Hanif DalumiyawentintheroomofP.I.,healsowentinsidethe room of P.I. to lodge the complaint, there P.I. along with M.L.A. Prahladbhai Gosa and Dahyabhai Tribhovandas
// 717 //
Patel was sitting, at that time Dahyabhai Tribhovandas PatelwasPresidentofVisnagarMunicipality.Inhisfurther chiefexaminationbyvirtueoforderpassedbelowExh.962, he has deposed that, he know Prahladbhai Gosa and Dahyabhai Tribhovandas Patel prior to the incident, as PrahladbhaiGosawasM.L.A.andDahyabhaiTribhovandas Patel was the President of Visnagar Municipality. In his crossexaminationbyaccusedNo.85,hehasdeniedthat, Dahyabhai Tribhovandas Patel was not the President of Visnagar Municipality. It is also denied by him that, Dahyabhai Tribhovandas Patel was never President of VisnagarMunicipality. P.W.32 Mahmadhanif Dalubhai Sindhi (Exh.150) hasinhissecondtimedepositiondeposedthat,healong withMahmadIqbalwenttothePoliceStation,tolodgethe complaintandotherMuslimpersonswerealsowentinside the room of Police Inspector, at that time M.L.A. PrahladbhaiGosaandDahyabhaiTribhovandasPatelwere sitting there, Mahmad Iqbal was lodging the complaint, MahmadIqbaltoldaboutthedeathof11personsandhad also stated that, 11personsarekilledbeforehiseyes,at that time M.L.A. Prahladbhai Gosa and Dahyabhai Tribhovandas Patel told to lodge the complaint of rioting, whether10personshavediedor20personshavediedand Mahmad Iqbal was told to sign the complaint. Copy of complaint was notgiventothemnorcomplaintwasread
// 718 //
overtothemandthereafter,P.I.hadtoldtogooutsidethe room. In his crossexamination,itisdeniedbyhimthat, whenhewentinsidetheMaholla,within15Minutes,there waspeaceintheMaholla.Inhiscrossexamination,heis unabletosaywhetherhewasknowingPrahladbhaiGosa prior to the incident, as he was M.L.A. of that area,he does not remember since how long Dahyabhai Tribhovandas Patel was working as Corporator. It is admitted by him that, in his statement before Visnagar Police and S.I.T. he has not stated that, on 28.02.2002 M.L.A. Prahladbhai Gosa and Dahyabhai Tribhovandas PatelwerepresentinthePoliceStationaswellasnearthe HouseofAkbarmiya,situatedoutsidetheDipraDarwaja, whenhishousewasburnt.Itisdeniedbyhimthat,hehas not stated before, Visnagar Police that, he along with Mahmad Iqbal went to the Police Station, to lodge the complaintandotherMuslimpersonswerealsowentinside the room of Police Inspector, at that time M.L.A. PrahladbhaiGosaandDahyabhaiTribhovandasPatelwere sitting there, Mahmad Iqbal was lodging the complaint, MahmadIqbaltoldaboutthedeathof11personsandhad also stated that, 11personsarekilledbeforehiseyes,at that time M.L.A. Prahladbhai Gosa and Dahyabhai Tribhovandas Patel told to lodge the complaint of rioting, whether10personshavediedor20personshavediedand Mahmad Iqbal was told to sign the complaint. Copy of complaint was notgiventothemnorcomplaintwasread
// 719 //
overtothemandthereafter,P.I.hadtoldtogooutsidethe room. In his further chiefexamination by virtue of order passed below Exh.962, he has deposed that, he know PrahladbhaiGosaandDahyabhaiTribhovandasPatelprior to the incident, as Prahladbhai Gosa was M.L.A. and Dahyabhai Tribhovandas Patel was the President of VisnagarMunicipality.Inhiscrossexaminationbyaccused No.83,hehasadmittedthat,hehasnotstatedbeforeS.I.T. that, when they entered in the room of Police Inspector, M.L.A. Prahladbhai Gosa and Dahyabhai Tribhovandas Patelweresittingthere,witnesswillingsaysthat,S.I.T.had notaskedthemitisadmittedbyhimthat,forthefirsttime on15.12.2009,hehaddeclaredthefactbeforetheCourt that,intheroomofPoliceInspector,M.L.A.Prahladbhai GosaandDahyabhaiTribhovandasPatelweresitting.Inhis Crossexamination by accused No.85, he was shown two applications,thoseapplicationsaresignedbythiswitness and those applications were submitted before Nanavati Panch and these applications are the certified copies of thoseapplicationsandonseeingboththeapplications,he hasadmittedthat,hehasnotstatedaboutthepresenceof M.L.A. Prahladbhai Gosa and Dahyabhai Tribhovandas PatelinthePoliceStation.Hehasalsonotstatedinthose application,howandinwhatmannertheCriminaloffence hasbeencommittedbythesetwopersons.Oneapplication addressingtoPoliceInspector,Visnagarwasshowntohim, whichisproducedalongwiththeChargesheet,hehasno
// 720 //
knowledge, how this application came in the record. But the fact of presence of Prahladbhai Gosa and Dahyabhai Tribhovandas Patel is not stated in that applications. Further,whateveractallegedtohavebeenactedbyM.L.A. Prahladbhai Gosa and Dahyabhai Tribhovandas Patel, on the day of occurrence, till today he has not made any submissionaboutthatfact.Eveninearlierdepositionalso, he has not declared this fact. He is not connected with politicalpersons. P.W.2MahmadIqbalAhmedkhanBaloch(Exh.66) (Complainant) has deposed that, when he lodged the complaintinthePoliceStation,M.L.A.PrahladbhaiGosa and Dahyabhai Tribhovandas Patel were present in the room of Police Inspector and P.I. had recorded the complainant as per their say and he had signed the complaint, at the instance of Police Inspector M.K.Patel andcomplaintwasnotexplainedandreadovertohimand nocopyofcomplaintwassuppliedtohim.Whenhelodge thecomplaint,MahmadHanif,WriterofPoliceInspector M.K.Patel , Police Inspector M.K.Patel, M.L.A. PrahladbhaiGosa,DahyabhaiTribhovandasPatelandother representativesofB.J.P.werepresent.Hehadnarratedthe factsinthecomplaint butmanyfactswerenotwrittenin thecomplaint.InhiscrossexaminationbyaccusedNos.1 to 82, it has come on the record that, Dahyabhai Tribhovandas Patel and M.L.A. Prahladbhai Gosa along
// 721 //
with other workers were present. He does not remember whether, he has written one letter addressing to Geeta Joharithat,hiscomplaintisnotwrittenasperhissayand the complaint is written under Political pressure of Dahyabhai Tribhovandas Patel and M.L.A. Prahladbhai Gosa and they were present in the Police Station. In his crossexaminationbyaccusedNo.83,hehasstatedthat,he does not remember that, complaint was recorded in the PoliceStation,inthepresenceofM.L.A.PrahladbhaiGosa and that complaint was written at the instance of them, thisfactisstatingforthefirsttimebeforetheCourt,after sevenyears.InhiscrossexaminationbyaccusedNos.1to 82and84hehasstatedthat,M.L.A.PrahladbhaiGosais residingnearPatniDarwaja.Hedoesnotrememberwhen the complaint was recorded, P.I. writer Ranjitsinh, Hasmukhbhai and Ramesh etc. had not written but it is writtenbyPoliceInspectorM.K.Patel,asperthepolitical pressure by Dahyabhai Tribhovandas Patel, M.L.A. Prahladbhai Gosa, Dahyabhai Parshottambhai and SankalchandbhaiPateletc.Itisdeniedbyhimthat,hehad notseenM.L.A.PrahladbhaiGosaandotherleaders. P.W.21ShabbirkhanIbrahimkhan(Exh.108) hasin his second time deposition deposed that, Mahmad Hanif came and told the persons from Maholla that, house of Akbarmiya is ransacked and M.L.A. Prahladbhai Gosa and Dahyabhai Tribhovandas Patel were telling the mob,
// 722 //
why you are ransacking one house, there is big Muslim Maholla,gothere.Inhiscrossexaminationhehasdenied that,hehasstatedbeforetheVisnagarPolicethat,atabout 04.00P.M.hewasgoingtotakehisfoodatthattime,there was some noise, when he asked what has happened, he wastoldthat,houseofAkbarmiyaisburntandDahyabhai Tribhovandas Patel and M.L.A. Prahladbhai Gosa were tellingtoburntandkilltheMuslims,thenhewentinside theMaholla,whereMahmadHaniftoldthepersonsofthe Mahollathat,houseofAkbarmiyahasbeenransackedand M.L.A. Prahladbhai Gosa and Dahyabhai Tribhovandas Patelweretellingthat,whyyouareransackingonehouse, whenthereisbigMaholla,gothere. Inhisfurtherchief examinationbyvirtueoforderpassedbelowExh.962,he has deposed that, he know Prahladbhai Gosa,as hehas seentheprocessionofM.L.A.PrahladbhaiGosaandhe does not know Dahyabhai Tribhovandas Patel, before the incident. P.W.44 Rameshchandra Popatlal Sharma (Exh.218) hasinhissecondtimedepositioninhiscross examination by accused No.83 deposed that, he know Dahyabhai Tribhovandas Patel and M.L.A. Prahladbhai Gosa prior to the incident. On the day of incident, they werenotpresentinthePoliceStation. P.W.83DashrathsinhAmthaji(Exh.572)hasinhis
// 723 //
crossexamination by accused No.83, deposed that, he know Dahyabhai Tribhovandas Patel and M.L.A. Prahladbhai Gosa prior to the incident. On the day of incident,theywerenotpresentinthePoliceStation. P.W.147 Babubhai Mansangbhai Chaudhari (Exh.772)inhiscrossexaminationbyaccusedNos.1to82, hasstatedthat,onthedayofincident,hehasnotseenthe M.L.A. Prahladbhai Gosa and Dahyabhai Tribhovandas PatelinthePoliceStation. P.W.171 Ranjitsinh Pituji (Exh.865) has in his crossexamination by accused Nos.1 to 82 deposed that, Dahyabhai Tribhovandas Patel and M.L.A. Prahladbhai GosawerenotpresentinthePoliceStationwhentheyhave recorded the complaint of the complainant. In his cross examinationbyaccusedNo.83,hehadadmittedthat,after recording the complaint, complaint was signed by the complainant and this witness is unable to say whether M.L.A. Prahladbhai Gosa and Dahyabhai Tribhovandas PatelwerepresentinthePoliceStation. P.W.175 Gautamkumar Vishnubhai Barot (Exh.912) hasinhiscrossexaminationbyaccusedNo.83, admitted that, in the complaint, name of M.L.A. PrahladbhaiGosaandDahyabhaiTribhovandasPatelisnot mentioned.Itisalsoadmittedbyhimthat,aftersixyearsof
// 724 //
incident,on 12.03.2008hehasrecordedthestatementof complainant.Itisadmittedbyhimthat,aftersixyearsthe complainanthadtakenthenamesofthesetwopersonsin hisstatementbeforehim. [273] With this evidence we have to consider whether all the accusedorsomeofthemhaveconspiredforthat,wehave tokeepinmindtheincidentregardinglodgingofcomplaint, secondly, at the time ofburning the house ofAkbarmiya Kalumiya,instigationbyaccusedNo.84and85andthird one is not lodging the complaint of Murder by accused No.83. Considering the evidence in respect of lodging of complaintisconcerned,asdiscussedintheearlierpartof this Judgement, it is the allegation of the prosecution witnesses that, complaint was recorded as per the instructionsofaccusedNos.84and85andnotaspersayof complainant.Thefirsttimedepositionofallthewitnesses andcomplainantaresilentonthispoint.Complaintisalso not disclosing this fact. While in second time deposition, thecomplainantandsomewitnesseshavedisclosedabout the recording of complaint as per say of accused Nos.84 and85.Sofarassilenceofthesewitnessesonthispartin firsttimedepositionorinearlierstatementsareconcerned, thereisnosatisfactoryexplanationgivenbythewitnesses or complainant in their depositions, simply they have explained and they were under fear therefore, they could notnarratethecompletedetails.Consideringtheevidence
// 725 //
of the witnesses, when the witnesses have narrated the incidentof killing,burningandcuttingintothepiecesof thedeadbodiesofalleged11persons,whichismoresevere incident then in that circumstances the say of the witnesses that, they wereunder fear therefore, they have notnamedtheaccusedNo.84M.L.A.PrahladbhaiGosa and accused No.85 Dahyabhai Tribhovandas Patel conspired with accused No.83 for nonrecording the complaint of Murder. First time presence of these two personsarenotshownbyanyofthewitness,inthisregard whenweconsidertheevidenceofPolicewitnesses,allhave narratedthat,accusedNos.84and85werenotpresentin thePoliceStationatthetimeofrecordingofcomplaintnor they were present in Chudivas when they reached in Chudivas. In such circumstances presence of these two accusedpersonsinPoliceStation,atthetimeofrecording ofcomplaintofsaidincidentisnotestablished.Sofaras presenceofthesetwopersonsnearAkbarmiyaKalumiya's house,atthetimeofransackingandburningsaidhouse and instigation by these two accused persons to cause damagetowholeMahollaisconcerned,admittingitasitis, then also it cannot be covered under conspiracy as the wordingsconductoftheaccusedpersonspreandafterof theincidentdonotsuggestthat,therewasmeetingofmind between the accused, it has come out that there was no previousenmitybetweentheaccusedandwitnesses,onthe contrarythewitnesseswereresidingintheChudivassince
// 726 //
many years, there is no evidence suggesting planning to attack and implementation of that plan, case of the prosecutionitselfisthat,mobhadattackedtheChudivas. After aspan ofnineyears,theprosecutionwitnessesare comingwiththecaseofinstigationbyaccusedNos.84and 85. If due to instigation incident occurred, then also, it cannotbesaidthat,itwasconspirednorevenitisthecase ofprosecutionthat,alltheaccusedhavedecidedtoattack ontheMaholla. Nowanotherpointforconspiracyisnotrecordingthe complaintofMurder,asapartofconspiracyisconcerned, asdiscussedintheearlierpartofthisJudgement,ithas comeoutthat,before08.03.2002nonehasdisclosedabout thekilling,cuttingandburningofthealleged11persons,it isonlyon08.03.2002forthefirsttimethisfactiscoming onrecord.FromtheevidenceofPoliceofficials,ittranspires that,whentheyreachedinMaholla,houseswereburning andtheytriedtosavethepersonsbybringingthepersons from the burning houses, none of the Police witness is deposingaboutanydeadbody.Evennonehastoldabout thedeathofanyperson.InsomeoftheevidenceofPolice Officials,ithascomeoutthat,personsweremissing.Only one or two Police witnesses have narrated that, some persons inburntcondition,weretakenoutfrom burning houses. Here, surprisingly not a single injured has sustainedanyburninjuries.Ifpersonsweretakenoutina
// 727 //
burnt condition, where are those persons. Prosecution is silent about them. Those burnt injured persons are not before the Court. From this evidence, it transpires the lacunaininvestigationaboutthoseburntpersons.Butthe other fact, such asburning thehouses,peltingofstones abusing and shouting slogans, ransacking of houses etc. arewellestablishedbytheprosecutionasdiscussedearlier, inthatcircumstancesnodoubtnotinvestigatingorputting before the court the evidence regarding burn injured witnesses,i.e. agraveirregularityandnegligenceonthe partof accused No.83PoliceInspectorM.K.Patel. But theotherfactwhicharealreadyestablishedthosearenot goingtobeadverselyaffectedduetosuchirregularities.In abovecircumstances,atthetimeoflodgingofcomplaint,if cutting,killingandburningandmurderisnotrecordedin thecomplaint bythecomplainant,appearstobegenuine one and not registering the offence under Section 302, under above circumstances cannot be construed as conspiracy between the accused persons. Thus, under above circumstances it is not established that, present incident is an act ofpreplanned conspiracy,nodoubt all the persons involved in the conspiracy are liable to be convictedeventhoughonlysomepersonshaveactedinthe conspiracybutherenosuchinvolvementofalltheaccused inconspiracyareprovedtherefore,thesayoftheSpecial Prosecutor that, prosecution has proved the conspiracy from the evidence of P.W. 2, 8, 9, 10, 11 and 12 to the
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extentthat,theyhadmentallyagreedtherefore,theyarmed with deadly weapons and the object of the mob was to causedamagetotheminorcommunityandconspiracycan beinferredfromthatcannotbeaccepted.Here,modeand manner in which pelting stones from the terrace of negihbouring house thereafter mob entered armed with weapons, burnt and ransacked the houses, injury by pelting stone, no where it suggest preplanned agreement, meetingofmind,noinferenceofconspiracycanbedrawn. Thereisnoevidencethat,accusedweretogetherdecidedto attackonChudivas.
MOTIVE :
[274] 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.
UNLAWFUL ASSEMBLY, COMMON OBJECT & OVERT ACT :

[275] ShriBrahmbhatthasarguedthat,prosecutionhasproved the incident, occurrence near the house of Akbarmiya
// 729 //
Kalumiya,presenceofaccusedNos.84and85,instigating the mob with the words uttered by them, which itself suggest overt act in connection with common objects, meaning thereby accusedhadparticipatedinfurtherance ofcommonobjectofthemob.Further,enteringorpresence in Patelvas itself indicates towards the common object of themob.Boththeaccusedarenotresidingthere.Allthe accused have participated in furtherance of the common objectofthemob.Someoftheaccusedhaveoveractedand some of the accusedhadcontinuedtobethemember of unlawfulassemblyknowingfullwellthecommonobjectof the mob i.e. masskilling,causing grievoushurt.Medical evidence, documentary evidence, F.S.L. report, circumstantialevidenceetc.allsupportthefactthat,the common object of the mob was to kill the Muslim and burningtheproperties.Thevariousactssuchasshouting slogans, pelting stones, setting fire to houses, causing injuries to victims and to the deceased indicates the common object of theassembly.EnteringinChudivasby themobitselfsuggestthecommonobjectofthemob.There wasnoreasonforanyofthepersonfromthemobtogoto Chudivas. It was not a public place or public way for passingandrepassing. [276] ShriB.S.Patel,learnedadvocateappearingonbehalfofthe accusedNos.1to82and84hasarguedthat,prosecution hasnotestablishedthecommonobject.Asperthecaseof
// 730 //
prosecutionmobofthemajoritycommunitywasdisturbed due to incident at Godhra, which had attacked on the housesofminority.Fromthisfact,thecommonobjectcan be inferred as to attack thehouses of minor community. Butinanymanneritisnotthecaseofprosecutionthat, the common object of the mob was to kill any one or to causeanyinjurytoanyone.Asperprosecutioncaseonly3 to4personswerehavingplasticgallonsofKerosene,except causingdamagenoothercommonobjectcanbeattributed by the prosecution to the mob. All the witnesses have stated that, mob was shouting against the minority community. Prosecution witnesses were in Chudivas Maholla,theyweresafetargetbutmobdidnottouchthem and had not caused any injury to them. Witnesses were examinedbytheDr.Nayakandtheyhavedisclosedbefore the Doctor that, injuries caused because of pelting of stonesandthrowingofAcid.TheAcidistotallyabsentin the prosecution case.Peltingofstonescannotbecovered under Section 147, 148 and 149 of I.P.C. Even the prosecutionwitnessesareclearthat,themobwasinthe chowkandpeltingofstoneswerefromtheterraceandroof ofthebuildingssurroundingofChudivas.Itisnotthecase of the prosecutionwitnessesthat, anyofthewitnesses hadseenanyoftheaccusedeitherontheterraceoronthe roof thus, at the most common object of causing simple injuries to the witnesses can be inferred but that is not establishedbytheprosecutionanditisavagueallegations.
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[277]
Before discussing the overt act, common object and unlawfulassemblyitisdesirabletohavealookuponthe positionoflaw. Incaseof (2009)10SUPREMECOURTCASES477, VISHNU AND OTHERS V. STATE OF RAJASTHAN the Hon'bleSupremeCourtofIndiahasheldthat,Section149 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 asregardslikelihoodofcommissionofanotheroffenceor 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 actualcommissionofthecrimewouldberelevantfactors fordrawinganinferenceinthatbehalf.
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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. In the case of AIR 2001 SUPREME COURT PAGE 4024,CHANDRASHEKHARBINDv.STATEOFBIHAR, theHon'bleSupremeCourtofIndiahas heldthat, large numberofaccusedparticipatedinincidentTwowitness theorycanbeadoptedBenefitofdoubtgiventoaccused who had not been identifiedby morethan one witness
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Convictionofotheraccusedpersonswhowereidentifiedby two witnesses, maintained More so, when presence of thesetwowitnessesonscenecannotbedeniedAndthere is no reason why they shouldfalsely implicateaccused AndalltheaccusedwereknowntothesewitnessesPleaof juvenile 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 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
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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 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
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theunlawfulassembly,withtherequisitecommonobjector knowledge. Thus, once the Court holds that certain accused persons formed an unlawful assembly and an offence is committedbyany member ofthatassembly in prosecutionofthecommonobjectofthatassembly,orsuch as the members of the assembly knew to be likely to be committedinprosecutionofthatobject,everypersonwho atthetimeofcommittingofthatoffencewasamemberof thesameassemblyistobeheldguiltyofthatoffence.After 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
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'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 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
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fromthenatureoftheassembly,armsusedbythemand 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 committed by any member of an unlawful assembly in prosecutionofthecommonobjectofthatassembly,orsuch asthemembersofthatassembly,orsuchasthemembers
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of that assembly knew to be likely to be committed in prosecutionofthatobject,everypersonwhoatthetimeof the committing ofthatoffence,isamember ofthesame 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. Ineithercase,everymember oftheassembly would be vicariously liable for the offence actually committedbyanyothermemberoftheassembly. Amere 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
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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....
In the case of (1995) 4 SUPREME COURT CASES 392 RANBIRYADAVv.STATEOFBIHAR. Inthecitation ofBaladinv.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
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conclusionthat,theaccusedhaddoneorbeingcommitting someovertactinprosecutionofthecommonobjectofthe unlawfulassembly. In the case of AIR 2004 SUPREME COURT 4570, DANI SINGH AND OTHERS v. STATE OF BIHAR, the Hon'bleSupremeCourtofIndiahasobservedinthecited rulingthat,UnlawfulassemblyProofNoproofthatsome of accused dissuaded other accused persons from committing criminal act or withdrew during course of incidentwouldconstitutebyitselfstepinfurtheranceof ultimateoffencePleathatthoseaccusedpersonsdidnot commit any overt act Not of any consequence. It is furtherheldthat,Unlawfulassemblyandmurderproof Eyewitnesses identifying accused persons No discrepancy so far as identification was concerned and about weapons carried by identified accused persons Targeted victims were deceased persons with whom animosity was admitted Objective findings recorded by Investigation Officer on spot verification also in line with evidenceofeyewitnessesVillagebeingfactionriddenno independent witnesses could be examined Nothing comingoutinlengthycrossexaminationofeyewitnesses whichwouldbelietheircredibilityConvictionofaccused Notliabletobesetaside. In the case of (1994) 4 SUPREME COURT CASES
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397, KAKIRAMESHANDOTHERSv.STATEOFA.P., the Hon'bleSupremeCourtofIndiahasobservedinthecited rulingthat,forfasteningofliabilitywiththeaidofSection 149 of the Penal Code, commission of overt act is not necessary.This proposition inlawiswellsettled.Inthe presentcasethemerefactthatonlyinthecourseoftrial two of the appellants along with four others had been namedasthosewhohaddraggedthedeceasedoutfrom inside the room, cannot create reasonable doubt about theseappellantshavingreallydonesoonthefaceofclear statement in the FIR about dragging the deceased and namingofthesetwoappellantsalsointheFIRasmembers of the unlawfulassembly;whoinparticular haddragged thedeceasedwasnotrequiredtobestatedintheF.I.R. In the case of AIR 1995 SUPREME COURT PAGE 1748, SHAMSHUL KANWAR v. STATE OF U.P., it is observed that, there was incident of rioting and murder and on facts it was held that, accused party were aggressors and indulged in indiscriminate firing causing deathofmanypeople.Itwasheldthattheyweremembers ofunlawfulassemblywithcommonobjectofattackingand killingthemembersofoppositeparty. 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)
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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 constituting the assembly and he entertained along with theothermembersoftheassemblythecommonobjectas definedbyS.141,I.P.C.Anassemblyoffiveormorepersons actuatedby,andentertainingoneormoreofthecommon objectsspecifiedbythefiveclausesofS.141,isanunlawful assembly.Thecrucialquestiontodetermineinsuchacase iswhethertheassemblyconsistedoffiveormorepersons andwhetherthesaidpersonsentertainedoneormoreof the common objects as specified by S.141. While determiningthisquestion,itbecomesrelevanttoconsider whethertheassemblyconsistedofsomepersonswhowere
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merelypassivewitnessesandhadjoinedtheassemblyasa matterofidlecuriositywithoutintendingtoentertainthe common object of the assembly. In fact. S. 149 makes it clearthatifanoffenceiscommittedbyanymemberofan unlawfulassemblyinprosecutionofthecommonobjectof that assembly,or suchasthemembersofthatassembly 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. STATEOFWESTBENGAL,itisobservedbytheHon'ble Supreme Court of India that, the core question which arises for consideration is as to whether some of the appellantswhohadnotcommittedanyovertactmustbe heldtobeapartoftheunlawfulassemblyorsharedthe commonobjectwiththemainaccused. The question came up for consideration before the CourtinBaladinV.StateofU.P.whereinHon'bleCourthas
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opinedthatwithaviewtoinvoketheprovisionsofSection 149ofthePenalCode,itwasnecessarythereforeforthe prosecutiontoleadevidencepointingtotheconclusionthat alltheappellantsbeforeushaddoneorbeencommitting someovertactinprosecutionofthecommonobjectofthe unlawfulassembly. Acourtisnotentitledtopresumethateveryperson whoisprovedtohavebeenpresentnearariotousmobat anytimeortohavejoinedorleftitatanystageduringits activitiesisinlawguiltyofeveryactcommittedbyitfrom thebeginningtotheend,orthateachmemberofsucha crowd must from the beginning have anticipated and contemplated the nature of the illegal activities in which theassemblywouldsubsequentlyindulge. Section 141 of the Penal Code defines unlawful assemblytobeanassemblyoffiveormorepersons.They must have a common object inter alia to commit any mischieforcriminaltrespassorotheroffence.Section142 ofthePenalCodepostulatesthatwhoever,beingawareof facts which render any assembly an unlawful one, intentionallyjoinsthesamewouldbeamemberthereof. Section143ofthePenalCodeprovidesforpunishment of 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
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member thereof in prosecution of the common object of that assembly or such of the members of that assembly knew to be likely tobecommittedin prosecution of that object. Insuchacase,itmaybesafetoconvictonlythose personsagainstwhomovertactisallegedwiththeaidof Section149IPC.
Inthecaseof1991SUPREMECOURTCASES(CRI.) PAGE1059,SHEREYANDOTHERSv.STATEOF U.P.it 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 lathi without attributing anyovertacttoanyoneofthem andmedicalevidencerulingoutanylathihavingbeenused Hencetheseaccusedcannotbeconvicted.
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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 evidenceastowho hadassaultedhim. Role played by the accused either conjointly or individually in causingdeathofthedeceasedisnotknown.Someoffence wascommitted,butwhodidsoisnotknown.Itisalsonot known as to whether if one or all of theappellants were present,whenthelastblowwasgiven. Itcannotbesaid that they had commonobjectofintentionalkilling ofthe deceased.NeitherSec.34norSec.149ofthePenalCodeis, therefore,attracted. The concept of common object, it is well known, is differentfromcommonintention. Itistruethatsofaras commonobjectisconcernednopriorconcertisrequired. Commonobjectcanbeformedonthespurofthemoment. Course of conduct adopted by the members of the assembly,however,isarelevantfactor. Atwhatpointof time the common object of the unlawful assembly was formedwoulddependuponthefactsandcircumstancesof eachcase. Section149IPCcreatesaspecificanddistinctoffence. Therearetwoessentialingredientsthereof:
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(a) (b)
commons of an offence by any member of an unlawfulassembly,and such offence must have been committed in prosecutionofthe common object of that assembly ormustbesuchasthemembers of that assembly knewtobelikelytobecommitted.
[278]
In PANDURANG CHANDRAKANT MHATRE AND OTHER v. STATE OF MAHARASHTRA, (2010) 1 SUPREME COURTCASES(CRI.)413,itisobservedthat,conductof eachmemberofunlawfulassemblybeforeandatthetime of attack is relevant consideration. Object of unlawful assemblyisaquestionoffact,whichhastobedetermined keeping in view the nature of assembly, arms carried by members and behaviour of members at or near scene of incident.Further,itisobservedintherulingthat,designs of unlawful assembly may not have been shared by the other members of unlawful assembly hence by applying rule of caution the presence as members of parties of assailantswasconsistentlymentionedandtheirovertacts inchasingandassaultingthedeceasedwereclearlyproved beyondreasonabledoubt.
[279]
Sofarastheargumentsadvancedbytheaccusedsidethat, ifobjectofthemobwastokilltheMuslimswhytheyhave left the witnesses, who were very much present in Chudivas. Noone hadpreventedthemobtokillthem to
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achieve their object is concerned, an unlawful assembly thoughdoespossessacommonunlawfulassemblyobjectis notnecessarilygovernedbyanyfixorplannedprogramme. Theobjectiscommonanditistobeaccomplishedbutthe methodarelefttothememberconcernedtobedecidedon thebasisofwhatwouldhappenonthespot. Itisevident that, there was no specific object to kill any specific personsoranyspecificnumberofpersons,settingonfire thehousesininChudivastheeasiestandmostconvenient wayofcausingdamagetothepersonandpropertytocreate more terrible impact or fear in the minds of Muslim community. Members of unlawful assembly were clearly awarethat,numberofpersonswereinsidethehousesin Chudivasspiteofthat,housesinChudivasweresetonfire. 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 instigatedtocommitsuchact.Whenanindividualisapart ofthemobhelooseshisidentityandtakesontheidentity ofthemobthenanypersonhowevermildoraggressive,he maybe,doeswhatthemobdoes.Itisalwaysseeninaction
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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. The unlawful assembly has to be determined with respect of eachsuchassemblythatwasformedduringtheperiodof 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.Thus,assumingthereisnumberofchangesin the composition even then it is to be treated as a single unlawful assembly by reason of the continuity of its activitiesandidentifyoftheobjectandaccusedisliablefor guiltforoffenceifhewaspresentinunlawfulassemblyat the time of incident. The movement a member disassociates from the membership of unlawful assembly his responsibility or liability for the acts committed by unlawfulassemblythereaftercomestoanend. Here,the membersofunlawfulassemblyhaveattemptedtocommit theheinouscrime.Theactofsettingonfirethehousesin Chudivas is an indicative of an intention or at least the knowledgenecessarytoconstitutetheoffence. Therewas no reason for any of the person from the mob to go to
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Chudivas.InChudivasonlythewitnesseswereresiding.It wasnotapublicplaceorpublicwayforapersonpassing and repassing a person. Any Person can be expected in Chudivasforparticularpurposeonly.Speciallyinsucha tenseatmosphere itisnotthesayofanyoftheaccused that, he had been there for any other purpose. Further there was no previous enmity between the victims and accused.Whythewitnesseswilltrytofalselyimplicatethe neighbouringpersonsbyleavingtheactualculprits.Thus, the common object of unlawful assembly is clearly establishedbytheprosecution. [280] Before entering into the involvement of accused in the offence, it is desirable to discuss the law relating to identificationparade.InCRIMINALAPPEALNO.1156OF 2001, DANA YADAVv. STATEOF BIHAR, accusedwere identified by the witness first time in the Court without previousidentificationparadeanditwasheldinthecited rulingthatfailuretomaketestidentificationparadedoes not make the evidence of identification in the court inadmissible. Further, in 2002(1) G.L.H. 176, VINUGIRI MOTIGIRI v. STATE OF GUJARAT, it is observed that, failure to hold an identification parade does not make inadmissibletheevidenceofidentificationinthecourt.Ifa witness identifies the accused in Court for the first time after a long time, the probative value of such uncorroboratedevidencebecomesminimal.Itisalsoheld
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by the Hon'ble High Court that, there is difference betweenthepersonsunknownandthepersonswhose names may not be known failure to hold an identificationparadedoesnotmakeitaninadmissible. The evidence of identification in T.I. Parade is not a substantivepieceofevidencebutitisacorroborativepiece ofevidence.Ifawitnesshasknownanaccusedearlierand inconsistency there is no reason why the statement in Courtaboutidentificationofaccusedshouldnotberelied upon. It was held in the cited ruling that, complainant knewalltheaccusedandtherefore,notnamingtwoofthem in F.I.R. does not help the accused not named as complainant identified all of them in the Court and her evidence also gets support from the evidence of other witnesses,whohadknownalltheaccusedandhavenamed themaccordinglyconvictionwasconfirmed.Further,inthe case of 2000(2) G.L.H. PAGE 572, RAMANBHAI NARANBHAIPATELv.STATEOFGUJARAT theHon'ble Supreme Court of India has observed that, Indian Penal Code, 1860 Ss.149, 302, 307 and 326 Evidence of injuredeyewitnessIdentifyingaccusedforthefirsttime inCourtNoidentificationParadewasheldEvidencenot totally irrelevant or inadmissible. Further, in the case of CRIMINAL APPEAL NO.1156 OF 2001 DANA YADAV v. STATEOFBIHAR,theHon'bleSupremeCourtofIndiahas observed that, accused identified by witness first time in
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Courtwithoutpreviousidentificationparadeexamination ofaccusedbywitnessafteralapseof2yearswhetherthe factthatprayerforholdingTestIdentificationParadewas rejectedorifgrantednosuchparadewasheldismaterial and would in any manner affect the evidence of identificationofanaccusedinCourtbyawitnessTrial CourtconvictedappellantsandHighCourtconfirmedthe convictionwithsentenceoflifeimprisonmentheld,failure to make test identification parade does not make the evidenceofidentificationincourtinadmissible.
In 52 CRIMINAL LAW JOURNAL 1951, PRAVASH KUMARBOSEv.THEKING, itisheldthat,thefactthat thewitnesseshaveidentifiedtheaccusedinthecourtisof verylittleconsequenceinaprosecutionwhennoneofthe witnessesknewtheaccusedfrombeforesuchidentification canbeacceptedassufficienttoestablishtheidentityofthe accused. It is very necessary that there must be good corroborative evidence. The evidence of their having identifiedsuchpersonsatatestidentificationparadehas notsubstantivevaluebutitisveryimportantcorroboration oftheirevidenceincourt. In 1979 CRI. L.J. 919, KANAN AND OTHER v. STATE OF KERALA, it has been observed that, where a witnessidentifiesanaccusedwhoisnotknowntohimin theCourtforfirsttime,hisevidenceisabsolutelyvalueless
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unless there has been previous T.I. Parade to test his powersofobservation. Inthecaseof1991SUPREMECOURTCASES(CRI.) 586,BOLLAVARAMPEDDANARSIREDDYANDOTHERS v. STATE OF ANDHRA PRADESH it has been observed that, the credibility of the evidence relating to the 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 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 theevidencegiven by the witnessbefore the Court but in a case where the evidence before the
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CourtisitselfshakytheidentificationbeforetheMagistrate wouldbeofnoassistancetotheprosecution. In the case of 2001 CR.LAW J. 1762, GANGA DIN AND OTHERS v. STATE OF U.P. incident took place in dark night. In F.I.R. only one torch was mentioned as a sourceoflightwhileinhisstatementmorethanonetorch mentioned. There was improved version regarding descriptionsofmiscreants.Itwasfounddoubtfulaboutthe availabilityofsourceoflighttoidentifytheaccusedpersons at the place of incident. Further, possibility of accused havingbeenshowntothewitnessesintransittojailwas alsothere.Inthatcircumstances,identificationofaccused personwasconsidereddoubtful. Inthecaseof2005SUPREMECOURTCASES(CRI.) 801,STATEOFM.P.v.GHUDAN,thewitnesseshadstated existenceoftubelightattheplaceofoccurrencebecauseof whichheidentifiestheaccusedandinsiteplannosuch lightwasmentioned. Inthatcircumstancesidentification washelddoubtful. In the case of 2007(1) SUPREME COURT CASES (CRI.)140,AROKIATHOMASv.STATEOFT.N. witness hadnotstatedintheF.I.R.that,heidentifiedtheaccused in the source of light. During the investigation he was known and after two and half year the witness had
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disclosed the fact before the Sessions Court that, he identifiedtheaccusedinthelightofMotorcyclewhileother witnesswasclaimingtohaveidentifiedtheaccusedinthe torchlightfromadistanceof400Ft.,whichwasconsidered highlyimprobableandbenefitwasgiventotheaccused.
Inthecaseof 1998SCC(CRI.)PAGE1064,MOHD. IQBAL M. SHAIKH v. STATE OF MAHARASHTRA, it is observed that, it was the case in which the witness had identifiedtheaccusedbyface.Itwasobservedinitthat, while the witness was residing in the same locality for a fairlylongperiodandwasotherwiseknowntotheaccused persons and according to several accused persons were threateninginthelocalitybeforetheactualincidentoffire. Itisimpossibletobelievethat,evenbyfacialidentification hecouldonlypointouttwoofthem.Itwasobservedthat, theconductonthepartofthewitnessishighlyimprobable inasmuchifhewasscaredtoremainalonewithhisfamily members in their own room and wanted to stay in the neighboursroomwhenitisexpectedfromallofthat,they would remain together. Further another witness in the cited ruling has stated the name of the accused but on beingaskedtoidentifyhiminCourt,thoughhecorrectly point out some but could not correctly point out some others. In earlier statements, he had not stated that the accusedcametotheChawlatthetimeofincident.Itwas
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observed in the ruling that though the witnesses are claimingresidingforalongperiodinthelocality,itwould behighlyunsafetorelyontheirevidence. 52 CR.L.J. 1951 CALCUTTA HIGH COURT (C.N. 268), PROVASH KUMAR BOSE & ANOTHER v. THE KING, wasacaseofidentificationbeforeCourtanditwas held that, the fact that the witnesses have identified in Court, the accused is of very little consequence in a prosecution u/s.384, Penal Code, when none of the witnesses knew the accused from before. Before such identification can be accepted it is very necessary that there must be good corroborative evidence and the corroborative evidence which one is entitled to expect in casesofthisnatureistheevidenceofthewitnesseshaving pointedtheaccusedwhomtheyidentifiedinCourtfromthe midstofotherpersonswithwhomtheyweremixedupata test identification parade. The evidence of their having identifiedsuchpersonsatatestidentificationparadehas nosubstantivevaluebutisveryimportantcorroborationof theirevidence. Thecaseof 2001CRI.L.J.PAGE1762,GANGADIN AND OTHERS v. STATE OF U.P. was a case of identificationofaccusedpersons.Inthiscaseincidenttook placeindarknightInF.I.R.onlyonetorchwasmentioned as source of light But in statement before Court
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availability of more than one torch mentioned Further there was improved versions regarding figurative descriptionofmiscreantsAvailabilityofsourceoflightto identifyaccusedpersonsatplaceofincidentdoubtful.
Sofarasthefactumofavailabilityofproperlightfor 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 ofthesetorchesandthetorchofJai 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. Theseimprovementsareserious omissionsintheirpreviousstatementsandtheygotothe rootofthecaseoftheprosecutionregardingavailabilityof anysourceoflight.Iftherewasnolightavailabletothem
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thenitisnextimpossibletoacceptthevalueoftheirtest identification and the identification of these culprits by theminCourt. Withoutanyoutsideaiditisunbelievable that these witnessescouldhaveperformedsoexcellently. 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 OFKERALA,itisobservedthatwhereawitnessidentified anaccusedwhoisnotknowntohimintheCourtforthe firsttimehisevidenceisabsolutelyvaluelessunlessthere has been a previous T.I. Parade to test his powers of observation.TheideaofholdingT.I.Paradeu/s.9istotest theveracityofthewitnessonthequestionofcapabilityto identify anunknownpersonwhom thewitnessmayhave 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
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OTHERSv.STATEOFANDHRAPRADESH,itisobserved 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 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,
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theimprovementinthecourseoftheinvestigationandtrial wouldbeofnoavail. Whennonaturallightwasavailable andthestreetlightwasatadistanceitisunlikelythatthe eyewitnessesbymomentaryglanceoftheassailantswho surrounded the victim had a lasting impression and the chanceofidentifyingtheassailantswithoutmistake. It is further held that, the evidence given by the witnessesbeforetheCourtisthesubstantiveevidence.In acasewherethewitnessisastrangertotheaccusedand he identifies the accusedperson before thecourt for the first time, the Court will not ordinarily accept that identificationasconclusive. Itistolendassurancetothe testimonyofthewitnessesthatevidenceintheformofan earlier identification is tendered. If the accused persons aregotidentifiedbythewitnesssoonaftertheirarrestand suchidentificationdoesnotsufferfromanyinfirmitythat 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 personswithwhom thetwowitnesseshadno 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
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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 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 therewassomesourceoflightatthescene. Theomissioncannotbeignoredasinsignificant.Whenthe Investigating Officer has visited the scene, he made referencetothestreetlights,petrolbunklightetc.Whether the street lights and the petrol bunk light had been burningatthetimeofoccurrenceandthespotwherethe incident happened was so located as to receive the light emanatingfromthesesourcesarerequiredtobemadeout bytheprosecution.Whenthissignificantfactisleftoutin the earliestrecord,theimprovementinthecourseofthe investigationandtrialcouldbeofnoavail. Thefactthat there had been no proof regarding the identity of the assailantsuntilAugust18,1974wouldsuggestthateven
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persons who collected at the scene in the course of the incidentorsoonthereafterwerenotinapositiontoidentify anyoneoftheassailants. SincetheInvestigatingOfficer 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 important fact mainly because the identification of the
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accusedisavitalfactortobeprovedbytheprosecution. 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 accusedwhichassisted 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 wasnotreliable.Furtheritisheldinthe 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.
INVOLVEMENT AND IDENTIFICATION OF ACCUSED :

[281] By keeping in mind thesettledproposition of lawin this regard,whenweconsiderthepresentcasethesubstantive evidence as regard the identification would only be the identificationofanaccusedmadebyawitnessinthecourt. Test identification parade is necessary where offender wouldnotbeknowntothewitnessesbeforeincident.Thus, failure to hold identity parade may disprove fact only in cases where the offender would not be known to the witnesses. The ruleisbasedonlogiccommonsenseand prudence. Here in the present case accused have been
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identified by different witnesses as they are resident of Dipra Darwaja. Neither attempt of organizing the Identification Parade by Investigating Officer made nor IdentificationParadewasdemandedbytheaccusedduring the investigation. During the trial it has come out that accused belongs to the Dipra Darwaja area. It is not in dispute that accused are not belonging from Dipra Darwaja. Onthe contrary evidencesuggeststhatmostof the accused are from Dipra Darwaja. Here the Dipra Darwajaisabigarea.Accusedarefromdifferentareaslike Randal Mata Madh, Kalaka Matana Para, Ganpati Ganji Sheri, Bethak No Mahad, Vankar Vas, Maleria Office, Arbudanagar Society, Kada Darwaja Kotvali Sheri, Kada DarwajaPara,KhajuriMaholla,KadaDarwajaParaPaheli Sheri, Aashapura Mata Mandir, Dipra Darwaja Mahakali Sheri,DipraDarwajaUbhiSheri,ShravanSheriDarbar Road, Karshannagar Society, Ishvarnagar Society, Modasi Chopata, Bhesiya Pole, Indrapuri Society, Jain Derasar DipraDarwaja,Miyavas,JayJalaramSociety,outofwhich GanjiSheriisatadistanceofabout1000.00Mtr.,Bethak No Mahad is at a distance of about 1100.00 Mtr., Arbudanagar Society is about 2 Kms. away, Aashapura Mandir is about 1500.00 Mtr., Karshannagar Society is about 0.75 Km., Ishvarkrupa Society is 1 to 1.5 Kms., ModasiChoptaisabout1000.00Mtr.,BhesiyaPoleisabout 1000.00Mtr.,IndrapuriSocietyisabout2.00Kms.,Dipra DarwajaJainDerasarisabout200.00Mtr.,ShravanSheri
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isabout200Mtr.,whileJayJalaramisabout1.1/2Kms. awayfromChudivas,restoftheareawheretheaccusedare residing are surrounding to Chudivas. In above set of situation we cannot infer that, all the accused are previously known to the witnesses. It is the first and foremost duty of the prosecution to establish that, witnessesandaccusedarepreviouslyknowntoeachother thenonlyburdenshiftsuponaccusedside.Iftheywantto claimforIdentificationParade.Here,noattemptshavebeen madebyInvestigatingOfficerforIdentificationParadeofthe accused before the Magistrate. Here witnesses are not saying that, they know the accused since before, in that circumstances we have to draw the inference from the versionofthewitnesses.DipraDarwajaisabigarea,itis fortheprosecutiontobroughtonrecordthat,accusedare known to witnesses since back for that Identification Parade could have played important role to make case strongerbeforetheCourt.Herethereispositiveclaimofthe witnessesthat,theyandaccusedbelongtothesamearea. Now the questions which requires to be appreciated is whetherevidenceofidentificationshouldbedisbelievedon the ground that either the names or the details of particularsoftheaccusedidentifiedbythewitnesseswere notmentionedbythemtothepolice,itistruethatitwould amountomissiontostateamaterialandtothesignificant fact,rejectionoftheevidenceofsuchidentificationinthe court is amatter thatdependsupondifferentfactor. The
// 766 //
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 not for the satisfactionoftheCourtduring thetrial.His satisfaction about the identity would be relevant for the purposeofarrestandtillthatstagetheidentityduringthe trialistobeestablishedbyproperevidence.Ifthevictims orthewitnesseswouldnamecertainpersonorpersonsas accused undoubtedly, the investigating officer while arrestingthemisrequiredtoconfirmtheiridentityasthe
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same persons againstwhomallegationshasbeenleveled. 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. There cannot be inflexible rule if a witness did not nameanaccusedbeforethepolicehisevidenceidentifying theaccusedforthefirsttimeinthecourtcannotberelied upon. Failure to name the accused in the statements beforethepolicethoughknownwouldnotresultindrawing anadverseinferenceagainsttheprosecution.Theremaybe severalreasonsforwitnessesnotnamingtheaccusedorto statethattheaccusedwasknowntohimandifthereasons arefoundacceptable,theevidenceofthewitnessescannot bedoubtedonlyduetosuchfailure.Suchomissionsonthe part of witnesses would only require deeper and closer
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scrutinyoftheevidenceanddoesnotwarrantitsoutright rejection. [282] Thebasicdefenceoftheaccusedpersonsisthattheyhave falselybeenimplicated.Theyclaimthattheyareinnocent. They were not presentatthetimeofincident.Theyhave neither taken part in the incident nor they were part of conspiracyfortheincident.Theyhadnotpeltedstonesnor attacked Muslim community in Chudivas nor they were armedwithdeadlyweapons,norransackedanybodyorset onfirehousesvehiclesetc.,asalleged.Further,theyhave submittedthattheyareresidingintheDipraDarwajaand the Muslims are also residing in the Chudivas, Dipra Darwaja since their birth. They have no previous enmity with any community. Muslim persons of Chudivas were safe.Earliertherewerenocommunalriotsintheirarea.As theGodhratrainincidentoccurred, inmanypartsofthe Gujarat,riotstookplacebutinDipraDarwajaarea,there were no untoward incident occurred, no complaint was lodgedforanysuchincident.TheCourtcannotkeepaside the real issues in dispute which required to be deeply examined therefore,itisabsolutely necessary toexamine the evidence against each accused separately. To see whetherisofsuchadegreesoastocometoaconclusionof the involvement of the particular accused of the alleged offence.Itisrarelythatthecourtcomestotheconclusion ofawitnessbeingwhollyreliablesoastoacceptandbelieve
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everything that he says. The point of reliability does not dependonlyontheattitudeofthewitnessorhisdesireto speakthetruthbutalsoontheaccuracyofhisperception andhismemory. [283] AccusedNo.1: PATELVISHNUKUMARSHIVRAMBHAI (SessionsCaseNo.180/2002) AsperorderpassedbelowExh.1154,trailagainstthis accusedsenttoJuvenileJusticeBoard. [284] AccusedNo.2: PATELBIPINKUMARBABUBHAI (SessionsCaseNo.180/2002) ThisaccusedisidentifiedbeforetheCourtbyP.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66), P.W.4 AabidbhaiGulabkhanSindhi(Exh.71),P.W.5Zubedabibi Mahebubkhan Baloch (Exh.84), P.W.21 Shabbirkhan Ibrahimkhan (Exh.108), P.W.25 Mohmad Hanif Ahmedkhan Baloch (Exh.134) and P.W.52 Faridabanu Ahmedkhan Baloch(Exh.306)whereasP.W.1Fatehkhan Badarkhan Baloch (Exh.61), P.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66), P.W.3 Gulabkhan alias Gulubhai Kayamkhan Sindhi (Exh.70), P.W.4 Aabidbhai Gulabkhan Sindhi (Exh.71), P.W.5 Zubedabibi Mahebubkhan Baloch (Exh.84), P.W.6 Mahmadkhan BadarkhanBaloch(Exh.85),P.W.8ReshmabenSattarbhai
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(Exh.87) and P.W.9 Rashidabibi Sattarbhai Baloch (Exh.88), P.W.21 Shabbirkhan Ibrahimkhan (Exh.108) havestatedabouttheinvolvementofthisaccusedintheir first statement before Visnagar Police while before S.I.T. they have stated that, their statements are correct one except the time of incident. While as per Arrest and Recovery Panchnama, Panchas are hostile but Dhariya havinghandleofIronPipewasrecoveredfromthisaccused on28.02.2002,whichisnotshowntoanywitnessduring thedepositionofwitnesses.Therefore,noreliancecanbe placedaboutthesaidMuddamalArticle. P.W.1FatehkhanBadarkhanBaloch(Exh.61) has in his crossexamination, after declaring him Hostile admittedthat,thisaccusedcamewithSwordandDhariya. P.W.2MahmadIqbalAhmedkhanBaloch(Exh.66) has in his first time chiefexamination deposed that, this accusedwashavingDhariyainhishand.Thisaccusedis identified by this witness in the Court. In his first time statement before the Visnagar Police, this witness has namedthisaccusedwhilebeforeS.I.T.hehasstatedexcept dispute regarding time, stated the facts stated in earlier statements are correct. In his complaint, produced vide Exh.67,nameofthisaccusedismentionedbythiswitness. For this purpose when we peruse the Panch witnesses, KirtikumarRamanlalPatelandVishnubhaiLilachandPatel aretheHostilePanchbutthatPanchnamawasdrawnby
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Investigation Officer M.K.Patel and in that Panchnama Dhariya, having iron pipe handle is recovered and said Panchnama is produced vide Exh.180. But Muddamal is not shown to the complainant before the Court. In his crossexamination he has mentioned the address of this accusedasGanjiarea.P.W.3GulabkhanaliasGulubhai KayamkhanSindhi(Exh.70)hasinhisdepositiondeposed that, this accused was having Dhariya in his hands and this witness was injured by Dhariya blow, given by this accused, on left side forehead region. This witness is declared Hostile and after declaring him Hostile, he has admitted that, this accused was having weapon in his hands.P.W.4AabidbhaiGulabkhanSindhi(Exh.71)has deposedthat,thisaccusedwaspresentinthemob.Hehas identified this accused before the Court. In his cross examinationbyaccusedsidenoquestionhasbeenasked by the accused denying the involvement of this accused. P.W.5ZubedabibiMahebubkhanBaloch(Exh.84)hasin her first time deposition deposed that, this accused was having Dhariya in his hands. After declaring Hostile,she hasidentifiedtheaccusedbeforetheCourt. Inhercross examinationbyaccusedNos.1to82,shehasstatedthat, thisaccusedisstayinginGangiandsheisunabletosay thedistanceofherMahollafromGanjiarea.Inhersecond timedeposition,shehasidentifiedthisaccusedassonof Babubhai. P.W.6 Mahmadkhan Badarkhan Baloch (Exh.85)hasinhisfirsttimedepositiondeposedthat,this
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accused was having Dhariyainhishands. Inhiscross examination by accusedside,nothing has beenaskedby the accused side therefore, say of this witness in chief examinationcannotbediscarded,asitisnotchallengedby theaccused.P.W.8ReshmabenSattarbhai(Exh.87)has deposedinherfirsttimedepositionthat,thisaccusedwas havingDhariyainhishandsandhadgivenaDhariyablow on the Right Hand Wrist of Sugarabibi. In her cross examination,shehasdeniedthat,shehasnotstatedbefore the Police about the Right Hand Wrist injuries by this accused, by giving Dhariya blow to Sugarabibi. In her secondtimedeposition,shehasdeposedthat,thisaccused was very much involved in killing of alleged 11 deceased persons.Asdiscussedearlier,thisfactisnotacceptedby thisCourt,herthissayinsecondtimedepositioncannotbe accepted.P.W.9RashidabibiSattarbhaiBaloch(Exh.88) has stated in her first time deposition that, this accused hadgivenDhariyablowontheRighthandofhermother andhasdeposedthat,hewashavingDhariyainhishands. Inhercrossexamination,itisdeniedbyherthat,shehas not stated before Police that, this accused has given DhariyablowtoSugarabibi.Inhersecondtimedeposition, shehasdeposedthat,thisaccusedhadgivenDhariyablow onherRightsideforeheadandthisaccusedwaspresentin themobinkillingincident.Inhercrossexamination,she hasdeniedthat,shehasnotstatedbeforeVisnagarPolice StationorS.I.T.orinherearlierdepositionthat,shewas
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injuredonherRightSideForeheadbygivingDhariyablow by the present accused while Sugarabibi is not deposing aboutinjuriesonherRightHandWrist,byDhariyablow, givenbythisaccused.P.W.11AnvarhusenShabbirhusen Pathan (Exh.91) is declared Hostile and after declaring Hostile,hehasstatedthat,thisaccusedhadgivenDhariya blow on Left Forehead to him. In his crossexamination, nothing has been asked bytheaccusedsidetodeny the abovefactsandtherefore,thereisnoreasontodiscardthe say of this witness in chiefexamination. P.W.21
ShabbirkhanIbrahimkhan(Exh.108)hasinhisfirsttime chiefexamination deposed that, this accused had given stick blow on Right Hand Wrist. He has identified the accused before the Court. In his crossexamination by accusedNos.1to82,hehasdeniedthat,hehasnotstated beforethePolicethat,thisaccusedhadgivenstickblowon his Right Hand wrist. P.W.25 Mohmad Hanif Ahmedkhan Baloch (Exh.134) is silent in his first time depositionabouttheinvolvementofthisaccused,whilein hissecondtimedeposition,hehasidentifiedthisaccused beforetheCourt. Nothinghasbeenaskedbytheaccused sideinhiscrossexaminationtherefore,thereisnoreason to discard the say of this witness. P.W.47 Bachubha Vesalji Jadeja (Exh.227) has in his second time deposition, deposed that, this accused was arrested from the place of offence and was handed over to the then
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InvestigatingOfficerM.K.Patel. Inhiscrossexamination nothing has been asked by the accused on the basis of whichthesayofthiswitnesscanbediscarded. P.W.48 ManubhaiKarshanbhaiPatel(Exh.228) hasinhischief examinationdeposedthat,thisaccusedcamewithDhariya while in his crossexamination, he has deposed that, ReshmabenSattarbhaihasnotstatedbeforehimthat,this accusedhadgivenDhariyablowontheRightHandWristof Sugarabibi. It is deposed by him that, in his statement, Shabbirkhan Ibrahimkhan has not stated that, this accusedhadgivenstickblowonRightHandWrist.P.W.52 FaridabanuAhmedkhanBaloch(Exh.306)hasinherfirst timedepositionidentifiedtheaccusedbeforetheCourt.In her crossexamination by the accused side nothing has beenaskedfromwhich,wecandiscardthisfact. P.W.65 Mahendrasinh Bhairavsinh (Exh.518) has deposed that, theaccusedwasarrestedfromtheplaceofoffence.Nothing from crossexamination comes out, from which we can discardthisfact. In the first time statement before Visnagar Police, involvementofthisaccusedisstatedbyP.W.1Fatehkhan Badarkhan Baloch (Exh.61), P.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66), P.W.3 Gulabkhan alias Gulubhai Kayamkhan Sindhi (Exh.70), P.W.4 Aabidbhai Gulabkhan Sindhi (Exh.71), P.W.5 Zubedabibi Mahebubkhan Baloch (Exh.84), P.W.6 Mahmadkhan
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BadarkhanBaloch(Exh.85),P.W.8ReshmabenSattarbhai (Exh.87), P.W.9 RashidabibiSattarbhai Baloch(Exh.88), P.W.10SugrabibiMahmadkhanBaloch(Exh.90),P.W.11 Anvarhusen Shabbirhusen Pathan (Exh.91) and P.W.21 ShabbirkhanIbrahimkhan(Exh.108),
Asdiscussedearlierallthewitnesses,whohavestated about the involvement of this accused had sufficient opportunity to see the mob while entering in Chudivas. This accusedisresidinginGanjiareaofVisnagartown. ThisaccusedisidentifiedbythewitnessesintheCourt.His nameismentionedinsomeofthestatementsbeforePolice. Further,thisaccusedwasarrestedbythePolicefromthe placeofoffence.HisnameisalsomentionedintheF.I.R. Therefore, if no Identification Parade took place, by the Investigating Officer, that amounts negligence/irregularity onthepartofI.O. Itisnotindisputethat,theaccusedistheresidentof Ganpati Sheri, Ganji area of Visnagar and witnesses are resident of Chudivas, Dipra Darwaja, Visnagar. As this accused was arrested by the Police from the place of incidentandthatwitnessesaresayingspecificallythat,this accusedisresidinginGanjiarea,therefore,theevidenceof witnessesandthattoo,supportedfromthePolicewitness Dy.S.P. Jadeja, can safely be accepted in respect of involvementof thisaccusedandevidenceofwitnessesas
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discussed earlier having seen the accused in the mob cannot be doubted at all. Once it is established and accepted that, witness and accused are resident of same town,onlyquestionrequiresaboutfalselyimplicationofthe accused.Thequestionofmakinganymistakeinthatregard doesnotarise.Itdoesnotpossibletoholdfalseimplication ofaccused.Here,inthepresentcaseenteringinChudivas atthetimeofincidentitselfsuggestthecommonobjectof themobaswellasspecificroleattributedtotheaccused. TherewasnoreasontoenterinChudivasatthatoddtime. Therefore by becoming a member of unlawful assembly accused entered in Chudivas and incident of pelting of stones, ransacking and burning of houses, abusing the Muslims and shouting slogans occurred. This fact itself suggestovertactinconnectionwithcommonobjectofthe mob. Meaning thereby accused had participated in furtherance of common object of the mob. Therefore involvementofaccusediswellestablishedfromtheabove circumstances. But no weapon is connected with the accused and offence in the evidence of witnesses. But considering the injuries to the witnesses, Sugarabibi has notsustainedinjuriesDhariyablowtherefore,theinjuries andtheweaponshowninthehandsofthisaccusedcannot be connected with each other. But much importance cannot be given to this aspect as the evidence of Dy.S.P. Jadeja that, accused was arrested on the spot and the complainant has named the present accused in the
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complaint, which is well in time and therefore, the basic defence of this accusedinhisfurtherexaminationunder Section313 ofCr.P.C.thathehasfalselybeenimplicated andheisinnocentandthatonthedayofincidenthewas returningfromhisplaceofprofessionandatthattime,on StationRoad,hewasarrestedforbreachofCurfew.Thereis nopreviousenmitywithDy.S.P.ShriJadejaorwitnesses, why they will falsely implicate this accused. There is no reason to falsely implicate the accused. No one would falsely involve an innocentperson,keepingasidethereal culprit.Tosupporthisexplanationthat,hewasreturning fromhisplaceofprofessionandonStationRoad,hewas arrested in breach of Curfew is not supported by any evidence therefore, this defence of this accused is not acceptable. [285] AccusedNo.3: PATELBHIKHABHAINARAYANDAS (SessionsCaseNo.180/2002) ThisaccusedisidentifiedbeforetheCourtbyP.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66) and P.W.4 Aabidbhai Gulabkhan Sindhi (Exh.71) and P.W.1 Fatehkhan Badarkhan Baloch (Exh.61), P.W.2 Mahmad IqbalAhmedkhanBaloch(Exh.66),P.W.3Gulabkhanalias Gulubhai Kayamkhan Sindhi (Exh.70), P.W.4 Aabidbhai Gulabkhan Sindhi (Exh.71), P.W.5 Zubedabibi Mahebubkhan Baloch (Exh.84), P.W.6 Mahmadkhan
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Badarkhan Baloch (Exh.85), P.W.7 Amzadkhan Mahmadkhan Baloch (Exh.86), P.W.9 Rashidabibi Sattarbhai Baloch (Exh.88), P.W.10 Sugrabibi Mahmadkhan Baloch (Exh.90), P.W.11 Anvarhusen Shabbirhusen Pathan (Exh.91) and P.W.21 Shabbirkhan Ibrahimkhan(Exh.108)havestatedabouttheinvolvement of this accused in their first statement before Visnagar Police while before S.I.T. they have stated that, their statements are correct one except the time of incident. WhileasperArrestandRecoveryPanchnama,Panchasare hostile but IronPipewasrecoveredfrom thisaccusedon 28.02.2002,whichisnotshowntoanywitnessduringthe deposition of witnesses. Therefore, no reliance can be placedaboutthesaidMuddamalArticle. Now coming to the deposition of witnesses, P.W.1 FatehkhanBadarkhanBaloch(Exh.61)hasafterdeclaring himasHostile,admittedthat,thisaccusedhavingPipein hishandswhileinhiscrossexaminationbyaccusedNos.1 to 82, nothing has been brought to discard this fact. In second time crossexamination also nothing has been broughttodiscardthesaidversionofthiswitnessbutthis witness is Hostile witness and therefore, this version requires corroboration from other evidence. P.W.2 MahmadIqbalAhmedkhanBaloch(Exh.66)hasdeposed inhisfirsttimedepositionthat,thisaccusedwashaving Pipe in his hands and this witness has identified the
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accusedintheCourt.Incrossexamination,itismadeclear that,thisaccusedisresidingoutsidetheDipraDarwaja. Thus,thisaccusedistheresidentofnearbyDipraDarwaja andheisknowntothiswitnessandthatisquitepossible. Inhiscomplaint,hehasstatedthenameofthisaccused. That complaint is well in time. P.W.3 Gulabkhan alias Gulubhai Kayamkhan Sindhi (Exh.70) has stated that, thisaccusedwaspresentinthemobwithDhariya. Heis hostileandinhiscrossexamination,hehasadmittedthat, hewasinjuredbyBhikhabhaiNarayanbhai,onRighteyeby Pipe. In his crossexamination, he has admitted that, he has not stated before Police in his statements that, the present accused was having Dhariya in his hands. His Medical Certificate is not produced therefore, his injuries are not supported by any Medical evidence. P.W.4 Aabidbhai Gulabkhan Sindhi (Exh.71) has stated about thepresenceofthiswitnessinthemob.Asperhissaythis accused,hadinjuredhimonhishandandonbacksideof hisRightEarbyIronPipe.Hehasidentifiedtheaccusedin theCourt.InhiscrossexaminationbyaccusedNos.1to82, hehasdeniedthat,hewasinjuredinpeltingstonesandno injury was caused by this accused. If this accused is identifiedbythiswitness,thatisreliableone,asaccusedis theresidentofnearbyarea.Bothwitnessandaccusedare knowntoeachother.Sofarasinjuriesareconcerned,itis notcorroboratedtherefore,roleattributedbythiswitness to the accused is not getting any support and cannot be
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relied upon. P.W.6 Mahmadkhan Badarkhan Baloch (Exh.85) hasinhisfirsttimedepositionstatedthat,this accusedwashavingIronPipeinhishandsandgivenaPipe blowonfirstfingerofhisRighthandandhiswifeandson werealsobeaten.NoMedicalCertificateofthiswitnessis produced. This witness has identified Bharatbhai NarayanbhaiasBhikhabhaiNarayanbhai.Thus,noreliance canbeplaceduponthedepositionofthiswitnessaboutthe involvementofthisaccusedasinjuryisnotcorroboratedby MedicalEvidenceaswellasidentificationofthisaccused before the Court is not correct one. P.W.7 Amzadkhan Mahmadkhan Baloch (Exh.86) has deposed that, this accused was having Pipe in his hands. In his cross examination it has come out that, this accused was not residing in the Dipra Darwaja. In his second time cross examinationbyaccusedNos.1to82,hehasdeposedthat, hehasnoknowledgewhenhewasintheJail,thisaccused wasalsointheJail.Itisdeniedbyhimthat,thisaccused is not residing in Dipra Darwaja. P.W.9 Rashidabibi SattarbhaiBaloch(Exh.88)hasinherfirsttimedeposition statedthat,thisaccusedhadgivenherPipeblow.Shehas identifiedthisaccusedbeforetheCourt.Itisdeniedbyher that,shehasnotstatedthat,shewasgivenpipeblowby this accused. She is not speaking about her injuries. P.W.10 Sugrabibi Mahmadkhan Baloch (Exh.90) has stated inher firsttimedepositionthat,thisaccusedwas having pipe in his hands and she was injured by this
// 781 //
accusedonherHead.Inhercrossexaminationbyaccused Nos.1to82,itisdeniedbyherthat,shehasnotstatedin her statement that, this accused had given Pipe blow. P.W.47BachubhaVesaljiJadeja(Exh.227) hasdeposed that,thisaccusedwasarrestedfromtheplaceofoffenceby the Police, at the time of incident, he has identified this accused before the Court. Nothing against has been broughtonrecordbytheaccusedsidetherefore,thereisno reason to disbelieve the arrest of this accused from the place of offence, by the Police. P.W.48 Manubhai KarshanbhaiPatel(Exh.228)hasdeposedinhisfirsttime depositionthat,GulabkhanKayamkhanSindhihasstated before him that, Bhikhabhai Narayanbhai has caused injuryonhisRightEye.Whenweperusetheinjuryofthis witness.NoMedicalCertificateisproduced,supportingthe injuriesofGulabkhan.Therefore,noreliancecanbeplaced abouttheinjuriescausedtotheGulabkhan.Inhiscross examinationhehasstatedthat,RashidabibiSattarbhaihas stated that, this accused had caused injuries by Pipeon Right side of her Head. It is admitted by him that, Rashidabibihadnotstatedthat,BhikhabhaiNarayanbhai washavingstickwithhim.Sugarabibihasnotstatedthat, thisaccusedwaspresentwithSword.Further,shehasnot stated that, Pipe blow was given by this accused to her. Thus, the contradictions of the witnesses about the Muddamalarticleandinjuriesarebroughtonrecordinthe deposition of these witnesses. No reliance can be placed
// 782 //
abouttheinjuryandMuddamalarticlesasnarratedbythe witnesses.Nodoubttherearevariationsinthedepositions of the witnesses about the narration of injuries and Muddamalarticlesusedbythisaccused.Butthisaccused istheresidentofnearbyareaofDipraDarwajaandthat,he wasarrestedbythePoliceatthetimeofincident,fromthe placeofincident.Thisfactisnotchallengedbytheaccused inhiscrossexamination.Therefore,thereisnoreasonto discardthearrestofthisaccusedfromtheplaceofoffence. Inthatcircumstances,ifnoIdentificationParadetookplace and witnesses are telling about the presence and involvement of this accused in Chudivas, at the time of incidentisreliableone.Incomplaintnameofthisaccused isalsomentioned.Complaintisprompt,therefore,thereis noreasontobelievethefalselyimplicatingandmentioning the name of this accused in the complaint. Thus, the evidenceofthewitnesses,complainantandPolice,specially Dy.S.P. Shri Jadeja can safely be accepted in respect of involvementof thisaccusedandevidenceofwitnessesas discussed earlier having seen the accused in the mob cannot be doubted at all. Once it is established and accepted that, witness and accused are resident of same town,onlyquestionrequiresaboutfalselyimplicationofthe accused.Thequestionofmakinganymistakeinthatregard doesnotarise.Itdoesnotpossibletoholdfalseimplication ofaccused.Here,inthepresentcaseenteringinChudivas atthetimeofincidentitselfsuggestthecommonobjectof
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themob.TherewasnoreasontoenterinChudivasatthat odd time. Therefore by becoming a member of unlawful assembly accused entered in Chudivas and incident of pelting of stones, ransacking and burning of houses, abusingtheMuslimsandshoutingslogansoccurred.This fact itself suggest involvement of this accused in connection with common object of the mob. Meaning thereby accused had participated in furtherance of common object of the mob. Therefore involvement of accusediswellestablishedfromtheabovecircumstances. But considering the injuries to the witnesses, Sugarabibi has not sustained injuries Dhariya blow therefore, the injuries and the weapon shown in the hands of this accusedcannotbeconnectedwitheachother. Butmuch importancecannotbegiventothisaspectastheevidence of Dy.S.P. Jadeja that, accused was arrested on the spot andthecomplainanthasnamedthepresentaccusedinthe complaint, which is well in time and therefore, the basic defence of this accusedinhisfurtherexaminationunder Section313 ofCr.P.C.thathehasfalselybeenimplicated andheisinnocentandthatonthedayofincidenthewas on Station Road, he was arrested for breach of Curfew. There is no previous enmity with Dy.S.P. Shri Jadeja or witnesses, why they will falsely implicate this accused. Thereisnoreasontofalselyimplicatetheaccused.Noone wouldfalselyinvolveaninnocentperson,keepingasidethe realculprit. Therefore,theexplanationofthisaccusedin
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hisFurtherStatementofthisaccusedisnotacceptable. [286] AccusedNo.4: PATELVIPULKUMARNARANBHAI (SessionsCaseNo.180/2002) ThisaccusedisidentifiedbeforetheCourtbyP.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66) and P.W.7 Amzadkhan Mahmadkhan Baloch (Exh.86). P.W.1 Fatehkhan Badarkhan Baloch (Exh.61), P.W.2 Mahmad IqbalAhmedkhanBaloch(Exh.66),P.W.3Gulabkhanalias Gulubhai Kayamkhan Sindhi (Exh.70), P.W.6 Mahmadkhan Badarkhan Baloch (Exh.85), P.W.7 Amzadkhan Mahmadkhan Baloch (Exh.86), P.W.8 Reshmaben Sattarbhai (Exh.87), P.W.9 Rashidabibi Sattarbhai Baloch (Exh.88), P.W.11 Anvarhusen Shabbirhusen Pathan (Exh.91), P.W.21 Shabbirkhan Ibrahimkhan(Exh.108),havestatedtheinvolvementofthis accused in their first statements before Visnagar Police whilebeforeS.I.T.theyhavestatedthat,theirstatements are correct one except the time of incident. While as per ArrestandRecoveryPanchnama,Panchasarehostilebut Stick was recovered from this accused on 28.02.2002, whichisnotshowntoanywitnessduringthedepositionof witnesses.Therefore,noreliancecanbeplacedaboutthe saidMuddamalArticle. Now coming to the deposition of witnesses, P.W.1
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FatehkhanBadarkhanBaloch(Exh.61)hasafterdeclaring himHostile,admittedthat,thisaccusedwashavingstickin hishands.Nothinghasbeenbroughtonrecordbyaccused sidetodisregardthisfact.Thoughithasbeenbroughton record in crossexamination after declaring hostile and therefore, corroboration requires in this respect. P.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66) has in his firsttimedepositionstatedthat,thisaccusedwashaving stickinhishands.Hehasidentifiedthisaccusedbeforethe Court.InhiscrossexaminationbyaccusedNos.1to82,it hasbeenbroughtonrecordthat,thisaccusedisresidingin SatkrupaSociety.Inhiscomplaint, thiscomplainanthas statedthenameofthisaccusedinthecomplaintabouthis involvement. P.W.3 Gulabkhan alias Gulubhai
Kayamkhan Sindhi (Exh.70) has after declaring him as Hostile,admittedthat,thisaccusedwaspresentinthemob with weapon. Nothing has been brought in his cross examinationonrecordbyaccusedsidethoughitrequires corroboration as this fact is brought on record in cross examination after declaring him as Hostile. P.W.7 Amzadkhan Mahmadkhan Baloch (Exh.86) has in his firsttimedepositionstatedthat,hewascausedinjuryon LeftsideofhisHeadbygivingstickblowbythisaccused. HehasidentifiedtheaccusedintheCourt.Ithasbrought on record that, this accused is not residing in Dipra Darwaja. In his second time deposition he has deposed abouttheinjuriesonhisLeftKneebystickblowgivenby
// 786 //
thisaccused.Inhiscrossexamination,hehasstatedthat, hehasnoknowledgethat,thisaccusedwasinJailalong with him. It is denied by him that, this accused is not residinginDipraDarwaja.Theinjuriesofthiswitnessare corroboratedbytheMedicalevidence. P.W.8Reshmaben Sattarbhai (Exh.87) has in her first time deposition deposedthat,thisaccusedwashavingstickinhishands. Nothinghasbeenbroughtonrecordincrossexamination byaccusedsidetodenythesayofthiswitness. P.W.10 Sugrabibi Mahmadkhan Baloch (Exh.90) has after declaring her Hostile, she has denied that, this accused hadcausedinjuriesonherHead,bypeltingstonesandby stick blow on her left shoulder. In her crossexamination nothinghasbeenbroughtonrecordtodisregardthisfact. MedicalCertificate,supportstheinjurycausedtoherbut shehasnotidentifiedthisaccusedintheCourt. P.W.11 Anvarhusen Shabbirhusen Pathan (Exh.91) has in his firsttimedepositionstatedthat,thisaccusedwaspresent withDhariya.InhiscrossexaminationbyaccusedNos.1to 82,hehasdeniedthat,hehasnotstatedinhisstatement before Police that, this accused was having Dhariya with him. P.W.47 Bachubha Vesalji Jadeja (Exh.227) has deposedthat,theaccusedwasarrestedfromtheplaceof offence, on the spot. P.W.48 Manubhai Karshanbhai Patel (Exh.228) has in his first time deposition deposed that,FatehkhanBadarkhanBalochhasstatedbeforehim
// 787 //
that,thisaccusedwashavingstickwithhim.Itisdeposed by him that, Anvarhusen Shabbirhusen has not stated before him that, this accused was having Dhariya in his hands.Sofarasinjuriestothewitnessesareconcerned, thosearecorroboratedbyMedicalEvidencebutsofaras Muddamal articleisconcerned,thereisvariationsinthe depositionsofthewitnessesaboutwhichoftheMuddamal this accused was having. No identification of Muddamal tookplaceintheCourtandtherefore,alsonoreliancecan be placed on the evidence of recovery of Muddamal or depositions of witnesses regarding accused armed with weapon. But the fact that, this accused was present in Chudivasatthetimeofoccurrenceandhewasarrestedby the Police from the place of incident and his name was mentioned by the complainantinthecomplaintandsaid fact cannot be discarded. This accused is the resident of the Bethak No Mahad, Dipra Darwaja though in cross examinationofthecomplainanthisresidenceisshownas SatkrupaSocietythus whetherwitnesseswereknowingto him prior to the incident, there is no evidence, no IdentificationParadetookplacebutitisthefactthat,heis arrestedbythePolicefromtheplaceofoffenceandDy.S.P. has identified the accused before the Court. In that circumstances the presence and involvement of this accusedinthemobinthecrimecannotbedoubted. Asdiscussedearlierallthewitnesses,whohavestated about the involvement of this accused had sufficient
// 788 //
opportunity to see the mob while entering in Chudivas. This accusedisresidingin BethakNoMahad ofVisnagar town. This accused is identified by the witnesses in the Court.Hisname ismentionedinsomeofthestatements before Police. Further, this accused was arrested by the Police from the place of offence. Therefore, if no Identification Parade took place, by the Investigating Officer,thatamountsnegligence/irregularityonthepartof InvestigatingOfficer. Itisnotindisputethat,theaccusedistheresidentof BethakNoMahad,DipraDarwaja,Visnagarandwitnesses areresidentofChudivas,DipraDarwaja,Visnagar.Asthis accused was arrested by the Police from the place of incidentandthatwitnessesaresayingspecificallythat,this accused is residing in Satkrupa Society, therefore, the evidence of witnesses and that too, supported from the Policewitness Dy.S.P.Jadeja,cansafelybeacceptedin respect of involvement of this accused and evidence of witnessesasdiscussedearlierhavingseentheaccusedin the mob cannot bedoubtedatall.Onceitisestablished and accepted that, witness and accused are resident of sametown,onlyquestionrequiresaboutfalselyimplication oftheaccused.Thequestionofmakinganymistakeinthat regard does not arise. It does not possible to hold false implicationofaccused.Here,inthepresentcaseentering in Chudivas at the time of incident itself suggest the
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commonobjectofthemobaswellasspecificroleattributed totheaccused.TherewasnoreasontoenterinChudivas at that odd time. Therefore by becoming a member of unlawful assembly accused entered in Chudivas and incident of pelting of stones, ransacking and burning of houses, abusing the Muslims and shouting slogans occurred. This fact itself suggest overt act in connection withcommonobjectofthemob.Meaningtherebyaccused had participated in furtherance of common object of the mob.Thereforeinvolvementofaccusediswellestablished from the above circumstances. The accused was arrested on the spot and thecomplainant has namedthepresent accused in the complaint, which is well in time and therefore,thebasicdefenceofthisaccusedinhisfurther examination under Section 313 of Cr.P.C. that he has falselybeenimplicatedandheisinnocentandthatonthe day of incident he was arrested at 12.00 Noon from VisnagarBusStandforthebreachofCurfew.Thereisno previousenmitywithDy.S.P.ShriJadejaorwitnesses,why theywillfalselyimplicatethisaccused.Thereisnoreason to falsely implicate the accused. No one would falsely involveaninnocentperson,keepingasidetherealculprit. Tosupporthisexplanationthat,hewasreturningfromhis placeofprofessionandonStationRoad,hewasarrestedin breach of Curfew is not supported by any evidence therefore,thisdefenceofthisaccusedisnotacceptable.
// 790 //
[287]
AccusedNo.5: PATELRAJESHKUMARRANCHHODDAS (SessionsCaseNo.180/2002) ThisaccusedisidentifiedbeforetheCourtbyP.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66), P.W.4 Aabidbhai Gulabkhan Sindhi (Exh.71), P.W.6 Mahmadkhan Badarkhan Baloch (Exh.85), P.W.11 AnvarhusenShabbirhusenPathan(Exh.91),P.W.18Saiyed Nazirmiya Kalumiya (Exh.103), P.W.21 Shabbirkhan Ibrahimkhan (Exh.108), P.W.25 Mohmad Hanif Ahmedkhan Baloch (Exh.134), P.W.32 Mahmadhanif Dalubhai Sindhi (Exh.150) whereas P.W.1 Fatehkhan Badarkhan Baloch (Exh.61), P.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66), P.W.3 Gulabkhan alias Gulubhai Kayamkhan Sindhi (Exh.70), P.W.4 Aabidbhai Gulabkhan Sindhi (Exh.71), P.W.5 Zubedabibi Mahebubkhan Baloch (Exh.84), P.W.6 Mahmadkhan BadarkhanBaloch(Exh.85),P.W.8ReshmabenSattarbhai (Exh.87),P.W.10SugrabibiMahmadkhanBaloch(Exh.90), P.W.11AnvarhusenShabbirhusenPathan(Exh.91),P.W.21 Shabbirkhan Ibrahimkhan (Exh.108) and P.W.30 Shabbirmiya Hasumiya Belim (Exh.146) have stated the involvementofthisaccusedintheirfirststatementsbefore Visnagar Police while before S.I.T. they have stated that, theirstatementsarecorrectoneexceptthetimeofincident. WhileasperArrestandRecoveryPanchnama,Panchasare hostile but Sword was recovered from this accused on
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28.02.2002,whichisnotshowntoanywitnessduringthe deposition of witnesses. Therefore, no reliance can be placedaboutthesaidMuddamalArticle. Now coming to the deposition of witnesses, P.W.1 Fatehkhan Badarkhan Baloch (Exh.61) is the Hostile witness, in his crossexamination by the prosecution, he has admittedthat,thisaccusedwaspresentwithSword. Nothing has been brought on record in his cross examinationbutitcanonlybeconsideredforcorroboration purpose. P.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66) has stated in his deposition that, this accused was present with Sword. In his crossexamination by accusedNos.1to82,ithasbeenbroughtthat,thisaccused is the resident of Meladiyavas, Dipra Darwaja. The complainanthasalsonamedthisaccusedinthecomplaint Exh.67 about his presence and involvement. P.W.3 GulabkhanaliasGulubhaiKayamkhanSindhi(Exh.70)is the Hostile witness, in his crossexamination by prosecution he has admitted that, Rajeshkumar was present. Thus from the deposition of this witness, only presenceofRajeshkumarisbroughtonrecord,whichisnot contradicted in crossexamination. P.W.4 Aabidbhai Gulabkhan Sindhi (Exh.71) has in his deposition stated that,thisaccusedwaspresentwithSword.Inhissecond time chiefexamination, he has stated that, he saw this
// 792 //
accused beating the witnesses. In his crossexamination nothing has been brought from which we can deny the presence of thisaccusedwithSword. P.W.5Zubedabibi MahebubkhanBaloch(Exh.84)istheHostilewitness,she isunabletoidentifytheaccused.Nothinghasbeenproved against the present accused in the deposition of this witness. P.W.6 Mahmadkhan Badarkhan Baloch (Exh.85)hasinhisfirsttimedepositiondeposedthat,this accusedwashavingSwordinhishands.Nothinghasbeen broughtonrecordinhiscrossexaminationtodiscardthe versionofthiswitnessinchiefexamination.Thus,presence ofthisaccusedwithSwordinthemobisreliable. P.W.8 Reshmaben Sattarbhai (Exh.87) has in her first time deposition stated that, this accused was present with Sword,thisaccusedhadgivenPipeblowtoherMotheron right side of Head. It is denied by her in her cross examinationthat,shehasnotstatedbeforethePolicethat, this accused had not given Pipe blow on the Head of Rashidabibi.Inhersecondtimedeposition,shehasstated that, this accused was involved in alleged killing of 11 persons.Firsttimesheisnottellingabouttheinvolvement of this accused in alleged killing of 11 persons and therefore, this is an exaggeration. No doubt nothing has beencrossexaminedonthiscountbytheaccusedsidebut asdiscussedearlier,itisnotbelievedbythiscourtabout the alleged killing of 11 deceased persons and therefore, here her this say also cannot be relied upon. So far as
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injurybyPipetohermotherisconcerned,thatinjuryon forehead is supported by Medical evidence and therefore, thatevidencecanbereliedupon,asthereissimplydenial none else in cross. P.W.10 Sugrabibi Mahmadkhan Baloch (Exh.90) has stated in her deposition that, this accused was having Sword in his hands and had given Dhariyablowtoherhusband.Inhercrossexamination,it isdeniedbyherthat,shehasnotstatedbeforethePolice that, this accused came with Sword. The fact that this accusedwashavingSwordandinjurycausedonForehead ofSugarabibiissupportedbytheevidenceofthiswitness. Inhercrossexaminationthereismeredenial,nothinghas beenbroughtonrecordtocreatedoubtabouttheevidence. P.W.11AnvarhusenShabbirhusenPathan(Exh.91) has inhisdepositionstatedthat,thisaccusedwaswithSword. The fact this accused having Sword is not denied by the accused. P.W.18SaiyedNazirmiyaKalumiya(Exh.103) hasdeniedinhiscrossexaminationthat,hehasnotstated thenameofthisaccusedbeforePolice.Exceptidentification oftheaccused,nothinghasbeenbroughtonrecordinthe deposition of this witness. P.W.21 Shabbirkhan
Ibrahimkhan(Exh.108) hasstatedinhisdepositionthat, thisaccusedwasinthemobandgivenaSwordblowonhis Headonleftside.Nothinghasbeenbroughtonrecordin crossexamination to discard the fact that, this accused had given Sword blow to this witness. No Medical Certificate is produced, supporting the injuries. P.W.47
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BachubhaVesaljiJadeja(Exh.227) hasinhisdeposition statedthat, theaccusedwerearrestedfromtheplaceof offence,onthespot.Thisaccusedwasalsoarrestedfrom there. P.W.48ManubhaiKarshanbhaiPatel(Exh.228) hasstatedthat,FatehkhanBadarkhanBalochhasstated before him that, thisaccusedwaspresent with Swordin the mob. In his crossexamination he has stated that, ShabbirmiyaIbrahimmiyahasnotstatedbeforehimthat, thisaccusedhadgivenDhariyablow.Hehasfurtherstated that,ReshmabenSattarbhaihasnotstatedbeforehimthat, thisaccusedhadgivenPipeblowonrightsideForeheadof her Mother. So far as injuries to the Sugarabibi is concerned,itiscorroboratedbyMedicalEvidencebutsofar asMuddamalarticleisconcerned,witnesseshavedeposed about the use of Iron Pipe by the accused but no identification of Muddamal took place in the Court and therefore,alsonoreliancecanbeplacedontheevidenceof recovery of Muddamal. However depositions of witnesses regarding injuriestoSugarabibiiscorroboratedtherefore, theversionofwitnessesinthisregardisreliableandcredit worthy.Further,thefactthat,thisaccusedwaspresentin Chudivasatthetimeofoccurrenceandhewasarrestedby the Police from the place of incident and his name was mentioned by the complainantinthecomplaintandsaid factcannotbediscarded. Itisnotindisputethat,theaccusedistheresidentof
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DipraDarwajaandwitnessesarealsoresidentofChudivas, Dipra Darwaja, Visnagar. They are known to each other sincepreviouslyhenceevidenceofwitnessescansafelybe acceptedasregardstotheinvolvementofthisaccusedand evidenceofwitnessesasdiscussedearlierhavingseenthe accused in 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 questionrequiresaboutfalselyimplicationoftheaccused. Thequestionofmakinganymistakeinthatregarddoesnot arise. It does not possible to hold false implication of accused.Thisaccusedisidentifiedbythewitnessesinthe Court.Hisname ismentionedinsomeofthestatements before Police. Further, this accused was arrested by the Police from the place of offence. Therefore, if no Identification Parade took place, by the Investigating Officer,thatamountsnegligence/irregularityonthepartof I.O.Here,inthepresentcaseenteringinChudivasatthe time of incident itself suggest the common object of the mobaswellasspecificroleattributedtotheaccused.There was no reason to enter in Chudivas at that odd time. Therefore by becoming a member of unlawful assembly accused entered in Chudivas and incident of pelting of stones, ransacking and burning of houses, abusing the Muslims and shouting slogans occurred. This fact itself suggestovertactinconnectionwithcommonobjectofthe mob. Meaning thereby accused had participated in
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furtherance of common object of the mob. Therefore involvementofaccusediswellestablishedfromtheabove circumstances.Theaccusedwasarrestedonthespotand the complainant has named the present accused in the complaint, which is well in time and therefore, the basic defence of this accusedinhisfurtherexaminationunder Section313 ofCr.P.C.thathehasfalselybeenimplicated and he had gone to the Dipra Darwaja and Police has arrestedhimforthebreachofCurfew.Thereisnoprevious enmitywithDy.S.P.ShriJadejaorwitnesses,whytheywill falselyimplicatethisaccused.Thereisnoreasontofalsely implicate the accused. No one would falsely involve an innocentperson,keepingasidetherealculprit.Tosupport his explanation that, he had gone to the Dipra Darwaja andPolicehadarrestedhimforthebreachofCurfewisnot supported by any evidence therefore, this defence of this accusedisnotacceptable. [288] AccusedNo.6: PATELCHIMANLALKACHARABHAI (SessionsCaseNo.180/2002) ThisaccusedisidentifiedbeforetheCourtbyP.W.1 Fatehkhan Badarkhan Baloch (Exh.61), P.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66), P.W.4 Aabidbhai Gulabkhan Sindhi (Exh.71), P.W.6 Mahmadkhan Badarkhan Baloch (Exh.85), P.W.11 Anvarhusen ShabbirhusenPathan(Exh.91),P.W.18SaiyedNazirmiya
// 797 //
Kalumiya (Exh.103) P.W.21 Shabbirkhan Ibrahimkhan (Exh.108), P.W.50 Saidabibi Mahmadhanif Sindhi (Exh.302) and P.W.52 Faridabanu Ahmedkhan Baloch (Exh.306) whereas P.W.1 Fatehkhan Badarkhan Baloch (Exh.61), P.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66), P.W.3 Gulabkhan alias Gulubhai Kayamkhan Sindhi(Exh.70),P.W.5ZubedabibiMahebubkhanBaloch (Exh.84), P.W.6 Mahmadkhan Badarkhan Baloch (Exh.85), P.W.7 Amzadkhan Mahmadkhan Baloch (Exh.86),P.W.8ReshmabenSattarbhai(Exh.87),P.W.9 RashidabibiSattarbhaiBaloch(Exh.88),P.W.10Sugrabibi Mahmadkhan Baloch (Exh.90), P.W.11 Anvarhusen Shabbirhusen Pathan (Exh.91) and P.W.21 Shabbirkhan Ibrahimkhan(Exh.108)havestatedtheinvolvementofthis accused in their first statements before Visnagar Police whilebeforeS.I.T.theyhavestatedthat,theirstatements are correct one except the time of incident. While as per ArrestandRecoveryPanchnama,Panchasarehostilebut IronRodwasrecoveredfromthisaccusedon28.02.2002, whichisnotshowntoanywitnessduringthedepositionof witnesses.Therefore,noreliancecanbeplacedaboutthe saidMuddamalArticle. Now coming to the deposition of witnesses, P.W.1 Fatehkhan Badarkhan Baloch (Exh.61) is the Hostile witness, in his crossexamination by the prosecution, he hasadmittedthat,thisaccusedhadblowwithIronRodon
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Left thigh. Nothing has been brought on record in his crossexamination but it can only be considered for corroborationpurpose. P.W.2 Mahmad Iqbal
AhmedkhanBaloch(Exh.66)hasinhiscrossexamination byaccusedNos.1to82,ithasbeenbroughtonrecordthat, thisaccusedistheresidentofCornerofChudivas,Dipra Darwaja.Thecomplainanthasalsonamedthisaccusedin theComplaintExh.67abouthispresenceandinvolvement. P.W.3 Gulabkhan alias Gulubhai Kayamkhan Sindhi (Exh.70) is theHostilewitness.Inhiscrossexamination by prosecution, he has admitted that, this accused was presentinthemobwithweapon.Thusfromthedeposition ofthiswitness,onlyinvolvement/presenceofChimanlalis brought on record, which is not contradicted in cross examinationbyaccusedsidebutitcanonlybelookedinto for corroboration purpose, being Hostile witness. P.W.4 Aabidbhai Gulabkhan Sindhi (Exh.71) has in his cross examinationadmittedthat,hehasnotstatedinhisPolice Statementthat,thisaccusedwaspresentinthemob. In his crossexamination nothing has been brought from which we can deny the presence and involvement of this accused in the mob. P.W.5 Zubedabibi Mahebubkhan Baloch (Exh.84) has stated in her deposition that, this accused was having Dhariya in his hands. She is the Hostilewitness.InhercrossexaminationbyaccusedNos.1 to82,nothinghasbeenbroughtonrecordtodiscardthe
// 799 //
presenceofthisaccusedwithDhariyainthemob.P.W.6 MahmadkhanBadarkhanBaloch(Exh.85)hasinhisfirst timedepositiondeposedthat,thisaccusedwashavingIron Rod in his hands. In his second time deposition, this accused was not presentin theCourt.Nothing has been broughtonrecordinhiscrossexaminationtodiscardthe versionofthiswitnessinchiefexamination.Thus,presence of this accused with Iron Rod in the mob is established. P.W.7 Amzadkhan Mahmadkhan Baloch (Exh.86) has stated in his first time deposition that, this accused was present with iron rod. In his crossexamination, he has stated that, he does not remember that, along with this witness, this accused was in Jail. Nothing has been broughtonrecordinhiscrossexaminationtodiscardthe version of this witness in chiefexamination. P.W.8 Reshmaben Sattarbhai (Exh.87) has in her first time depositionstatedthat,thisaccusedwaspresentwithIron rod.Presenceandinvolvementofthisaccusedwithironrod cannotbediscardedasitisnotchallengedbytheaccused side.P.W.11AnvarhusenShabbirhusenPathan(Exh.91) hasinhisdepositionstatedthat,thisaccusedwaspresent inthemobwithIronRod.AfterdeclarationasHostile,this witnesshasadmittedthat,hewasinjuredonback,byblow ofironrod,givenbyChimanKachara.AccordingtoMedical Certificate, this witness has sustained injuries CLW on Right Leg Third Toe and CLW on Head and thus as per Medical Certificate, this witness has not sustained any
// 800 //
injury on his back. Thus, there is variation about the injurycausedonhisbackbuttheinjuryCLWonRightLeg ThirdToe,whichcanbecausedbyIronRod.Thefactthat, he sustained injury gets support. P.W.18 Saiyed Nazirmiya Kalumiya (Exh.103) has denied in his cross examination that, he has not stated the name of this accusedbeforePolice.Exceptidentificationoftheaccused, nothing has been brought on record in the deposition of thiswitness.P.W.47BachubhaVesaljiJadeja(Exh.227) hasinhisdepositionstatedthat,theaccusedwasarrested fromtheplaceofoffence,onthespot. P.W.48Manubhai KarshanbhaiPatel(Exh.228) hasstatedthat,Fatehkhan BadarkhanBalochhasstatedbeforehimthat,thisaccused was present with Iron Rod in the mob. In his cross examination,hehasstatedthat,AabidmiyaGulabkhanhas notstatedbeforehimthat,thisaccusedwaspresentinthe mob with Dhariya. P.W.50 Saidabibi Mahmadhanif Sindhi(Exh.302)hasinhersecondtimedepositionstated that, this accused was present in the mob. Nothing has been brought on record in her crossexamination, from whichwecandiscardthepresenceofthisaccusedinthe mob.SofarasinjuriestotheAnvarhusenisconcerned,it is corroborated by Medical Evidence but so far as Muddamal article is concerned, witnesses have deposed about the use of Iron Rod by the accused but no identification of Muddamal took place in the Court and therefore,alsonoreliancecanbeplacedontheevidenceof
// 801 //
recovery of Muddamal. However depositions of witnesses regardinginjuriestoAnvarhuseniscorroboratedtherefore, theversionofwitnessesinthisregardisreliableandcredit worthy.Further,thefactthat,thisaccusedwaspresentin Chudivasatthetimeofoccurrenceandhewasarrestedby the Police from the place of incident and his name was mentioned by the complainantinthecomplaintandsaid factcannotbediscarded. Itisnotindisputethat,theaccusedistheresidentof DipraDarwajaandwitnessesarealsoresidentofChudivas, Dipra Darwaja, Visnagar. They are known to each other sincepreviouslyhenceevidenceofwitnessescansafelybe acceptedasregardstotheinvolvementofthisaccusedand evidenceofwitnessesasdiscussedearlierhavingseenthe accused in 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 questionrequiresaboutfalselyimplicationoftheaccused. Thequestionofmakinganymistakeinthatregarddoesnot arise. It does not possible to hold false implication of accused.Thisaccusedisidentifiedbythewitnessesinthe Court.Hisname ismentionedinsomeofthestatements before Police. Further, this accused was arrested by the Police from the place of offence. Therefore, if no Identification Parade took place, by the Investigating Officer,thatamountsnegligence/irregularityonthepartof
// 802 //
I.O.Here,inthepresentcaseenteringinChudivasatthe time of incident itself suggest the common object of the mobaswellasspecificroleattributedtotheaccused.There was no reason to enter in Chudivas at that odd time. Therefore by becoming a member of unlawful assembly accused entered in Chudivas and incident of pelting of stones, ransacking and burning of houses, abusing and shouting slogans againsttheMuslimsoccurred.This fact itselfsuggestovertactinconnectionwithcommonobject ofthemob.Meaningtherebyaccusedhadparticipatedin furtherance of common object of the mob. Therefore involvementofaccusediswellestablishedfromtheabove circumstances.Theaccusedwasarrestedonthespotand the complainant has named the present accused in the complaint, which is well in time and therefore, the basic defence of this accusedinhisfurtherexaminationunder Section313 ofCr.P.C.thathehasfalselybeenimplicated andhewasreturningfromhisfieldandatthattime,Police hadarrestedforthebreachofCurfew.Thereisnoprevious enmitywithDy.S.P.ShriJadejaorwitnesses,whytheywill falselyimplicatethisaccused.Thereisnoreasontofalsely implicate the accused. No one would falsely involve an innocentperson,keepingasidetherealculprit.Tosupport hisexplanationthat,hewasreturningfromhisfieldandhe wasarrestedinbreachofCurfewisnotsupportedbyany evidence therefore, this defence of this accused is not acceptable.
// 803 //
[289]
AccusedNo.7: PATELDHIRUBHAIBHIKHABHAI (SessionsCaseNo.180/2002) ThisaccusedisidentifiedbeforetheCourtbyP.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66), P.W.11 AnvarhusenShabbirhusenPathan(Exh.91),P.W.18Saiyed Nazirmiya Kalumiya (Exh.103) and P.W.21 Shabbirkhan Ibrahimkhan (Exh.108) whereas P.W.1 Fatehkhan Badarkhan Baloch (Exh.61), P.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66), P.W.3 Gulabkhan alias Gulubhai Kayamkhan Sindhi (Exh.70), P.W.4 Aabidbhai Gulabkhan Sindhi (Exh.71), P.W.5 Zubedabibi Mahebubkhan Baloch (Exh.84), P.W.6 Mahmadkhan Badarkhan Baloch (Exh.85), P.W.11 Anvarhusen Shabbirhusen Pathan (Exh.91) and P.W.21 Shabbirkhan Ibrahimkhan(Exh.108)havestatedtheinvolvementofthis accused in their first statements before Visnagar Police whilebeforeS.I.T.theyhavestatedthat,theirstatements are correct one except the time of incident. While as per ArrestandRecoveryPanchnama,Panchasarehostilebut Dhariya havingIronPipeHandlewasrecoveredfromthis accusedon28.02.2002,whichisnotshowntoanywitness during the depositionofwitnesses.Therefore,noreliance canbeplacedaboutthesaidMuddamalArticle. Now coming to the deposition of witnesses, P.W.1
// 804 //
Fatehkhan Badarkhan Baloch (Exh.61) is the Hostile witness, in his crossexamination by the prosecution, he has admitted that, this accused was present in the mob withDhariya.Nothinghasbeenbroughtonrecordinhis crossexamination but it can only be considered for corroborationpurpose,beingHostilewitness. P.W.2
Mahmad Iqbal Ahmedkhan Baloch (Exh.66) has in his depositionstatedthat,thisaccusedwaspresentinthemob withDhariya.InhiscrossexaminationbyaccusedNos.1to 82,ithasbeenbroughtonrecordthat,thisaccusedisthe residentofNearPoliceStation,Opp.MunicipalSchool.The complainant has also named this accused about the involvement,intheComplaintExh.67. P.W.3Gulabkhan aliasGulubhaiKayamkhanSindhi(Exh.70)istheHostile witness, in his crossexamination by prosecution he has admittedthat,thisaccusedwaspresentinthemobwith weapon. Thus from the deposition of this witness, only presenceofDhirubhaiisbroughtonrecord,whichisnot contradicted in crossexamination. P.W.5 Zubedabibi Mahebubkhan Baloch (Exh.84) has stated in her depositionthat,thisaccusedwashavingIronPipeinhis hands.SheistheHostilewitness.Inhercrossexamination byaccusedNos.1to82,shehasdeniedthat,shehasnot stated before the Police that, this accused has caused injurytoheraswellashersonbyIronPipe.Inhersecond timetimedeposition,shehasstatedthat,thisaccusedhas causedinjurytoherandhersonAmirkhanbygivingblow
// 805 //
byIronPipe.Inhercrossexaminationshehasstatedthat, shedoesnotrememberthat,whethershehasstatedthat, shewasinjuredbythisaccused.Itisdeniedbyherthat, shehasnotstatedbeforeS.I.T.orintheCourtthat,this accusedhadgivenPipeblowtoheraswellasherson.She had givenpipeblowonherHeadandLeg,whileherson was injured on his head and there was blooding. No Medical Certificate is produced to support her say about injuries sustained by her and her son. P.W.6 MahmadkhanBadarkhanBaloch(Exh.85)hasinhisfirst time deposition deposed that, this accused was having Dhariyainhishands.Nothinghasbeenbroughtonrecord in his crossexamination to discard the version of this witness in chiefexamination. Thus, presence of this accusedwithDhariyainthemobisestablished. P.W.13 Rameshji Rajuji (Exh.97) has stated in his second time deposition that, the persons who were arrested from the place of offence, he has arrested this accused, who was havingSwordwithhimandtheSwordwasrecoveredfrom this accused. P.W.18 Saiyed Nazirmiya Kalumiya (Exh.103)hasdeniedinhiscrossexaminationthat,hehas notstatedthenameofthisaccusedbeforePolice.Except identificationoftheaccused,nothinghasbeenbroughton record in the deposition of this witness. P.W.47 BachubhaVesaljiJadeja(Exh.227) hasinhisdeposition statedthat, theaccusedwerearrestedfromtheplaceof
// 806 //
offence,onthespot.Thisaccusedwasalsoarrestedfrom there. P.W.48 Manubhai Karshanbhai Patel (Exh.228) hasstatedthat,FatehkhanBadarkhanBalochhasstated beforehimthat,thisaccusedwaspresentwithDhariya.in the mob. In his crossexamination he has stated that, AabidmiyaGulabkhanhasnotstatedbeforehimthat,this accused was present in the mob with Pipe. So far as injuriestotheZubedabibiandhersonisconcerned,itis not corroborated by Medical Evidence and so far as Muddamal article is concerned, witnesses have deposed about the use of Dhariya with Iron Pipe handle / Iron Pipe / Sword by the accused but no identification of MuddamaltookplaceintheCourtandtherefore,alsono reliance can be placed on the evidence of recovery of Muddamal. However depositions of witnesses regarding injuries to Zubedabibi and her son is not corroborated therefore, the version of witnesses in this regard is not reliable and credit worthy. Further, the fact that, this accusedwaspresentinChudivasatthetimeofoccurrence andhewasarrestedbythePolicefromtheplaceofincident and his name was mentioned by the complainant in the complaintandsaidfactcannotbediscarded. Itisnotindisputethat,theaccusedistheresidentof Dipra Darwaja, Visnagar, meaning thereby, he is the resident of Dipra Darwaja area and witnesses are also resident of Chudivas, Dipra Darwaja, Visnagar. They are
// 807 //
known to each other since previously hence evidence of witnesses can safely be accepted as regards to the involvementof thisaccusedandevidenceofwitnessesas discussed earlier having seen the accused in 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 makinganymistakeinthatregarddoesnotarise.Itdoes not possible to hold false implication of accused. This accused is identified by the witnesses in the Court. His nameismentionedinsomeofthestatementsbeforePolice. Further,thisaccusedwasarrestedbythePolicefromthe placeofoffence.Therefore,ifnoIdentificationParadetook place,bytheInvestigatingOfficer,thatamountsirregularity on the part of I.O. Here, in the present case entering in Chudivasatthetimeofincidentitselfsuggestthecommon objectofthemobaswellasspecificroleattributedtothe accused.TherewasnoreasontoenterinChudivasatthat odd time. Therefore by becoming a member of unlawful assembly accused entered in Chudivas and incident of pelting of stones, ransacking and burning of houses, abusingtheMuslimsandshoutingslogansoccurred.This fact itself suggest overt act in connection with common object of the mob. Meaning thereby accused had participatedinfurtheranceofcommonobjectofthemob. Therefore involvementofaccusediswellestablishedfrom
// 808 //
theabovecircumstances.Theaccusedwasarrestedonthe spotandthecomplainanthasnamedthepresentaccused inthecomplaint,whichiswellintimeandtherefore,the basic defence of this accused in his further examination under Section 313 of Cr.P.C. that he has falsely been implicatedandon28.02.2002hehadgonetoGozariafor hisprofessionofPhotographyandatabout06.30hewas returningtowardshishomeandwhenhewaspassingon VisnagarKadaRoad,hewasarrestedbythePoliceforthe breachofCurfew.Insupportofhissay,hehasproduced copyofOrderFormforPhotographyandCertificateDated 25.10.2002, issued by the Amarpura Gram Panchayat, stating therein that, he was doing videography and photographyonthedateofincidentinVillageAmarpuraof GozariaTaluka.Thisaccusedhaspausedthisalibi,which is required to be considered with the help of documents produced by him. He has produced Order Form of Utsav Garden Studio and Certificate of Amarpura Gram Panchayat,showingthatonthedayofoccurrencehewas engagedinPhotographyintheGroupMarriageCeremony, organized in Village Amarpura, Gozaria but the Further Statement of this witness itself suggest that, he was returning at about 06.30 P.M. therefore, the Certificate issued by the Gram Panchayat and Order Form only suggest that, on the day of incident he was engaged in PhotographyinGroupMarriageCeremonyatGozariabut from that it does not transpires that, at the time of
// 809 //
incident, he was at Village Amarpura, Gozaria. On the contrary his statement suggest that, he came back from Amarpura, Gozaria to Visnagar therefore, this alibi of accusedsideisnotsatisfactorilyexplainedandcannotbe accepted.Further,thereisnopreviousenmitywithDy.S.P. ShriJadejaorwitnesses,whytheywillfalselyimplicatethis accused. There is no reason to falsely implicate the accused.Noonewouldfalselyinvolveaninnocentperson, keepingasidetherealculprit. [290] AccusedNo.8: PATELPARIMAL@JETHOBABULAL (SessionsCaseNo.180/2002) ThisaccusedisidentifiedbeforetheCourtbyP.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66), P.W.4 Aabidbhai Gulabkhan Sindhi (Exh.71), [5, P.W.6 Mahmadkhan Badarkhan Baloch (Exh.85), P.W.11 AnvarhusenShabbirhusenPathan(Exh.91),P.W.18Saiyed Nazirmiya Kalumiya (Exh.103), P.W.21 Shabbirkhan Ibrahimkhan (Exh.108), P.W.24 Shermahmad Dalubhai Sindhi (Exh.132), P.W.25 Mohmad Hanif Ahmedkhan Baloch (Exh.134), P.W.31 Aarifkhan Yakubkhan Pathan (Exh.147), P.W.32 Mahmadhanif Dalubhai Sindhi (Exh.150), P.W.50 Saidabibi Mahmadhanif Sindhi (Exh.302), P.W.52 Faridabanu Ahmedkhan Baloch (Exh.306) and P.W.127 Imrankhan Sabirhusen Pathan (Exh.681) whereas P.W.1 Fatehkhan Badarkhan Baloch
// 810 //
(Exh.61), P.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66), P.W.3 Gulabkhan alias Gulubhai Kayamkhan Sindhi (Exh.70), P.W.4 Aabidbhai Gulabkhan Sindhi (Exh.71), P.W.5 Zubedabibi Mahebubkhan Baloch (Exh.84), P.W.6 Mahmadkhan Badarkhan Baloch (Exh.85), P.W.11 Anvarhusen Shabbirhusen Pathan (Exh.91), P.W.18 Saiyed Nazirmiya Kalumiya (Exh.103), P.W.21 Shabbirkhan Ibrahimkhan (Exh.108), P.W.25 Mohmad Hanif Ahmedkhan Baloch (Exh.134), P.W.30 ShabbirmiyaHasumiyaBelim(Exh.146),P.W.31Aarifkhan Yakubkhan Pathan (Exh.147) and P.W.33 Anvarkhan BasirkhanBaloch(Exh.166)havestatedtheinvolvementof thisaccusedintheirfirststatementsbeforeVisnagarPolice whilebeforeS.I.T.theyhavestatedthat,theirstatements are correct one except the time of incident. While as per ArrestandRecoveryPanchnama,Panchasarehostilebut Sword was recovered from this accused on 06.05.2002, whichisnotshowntoanywitnessduringthedepositionof witnesses.Therefore,noreliancecanbeplacedaboutthe saidMuddamalArticle. Now coming to the deposition of witnesses, P.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66) has in his depositionstatedthat,someofthepersonsfrommobhad attackedhim,inwhichthisaccusedPatelParimalBabulal was also present, hadpeltedbig stoneonhim,hencehe wasinjuredonhisforeheadandhesustainedinjuriesin
// 811 //
peltingofstonesonsecondtime,onhislastfingerofRight LegFootandatthattimethisaccusedwashavingSword withhim.Inhiscrossexamination,hehasdeposedthat, thisaccusedwasatadistanceofthreestepsfromhim,he injuredhim.Itisdeniedbyhimthat,thisaccusedhadnot causedanystoneinjurytohim.Itisdeniedbyhimthat,he hasnotstatedthat,thisaccusedhadinjuredhimonhis Forehead on right side, by throwing a big stone. In his secondtime.InhiscrossexaminationbyaccusedNos.1to 82,hehasstatedthat,inthemobhehasidentified7to8 persons and Parimal was there. The say of this witness regarding injuries is not supported by producing any MedicalCertificate. Thecomplainanthasalsonamedthis accused abouttheinvolvement,intheComplaintExh.67. P.W.4AabidbhaiGulabkhanSindhi(Exh.71) hasstated inhisdepositionthat,thisaccusedwaspresentinthemob with Sword. Nothing has been brought on record in his crossexaminationtodiscardtheversionofthiswitnessin chiefexamination. Thus, presence of this accused with Sword in the mob is established. P.W.5 Zubedabibi MahebubkhanBaloch(Exh.84) issilentinherfirsttime deposition about the involvement of this accused. In her secondtimedepositionshehasidentifiedthisaccusedwith his pet name Jethiya. In her crossexamination, she has deposed that, she does not remember whether she has statedbeforeVisnagarPolice,beforeS.I.T.orintheCourt's firsttimedepositionaboutthenameofthisaccused.P.W.6
// 812 //
Mahmadkhan Badarkhan Baloch (Exh.85) has in his firsttimedepositiondeposedthat,thisaccusedwashaving Swordinhishands.Nothinghasbeenbroughtonrecordin hiscrossexaminationtodiscardtheversionofthiswitness inchiefexamination.Thus,presenceofthisaccusedwith Sword in the mob is established. P.W.11 Anvarhusen Shabbirhusen Pathan (Exh.91) has in his first time deposition not stated about the involvement of this accused. In his second time deposition, he has only identified the accused. P.W.18 Saiyed Nazirmiya Kalumiya(Exh.103) hasstatedthat,thisaccusedwasin themobandenteredintheMaholla.Sofarasovertactof this accused in the mob about the killing, cutting in to piecesandburningof11allegeddeceasedpersons,itisnot accepted as discussed earlier. P.W.21 Shabbirkhan Ibrahimkhan (Exh.108) has deposed that, this accused was in the mob, entered in the Maholla, In his cross examinationhehasstatedthat,thisaccusedistheresident ofDipraDarwaja.P.W.24ShermahmadDalubhaiSindhi (Exh.132) has in his second time deposition stated that, thisaccusedwasinthemob.Hehasdeniedthat,hehas notstatedbeforePolice,beforehisfirsttimedepositionin theCourt,intheapplicationbeforeS.I.T.that,alongwith otherpersons,thisaccusedwastheLeaderofthemoband they attacked their Maholla. P.W.25 Mohmad Hanif Ahmedkhan Baloch (Exh.134) has stated that, this
// 813 //
accusedhadpeltedstonesandhisbrotherwasinjured,he sustained injuries on Right sideof his head. Nothing in crossexaminationisbroughtonrecord.ThereisnoInjury Certificate, supporting this injury to Mahmad Iqbal AhmedkhanBaloch.Therefore,thisversionofthewitness cannot be relied upon. P.W.30 Shabbirmiya Hasumiya Belim (Exh.146) is silent about the involvement of this accusedinhisfirsttimedepositionwhileinhissecondtime deposition, he has deposed about the presence of this accusedinthemobwithSwordandhasdeposedthat,he wasinjured bygivingSwordblowonhisHead.Whenwe perusetheMedicalCertificateofthiswitness, thereisno Medicalevidence,supportinghisthisinjurytherefore,his version is not reliable one. P.W.32 Mahmadhanif DalubhaiSindhi(Exh.150) hasstatedthat,thisaccused was present in the mob with Sword. In his cross examination,hehasstatedthat,itisnottruethat,hehas statedbeforeVisnagarPolicethat,thisaccusedwaspresent with Sword. P.W.48 Manubhai Karshanbhai Patel (Exh.228) has stated that, Anvarhusen Shabirhusen has stated before him that, this accused had given Dhariya blowonhishead.Inhiscrossexaminationhehasstated that, Mahmad Hanif Mahmadbhai has not stated before himthat,thiswitnesswasinthemob,burningthehouse ofAkbarmiyaKalumiya.P.W.50SaidabibiMahmadhanif Sindhi (Exh.302) has stated in her first time deposition
// 814 //
statedthat, thisaccusedwasinthemob. Inhercross examination,shehasstatedinhisstatementshehasnot statedthenameofParimalChandubutshehasstatedthe nameofParimalBabulal.Thus,presenceofthisaccusedis shown in the evidence by her. P.W.127 Imrankhan SabirhusenPathan(Exh.681)hasstatedinhisdeposition that, this accused was present in the mob. P.W.171 RanjitsinhPituji(Exh.865) hasstatedthat,thisaccused wasarrestedbyhimon06.05.2002. So far as injuries to the witnesses, caused by this accused,byusingSwordandstones,asnarratedbythem areconcerned,itisnotcorroboratedbyMedicalEvidence and so far as Muddamal article Sword is concerned, witnesseshavedeposedabouttheuseofSwordandStones bytheaccused butnoidentificationofMuddamalArticle tookplaceintheCourtandtherefore,alsonoreliancecan beplacedontheevidenceofrecoveryofMuddamalSword. Therefore, the version of witnesses regarding the injuries causedtothem bythisaccusedcannotbeconsideredfor involvement of this accused. Further, the fact that, this accusedwaspresentinChudivasinthemob,atthetimeof occurrence and his name was mentioned by the complainantinthecomplaintandthereisnothingincross examinationfromwhichwecandiscardthatfact.Allthe witnesses,asdiscussedabovehavestatedthepresenceof thisaccusedinthemob.
// 815 //
Itisnotindisputethat,theaccusedistheresidentof RandalMataMadh,meaningthereby,heistheresidentof Dipra Darwaja area and witnesses are also resident of Chudivas, Dipra Darwaja, Visnagar. They are known to eachothersincepreviouslyhenceevidenceofwitnessescan safely be accepted as regards to the involvement of this accused and evidence of witnesses as discussed earlier havingseentheaccusedinthemobcannotbedoubtedat all.Onceitisestablishedandacceptedthat,witnessand accusedareresidentofsamelocality,wellknowntoeach other,onlyquestionrequiresaboutfalselyimplicationofthe accused.Thequestionofmakinganymistakeinthatregard doesnotarise.Itdoesnotpossibletoholdfalseimplication ofaccused.Thisaccusedisidentifiedbythewitnessesin theCourt.Hisnameismentionedimmediatelyonthenext day of the incident, i.e. on 01.03.2002 in some of the statements before Police. Therefore, if no Identification Parade took place, by the Investigating Officer, that amountsirregularityonthepartofI.O.Here,inthepresent case entering in Chudivas at the time of incident itself suggestthecommonobjectofthemobaswellasspecific roleattributedtotheaccused.Therewasnoreasontoenter in Chudivas at that odd time. Therefore by becoming a memberofunlawfulassemblyaccusedenteredinChudivas andincidentofpeltingofstones,ransackingandburningof houses, abusing the Muslims and shouting slogans
// 816 //
occurred. This fact itself suggest overt act in connection withcommonobjectofthemob.Meaningtherebyaccused had participated in furtherance of common object of the mob.Thereforeinvolvementofaccusediswellestablished fromtheabovecircumstances.Thecomplainanthasnamed thepresentaccusedinthecomplaint,whichiswellintime and therefore, the basic defence of this accused in his furtherexaminationunderSection313 ofCr.P.C.thathe has falsely been implicated is not satisfactorily explained and cannot be accepted. Further, there is no previous enmitywithwitnesses,whytheywillfalselyimplicatethis accused. There is no reason to falsely implicate the accused.Noonewouldfalselyinvolveaninnocentperson, keepingasidetherealculprit. [291] AccusedNo.9: PATELJAYESHKUMAR@BHURIYODAHYALAL (SessionsCaseNo.180/2002) ThisaccusedisidentifiedbeforetheCourtbyP.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66), P.W.3 Gulabkhan alias Gulubhai Kayamkhan Sindhi (Exh.70), P.W.4 Aabidbhai Gulabkhan Sindhi (Exh.71), P.W.18 SaiyedNazirmiyaKalumiya(Exh.103),P.W.21Shabbirkhan Ibrahimkhan (Exh.108) and P.W.25 Mohmad Hanif AhmedkhanBaloch(Exh.134) whereasP.W.1Fatehkhan Badarkhan Baloch (Exh.61), P.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66), P.W.3 Gulabkhan alias
// 817 //
Gulubhai Kayamkhan Sindhi (Exh.70), P.W.4 Aabidbhai Gulabkhan Sindhi (Exh.71), P.W.5 Zubedabibi Mahebubkhan Baloch (Exh.84), P.W.6 Mahmadkhan Badarkhan Baloch (Exh.85), P.W.10 Sugrabibi Mahmadkhan Baloch (Exh.90), P.W.11 Anvarhusen Shabbirhusen Pathan (Exh.91), P.W.21 Shabbirkhan Ibrahimkhan (Exh.108) and P.W.25 Mohmad Hanif AhmedkhanBaloch(Exh.134)havestatedtheinvolvement of this accused in their first statements before Visnagar Police while before S.I.T. they have stated that, their statements are correct one except the time of incident. WhileasperArrestandRecoveryPanchnama,Panchasare hostile but Sword was recovered from this accused on 06.05.2002,whichisnotshowntoanywitnessduringthe deposition of witnesses. Therefore, no reliance can be placedaboutthesaidMuddamalArticle. Now coming to the deposition of witnesses, P.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66) has in his depositionstatedthat,thisaccusedwaspresentinthemob andhehadblowhimbySwordonhishand.Hehasalso identified this accused before the Court. In his cross examinationbyaccusedNos.1to82,ithasbeenbroughton record that, this accused is residing in Santoknagar Society, near Bus Stand, opposite of G.E.B. This witness has also admitted that, he has no relation with this accusedbeforeoccurrenceofthisincident.Hehasstated
// 818 //
that, he do not want to make clarification about not mentioningtheoriginalnameofBhuraasJayeshinthe complaint.Hehasalsoadmittedthat,atthattimehewas notknowingthenameofhisfather.Hehasfurtherstated that, during the incident, this accused had blow with Sword on his right hand and at the time of blow, this accusedwasatthedistanceoftwosteps.Thesayofthis witnessregardinginjuriesisnotsupportedbyanyMedical Certificate.Inhissecondtimedepositionalsohehasstated that, this accused had blow him by Sword on his Right hand. The complainanthasalsomentionedthenameof this accused as Bhuro regarding involvement of this accused, in the ComplaintExh.67. P.W.6 Mahmadkhan Badarkhan Baloch(Exh.85) hasstatedinhisfirsttime depositionthat,thisaccusedwasinthemobhavingSword inhishands.Thiswitnesshadidentifiedonepersoninthe CourtasJayeshaliasBhurobutinfactthatpersonwas HiteshbhaiManubhaiMandivalaandthus,thiswitnessis failed to identify this accused before the Court. P.W.11 AnvarhusenShabbirhusenPathan(Exh.91) hasstatedin hisdepositionthat,BhurowasinthemobhavingSwordin hishands.P.W.18SaiyedNazirmiyaKalumiya(Exh.103) hasdeniedinhiscrossexaminationthat,hehasnotstated thenameofthisaccusedbeforePolice.Exceptidentification oftheaccused,nothinghasbeenbroughtonrecordinthe deposition of this witness. P.W.21 Shabbirkhan
Ibrahimkhan(Exh.108) hasstatedinhisdepositionthat,
// 819 //
this accused was present in the mob. This witness had identifiedonepersonintheCourtasJayeshkumaralias Bhuro but in fact that person wasJayesh Dahyalal and thus,thiswitnessisfailedtoidentifythisaccusedbefore the Court. P.W.25 Mohmad Hanif Ahmedkhan Baloch (Exh.134) hasstatedinhisdepositionthat,thisaccused had blow by Sword on the right hand of his brother Mahmad Iqbal Ahmedkhan Baloch. P.W.48 Manubhai Karshanbhai Patel (Exh.228) has stated that,
ShabbirkhanIbrahimkhanhasnotstatedthenameofthis accused before him. P.W.52 Faridabanu Ahmedkhan Baloch(Exh.306) hasinhisdepositionbeforetheCourt, onaskingaboutthisaccusedrepliedthis,thisaccusedis not present in the Court but in fact said accused was present in the Court and thus, this accused is failed to identifythisaccusedbeforetheCourt. Itisnotindisputethat,theaccusedistheresidentof ArbudanagarSociety,NearM.N.Collage,Visnagar.Fromthe evidenceofthecomplainant,ittranspiresthat,hewasnot knowing this accused and he has not made any clarificationaboutthenameofBhuraasJayeshandat the time of lodging complaint, complainant was even not knowing the name of father of this accused. Other witnesses have also not satisfactorily and perfectly identifiedthisaccusedbeforetheCourt.Asthisaccusedis not resident of nearby area of Dipra Darwaja, we cannot
// 820 //
inferfromtheevidenceadducedbyprosecutionsidethat, this accused was known to the witnesses and therefore, Identification Parade of this accused if done during the course of investigation, it would have increased probative value of the evidence of the witness. Here, value become minimal.Inthepresentsetofcircumstances,Identification Paradeisnecessaryandthereisgraveirregularityonthe partofInvestigatingOfficerM.K.Patelfornotconducting IdentificationParade.IdentificationParadeofthisaccused if done during the course of investigation, it would have increased probative value of the evidence of the witness. Here, value become minimal. So far as specific role as attributedbythewitnessesisconcerned,thatisalsonot satisfactorilyestablishedbytheprosecutionside.Therefore, thefactremainsthat,itisnotsafetoholdaccusedguilty on the basis of general allegations. There is no other materialonrecordagainstthepresentaccusedtoshowhis involvementintheallegedoffence.Itwouldbehazardousto base a conviction only on such evidence. It would be appropriatetogivebenefitofdoubtandacquittheaccused. Inmyopinionthoughtheirexiststrongsuspicionagainst theaccuseditisnotpossibletoholdthat,hisinvolvement intheoffenceisestablished,requiresacquittal. Therefore, the defence of the accused that, he has falsely been involved in the crime, he is innocent one is acceptableintheeyeoflaw.
// 821 //
[292]
AccusedNo.10: PATELCHANDUBHAIKUBERDAS (SessionsCaseNo.180/2002) ThisaccusedisidentifiedbeforetheCourtbyP.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66), P.W.10 Sugrabibi Mahmadkhan Baloch (Exh.90) and P.W.18 Saiyed Nazirmiya Kalumiya (Exh.103) whereas P.W.5 Zubedabibi Mahebubkhan Baloch (Exh.84) has in her statementdated10.03.2002statedtheinvolvementofthis accusedinherfirststatementsbeforeVisnagarPolicewhile before S.I.T. they have stated that, their statements are correctoneexceptthetimeofincident.WhileasperArrest andRecoveryPanchnama,PanchasarehostilebutYellow ColourPlasticGallonwasrecoveredfromthisaccusedon 07.05.2002,whichisnotshowntoanywitnessduringthe deposition of witnesses. Therefore, no reliance can be placedaboutthesaidMuddamalArticle. Now coming to the deposition of witnesses, P.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66) has not namedthisaccusedinhiscomplaint. P.W.5Zubedabibi MahebubkhanBaloch(Exh.84) istheHostilewitnessand afterdeclaringhostile,shehasadmittedthat,thisaccused wasinthemobandtheyburnttheirhousesintheMaholla. Inhercrossexaminationshehasdeniedthat,shehasnot stated name of this accused in her statement dated
// 822 //
01.03.2002. P.W.48 Manubhai Karshanbhai Patel (Exh.228) has stated that, Husenkhan Badarkhan has stated before him that, this accused was present with Kerosene Gallon and they burnt the houses by throwing burningragsandpouringkerosene,petroletc.Inhiscross examination, this witness has deposed the, Aabidmiya GulabkhanSindhihasnotstatedthenameofthisaccused beforehim. P.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66) has thoughidentifiedthisaccusedinhisdepositionbuthasnot statedabouttheinvolvementofthisaccusedintheincident inhisfirsttimedeposition.Inhiscomplaintalsoheissilent about the involvement of this accused. He has not even statedabouttheinvolvementofthisaccusedinanyofhis statements. P.W.5 Zubedabibi Mahebubkhan Baloch (Exh.84) has though involved the present accused in her crossexamination after declaring hostile and has also stated in her statement dated 10.03.2002. P.W.10 SugrabibiMahmadkhanBaloch(Exh.90)hasonlyidentified theaccusedinhersecondtimedeposition.Firsttimesheis silent about the involvement of this accused. P.W.18 SaiyedNazirmiyaKalumiya(Exh.103)hasnotidentifiedin hisfirsttimedeposition.Itisonlyinsecondtimedeposition he has identified the present accused. In that circumstancescorroborationfromotherevidencerequires.
// 823 //
It is not in dispute that, the accused is the resident of Bethak No Madh, Dipra Darwaja, Visnagar. From the evidence of the complainant and witnesses, as discussed above they have only identified the accused and not attributedtheroletothisaccused.Butforthefirsttimeon 10.03.2002,hisnamehasbeentakenbythewitnessinthe statement before the Police, till then the witnesses are silent about the involvement of this accused. So far as identification of this accused is concerned, here the accusedisresidinginseparateMahollawhilewitnessesare the resident of Chudivas, Dipra Darwaja and it is not explainedbythewitnessesthat,howtheyknowthepresent accused.Inthepresentsetofcircumstances,identification isnecessaryandthereisgraveirregularityonthepartof Investigating Officer M.K.Patel for not conducting IdentificationParade.IdentificationParadeofthisaccused if done during the course of investigation, it would have increased probative value of the evidence of the witness. Here, value become minimal. In these circumstances benefitisrequiredtobegiventotheaccused. Sofaras specific role as attributed by the witnesses is concerned, thatisalsonotsatisfactorilyestablishedbytheprosecution side.Therefore,thefactremainsthat,itisnotsafetohold accusedguiltyonthebasisofgeneralallegations.Thereis noothermaterialonrecordagainstthepresentaccusedto show his involvement in the alleged offence. It would be hazardous to base a conviction only on the evidence of
// 824 //
general allegations. It would be appropriate to acquit the accused. Therefore, the defence of the accused that, he has falsely been involved in the crime, he is innocent one is acceptableintheeyeoflaw. [293] AccusedNo.11: PARMARASHOKKUMAR@SENTINGSHANKARLAL (SessionsCaseNo.180/2002) ThisaccusedisidentifiedbeforetheCourtbyP.W.2 MahmadIqbalAhmedkhanBaloch(Exh.66),P.W.18Saiyed Nazirmiya Kalumiya (Exh.103), P.W.25 Mohmad Hanif Ahmedkhan Baloch (Exh.134), P.W.30 Shabbirmiya Hasumiya Belim (Exh.146) and P.W.52 Faridabanu Ahmedkhan Baloch (Exh.306) whereas P.W.11 Anvarhusen Shabbirhusen Pathan (Exh.91) has in his statement dated 10.03.2002 and P.W.30 Shabbirmiya Hasumiya Belim (Exh.146) has in his statement dated 08.03.2002,havestatedtheinvolvementofthisaccusedin their statementsbeforeVisnagarPolicewhilebeforeS.I.T. they have stated that, their statements are correct one except the time of incident. While as per Arrest and RecoveryPanchnama,PanchasarehostilebutSwordwas recovered from this accused on 07.05.2002, which is not showntoanywitnessduringthedepositionofwitnesses. Therefore, no reliance can be placed about the said MuddamalArticle.
// 825 //
Now coming to the deposition of witnesses, P.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66) has not namedthisaccusedinhiscomplaint.P.W.11Anvarhusen Shabbirhusen Pathan (Exh.91) has after declaring him hostile, in his crossexamination admitted that, this accused was in the mob with Dhariya and houses were burntbythemob. P.W.18SaiyedNazirmiyaKalumiya (Exh.103) has in his crossexamination, he has denied that, he has not stated before Police the name of this accused. P.W.25 Mohmad Hanif Ahmedkhan Baloch (Exh.134)hasinhissecondtimedepositionidentifiedthis accused. P.W.30 Shabbirmiya Hasumiya Belim (Exh.146) hasinhissecondtimedepositionstatedthat, thisaccusedwaspresentinthemobwithSword.Hehas admittedinhiscrossexaminationthat,hehasstatedthe name of this accused before the Police but instead of Patel, it is stated as Parmar. P.W.48 Manubhai KarshanbhaiPatel(Exh.228) hasdeposedthat,itistrue that,AnvarhusenShabbirhusenhasinhisfirststatement statedthat,thisaccusedistheresidentofDipraDarwaja andthiswitnesshadseenthisaccusedwithweaponand burningthehousesandbeatingthepersons. So far as Muddamal article Sword is concerned, witnesses have deposed about the use of Sword, by the
// 826 //
accused but no identification of Muddamal Article took placeintheCourtandtherefore,noreliancecanbeplaced ontheevidenceofrecoveryofSword.Therefore,theversion ofwitnesshavingSwordbythisaccusedinthemobcanbe considered for involvement of this accused. Further, the factthat,thisaccusedwaspresentinChudivasinthemob, at the time of occurrence. The witnesses, as discussed abovehavestatedthepresenceofthisaccusedinthemob. Itisnotindisputethat,theaccusedistheresidentof VankarVas,meaningthereby,heistheresidentofDipra DarwajaareaandwitnessesarealsoresidentofChudivas, Dipra Darwaja, Visnagar. They are known to each other sincepreviouslyhenceevidenceofwitnessescansafelybe acceptedasregardstotheinvolvementofthisaccusedand evidenceofwitnessesasdiscussedearlierhavingseenthe accused in 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 questionrequiresaboutfalselyimplicationoftheaccused. Thequestionofmakinganymistakeinthatregarddoesnot arise. It does not possible to hold false implication of accused.Thisaccusedisidentifiedbythewitnessesinthe Court.Therefore,ifnoIdentificationParadetookplace,by theInvestigatingOfficer,thatamountsirregularityonthe partofI.O.Here,inthepresentcaseenteringinChudivas atthetimeofincidentitselfsuggestthecommonobjectof
// 827 //
themobaswellasspecificroleattributedtotheaccused. TherewasnoreasontoenterinChudivasatthatoddtime. Therefore by becoming a member of unlawful assembly accused entered in Chudivas and incident of pelting of stones, ransacking and burning of houses, abusing the Muslims and shouting slogans occurred. This fact itself suggestovertactinconnectionwithcommonobjectofthe mob. Meaning thereby accused had participated in furtherance of common object of the mob. Therefore involvementofaccusediswellestablishedfromtheabove circumstances. The basic defence of this accused in his furtherexaminationunderSection313 ofCr.P.C.thathe has falsely been implicated is not satisfactorily explained and cannot be accepted. Further, there is no previous enmitywithwitnesses,whytheywillfalselyimplicatethis accused. There is no reason to falsely implicate the accused.Noonewouldfalselyinvolveaninnocentperson, keepingasidetherealculprit. [294] AccusedNo.12: PATELBHARATKUMAR@PADONARAYANBHAI (SessionsCaseNo.180/2002) ThisaccusedisidentifiedbeforetheCourtbyP.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66), P.W.5 ZubedabibiMahebubkhanBaloch(Exh.84),P.W.18Saiyed Nazirmiya Kalumiya (Exh.103), P.W.25 Mohmad Hanif AhmedkhanBaloch(Exh.134)andP.W.58Karishmabanu
// 828 //
Yusufkhan Pathan (Exh.502) whereas P.W.1 Fatehkhan Badarkhan Baloch (Exh.61) has in his statement dated 10.03.2002andP.W.2MahmadIqbalAhmedkhanBaloch (Exh.66)hasinhisstatementdated12.05.2008havestated theinvolvementofthisaccusedintheirstatementsbefore Visnagar Police. While as per Arrest and Recovery Panchnama, Panchas are hostile but Dhariya, having handle of wooden, was recovered from this accused on 07.05.2002,whichisnotshowntoanywitnessduringthe deposition of witnesses. Therefore, no reliance can be placedaboutthesaidMuddamalArticle. Now coming to the deposition of witnesses, P.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66) has not namedthisaccusedinhiscomplaint. P.W.5Zubedabibi MahebubkhanBaloch(Exh.84) hasstatedthat,shedoes notrememberthat,shehasstatedbeforeS.I.T./Police/in herfirsttimedepositionaboutthenameofthisaccused. P.W.18SaiyedNazirmiyaKalumiya(Exh.103)hasinhis crossexamination,hehasdeniedthat,hehasnotstated beforePolicethenameofthisaccused. P.W.25Mohmad Hanif Ahmedkhan Baloch (Exh.134) has in his second time deposition identified this accused. P.W.127
Imrankhan Sabirhusen Pathan (Exh.681) has identified thisaccusedinhisdepositionbeforetheCourt. P.W.175 GautamkumarVishnubhaiBarot(Exh.912) hasadmitted
// 829 //
that,ImranShabirkhanhasnotstatedbeforehimthat,this accusedwaspresentinthemob. Thus, considering the above evidence of witnesses regarding involvement of present accused, there is no evidenceindepositionofP.W.2MahmadIqbalAhmedkhan Baloch(Exh.66),P.W.5ZubedabibiMahebubkhanBaloch (Exh.84),P.W.18SaiyedNazirmiyaKalumiya(Exh.103)and P.W.25 Mohmad Hanif Ahmedkhan Baloch (Exh.134) involvingtheaccused,thereissimplyidentification.Even thesewitnesseshavenotmadeanystatementbeforePolice to involve this accused. Thus, simply on the basis of identification,thisaccusedcannotbeheldguilty. Itisnotindisputethat,theaccusedistheresidentof RandalMataMadh,DipraDarwaja.Fromtheevidenceof the complainant and witnesses, as discussed above they have only identified the accused. No overt act has been attributedbyanywitnesstothisaccused.Further,forthe firsttimeon10.03.2002,hisnamehasbeentakenbythe witness in the statement before the Police, till then the witnesses as well as complainant is silent about the involvementofthisaccused.Sofarasidentificationofthis accusedisconcerned,nodoubtwitnessesandaccusedare the resident of same locality therefore, question of IdentificationParadedoesnotsurviveanditcanbeinferred that,theyarewellknowntoeachother.Sofarasspecific
// 830 //
role as attributed by the witnesses is concerned, that is alsonotsatisfactorilyestablishedbytheprosecutionside. Therefore, the fact 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 established,requiresacquittal. Therefore, the defence of the accused that, he has falsely been involved in the crime, he is innocent one is acceptableintheeyeoflaw.
[295]
AccusedNo.13: PATEL RAKESHKUMAR @ RAKO AKHADIYAN DAHYALAL. (SessionsCaseNo.180/2002) ThisaccusedisidentifiedbeforetheCourtbyP.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66), P.W.7 Amzadkhan Mahmadkhan Baloch (Exh.86) and P.W.18 Saiyed Nazirmiya Kalumiya (Exh.103) whereas P.W.1 Fatehkhan Badarkhan Baloch (Exh.61) has in his statement dated 10.03.2002 and P.W.2 Mahmad Iqbal
// 831 //
Ahmedkhan Baloch (Exh.66) has in his statement dated 12.05.2008havestatedtheinvolvementofthisaccusedin theirstatementsbeforeVisnagarPolice.WhileasperArrest andRecoveryPanchnama,PanchasarehostilebutSword wasrecoveredfromthisaccusedon07.05.2002,whichis not shown to any witness during the deposition of witnesses.Therefore,noreliancecanbeplacedaboutthe saidMuddamalArticle. Now coming to the deposition of witnesses, P.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66) has not namedthisaccusedinhiscomplaint.P.W.7Amzadkhan Mahmadkhan Baloch (Exh.86) has in his cross examinationadmittedthat,thisaccusedisnotresidingin DipraDarwaja.Againincrossexaminationhehasdenied that, this accused is not residing in Dipra Darwaja. Therefore, this witness himself is not clear whether this accusedisresidinginDipraDarwajaornotandinthese circumstances,theIdentificationParadeoftheaccusedwas necessaryforincreasingtheprobativevalueoftheevidence of the witness. P.W.18 Saiyed Nazirmiya Kalumiya (Exh.103) has in his crossexamination, denied that, he has not stated before Police the name of this accused. P.W.48 Manubhai Karshanbhai Patel (Exh.228) has stated in his deposition that,Husenkhan Badarkhan has stated before him that, this accused was present in the mob with Sword. This witness has deposed that,
// 832 //
Amzadkhan has not stated before him the name of this accused.P.W.158NazirMahmadSuleman(Exh.812)has statedinhisdepositionthat,hehasarrestedthisaccused. So far as evidence of P.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66) is concerned, he has not stated about the involvement of this accused in his deposition.Thereissimplyidentificationoftheaccusedin theCourt.Complaintissilentabouttheinvolvementofthis accused in the incident, it is only on 12.05.2008 for the first time in his statement, complainant has involved the present accused, in such circumstances much reliance cannot be placed on his involvement of this accused. Corroborationfromotherevidencerequires.WhileP.W.7 Amzadkhan Mahmadkhan Baloch (Exh.86) is deposing abouttheinvolvementofthisaccusedintheincidentbut there is no statement of this witness before any Police involvingthepresentaccusedbutwhilethisaccusedhas notmentionedabouttheinvolvementofthisaccusedinthe incident in his statement before Investigating Officer P.W.48ManubhaiKarshanbhaiPatel(Exh.228).Thuson thebasisofthisevidence,accusedcannotbeheldguilty. SofarasevidenceofP.W.18SaiyedNazirmiyaKalumiya (Exh.103) is concerned, he has involved the present accused in the incident but no statement has been recorded. Considering the fact that, in his first time depositionhehasidentifiedthepresentaccusedbysaying
// 833 //
that,hecanidentifythepersonswhowereinthemoband also other persons. On perusing deposition, he has not stated whether this accused was in the mob. Simply by identificationinhisdeposition,wecannotsolelyrelyupon theevidenceofthesewitnesses. Itisnotindisputethat,theaccusedistheresidentof Bethak No Madh, Dipra Darwaja, Visnagar. From the evidence of the complainant and witnesses, as discussed above they have only identified the accused and not attributedtheroletothisaccused.Butforthefirsttimeon 10.03.2002,hisnamehasbeentakenbythewitnessinthe statement before the Police, till then the witnesses are silent about the involvement of this accused. So far as identification of this accused is concerned, here the accusedisresidinginseparateMahollawhilewitnessesare the resident of Chudivas, Dipra Darwaja and it is not explainedbythewitnessesthat,howtheyknowthepresent accused.Inthepresentsetofcircumstances,identification isnecessaryandthereisgraveirregularityonthepartof Investigating Officer M.K.Patel for not conducting IdentificationParade.IdentificationParadeofthisaccused if done during the course of investigation, it would have increased probative value of the evidence of the witness. Here, value become minimal. In these circumstances benefitisrequiredtobegiventotheaccused. Sofaras specific role as attributed by the witnesses is concerned,
// 834 //
thatisalsonotsatisfactorilyestablishedbytheprosecution side.Therefore,thefactremainsthat,itisnotsafetohold accusedguiltyonthebasisofgeneralallegations.Thereis noothermaterialonrecordagainstthepresentaccusedto show his involvement in the alleged offence. It would be hazardous to base a conviction only on the evidence of general allegations. It would be appropriate to acquit the accused. Therefore, the defence of the accused that, he has falsely been involved in the crime, he is innocent one is acceptableintheeyeoflaw. [296] AccusedNo.14: PATELSATISHKUMAR@MARSHALSHANTILAL (SessionsCaseNo.180/2002) ThisaccusedisidentifiedbeforetheCourtbyP.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66) and P.W.25 Mohmad Hanif Ahmedkhan Baloch (Exh.134) whereas P.W.5ZubedabibiMahebubkhanBaloch(Exh.84)hasin herstatementdated10.03.2002,andP.W.26Husenkhan Badarkhan Baloch (Exh.137) has in his statement dated 08.03.2002havestatedtheinvolvementofthisaccusedin theirstatementsbeforeVisnagarPolice.WhileasperArrest andRecoveryPanchnama,PanchasarehostilebutPlastic GallonofKeroseneofRedColourwasrecoveredfromthis accusedon07.05.2002,whichisnotshowntoanywitness
// 835 //
during the depositionofwitnesses.Therefore,noreliance canbeplacedaboutthesaidMuddamalArticle. Now coming to the deposition of witnesses, P.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66) has not namedthisaccusedinhiscomplaint. P.W.5Zubedabibi Mahebubkhan Baloch (Exh.84) has after declaring her Hostile,shehasadmittedthat,thisaccusedwasinthemob andsetonfiretheMaholla.Itisdeniedbyherthat,shehas not stated name of this accused in her statement dated 01.03.2002 before the Police. Karshanbhai Patel (Exh.228) P.W.48 Manubhai has deposed that,
Husenkhanhasstatedbeforehimthat,thisaccusedwas having Kerosene Gallon in his hands and he was in the mob. He has stated in his crossexamination that, Zubedabibi has not stated in her statement about the involvementofthisaccusedinthemob. So far as evidence of P.W.5 Zubedabibi Mahebubkhan Baloch (Exh.84) is concerned, it requires corroboration from other evidence and she is a Hostile witness. Itisnotindisputethat,theaccusedistheresidentof Bethak No Madh, Dipra Darwaja, Visnagar. From the evidence of the complainant and witnesses, as discussed above they have only identified the accused and not
// 836 //
attributedtheroletothisaccused.Butforthefirsttimeon 08.03.2002,hisnamehasbeentakenbythewitnessinthe statement before the Police, till then the witnesses are silent about the involvement of this accused. So far as identification of this accused is concerned, here the accusedisresidinginseparateMahollawhilewitnessesare the resident of Chudivas, Dipra Darwaja and it is not explainedbythewitnessesthat,howtheyknowthepresent accused.Inthepresentsetofcircumstances,identification isnecessaryandthereisgraveirregularityonthepartof Investigating Officer M.K.Patel for not conducting IdentificationParade.IdentificationParadeofthisaccused if done during the course of investigation, it would have increased probative value of the evidence of the witness. Here, value become minimal. In these circumstances benefitisrequiredtobegiventotheaccused. Sofaras specific role as attributed by the witnesses is concerned, thatisalsonotsatisfactorilyestablishedbytheprosecution side.Therefore,thefactremainsthat,itisnotsafetohold accusedguiltyonthebasisofgeneralallegations.Thereis noothermaterialonrecordagainstthepresentaccusedto show his involvement in the alleged offence. It would be hazardous to base a conviction only on the evidence of general allegations. It would be appropriate to acquit the accused.
// 837 //
Therefore, the defence of the accused that, he has falsely been involved in the crime, he is innocent one is acceptableintheeyeoflaw. [297] AccusedNo.15: PATELRANJITKUMAR@LALORAMBHAI (SessionsCaseNo.180/2002) ThisaccusedisidentifiedbeforetheCourtbyP.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66), P.W.4 AabidbhaiGulabkhanSindhi(Exh.71),P.W.7Amzadkhan Mahmadkhan Baloch (Exh.86), P.W.9 Rashidabibi Sattarbhai Baloch (Exh.88), P.W.18 Saiyed Nazirmiya Kalumiya (Exh.103), P.W.21 Shabbirkhan Ibrahimkhan (Exh.108), P.W.24 Shermahmad Dalubhai Sindhi (Exh.132), P.W.25 Mohmad Hanif Ahmedkhan Baloch (Exh.134),P.W.30ShabbirmiyaHasumiyaBelim(Exh.146), P.W.50SaidabibiMahmadhanifSindhi(Exh.302),P.W.52 Faridabanu Ahmedkhan Baloch (Exh.306) and P.W.58 KarishmabanuYusufkhanPathan(Exh.502)whereasP.W.9 Rashidabibi Sattarbhai Baloch (Exh.88) has in her statement dated 10.03.2002, P.W.18 Saiyed Nazirmiya Kalumiya(Exh.103)hasinhisstatementdated08.03.2002 beforePoliceaswellashisstatementbeforeS.I.T.,P.W.30 Shabbirmiya Hasumiya Belim (Exh.146) has in his statementdate08.03.2002,P.W.31AarifkhanYakubkhan Pathan (Exh.147) has in his statement dated 08.03.2002, P.W.50 SaidabibiMahmadhanifSindhi(Exh.302)hasin
// 838 //
his statement before S.I.T. stated the involvement of this accused in their statements beforeVisnagar Policewhile before S.I.T. they have stated that, their statements are correctoneexceptthetimeofincident.WhileasperArrest andRecoveryPanchnama,PanchasarehostilebutDhariya havinghandleofWoodenwasrecoveredfromthisaccused on07.05.2002,whichisnotshowntoanywitnessduring thedepositionofwitnesses.Therefore,noreliancecanbe placedaboutthesaidMuddamalArticle. Now coming to the deposition of witnesses, P.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66) has not namedthisaccusedinhiscomplaint.P.W.9Rashidabibi Sattarbhai Baloch (Exh.88) has stated in her deposition that,thisaccusedwaspresentinthemob.P.W.18Saiyed Nazirmiya Kalumiya (Exh.103) has stated in his depositionthat,thisaccusedwaspresentinthemobwith Dhariya. P.W.21 Shabbirkhan Ibrahimkhan (Exh.108) hasdeniedinhiscrossexaminationthat,inhisstatement beforePolice,hehasnotstatedthenameofthisaccused. P.W.48 Manubhai Karshanbhai Patel (Exh.228) has deposed that, Amzadkhan Ahmedkhan has not stated in his statement the name of this accused. He has further statedthat,ShabbirkhanIbrahimkhanhasalsonotstated the name of this accusedbeforehim. P.W.50Saidabibi Mahmadhanif Sindhi (Exh.302) has stated in her
// 839 //
depositionthat,thisaccusedwaspresentinthemobwith weapon. Considering the evidence of P.W.9 Rashidabibi Sattarbhai Baloch (Exh.88), P.W.18 Saiyed Nazirmiya Kalumiya (Exh.103) and P.W.50 Saidabibi Mahmadhanif Sindhi (Exh.302) have involved present accused in their statementbeforePoliceaswellasintheirdepositionbefore theCourt.P.W.30ShabbirmiyaHasumiyaBelim(Exh.146) andP.W.31AarifkhanYakubkhanPathan(Exh.147)have stated in their Police statement about the involvement of present accused. P.W.30 Shabbirmiya Hasumiya Belim (Exh.146) has also identified present accused before the Court. Thus, the evidenceagainstthepresentaccusedis sufficient. So far as involvement of present accused by P.W.21ShabbirkhanIbrahimkhan(Exh.108)isconcerned, hehasnotstatedbeforeP.W.48ManubhaiKarshanbhai Patel (Exh.228) about the involvement of this accused beforehim.Thus,thereissufficientevidence. So far as Muddamal article Dhariya, having wooden handleisconcerned,witnesseshavedeposedabouttheuse of Dhariya, by the accused but no identification of MuddamalArticletookplaceintheCourtandtherefore,no reliancecanbeplacedontheevidenceofrecoveryofSword. Therefore, the version of witness having Sword by this accusedinthemobcanbeconsideredforinvolvementof
// 840 //
this accused. Further, the fact that, this accused was presentinChudivasinthemob,atthetimeofoccurrence. Thewitnesses,asdiscussedabovehavestatedthepresence ofthisaccusedinthemob. Itisnotindisputethat,theaccusedistheresidentof RandalMataMadh,meaningthereby,heistheresidentof Dipra Darwaja area and witnesses are also resident of Chudivas, Dipra Darwaja, Visnagar. They are known to eachothersincepreviouslyhenceevidenceofwitnessescan safely be accepted as regards to the involvement of this accused and evidence of witnesses as discussed earlier havingseentheaccusedinthemobcannotbedoubtedat all.Onceitisestablishedandacceptedthat,witnessand accusedareresidentofsamelocality,wellknowntoeach other,onlyquestionrequiresaboutfalselyimplicationofthe accused.Thequestionofmakinganymistakeinthatregard doesnotarise.Itdoesnotpossibletoholdfalseimplication ofaccused.Thisaccusedisidentifiedbythewitnessesin theCourt.Therefore,ifnoIdentificationParadetookplace, by the Investigating Officer, that amounts irregularity on the part of I.O. Here, in the present case entering in Chudivasatthetimeofincidentitselfsuggestthecommon objectofthemobaswellasspecificroleattributedtothe accused.TherewasnoreasontoenterinChudivasatthat odd time. Therefore by becoming a member of unlawful assembly accused entered in Chudivas and incident of
// 841 //
pelting of stones, ransacking and burning of houses, abusingtheMuslimsandshoutingslogansoccurred.This fact itself suggest overt act in connection with common object of the mob. Meaning thereby accused had participatedinfurtheranceofcommonobjectofthemob. Therefore involvementofaccusediswellestablishedfrom theabovecircumstances.Thebasicdefenceofthisaccused in his further examination under Section 313 of Cr.P.C. that he has falsely been implicated is not satisfactorily explained and cannot be accepted. Further, there is no previous enmity with witnesses, why they will falsely implicate this accused. There is no reason to falsely implicate the accused. No one would falsely involve an innocentperson,keepingasidetherealculprit. [298] AccusedNo.16: PATELVIJAYKUMAR@BHANOCHANDRAKANTBHAI (SessionsCaseNo.180/2002) ThisaccusedisidentifiedbeforetheCourtbyP.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66) and P.W.18 Saiyed Nazirmiya Kalumiya (Exh.103) whereas P.W.1 Fatehkhan Badarkhan Baloch (Exh.61) has in his statement dated 10.03.2002, P.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66) has in statement dated 12.05.2008 and P.W.24 Shermahmad Dalubhai Sindhi (Exh.132)hasinhisstatementdated08.03.2002statedthe involvement of this accused in their statements before
// 842 //
Visnagar Police while before S.I.T. they have stated that, theirstatementsarecorrectoneexceptthetimeofincident. WhileasperArrestandRecoveryPanchnama,Panchasare hostile but Sword was recovered from this accused on 07.05.2002,whichisnotshowntoanywitnessduringthe deposition of witnesses. Therefore, no reliance can be placedaboutthesaidMuddamalArticle. Now coming to the deposition of witnesses, P.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66) has not named this accused in his complaint. P.W.18 Saiyed Nazirmiya Kalumiya (Exh.103) has stated in his deposition that, he has not stated the name of present accused in his Police Statement. P.W.24 Shermahmad Dalubhai Sindhi (Exh.132) has stated in his deposition that,thisaccusedwaspresentinthemobandarmedwith weapon and he is involved in killing and burning of 11 allegeddeceasedpersons.Asperthiswitness,thisaccused along with other accusedhad taken out the11 deceased persons and they were killed. As discussed earlier, this court has not accepted the said facts and therefore, narrationofthisfactcannotbeconsideredasspecificrole attributedtothisaccused. Considering above evidence, the witnesses have identified the accused in the Court. P.W.18 Saiyed Nazirmiya Kalumiya (Exh.103) has not stated about the
// 843 //
involvement of this accused in his any statement before Police. So far as statements of complainant dated 24.05.2008 and statement of P.W.24 Shermahmad Dalubhai Sindhi (Exh.132) are concerned, they have involvedthepresentaccusedintheincident. Involvement ofthisaccusedenteringinChudivas,settingonfire,pelting stones, armed with weapon is to be relied upon. Thus, thereisinvolvementofthisaccusedbythiswitnesses. So far as Muddamal article Sword is concerned, witnesses have deposed about the use of Sword, by the accused but no identification of Muddamal Article took placeintheCourtandtherefore,noreliancecanbeplaced ontheevidenceofrecoveryofSword.Therefore,theversion ofwitnesshavingSwordbythisaccusedinthemobcanbe considered for involvement of this accused. Further, the factthat,thisaccusedwaspresentinChudivasinthemob, at the time of occurrence. The witnesses, as discussed abovehavestatedthepresenceofthisaccusedinthemob. Itisnotindisputethat,theaccusedistheresidentof Dipra Darwaja area, near the office of the Health Department,meaningthereby,heistheresidentofDipra DarwajaareaandwitnessesarealsoresidentofChudivas, Dipra Darwaja, Visnagar. They are known to each other sincepreviouslyhenceevidenceofwitnessescansafelybe acceptedasregardstotheinvolvementofthisaccusedand
// 844 //
evidenceofwitnessesasdiscussedearlierhavingseenthe accused in 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 questionrequiresaboutfalselyimplicationoftheaccused. Thequestionofmakinganymistakeinthatregarddoesnot arise. It does not possible to hold false implication of accused.Thisaccusedisidentifiedbythewitnessesinthe Court.Therefore,ifnoIdentificationParadetookplace,by theInvestigatingOfficer,thatamountsirregularityonthe partofI.O.Here,inthepresentcaseenteringinChudivas atthetimeofincidentitselfsuggestthecommonobjectof themobaswellasspecificroleattributedtotheaccused. TherewasnoreasontoenterinChudivasatthatoddtime. Therefore by becoming a member of unlawful assembly accused entered in Chudivas and incident of pelting of stones, ransacking and burning of houses, abusing the Muslims and shouting slogans occurred. This fact itself suggestovertactinconnectionwithcommonobjectofthe mob. Meaning thereby accused had participated in furtherance of common object of the mob. Therefore involvementofaccusediswellestablishedfromtheabove circumstances. The basic defence of this accused in his furtherexaminationunderSection313 ofCr.P.C.thathe has falsely been implicated is not satisfactorily explained and cannot be accepted. Further, there is no previous enmitywithwitnesses,whytheywillfalselyimplicatethis
// 845 //
accused. There is no reason to falsely implicate the accused.Noonewouldfalselyinvolveaninnocentperson, keepingasidetherealculprit. Sofarasdefenceoftheaccusedasnarratedbyhimin hisF.S.that,heisfalselybeenimplicatedinthecrimeis notacceptable. [299] AccusedNo.17: PATELRAGNESHKUMAR@LALOKANTILAL (SessionsCaseNo.180/2002) ThisaccusedisidentifiedbeforetheCourtbyP.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66), P.W.7 AmzadkhanMahmadkhanBaloch(Exh.86),P.W.18Saiyed Nazirmiya Kalumiya (Exh.103), P.W.21 Shabbirkhan Ibrahimkhan (Exh.108), P.W.25 Mohmad Hanif Ahmedkhan Baloch (Exh.134), P.W.50 Saidabibi Mahmadhanif Sindhi (Exh.302), P.W.51 Aminabibi Ahmedkhan Baloch (Exh.303), P.W.52 Faridabanu Ahmedkhan Baloch (Exh.306) and P.W.127 Imrankhan SabirhusenPathan(Exh.681)whereasP.W.7Amzadkhan MahmadkhanBaloch(Exh.86)hasinhisstatementdated 10.03.2002 and P.W.23 Ahmedmiya Hasumiya Belim (Exh.128)hasinhisstatementdated08.03.2002statedthe involvement of this accused in their statements before Visnagar Police while before S.I.T. they have stated that, theirstatementsarecorrectoneexceptthetimeofincident.
// 846 //
WhileasperArrestandRecoveryPanchnama,Panchasare hostile but Short Spear having handle of Wooden was recovered from this accused on 07.05.2002, which is not showntoanywitnessduringthedepositionofwitnesses. Therefore, no reliance can be placed about the said MuddamalArticle. Now coming to the deposition of witnesses, P.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66) has not namedthisaccusedinhiscomplaint. P.W.5Zubedabibi Mahebubkhan Baloch (Exh.84) has stated that, he does notrememberthat,hehasstatedthenameofthisaccused before the Police. P.W.7 Amzadkhan Mahmadkhan Baloch(Exh.86) hasstatedthat,thisaccusedwashaving ShortSpearwithhim.Hehasadmittedthat,hehasstated beforeS.I.T.that,thereisRagneshkumarKantilalinstead ofRajeshkumarKantilal. P.W.23AhmedmiyaHasumiya Belim(Exh.128)hasdeniedthat,hehasnotstatedbefore thePolicethat,thisaccusedwashavingSwordwithhim. So far as evidence of P.W.7 Amzadkhan Mahmadkhan Baloch (Exh.86) and P.W.23 Ahmedmiya HasumiyaBelim(Exh.128)areconcerned,theyhavestated about the involvement of this accused in the incident in their statements dated 08.03.2002 and 10.03.2002 respectivelyandtheyhavealsodeposedbeforetheCourt, involving the present accused, nothing has been brought
// 847 //
from their crossexamination, from which we can discard thesayofthesetwowitnessesintheirchiefexaminations about the involvement of this accused. So far as P.W.5 Zubedabibi Mahebubkhan Baloch (Exh.84) is concerned, thereisnoevidencetoconnecttheaccusedwithcrime,nor eveninheranystatementbeforePolice,shehasinvolved presentaccused.Thus,thereissufficientevidenceagainst presentaccused. So far as Muddamal article Short Spear, having woodenhandleisconcerned,witnesseshavedeposedabout the use of Short Spear, by the accused but no identificationofMuddamalArticletookplaceintheCourt andtherefore,noreliancecanbeplacedontheevidenceof recoveryofSword.Therefore,theversionofwitnesshaving Sword by this accused inthe mobcan be considered for involvement of this accused. Further, the fact that, this accusedwaspresentinChudivasinthemob,atthetimeof occurrence.Thewitnesses,asdiscussedabovehavestated thepresenceofthisaccusedinthemob. Itisnotindisputethat,theaccusedistheresidentof RandalMataMadh,meaningthereby,heistheresidentof Dipra Darwaja area and witnesses are also resident of Chudivas, Dipra Darwaja, Visnagar. They are known to eachothersincepreviouslyhenceevidenceofwitnessescan safely be accepted as regards to the involvement of this
// 848 //
accused and evidence of witnesses as discussed earlier havingseentheaccusedinthemobcannotbedoubtedat all.Onceitisestablishedandacceptedthat,witnessand accusedareresidentofsamelocality,wellknowntoeach other,onlyquestionrequiresaboutfalselyimplicationofthe accused.Thequestionofmakinganymistakeinthatregard doesnotarise.Itdoesnotpossibletoholdfalseimplication ofaccused.Thisaccusedisidentifiedbythewitnessesin theCourt.Therefore,ifnoIdentificationParadetookplace, by the Investigating Officer, that amounts irregularity on the part of I.O. Here, in the present case entering in Chudivasatthetimeofincidentitselfsuggestthecommon objectofthemobaswellasspecificroleattributedtothe accused.TherewasnoreasontoenterinChudivasatthat odd time. Therefore by becoming a member of unlawful assembly accused entered in Chudivas and incident of pelting of stones, ransacking and burning of houses, abusingtheMuslimsandshoutingslogansoccurred.This fact itself suggest overt act in connection with common object of the mob. Meaning thereby accused had participatedinfurtheranceofcommonobjectofthemob. Therefore involvementofaccusediswellestablishedfrom theabovecircumstances.Thebasicdefenceofthisaccused in his further examination under Section 313 of Cr.P.C. that he has falsely been implicated is not satisfactorily explained and cannot be accepted. Further, there is no previous enmity with witnesses, why they will falsely
// 849 //
implicate this accused. There is no reason to falsely implicate the accused. No one would falsely involve an innocentperson,keepingasidetherealculprit.
Sofarasdefenceoftheaccusedasnarratedbyhimin hisF.S.that,heisfalselybeenimplicatedinthecrimeis notacceptable. [300] AccusedNo.18: PATELNIKESHKUMAR@NIKOKACHARABHAI (SessionsCaseNo.180/2002) ThisaccusedisidentifiedbeforetheCourtbyP.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66), P.W.11 Anvarhusen Shabbirhusen Pathan (Exh.91) and P.W.18 Saiyed Nazirmiya Kalumiya (Exh.103) whereas P.W.9 Rashidabibi Sattarbhai Baloch (Exh.88) has in his statementdated10.03.2002andbeforeS.I.T.,andP.W.32 MahmadhanifDalubhaiSindhi(Exh.150)hasstatedinhis statementdated08.03.2002statedtheinvolvementofthis accused in their statements beforeVisnagar Policewhile before S.I.T. they have stated that, their statements are correctoneexceptthetimeofincident.WhileasperArrest andRecoveryPanchnama,PanchasarehostilebutDhariya havingIronPipeHandlewasrecoveredfromthisaccused on07.05.2002,whichisnotshowntoanywitnessduring thedepositionofwitnesses.Therefore,noreliancecanbe placedaboutthesaidMuddamalArticle.
// 850 //
Now coming to the deposition of witnesses, P.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66) has not namedthisaccusedinhiscomplaint.P.W.11Anvarhusen ShabbirhusenPathan(Exh.91)hasidentifiedthisaccused before the Court. This witness is silent in his first time deposition about involvement of this accused. No statement has been recorded of this witness regarding involvementofthisaccused. Itisnotindisputethat,theaccusedistheresidentof RandalMataMadh,DipraDarwaja.Fromtheevidenceof the complainant and witnesses, as discussed above they haveonlyidentifiedtheaccusedandnotattributedtherole to this accused. Thereisno statement ofthiswitnessin whichnameofthisaccusedhasbeenrecordedbythePolice andallotherwitnessesaresilentabouttheinvolvementof this accused. So far as identification of this accused is concerned, no doubt witnesses and accused are the residentofsamelocalitytherefore,questionofIdentification Paradedoesnotsurviveanditcanbeinferredthat,they are well known to each other. So far as specific role as attributedbythewitnessesisconcerned,thatisalsonot satisfactorilyestablishedbytheprosecutionside.Therefore, thefactremainsthat,itisnotsafetoholdaccusedguilty on the basis of general allegations. There is no other materialonrecordagainstthepresentaccusedtoshowhis
// 851 //
involvementintheallegedoffence.Itwouldbehazardousto base a conviction only on the evidence of general allegations.Itwouldbeappropriatetogivebenefitofdoubt andacquittheaccused.Inmyopinionthoughtheirexist strongsuspicion againsttheaccuseditisnotpossibleto hold that, his involvement in the offence is established, requiresacquittal. Therefore, the defence of the accused that, he has falsely been involved in the crime, he is innocent one is acceptableintheeyeoflaw. [301] AccusedNo.19: PATELANANDKUMAR@BAKOBHOGILAL (SessionsCaseNo.180/2002) ThisaccusedisidentifiedbeforetheCourtbyP.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66), P.W.5 Zubedabibi Mahebubkhan Baloch (Exh.84), P.W.7 AmzadkhanMahmadkhanBaloch(Exh.86),P.W.18Saiyed Nazirmiya Kalumiya (Exh.103), P.W.21 Shabbirkhan Ibrahimkhan (Exh.108), P.W.25 Mohmad Hanif Ahmedkhan Baloch (Exh.134), P.W.30 Shabbirmiya Hasumiya Belim (Exh.146), P.W.50 Saidabibi Mahmadhanif Sindhi (Exh.302), P.W.52 Faridabanu AhmedkhanBaloch(Exh.306)andP.W.58Karishmabanu YusufkhanPathan(Exh.502)whereasP.W.7Amzadkhan MahmadkhanBaloch(Exh.86)hasinhisstatementdated
// 852 //
10.03.2002 and P.W.25 Mohmad Hanif Ahmedkhan Baloch (Exh.134) has in his statement dated 08.03.2002 statedtheinvolvementofthisaccusedintheirstatements beforeVisnagarPolicewhilebeforeS.I.T.theyhavestated that, their statements are correct one except the time of incident. While as per Arrest and Recovery Panchnama, Panchas are hostile but Trishul was recovered from this accusedon07.05.2002,whichisnotshowntoanywitness during the depositionofwitnesses.Therefore,noreliance canbeplacedaboutthesaidMuddamalArticle. Now coming to the deposition of witnesses, P.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66) has not namedthisaccusedinhiscomplaint. P.W.5Zubedabibi MahebubkhanBaloch(Exh.84)hasafterdeclaringHostile, in her crossexamination by prosecution side, she has identifiedthepresentaccused.Inhercrossexaminationby accusedside,shehasdeposedthat,inherPoliceStatement she has stated the name of this accused. In her second timedepositionshehasstatedthat,shedoesnotremember whether she has stated before Visnagar Police / S.I.T. / beforetheCourtinherfirsttimedepositionaboutthename of this accused. P.W.48 Manubhai Karshanbhai Patel (Exh.228) has deposed that, this witness has not stated beforehimabouttheinvolvementofthisaccused. P.W.7 Amzadkhan Mahmadkhan Baloch (Exh.86) has deposed thenameofthisaccusedandhasstatedthat,hehadseen
// 853 //
theaccusedatthetimeofincident.Shehasdeposedthat, this accused was having Trishul in his hands. P.W.18 Saiyed Nazirmiya Kalumiya (Exh.103) hasstatedin his deposition that, he has not stated the name of present accused in his Police Statement. P.W.21 Shabbirkhan Ibrahimkhan(Exh.108) hasidentifiedthisaccusedbefore theCourt.Shehasdeniedthat,shehasnotstatedinher statement before Police about the name of this accused. P.W.48 Manubhai Karshanbhai Patel (Exh.228) has deposed that, this witness has not deposed before him about the involvement of this accused in the incident. P.W.25 Mohmad Hanif Ahmedkhan Baloch (Exh.134) has deposed that, this accused was having Trishul with him. He has further stated that, this accused is the residentofRandalMataMadh,DipraDarwajaandhewas havingTrishulwithhim.P.W.50SaidabibiMahmadhanif Sindhi (Exh.302) has deposed that, this accused along withotheraccusedarmedwithdeadlyweaponsenteredin theMaholla.Inhersecondtimedepositionshehasdeposed the name of this accused about his involvement in the incident. So far as Muddamal article Trishul is concerned, witnesses have deposed about the use of Trishul by the accused but no identification of Muddamal Article took placeintheCourtandtherefore,alsonoreliancecanbe placed on the evidence ofrecovery ofTrishul. Therefore,
// 854 //
theversionofwitnessregardingtheuseofweaponbythis accusedinthemobcanbeconsideredforinvolvementof this accused. Further, the fact that, this accused was presentinChudivasinthemob,atthetimeofoccurrence. Thewitnesses,asdiscussedabovehavestatedthepresence ofthisaccusedinthemob. Itisnotindisputethat,theaccusedistheresidentof RandalMataMadh,meaningthereby,heistheresidentof Dipra Darwaja area and witnesses are also resident of Chudivas, Dipra Darwaja, Visnagar. They are known to eachothersincepreviouslyhenceevidenceofwitnessescan safely be accepted as regards to the involvement of this accused and evidence of witnesses as discussed earlier havingseentheaccusedinthemobcannotbedoubtedat all.Onceitisestablishedandacceptedthat,witnessand accusedareresidentofsamelocality,wellknowntoeach other,onlyquestionrequiresaboutfalselyimplicationofthe accused.Thequestionofmakinganymistakeinthatregard doesnotarise.Itdoesnotpossibletoholdfalseimplication ofaccused.Thisaccusedisidentifiedbythewitnessesin theCourt.Therefore,ifnoIdentificationParadetookplace, by the Investigating Officer, that amounts irregularity on the part of I.O. Here, in the present case entering in Chudivasatthetimeofincidentitselfsuggestthecommon objectofthemobaswellasspecificroleattributedtothe accused.TherewasnoreasontoenterinChudivasatthat
// 855 //
odd time. Therefore by becoming a member of unlawful assembly accused entered in Chudivas and incident of pelting of stones, ransacking and burning of houses, abusingtheMuslimsandshoutingslogansoccurred.This fact itself suggest overt act in connection with common object of the mob. Meaning thereby accused had participatedinfurtheranceofcommonobjectofthemob. Therefore involvementofaccusediswellestablishedfrom theabovecircumstances.Thebasicdefenceofthisaccused in his further examination under Section 313 of Cr.P.C. that he has falsely been implicated is not satisfactorily explained and cannot be accepted. Further, there is no previous enmity with witnesses, why they will falsely implicate this accused. There is no reason to falsely implicate the accused. No one would falsely involve an innocentperson,keepingasidetherealculprit. Sofarasdefenceoftheaccusedasnarratedbyhimin hisF.S.that,heisfalselybeenimplicatedinthecrimeis notacceptable. [302] AccusedNo.20: PATELJAYESHKUMARBABULAL (SessionsCaseNo.180/2002) ThisaccusedisidentifiedbeforetheCourtbyP.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66), P.W.5 Zubedabibi Mahebubkhan Baloch (Exh.84), P.W.7
// 856 //
Amzadkhan Mahmadkhan Baloch (Exh.86), P.W.21 Shabbirkhan Ibrahimkhan (Exh.108), P.W.25 Mohmad Hanif Ahmedkhan Baloch (Exh.134), P.W.29 Hanifabibi Shabbirbhai Pathan (Exh.144), P.W.52 Faridabanu Ahmedkhan Baloch (Exh.306) and P.W.127 Imrankhan SabirhusenPathan(Exh.681)whereasP.W.9Rashidabibi Sattarbhai Baloch (Exh.88) has in his statement dated 10.03.2002 and before S.I.T., P.W.29 Hanifabibi ShabbirbhaiPathan(Exh.144)hasstatedinhisstatement dated08.03.2002,P.W.32MahmadhanifDalubhaiSindhi (Exh.150)hasstatedinhisstatementdated08.03.2002and P.W.33AnvarkhanBasirkhanBaloch(Exh.166)hasinhis statementdated08.03.2002statedtheinvolvementofthis accused in their statements beforeVisnagar Policewhile before S.I.T. they have stated that, their statements are correctoneexceptthetimeofincident.WhileasperArrest andRecoveryPanchnama,PanchasarehostilebutSword wasrecoveredfromthisaccusedon07.05.2002,whichis not shown to any witness during the deposition of witnesses.Therefore,noreliancecanbeplacedaboutthe saidMuddamalArticle. Now coming to the deposition of witnesses, P.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66) has not namedthisaccusedinhiscomplaint. P.W.5Zubedabibi MahebubkhanBaloch(Exh.84) hasafterdeclaringheras Hostile,shehasstatedinhercrossexaminationthat,this
// 857 //
accusedwaspresentinthemob.Shehasdeposedthat,she has stated the name of this accused in the Police Statement. P.W.7 Amzadkhan Mahmadkhan Baloch (Exh.86) hasdeniedthat,hehasnotstatedthenameof this accused in his any of the statement, while the InvestigatingOfficerhasstatedthat,thiswitnesshasnot stated the name of this accused in his statement before him.Thus,thereiscontradictionaboutthepresenceofthis accused in the mob. P.W.9 Rashidabibi Sattarbhai Baloch (Exh.88) has stated in his deposition that, this accusedwasinthemobandhewasinvolvedinransacking, pouring kerosene and burning the houses. However, she has not identified this accused before the Court and therefore, her say about the involvement of this accused cannotbeacceptedintheeyeofLaw.P.W.21Shabbirkhan Ibrahimkhan (Exh.108) has in his crossexamination denied that, he has not mentioned the name of this accused in his Policestatement,while theInvestigating Officerhas deposedthat,thiswitnesshasnotstatedthe nameofthisaccusedinhisstatementdated02.03.2002, beforehim.Thus,thereiscontradictoryversionaboutthe presenceofthisaccusedinthemob. P.W.29Hanifabibi ShabbirbhaiPathan(Exh.144)hasstatedinherdeposition that, shehad sustainedinjuriesinDhariyablow,bythis accusedandstitchesweretakenonHeadbutonverifying the medical evidence, this injury is not corroborated
// 858 //
thoughshehasidentifiedtheaccusedbeforetheCourtand therefore,herthisversioncannotbeaccepted.Further,in depositionoftheInvestigatingOfficer,hehasstatedthat, she has not stated this fact before him. P.W.32 Mahmadhanif Dalubhai Sindhi (Exh.150) has stated in hiscrossexaminationthat,hedoesnotrememberthat,in the statement dated 08.03.2002 before Police he has mentionedthat,thisaccusedwasinthemobhavingSword inhishands. So far as evidence of P.W.5 Zubedabibi Mahebubkhan Baloch (Exh.84) is concerned, he has identifiedtheaccusedbutinheranyofstatementbefore thePolice,shehasnotinvolvedtheaccusedintheincident Consideringherevidence,corroborationrequires. P.W.7 AmzadkhanMahmadkhanBaloch(Exh.86)hasnotstated about the involvement of this accused in his statement before Investigating Officer. While P.W.9 Rashidabibi Sattarbhai Baloch (Exh.88) has identified the accused beforetheCourtaswellasstatedabouttheinvolvementof the accused in ransacking and burning the houses and entering in the Maholla, in her statement before Police. P.W.21ShabbirkhanIbrahimkhan(Exh.108)hasnotstated abouttheinvolvementofthisaccusedbeforePolice.Sofar as P.W.29 Hanifabibi Shabbirbhai Pathan (Exh.144) is concerned she had not stated the involvement of this accusedbeforeInvestigatingOfficer.P.W.32Mahmadhanif
// 859 //
Dalubhai Sindhi (Exh.150) has stated about the involvement of this accused in the incident, in his statement before Police. There is nothing in their cross examination of P.W.9 Rashidabibi Sattarbhai Baloch (Exh.88),P.W.29HanifabibiShabbirbhaiPathan(Exh.144) and P.W.32 Mahmadhanif Dalubhai Sindhi (Exh.150), from which we can disregard the involvement of present accusedintheincident.Thus,thereissufficientevidence againstpresentaccused. So far as Muddamal article Sword is concerned, witnesses have deposed about the use of Sword by the accused but no identification of Muddamal Article took placeintheCourtandtherefore,alsonoreliancecanbe placed on the evidence ofrecovery ofTrishul. Therefore, theversionofwitnessregardingtheuseofweaponbythis accusedinthemobcanbeconsideredforinvolvementof this accused. Further, the fact that, this accused was presentinChudivasinthemob,atthetimeofoccurrence. Thewitnesses,asdiscussedabovehavestatedthepresence ofthisaccusedinthemob. Itisnotindisputethat,theaccusedistheresidentof RandalMataMadh,meaningthereby,heistheresidentof Dipra Darwaja area and witnesses are also resident of Chudivas, Dipra Darwaja, Visnagar. They are known to eachothersincepreviouslyhenceevidenceofwitnessescan
// 860 //
safely be accepted as regards to the involvement of this accused and evidence of witnesses as discussed earlier havingseentheaccusedinthemobcannotbedoubtedat all.Onceitisestablishedandacceptedthat,witnessand accusedareresidentofsamelocality,wellknowntoeach other,onlyquestionrequiresaboutfalselyimplicationofthe accused.Thequestionofmakinganymistakeinthatregard doesnotarise.Itdoesnotpossibletoholdfalseimplication ofaccused.Thisaccusedisidentifiedbythewitnessesin theCourt.Therefore,ifnoIdentificationParadetookplace, by the Investigating Officer, that amounts irregularity on the part of I.O. Here, in the present case entering in Chudivasatthetimeofincidentitselfsuggestthecommon objectofthemobaswellasspecificroleattributedtothe accused.TherewasnoreasontoenterinChudivasatthat odd time. Therefore by becoming a member of unlawful assembly accused entered in Chudivas and incident of pelting of stones, ransacking and burning of houses, abusingtheMuslimsandshoutingslogansoccurred.This fact itself suggest overt act in connection with common object of the mob. Meaning thereby accused had participatedinfurtheranceofcommonobjectofthemob. Therefore involvementofaccusediswellestablishedfrom theabovecircumstances.Thebasicdefenceofthisaccused in his further examination under Section 313 of Cr.P.C. that he has falsely been implicated is not satisfactorily explained and cannot be accepted. Further, there is no
// 861 //
previous enmity with witnesses, why they will falsely implicate this accused. There is no reason to falsely implicate the accused. No one would falsely involve an innocentperson,keepingasidetherealculprit. Sofarasdefenceoftheaccusedasnarratedbyhimin hisF.S.that,heisfalselybeenimplicatedinthecrimeis notacceptable. [303] AccusedNo.21: PATELHIRENKUMAR@LALOBABULAL (SessionsCaseNo.180/2002) ThisaccusedisidentifiedbeforetheCourtbyP.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66), P.W.5 ZubedabibiMahebubkhanBaloch(Exh.84),P.W.18Saiyed Nazirmiya Kalumiya (Exh.103), P.W.21 Shabbirkhan Ibrahimkhan (Exh.108), P.W.25 Mohmad Hanif Ahmedkhan Baloch (Exh.134), P.W.32 Mahmadhanif Dalubhai Sindhi (Exh.150), P.W.52 Faridabanu AhmedkhanBaloch(Exh.306)andP.W.58Karishmabanu YusufkhanPathan(Exh.502)whereasP.W.11Anvarhusen ShabbirhusenPathan(Exh.91)hasinhisstatementdated 10.03.2002, P.W.29 Hanifabibi Shabbirbhai Pathan (Exh.144) has in his statement dated 08.03.2002 and P.W.30ShabbirmiyaHasumiyaBelim(Exh.146)hasinhis statementdated08.03.2002statedtheinvolvementofthis accused in their statements beforeVisnagar Policewhile
// 862 //
before S.I.T. they have stated that, their statements are correctoneexceptthetimeofincident.WhileasperArrest andRecoveryPanchnama,PanchasarehostilebutSword wasrecoveredfromthisaccusedon07.05.2002,whichis not shown to any witness during the deposition of witnesses.Therefore,noreliancecanbeplacedaboutthe saidMuddamalArticle. Now coming to the deposition of witnesses, P.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66) has not namedthisaccusedinhiscomplaint,involvedinthemob. P.W.5 Zubedabibi Mahebubkhan Baloch (Exh.84) has afterdeclaringherasHostile,shehasstatedinhercross examination that, this accused was present in the mob. P.W.11AnvarhusenShabbirhusenPathan(Exh.91) has afterdeclaringhimasHostile,hasinhiscrossexamination admitted the presenceof thisaccusedwith Sword inthe mob. P.W.48 Manubhai Karshanbhai Patel (Exh.228) hasdeposedinhiscrossexaminationthat,MahmadHanif Mahmadbhai has not stated the involvement of this accused in the mob about setting on fire the House of AkbarmiyaKalumiyaanddamagetoAutoRickshaw. So far as the evidence of P.W.11 Anvarhusen ShabbirhusenPathan(Exh.91)isconcerned,hehasstated in his statement dated 10.03.2002 regarding the involvementofthisaccused,inthatcircumstancesP.W.5
// 863 //
Zubedabibi Mahebubkhan Baloch (Exh.84) and P.W.11 AnvarhusenShabbirhusenPathan(Exh.91),thoughHostile intheircrossexaminationinvolvestheaccused.Thereisno other evidence sufficient to indulge the accused with the crime. Itisnotindisputethat,theaccusedistheresidentof RandalMataMadh,DipraDarwaja.Fromtheevidenceof the complainant and witnesses, as discussed above they haveonlyidentifiedtheaccusedandnotattributedtherole tothisaccused.Butforthefirsttimeon08.03.2002,his name has been taken by the witness in the statement beforethePolice,tillthenthewitnessesare silentabout theinvolvementofthisaccused.Sofarasidentificationof thisaccusedisconcerned,nodoubtwitnessesandaccused are the resident of same locality therefore, question of IdentificationParadedoesnotsurviveanditcanbeinferred that,theyarewellknowntoeachother.Sofarasspecific role as attributed by the witnesses is concerned, that is alsonotsatisfactorilyestablishedbytheprosecutionside. Therefore, the fact 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
// 864 //
their exist strong suspicion against the accused it is not possible to hold that, his involvement in the offence is established,requiresacquittal. Therefore, the defence of the accused that, he has falsely been involved in the crime, he is innocent one is acceptableintheeyeoflaw. [304] AccusedNo.22: PATELJAYESHKUMARKANTILAL (SessionsCaseNo.180/2002) ThisaccusedisidentifiedbeforetheCourtbyP.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66), P.W.7 Amzadkhan Mahmadkhan Baloch (Exh.86), P.W.9 RashidabibiSattarbhaiBaloch(Exh.88),P.W.25Mohmad Hanif Ahmedkhan Baloch (Exh.134) and P.W.52 FaridabanuAhmedkhanBaloch(Exh.306)whereasP.W.9 Rashidabibi Sattarbhai Baloch (Exh.88) has in his statement dated 10.03.2002 and P.W.32 Mahmadhanif Dalubhai Sindhi (Exh.150) has in his statement dated 08.03.2002statedtheinvolvementofthisaccusedintheir statements before Visnagar Police while before S.I.T. they have stated that, their statements are correct one except the time of incident. While as per Arrest and Recovery Panchnama,PanchasarehostilebutSwordwasrecovered from this accused on 07.05.2002, which is not shown to anywitnessduringthedepositionofwitnesses.Therefore,
// 865 //
noreliancecanbeplacedaboutthesaidMuddamalArticle. Now coming to the deposition of witnesses, P.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66) has not namedthisaccusedinhiscomplaint.P.W.7Amzadkhan MahmadkhanBaloch(Exh.86) istheinjuredeyewitness, he sustained injuries on his head. Medical Evidence supportstheinjuryonhisHead.Nothinghasbeenbrought out in his crossexamination to discard his say. P.W.9 RashidabibiSattarbhaiBaloch(Exh.88)hasstatedinher depositionthat,thisaccusedwasverymuchinvolvedwith themobinsettingonfire.Nothinghasbeenbroughtinher crossexaminationfromwhichwecandisregardthesayof this witness about the involvement of this accused, as alleged. P.W.32 Mahmadhanif Dalubhai Sindhi
(Exh.150)hasstatedinhiscrossexaminationthat,hedoes not remember that, in the statement dated 08.03.2002 beforePolicehehasmentionedthat,thisaccusedwasin the mob having Swordin hishands. P.W.48 Manubhai Karshanbhai Patel (Exh.228) has stated in his cross examination that, Amzadkhan Mahmadkhan has not stated the name of this accused in his statement before him. So far as Muddamal article Sword is concerned, witnesses have deposed about the use of Sword, by the accused but no identification of Muddamal Article took
// 866 //
placeintheCourtandtherefore,noreliancecanbeplaced ontheevidenceofrecoveryofSword.Therefore,theversion ofwitnesshavingSwordbythisaccusedinthemobcanbe considered for involvement of this accused. Further, the factthat,thisaccusedwaspresentinChudivasinthemob, at the time of occurrence. The witnesses, as discussed abovehavestatedthepresenceofthisaccusedinthemob. Itisnotindisputethat,theaccusedistheresidentof RandalMataMadh,meaningthereby,heistheresidentof Dipra Darwaja area and witnesses are also resident of Chudivas, Dipra Darwaja, Visnagar. They are known to eachothersincepreviouslyhenceevidenceofwitnessescan safely be accepted as regards to the involvement of this accused and evidence of witnesses as discussed earlier havingseentheaccusedinthemobcannotbedoubtedat all.Onceitisestablishedandacceptedthat,witnessand accusedareresidentofsamelocality,wellknowntoeach other,onlyquestionrequiresaboutfalselyimplicationofthe accused.Thequestionofmakinganymistakeinthatregard doesnotarise.Itdoesnotpossibletoholdfalseimplication ofaccused.Thisaccusedisidentifiedbythewitnessesin theCourt.Therefore,ifnoIdentificationParadetookplace, by the Investigating Officer, that amounts irregularity on the part of I.O. Here, in the present case entering in Chudivasatthetimeofincidentitselfsuggestthecommon objectofthemobaswellasspecificroleattributedtothe
// 867 //
accused.TherewasnoreasontoenterinChudivasatthat odd time. Therefore by becoming a member of unlawful assembly accused entered in Chudivas and incident of pelting of stones, ransacking and burning of houses, abusingtheMuslimsandshoutingslogansoccurred.This fact itself suggest overt act in connection with common object of the mob. Meaning thereby accused had participatedinfurtheranceofcommonobjectofthemob. Therefore involvementofaccusediswellestablishedfrom theabovecircumstances.Thebasicdefenceofthisaccused in his further examination under Section 313 of Cr.P.C. that he has falsely been implicated is not satisfactorily explained and cannot be accepted. Further, there is no previous enmity with witnesses, why they will falsely implicate this accused. There is no reason to falsely implicate the accused. No one would falsely involve an innocentperson,keepingasidetherealculprit. Sofarasdefenceoftheaccusedasnarratedbyhimin hisF.S.that,heisfalselybeenimplicatedinthecrimeis notacceptable. [305] AccusedNo.23: PATELNITINKUMAR@SALMANVISHNUBHAI. (SessionsCaseNo.180/2002) ThisaccusedisidentifiedbeforetheCourtbyP.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66), P.W.5 ZubedabibiMahebubkhanBaloch(Exh.84),P.W.18Saiyed
// 868 //
Nazirmiya Kalumiya (Exh.103) and P.W.52 Faridabanu AhmedkhanBaloch(Exh.306)whereasP.W.11Anvarhusen ShabbirhusenPathan(Exh.91)hasinhisstatementdated 10.03.2002, P.W.30 Shabbirmiya Hasumiya Belim (Exh.146) has in his statement dated 08.03.2002 and P.W.33AnvarkhanBasirkhanBaloch(Exh.166)hasinhis statementdated08.03.2002statedtheinvolvementofthis accused in their statements beforeVisnagar Policewhile before S.I.T. they have stated that, their statements are correctoneexceptthetimeofincident.WhileasperArrest andRecoveryPanchnama,PanchasarehostilebutSword wasrecoveredfromthisaccusedon07.05.2002,whichis not shown to any witness during the deposition of witnesses.Therefore,noreliancecanbeplacedaboutthe saidMuddamalArticle. Now coming to the deposition of witnesses, P.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66) has not namedthisaccusedinhiscomplaint. P.W.5Zubedabibi Mahebubkhan Baloch (Exh.84) has stated in her cross examinationthat,shedoesnotrememberwhethershehas stated the name of this accused in her statement before VisnagarPoliceorS.I.T.orfirsttimedepositionbeforethe Court. P.W.11 Anvarhusen Shabbirhusen Pathan (Exh.91)hasdeposedinhiscrossexaminationthat,hehas notstatedbeforePolicethenameofthisaccused.P.W.48
// 869 //
ManubhaiKarshanbhaiPatel(Exh.228)hasstatedinhis crossexamination that, Anvarhusen Bashirkhan has not statedthenameofthisaccusedinhisstatementbeforehim andthattheyaretheresidentofDipraDarwajaandthathe sawthesettingonfireandbeatingandkillingofMuslims bySword,Dhariya,Pipeetc. Consideringtheevidenceagainstthepresentaccused is concerned, P.W.11 Anvarhusen Shabbirhusen Pathan (Exh.91) has not involved the present accused in his statementbeforePolice.Consideringtheevidenceofother witnesses also they have simply identified the accused. Thereisnosufficientevidencefromwhichwecanconclude regardinginvolvementofaccusedintheincident.
Itisnotindisputethat,theaccusedistheresidentof Kotvali Sheri Kada Darwaja. From the evidence of the complainantandwitnesses,asdiscussedabovetheyhave onlyidentified theaccusedandnotattributedtheroleto this accused. But for the first time on 08.03.2002, his name has been taken by the witness in the statement beforethePolice,tillthenthewitnessesare silentabout theinvolvementofthisaccused.Sofarasidentificationof thisaccusedisconcerned,nodoubtwitnessesandaccused are the resident of same locality therefore, question of IdentificationParadedoesnotsurviveanditcanbeinferred that,theyarewellknowntoeachother.Sofarasspecific
// 870 //
role as attributed by the witnesses is concerned, that is alsonotsatisfactorilyestablishedbytheprosecutionside. Therefore, the fact 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 established,requiresacquittal. Therefore, the defence of the accused that, he has falsely been involved in the crime, he is innocent one is acceptableintheeyeoflaw. [306] AccusedNo.24: PATELNILESHKUMARVISHNUBHAI (SessionsCaseNo.180/2002) ThisaccusedisidentifiedbeforetheCourtbyP.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66), P.W.7 AmzadkhanMahmadkhanBaloch(Exh.86),P.W.18Saiyed Nazirmiya Kalumiya (Exh.103), P.W.25 Mohmad Hanif Ahmedkhan Baloch (Exh.134) and P.W.52 Faridabanu Ahmedkhan Baloch (Exh.306) whereas P.W.11 Anvarhusen Shabbirhusen Pathan (Exh.91) has in his
// 871 //
statement dated 10.03.2002 and P.W.30 Shabbirmiya Hasumiya Belim (Exh.146) has in his statement dated 08.03.2002statedtheinvolvementofthisaccusedintheir statements before Visnagar Police while before S.I.T. they have stated that, their statements are correct one except the time of incident. While as per Arrest and Recovery Panchnama,PanchasarehostilebutSwordwasrecovered from this accused on 07.05.2002, which is not shown to anywitnessduringthedepositionofwitnesses.Therefore, noreliancecanbeplacedaboutthesaidMuddamalArticle. Now coming to the deposition of witnesses, P.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66) has not namedthisaccusedinhiscomplaint.P.W.7Amzadkhan Mahmadkhan Baloch (Exh.86) has deposed that, this accused is not residing in Dipra Darwaja. P.W.48 ManubhaiKarshanbhaiPatel(Exh.228)hasstatedinhis crossexaminationthat,AmzadhanMahmadkhan hasnot stated the involvement of this accused in his statement beforehim.Consideringtheaboveevidenceaswellasthe factthat,thisaccusedisresidinginPara,KadaDarwaja, Visnagar,witnesseshavenotnotexplainedhowtheyknow this accused, in that circumstances identification of the accusedisnecessary,whichisabsentinthepresentcase. ThatisthemajorirregularityonthepartofaccusedNo.83.
Itisnotindisputethat,theaccusedistheresidentof
// 872 //
Para,KadaDarwaja.Fromtheevidenceofthecomplainant andwitnesses,asdiscussedabovetheyhaveonlyidentified theaccusedandnotattributedtheroletothisaccused.But forthefirsttimeon08.03.2002,hisnamehasbeentaken bythewitnessinthestatementbeforethePolice,tillthen the witnesses are silent about the involvement of this accused. So far as identification of this accused is concerned, no doubt witnesses and accused are the residentofsamelocalitytherefore,questionofIdentification Paradedoesnotsurviveanditcanbeinferredthat,they are well known to each other. So far as specific role as attributedbythewitnessesisconcerned,thatisalsonot satisfactorilyestablishedbytheprosecutionside.Therefore, thefactremainsthat,itisnotsafetoholdaccusedguilty on the basis of general allegations. There is no other materialonrecordagainstthepresentaccusedtoshowhis involvementintheallegedoffence.Itwouldbehazardousto base a conviction only on the evidence of general allegations.Itwouldbeappropriatetogivebenefitofdoubt andacquittheaccused.Inmyopinionthoughtheirexist strongsuspicion againsttheaccuseditisnotpossibleto hold that, his involvement in the offence is established, requiresacquittal. Therefore, the defence of the accused that, he has falsely been involved in the crime, he is innocent one is acceptableintheeyeoflaw.
// 873 //
[307]
AccusedNo.25: PATELYOGESHKUMAR@CHOKSI@LUCKY CHIMANLAL (SessionsCaseNo.180/2002) ThisaccusedisidentifiedbeforetheCourtbyP.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66), P.W.5 Zubedabibi Mahebubkhan Baloch (Exh.84), P.W.7 Amzadkhan Mahmadkhan Baloch (Exh.86), P.W.8 ReshmabenSattarbhai(Exh.87),P.W.18SaiyedNazirmiya Kalumiya (Exh.103), P.W.24 Shermahmad Dalubhai Sindhi (Exh.132), P.W.30 Shabbirmiya Hasumiya Belim (Exh.146),P.W.33AnvarkhanBasirkhanBaloch(Exh.166) and P.W.52 Faridabanu Ahmedkhan Baloch (Exh.306) whereasP.W.8ReshmabenSattarbhai(Exh.87)hasinher statement dated 10.03.2002, P.W.24 Shermahmad Dalubhai Sindhi (Exh.132) has in his statement dated 08.03.2002, P.W.29 Hanifabibi Shabbirbhai Pathan (Exh.144) has in his statement dated 08.03.2002 and P.W.33AnvarkhanBasirkhanBaloch(Exh.166)hasinhis statementdated08.03.2002statedtheinvolvementofthis accused in their statements beforeVisnagar Policewhile before S.I.T. they have stated that, their statements are correctoneexceptthetimeofincident.WhileasperArrest andRecoveryPanchnama,PanchasarehostilebutSword wasrecoveredfromthisaccusedon07.05.2002,whichis not shown to any witness during the deposition of witnesses.Therefore,noreliancecanbeplacedaboutthe
// 874 //
saidMuddamalArticle. Now coming to the deposition of witnesses, P.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66) has not namedthisaccusedinhiscomplaint. P.W.5Zubedabibi MahebubkhanBaloch(Exh.84)hasadmittedinhercross examination that, she has stated the name of present accused in his Police Statement. P.W.6 Mahmadkhan BadarkhanBaloch(Exh.85)hasstatedinhissecondtime deposition that, this accused was having Dhariya in his hands.However,inhisfirsttimedepositionthiswitnessis silent about the involvement of this accused. P.W.7 Amzadkhan Mahmadkhan Baloch (Exh.86) has in his crossexaminationstatedthat,thisaccusedisnotresiding in Dipra Darwaja, while in his second time cross examination he has denied that, this accused is not residinginDipraDarwaja.P.W.8ReshmabenSattarbhai (Exh.87) hasadmittedinhercrossexaminationthat,she has mentioned the name of this accused in her second statement before Police. P.W.18 Saiyed Nazirmiya Kalumiya(Exh.103)hasadmittedinhiscrossexamination that,hehasnotmentionedthenameofthisaccusedinthe statement before Police. P.W.24 Shermahmad Dalubhai Sindhi (Exh.132) has stated in his deposition that, this accused was in the mob and very much involved in the incident, having arm. P.W.48 Manubhai Karshanbhai
// 875 //
Patel(Exh.228) hasstatedinhiscrossexaminationthat, hehasrecordedthestatementofAmzadkhanMahmadkhan andinhisstatement,hehasnotstatedthenameofthis accused.Samewayhehasalsorecordedthestatementof ZubedabibiMahebubkhanandinherstatement shehas notstatedthenameofthisaccused. Sofarasevidenceagainstthisaccusedisconcerned, P.W.5ZubedabibiMahebubkhanBaloch(Exh.84),P.W.6 Mahmadkhan Badarkhan Baloch (Exh.85) and P.W.7 Amzadkhan Mahmadkhan Baloch (Exh.86) have not involved the present accused in their statements before Police.P.W.6MahmadkhanBadarkhanBaloch(Exh.85)is attributingthespecificroleoftheaccusedinsecondtime deposition,tillthenhewassilentandtherefore,byplacing relianceuponsuchevidence,wecannotheldtheaccused guilty.P.W.8ReshmabenSattarbhai(Exh.87)andP.W.24 ShermahmadDalubhaiSindhi(Exh.132)havestatedthe involvement of this accused in their statements before Police.Inthatcircumstances,thesayofP.W.8Reshmaben Sattarbhai (Exh.87) and P.W.24 Shermahmad Dalubhai Sindhi(Exh.132)abouttheinvolvementofthisaccusedin his deposition is reliable one. There is nothing in cross examinationofthesewitnesses,fromwhichwecandiscard theevidenceofthewitnesses. SofarasMuddamalarticleSwordisconcerned,
// 876 //
witnesses have deposed about the use of Sword, by the accused but no identification of Muddamal Article took placeintheCourtandtherefore,noreliancecanbeplaced ontheevidenceofrecoveryofSword.Therefore,theversion ofwitnesshavingSwordbythisaccusedinthemobcanbe considered for involvement of this accused. Further, the factthat,thisaccusedwaspresentinChudivasinthemob, at the time of occurrence. The witnesses, as discussed abovehavestatedthepresenceofthisaccusedinthemob. Itisnotindisputethat,theaccusedistheresidentof Khajuri Maholla, Kada Darwaja, Visnagar, meaning thereby, he is the resident of Dipra Darwaja area and witnesses are also resident of Chudivas, Dipra Darwaja, Visnagar. They are known to each other since previously hence evidence of witnesses can safely be accepted as regardstotheinvolvementofthisaccusedandevidenceof witnessesasdiscussedearlierhavingseentheaccusedin the mob cannot bedoubtedatall.Onceitisestablished 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.Thisaccusedisidentifiedbythewitnessesinthe Court.Therefore,ifnoIdentificationParadetookplace,by theInvestigatingOfficer,thatamountsirregularityonthe
// 877 //
partofI.O.Here,inthepresentcaseenteringinChudivas atthetimeofincidentitselfsuggestthecommonobjectof themobaswellasspecificroleattributedtotheaccused. TherewasnoreasontoenterinChudivasatthatoddtime. Therefore by becoming a member of unlawful assembly accused entered in Chudivas and incident of pelting of stones, ransacking and burning of houses, abusing the Muslims and shouting slogans occurred. This fact itself suggestovertactinconnectionwithcommonobjectofthe mob. Meaning thereby accused had participated in furtherance of common object of the mob. Therefore involvementofaccusediswellestablishedfromtheabove circumstances. The basic defence of this accused in his furtherexaminationunderSection313 ofCr.P.C.thathe has falsely been implicated is not satisfactorily explained and cannot be accepted. Further, there is no previous enmitywithwitnesses,whytheywillfalselyimplicatethis accused. There is no reason to falsely implicate the accused.Noonewouldfalselyinvolveaninnocentperson, keepingasidetherealculprit. [308] AccusedNo.26: PATELNIKESHKUMARDAHYALAL (SessionsCaseNo.180/2002) ThisaccusedisidentifiedbeforetheCourtbyP.W.2 MahmadIqbalAhmedkhanBaloch(Exh.66),P.W.18Saiyed NazirmiyaKalumiya(Exh.103)andP.W.25MohmadHanif
// 878 //
AhmedkhanBaloch(Exh.134)whereasP.W.7Amzadkhan MahmadkhanBaloch(Exh.86)hasinhisstatementdated 10.03.2002 and P.W.25 Mohmad Hanif Ahmedkhan Baloch (Exh.134) has in his statement dated 08.03.2002 statedtheinvolvementofthisaccusedintheirstatements beforeVisnagarPolicewhilebeforeS.I.T.theyhavestated that, their statements are correct one except the time of incident. While as per Arrest and Recovery Panchnama, PanchasarehostilebutPlasticGallonofYellowcolourwas recovered from this accused on 07.05.2002, which is not showntoanywitnessduringthedepositionofwitnesses. Therefore, no reliance can be placed about the said MuddamalArticle. Now coming to the deposition of witnesses, P.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66) has not named this accused in his complaint. P.W.25 Mohmad Hanif Ahmedkhan Baloch (Exh.134) has deposed that, this accused was in the mob having Kerosene Tin in his hands.Inhiscrossexaminationhehasadmittedthat,he hasmentionedthenameofthisaccusedintheapplication, preferred before the Magistrate about the involvement of thisaccused,havingDhariyainhishands.Itisadmittedby himthat,hehasstatedbeforePoliceinhisstatementdated 08.03.2002 that, he saw the present accused having Kerosenetininhishands.Hewasverymuchpresentinthe mob.Inhiscrossexaminationhehasstatedthat,hehas
// 879 //
notstatedbeforethePolicethat,thisaccusedwashaving high inflammable materials like petrol, kerosene in his handsandbypouringittheysetonfiretheMaholla. Consideringthisevidence,whetherthisaccusedwas having Kerosene Tin in his hands or Dhariya, there is contradictoryversionofthiswitnessandthereisnoother evidenceexceptthiswitnessagainstthepresentaccused. Therefore,onthesolebasisoftheevidenceofthiswitness, accusedcannotbeheldliable,corroborationrequires. Itisnotindisputethat,theaccusedistheresidentof KhajuriMaholla,KadaDarwaja.Fromtheevidenceofthe complainantandwitnesses,asdiscussedabovetheyhave onlyidentified theaccusedandnotattributedtheroleto this accused. But for the first time on 08.03.2002, his name has been taken by the witness in the statement beforethePolice,tillthenthewitnessesare silentabout theinvolvementofthisaccused.Sofarasidentificationof thisaccusedisconcerned,nodoubtwitnessesandaccused are the resident of same locality therefore, question of IdentificationParadedoesnotsurviveanditcanbeinferred that,theyarewellknowntoeachother.Sofarasspecific role as attributed by the witnesses is concerned, that is alsonotsatisfactorilyestablishedbytheprosecutionside. Therefore, the fact remains that, it is not safe to hold accusedguiltyonthebasisofgeneralallegations.Thereis
// 880 //
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 established,requiresacquittal. Therefore, the defence of the accused that, he has falsely been involved in the crime, he is innocent one is acceptableintheeyeoflaw. [309] AccusedNo.27: PATELDEVANSHUKUMAR@KAKOBABULAL (SessionsCaseNo.180/2002) ThisaccusedisidentifiedbeforetheCourtbyP.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66), P.W.5 ZubedabibiMahebubkhanBaloch(Exh.84),P.W.18Saiyed NazirmiyaKalumiya(Exh.103)andP.W.25MohmadHanif AhmedkhanBaloch(Exh.134) whereasP.W.1Fatehkhan Badarkhan Baloch (Exh.61) has in his statement dated 10.03.2002, P.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66)hasinhisstatementdated12.05.2008andP.W.32 Mahmadhanif Dalubhai Sindhi (Exh.150) has in his statementdated08.03.2002statedtheinvolvementofthis accused in their statements beforeVisnagar Policewhile
// 881 //
before S.I.T. they have stated that, their statements are correctoneexceptthetimeofincident.WhileasperArrest andRecoveryPanchnama,PanchasarehostilebutSword wasrecoveredfromthisaccusedon07.05.2002,whichis not shown to any witness during the deposition of witnesses.Therefore,noreliancecanbeplacedaboutthe saidMuddamalArticle. Now coming to the deposition of witnesses, P.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66) has not namedthisaccusedinhiscomplaint. P.W.5Zubedabibi MahebubkhanBaloch(Exh.84)hasadmittedinhiscross examination that, she does not remember that, she has mentioned the name of this accused in the Statement beforePoliceorS.I.T.orinthedepositionbeforetheCourt. Itisnotindisputethat,theaccusedistheresidentof RandalMataMadh,DipraDarwaja.Fromtheevidenceof the complainant and witnesses, as discussed above they haveonlyidentifiedtheaccusedandnotattributedtherole tothisaccused.Butforthefirsttimeon10.03.2002,his name has been taken by the witness in the statement beforethePolice,tillthenthewitnessesare silentabout theinvolvementofthisaccused.Sofarasidentificationof thisaccusedisconcerned,nodoubtwitnessesandaccused are the resident of same locality therefore, question of IdentificationParadedoesnotsurviveanditcanbeinferred
// 882 //
that,theyarewellknowntoeachother.Sofarasspecific role as attributed by the witnesses is concerned, that is alsonotsatisfactorilyestablishedbytheprosecutionside. Therefore, the fact 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 established,requiresacquittal. Therefore, the defence of the accused that, he has falsely been involved in the crime, he is innocent one is acceptableintheeyeoflaw. [310] AccusedNo.28: PATELSHAILESHKUMARSHIVRAMBHAI (SessionsCaseNo.180/2002) ThisaccusedisidentifiedbeforetheCourtbyP.W.7 AmzadkhanMahmadkhanBaloch(Exh.86),P.W.18Saiyed Nazirmiya Kalumiya (Exh.103), P.W.52 Faridabanu Ahmedkhan Baloch (Exh.306) and P.W.127 Imrankhan SabirhusenPathan(Exh.681)whereasP.W.7Amzadkhan MahmadkhanBaloch(Exh.86)hasinhisstatementdated
// 883 //
10.03.2002 mentioned the name of this accused as ShaileshkumarJivraminsteadofShaileshkumarShivram, andP.W.25MohmadHanifAhmedkhanBaloch(Exh.134) has in his statement dated 08.03.2002 stated the involvement of this accused in their statements before Visnagar Police while before S.I.T. they have stated that, theirstatementsarecorrectoneexceptthetimeofincident. WhileasperArrestandRecoveryPanchnama,Panchasare hostile but Plastic Gallon of Yellow Colour was recovered from this accused on 07.05.2002, which is not shown to anywitnessduringthedepositionofwitnesses.Therefore, noreliancecanbeplacedaboutthesaidMuddamalArticle. Now coming to the deposition of witnesses, P.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66) has not namedthisaccusedinhiscomplaint.P.W.7Amzadkhan Mahmadkhan Baloch (Exh.86) has deposed about the involvement of this accused in the incident, while in his crossexamination,hasadmittedthat,thisaccusedisnot residinginDipraDarwaja,whileinhissecondtimecross examination he has denied that, this accused is not residinginDipraDarwaja.P.W.48ManubhaiKarshanbhai Patel(Exh.228)hasadmittedinhiscrossexaminationthat, this witness has not stated before him about the involvement of this accusedin themob. P.W.18 Saiyed NazirmiyaKalumiya(Exh.103)hasadmittedinhiscross examinationthat,hehasnotmentionedthenameofthis
// 884 //
accusedinthePolicestatement. P.W.25MohmadHanif Ahmedkhan Baloch (Exh.134) has deposed that, this accused was present in the mob with Petrol tin. In his crossexaminationhehasadmittedthat,intheapplication preferred before the Magistrate, it is stated that, this accusedwashavingTrishulinhishands.Itisdeniedby him that, he has stated before Police that, this accused alongwithotheraccusedbypouringpetrol,keroseneand burninginflammablematerialshavesetonfire. P.W.127 Imrankhan Sabirhusen Pathan (Exh.681) has stated in hisdepositionthat,thisaccusedwaspresentinthemob.It isdeniedbyhimthat,hehasstatedbeforeS.I.T.aboutthe presence of this accused in the mob. P.W.175 GautamkumarVishnubhaiBarot(Exh.912) hasadmitted that, Imrankhan Shabirkhan has not stated before him about the presence of this accused in the mob. Ibrahimkhan Shabirkhan is deposing about the involvementofthisaccusedinthemobbutfromhiscross examinationaswellasfromthedepositionoftheI.O.Shri G.V.Barot,itcontradictsthepresenceofthisaccusedinthe mob.MohmadHanifAhmedkhanisposingthisaccusedas havingPetroltinandTrishulinhishandsbutheissilent aboutinvolvementofthisaccusedinthestatementbefore Police. Investigating Officer M.K. Patel is also denying aboutthestatementinvolvingthepresentaccusedinthe mob,whiletheevidenceofNazirmiyaKalumiyaisalsonot sufficient to indulge the present accused in the incident.
// 885 //
AmzadkhanMahmadkhanhimselfisnotsurethat,where the accused is residing. Thus, there is no sufficient evidence to conclude regarding the involvement of this accusedinthemob. Considering the above evidence, P.W.7 Amzadkhan Mahmadkhan Baloch (Exh.86) has stated about the involvementofthisaccusedinhisstatement.Simply,itis mentionedinhisstatement,insteadofShaileshShivram,it ismentionedasShaileshJivram,thatmaybeconsidered as typical error but in such circumstances corroboration fromotherevidencerequires,whilehehasnotstatedinhis statement before Police about the involvement of this accused. P.W.25 Mohmad Hanif Ahmedkhan Baloch (Exh.134) has involved the present accused in his statementsbeforePolice,thereisdifferenceinhisversions whetherhewaswithPetroltinorwithTrishulinhishands, there is contradiction about it, in his statements. Consideringtheevidenceofthiswitness,itisnotsufficient toacceptitagainsttheaccused. Itisnotindisputethat,theaccusedistheresidentof Paheli Sheri, Kada Darwaja. From the evidence of the complainantandwitnesses,asdiscussedabovetheyhave onlyidentified theaccusedandnotattributedtheroleto this accused. But for the first time on 08.03.2002, his name has been taken by the witness in the statement
// 886 //
beforethePolice,tillthenthewitnessesare silentabout theinvolvementofthisaccused.Sofarasidentificationof thisaccusedisconcerned,nodoubtwitnessesandaccused are the resident of same locality therefore, question of IdentificationParadedoesnotsurviveanditcanbeinferred that,theyarewellknowntoeachother.Sofarasspecific role as attributed by the witnesses is concerned, that is alsonotsatisfactorilyestablishedbytheprosecutionside. Therefore, the fact 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 established,requiresacquittal. Therefore, the defence of the accused that, he has falsely been involved in the crime, he is innocent one is acceptableintheeyeoflaw. [311] AccusedNo.29: PATELHEMANDRAKUMARALKESHBHAI (SessionsCaseNo.180/2002) ThisaccusedisidentifiedbeforetheCourtbyP.W.5 Zubedabibi Mahebubkhan Baloch (Exh.84) and P.W.52
// 887 //
FaridabanuAhmedkhanBaloch(Exh.306)whereasP.W.1 Fatehkhan Badarkhan Baloch (Exh.61) has in his statement dated 10.03.2002, P.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66) has stated in his statement dated 12.05.2008 and P.W.23 Ahmedmiya Hasumiya Belim (Exh.128) has stated in his statement dated 08.03.2002, as Hemandra Alkeshbhai instead of MahendrakumarAlkeshbhaistatedtheinvolvementofthis accused in their statements beforeVisnagar Policewhile before S.I.T. they have stated that, their statements are correctoneexceptthetimeofincident.WhileasperArrest andRecoveryPanchnama,PanchasarehostilebutBurning Ragwasrecoveredfromthisaccusedon07.05.2002,which is not shown to any witness during the deposition of witnesses.Therefore,noreliancecanbeplacedaboutthe saidMuddamalArticle. Now coming to the deposition of witnesses, P.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66) has not namedthisaccusedinhiscomplaint. P.W.5Zubedabibi MahebubkhanBaloch(Exh.84)hasadmittedinhercross examinationthat,shehasstatedthenameofthisaccused inthestatementbeforethePolice.Shehasalsoadmittedin her crossexamination that, shedoesnotremember that, she has mentioned the name of present accused in the statement before Police/S.I.T. or deposition before the Court. P.W.23 Ahmedmiya Hasumiya Belim (Exh.128)
// 888 //
hasdeposedthat,hesawthepresentaccusedinthemob in cutting, killing and burning incident of alleged 11 deceasedpersons.Inhiscrossexamination,hehasdenied that,hehasnotstatedbeforePolicethat,thisaccusedwas givingSwordblowtothedeceasedpersons.Thecuttingand killingof11allegedpersonsisnotbelievedbythisCourt, hencethedepositionofthiswitnessregardinginvolvingthe presentaccusedincuttingandkillingincidentcannotbe relied upon. While in the deposition except identification nothing on record to indulge the present accused in the incident. Considering the above evidence P.W.5 Zubedabibi MahebubkhanBaloch(Exh.84)hasnotstatedinvolvingthe accused in the incident in her statement before Police. Considering her evidence before the Court, it is not sufficienttoacceptitagainsttheaccused. Itisnotindisputethat,theaccusedistheresidentof Paheli Sheri, Kada Darwaja. From the evidence of the complainantandwitnesses,asdiscussedabovetheyhave onlyidentified theaccusedandnotattributedtheroleto this accused. But for the first time on 08.03.2002, his name has been taken by the witness in the statement beforethePolice,tillthenthewitnessesare silentabout theinvolvementofthisaccused.Sofarasidentificationof thisaccusedisconcerned,nodoubtwitnessesandaccused
// 889 //
are the resident of same locality therefore, question of IdentificationParadedoesnotsurviveanditcanbeinferred that,theyarewellknowntoeachother.Sofarasspecific role as attributed by the witnesses is concerned, that is alsonotsatisfactorilyestablishedbytheprosecutionside. Therefore, the fact 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 established,requiresacquittal. Even other wise on considering the defence of the accused as narrated in F.S., on the date of incident the Shop running in thenameof Jansanghand other shops weresetonfireandransacked andhisshopwasalsoset on fire and ransacked and therefore, he has lodged the complaint at I.CR.No. 72/2002 with the Visnagar Police Station. In support of his say, he has produced copy of F.I.R.ofI.CR.No.72/2002,isplausibleandgenuineone. [312] AccusedNo.30: PATELPRAVINBHAIDAHYABHAI (SessionsCaseNo.180/2002)
// 890 //
ThisaccusedisidentifiedbeforetheCourtbyP.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66), P.W.5 Zubedabibi Mahebubkhan Baloch (Exh.84), P.W.7 Amzadkhan Mahmadkhan Baloch (Exh.86), P.W.11 AnvarhusenShabbirhusenPathan(Exh.91),P.W.18Saiyed Nazirmiya Kalumiya (Exh.103), P.W.21 Shabbirkhan Ibrahimkhan (Exh.108), P.W.22 Yusufkhan Muradkhan Pathan (Exh.112), P.W.30 Shabbirmiya Hasumiya Belim (Exh.146), P.W.32 Mahmadhanif Dalubhai Sindhi (Exh.150), P.W.52 Faridabanu Ahmedkhan Baloch (Exh.306) and P.W.127 Imrankhan Sabirhusen Pathan (Exh.681) whereas P.W.7 Amzadkhan Mahmadkhan Baloch(Exh.86)hasinhisstatementdated10.03.2002and P.W.22 Yusufkhan Muradkhan Pathan (Exh.112) has in hisstatementdated08.03.2002statedtheinvolvementof this accused in their statements before Visnagar Police whilebeforeS.I.T.theyhavestatedthat,theirstatements are correct one except the time of incident. While as per ArrestandRecoveryPanchnama,Panchasarehostilebut AxehavingIronHandlewasrecoveredfromthisaccusedon 07.05.2002,whichisnotshowntoanywitnessduringthe deposition of witnesses. Therefore, no reliance can be placedaboutthesaidMuddamalArticle. Now coming to the deposition of witnesses, P.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66) has not
// 891 //
named this accused in his complaint. He has stated the name of present accused before D.S.P. He has also identifiedpresentaccusedbeforetheCourt.Itisdeniedby himthat,hehasnotstatedthenameofpresentaccusedin the complaint. P.W.5ZubedabibiMahebubkhanBaloch (Exh.84) hasadmittedinhercrossexaminationthat,she doesnotrememberthat,shehasmentionedthenameof this accused in the statement before Police / S.I.T. or deposition before the Court. P.W.11 Anvarhusen ShabbirhusenPathan(Exh.91)hasadmittedinhiscross examination that, this accused is residing in the Dipra Darwaja. P.W.18SaiyedNazirmiyaKalumiya(Exh.103) has admitted in his crossexamination that, he has not mentioned the name of this accused in the statement before Police. P.W.21 Shabbirkhan Ibrahimkhan
(Exh.108) has denied that, he has stated the name of present accused before Police. P.W.22 Yusufkhan Muradkhan Pathan (Exh.112) has deposed that, this accusedwashavingAxeinhishands,hewasinvolvedin killing of alleged 11 persons. P.W.23 Ahmedmiya HasumiyaBelim(Exh.128)issilentinhisfirstdeposition. Hehasadmittedinhiscrossexaminationthat,hedoesnot remember that, he has mentioned the name of present accused in the statement before S.I.T. P.W.30 Shabbirmiya Hasumiya Belim (Exh.146) is silent in his firsttimedeposition.Inhissecondtimedepositionhehas
// 892 //
deposedthat,hesawthisaccusedinthemobhavingSword inhishands.Itisdeniedbyhimthat,hehasnotstated beforethePolicethat,thisaccusedwashavingSwordinhis hands.P.W.32MahmadhanifDalubhaiSindhi(Exh.150) has deposed that, this accused was present in the mob havingSwordinhishands.Itisdeniedbyhimthat,hehas notstatedbeforetheVisnagarPolicethat,hesawfromthe windowthat,thepresentaccusedwaspresentwithSword. P.W.48 Manubhai Karshanbhai Patel (Exh.228) has admitted in his crossexamination that, he has recorded thestatementofShabbirkhanIbrahimkhanandhehasnot statedthenameofpresentaccusedbeforehim.Hehasalso admittedthat,hehasrecordedthestatementofMahmad HanifMahmadbhaiandhehasnotmentionedthenameof present accused before him. P.W.50 Saidabibi
Mahmadhanif Sindhi (Exh.302) has deposed that, this accusedwaspresentinthemobwithweapon.Nothinghas beenbroughtincrossexaminationtodisregardthisfact. Considering the depositions of above witnesses, P.W.22YusufkhanMuradkhanPathan(Exh.112)isposing this witness having Axe in his hands while P.W.32 Mahmadhanif Dalubhai Sindhi (Exh.150) and P.W.30 Shabbirmiya Hasumiya Belim (Exh.146) are posing this witnesshavingSwordinhishandsandinvolvementofthis accused in killing of 11 persons. As discussed herein above, this fact is not believed by this Court and all the
// 893 //
three witnesses are coming with story of Sword and Axe and therefore, alsoitcreatesdoubtsaboutthecredibility about their depositions. While other witnesses like Zubedabibi, complainant Mahmad Iqbal etc. have identified the accused in the Court but from their deposition, involvement of this accused cannot be concluded,ifcomplainanthadseenthepresentinthemob, whyhehasnotnamedthisaccusedintheComplaintand that also creates doubt of their deposition. P.W.21 ShabbirkhanIbrahimkhan(Exh.108),P.W.30Shabbirmiya Hasumiya Belim (Exh.146) and P.W.32 Mahmadhanif Dalubhai Sindhi (Exh.150) have not stated the name of presentaccusedbeforeInvestigatingOfficer.Thus,thereis no sufficient evidence to involve this accused in the incident. Itisnotindisputethat,theaccusedistheresidentof RandalMataMadh,DipraDarwaja.Fromtheevidenceof the complainant and witnesses, as discussed above they haveonlyidentifiedtheaccusedandnotattributedtherole tothisaccused.Butforthefirsttimeon08.03.2002,his name has been taken by the witness in the statement beforethePolice,tillthenthewitnessesare silentabout theinvolvementofthisaccused.Sofarasidentificationof thisaccusedisconcerned,nodoubtwitnessesandaccused are the resident of same locality therefore, question of IdentificationParadedoesnotsurviveanditcanbeinferred
// 894 //
that,theyarewellknowntoeachother.Sofarasspecific role as attributed by the witnesses is concerned, that is alsonotsatisfactorilyestablishedbytheprosecutionside. Therefore, the fact 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 established,requiresacquittal. Therefore, the defence of the accused that, he has falsely been involved in the crime, he is innocent one is acceptableintheeyeoflaw. [313] AccusedNo.31: PATELSANJAYKUMARCHIMANLALCHOKSI (SessionsCaseNo.180/2002) ThisaccusedisidentifiedbeforetheCourtbyP.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66), P.W.5 Zubedabibi Mahebubkhan Baloch (Exh.84), P.W.52 Faridabanu Ahmedkhan Baloch (Exh.306) and P.W.127 ImrankhanSabirhusenPathan(Exh.681)whereasP.W.7 Amzadkhan Mahmadkhan Baloch (Exh.86) has in his
// 895 //
statement dated 10.03.2002, P.W.25 Mohmad Hanif Ahmedkhan Baloch (Exh.134) has in his statement dated 08.03.2002, P.W.33 Anvarkhan Basirkhan Baloch (Exh.166)hasinhisstatementdated08.03.2002statedthe involvement of this accused in their statements before Visnagar Police. While as per Arrest and Recovery Panchnama,nothingrecoveredfromthisaccused. Now coming to the deposition of witnesses, P.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66) has not named this accused in his complaint. He has identified present accused before the Court. P.W.5 Zubedabibi MahebubkhanBaloch(Exh.84)hasadmittedinhercross examination that, she does not remember that, she has mentioned the name of this accused in the statement beforePolice/S.I.T.ordepositionbeforetheCourt.P.W.24 ShermahmadDalubhaiSindhi(Exh.132) hasdeniedin hiscrossexaminationthat,hehasveryfirsttimedeclared beforethecourtthat,thisaccusedalongwithotherpersons have killed 11 persons. P.W.25 Mohmad Hanif Ahmedkhan Baloch (Exh.134) has deposed that, was presentinthemobhavingPetrolGalloninhishands.He has further deposed that, this accused was very much involvedintheincidentofpouringofKerosene,Petroletc. inflammablematerialsandsettingonfirethedeadbodies. He has admitted in his crossexamination that, in the
// 896 //
applicationpreferredbeforetheMagistrateofVisnagar,he hasmentionedthat,thisaccusedwashavingSwordinhis hands. He has further deposed that, this accused was presentinthemob,havingpetrolgalloninhishands.He has denied that, he has not mentioned in the Police Statementthat,thisaccusedalongwithotherpersonshave pouredinflammablematerialslikepetrol,keroseneetc.and setonfireeventhoughhasstatedthesaidfacts. P.W.48 ManubhaiKarshanbhaiPatel(Exh.228) hasadmittedin hiscrossexaminationthat,hehasrecordedthestatement of Baloch Mahmad Hanif Ahmedkhan but he has not mentionedinhisstatementthat,thisaccusedalongwith otheraccusedhavepouredmaterialslikepetrol,kerosene and have set on fire. P.W.127 Imrankhan Sabirhusen Pathan (Exh.681) has denied in his crossexamination that,hehasnotmentionedinthestatementbeforeS.I.T. that, this accused was present in the mob. P.W.175 GautamkumarVishnubhaiBarot(Exh.912) hasadmitted that, Imrankhan Shabirkhan has not stated before him aboutthepresenceofthisaccusedinthemob. Considering the deposition of complainant, Zubedabibi, if thisaccusedwaspresentinthemob,why thecomplainanthasnotnarratedthenameofthisaccused inthecomplaint.Nothingcomesoutfromthedepositionof Zubedabibitoinvolvepresentaccusedintheincident,while ShermahmadDalubhaiSindhiisforthefirsttimeincourt,
// 897 //
identifying this accused by involving this accused in the allegedkillingof11persons. MohmadHanifononehand posinghimwithPetrolGallononotherhandwithSword, while silent and not stating before Investigating Officer about the involvement of this accused. Further, alleged killingof11persons,bycutting,killingandsettingonfire by pouring petrol, kerosene etc. is not believed by this Court and in these circumstances also deposition of this witnessisshakyandbyrelyingsolelyupontheevidenceof thesewitnesses,itisnotsafetoconcludethisaccusedwith the incident. Imrankhan Shabbirhusen is silent in his statementbeforeS.I.T.therefore,muchreliancecannotbe placed upon his evidence about the involvement of this accusedintheincident. Itisnotindisputethat,theaccusedistheresidentof Khajuri Maholla, Kada Darwaja, Visnagar. From the evidence of the complainant and witnesses, as discussed above they have only identified the accused and not attributedtheroletothisaccused.Butforthefirsttimeon 08.03.2002,hisnamehasbeentakenbythewitnessinthe statement before the Police, till then the witnesses are silent about the involvement of this accused. So far as identification of this accused is concerned, no doubt witnesses and accused are the resident of same locality therefore,questionofIdentificationParadedoesnotsurvive and it can be inferred that, they arewell known to each
// 898 //
other.Sofarasspecificroleasattributedbythewitnesses isconcerned,thatisalsonotsatisfactorilyestablishedby theprosecutionside.Therefore,thefactremainsthat,itis 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 theoffenceisestablished,requiresacquittal. Even other wise on considering the defence of the accusedasnarratedinF.S.,TheaccusedNo.31hasstated that,heisinnocentandonthedateofincidenthewasin Field and he was falsely implicated in the incident is plausibleandgenuineone. [314] AccusedNo.32: PATELBHAVINKUMAR@BAPUAMRUTLAL (SessionsCaseNo.180/2002) ThisaccusedisidentifiedbeforetheCourtbyP.W.2 MahmadIqbalAhmedkhanBaloch(Exh.66),P.W.18Saiyed Nazirmiya Kalumiya (Exh.103), P.W.21 Shabbirkhan Ibrahimkhan (Exh.108), P.W.24 Shermahmad Dalubhai Sindhi (Exh.132) and P.W.30 Shabbirmiya Hasumiya
// 899 //
Belim (Exh.146) whereas P.W.8 Reshmaben Sattarbhai (Exh.87)hasinhisstatementdated10.03.2002mentioned the name of this accused as Bhavesh Amrutlal and P.W.24ShermahmadDalubhaiSindhi(Exh.132)hasinhis statementdated08.03.2002statedtheinvolvementofthis accused in their statements beforeVisnagar Policewhile before S.I.T. they have stated that, their statements are correctoneexceptthetimeofincident.WhileasperArrest andRecoveryPanchnama,PanchasarehostilebutDhariya having Iron Handle was recovered from this accused on 15.05.2002,whichisnotshowntoanywitnessduringthe deposition of witnesses. Therefore, no reliance can be placedaboutthesaidMuddamalArticle. Now coming to the deposition of witnesses, P.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66) has not named this accused in his complaint. He has identified present accused before the Court. P.W.18 Saiyed NazirmiyaKalumiya(Exh.103)hasadmittedinhiscross examinationthat,hehasnotmentionedthenameofthis accused in the statement before Police. P.W.21
ShabbirkhanIbrahimkhan(Exh.108)hasdeniedthat,he hasnotstatedthenameofpresentaccusedbeforePolice. P.W.24 Shermahmad Dalubhai Sindhi (Exh.132) has deposedthat,thisaccusedwaspresentinthemob.Hehas furtherdeposedthat,thisaccusedhadgivenSwordblowto
// 900 //
the witnesses. P.W.48 Manubhai Karshanbhai Patel (Exh.228) hasadmittedinhiscrossexaminationthat,he has recorded the statement of Shabbirkhan Ibrahimkhan andhehasnotstatedthenameofpresentaccusedbefore him. P.W.50SaidabibiMahmadhanifSindhi(Exh.302) has deposed that, this accused was present in the mob with weapon. Nothing has been brought in cross examinationtodisregardthisfact. Considering the above evidence, if the complainant hadseenthepresentaccusedinthemob,whyhehasnot named in the complaint. Saiyed Nazirmiya Kalumiya, thoughnamingbeforetheCourt,whyhewassilentabout naming the present accused before Police. Shermahmad Dalubhai Sindhi is deposing about Sword blow given by this accused to the witnesses. This deposition of the presentwitnessisnotwellsupportedfromotherevidence fromwhichwecanconcludetheinvolvementofthepresent accused.ShabbirkhanIbrahimkhanissilentinhisPolice Statement about the presence of this accused, in the incident.Theaboveevidenceisnotsatisfactorytoconclude theinvolvementofpresentaccusedintheincident. Itisnotindisputethat,theaccusedistheresidentof Opp.AashapuraMandir,KadaDarwaja,Visnagar.Fromthe evidence of the complainant and witnesses, as discussed above they have only identified the accused and not
// 901 //
attributedtheroletothisaccused.Butforthefirsttimeon 08.03.2002,hisnamehasbeentakenbythewitnessinthe statement before the Police, till then the witnesses are silent about the involvement of this accused. So far as identification of this accused is concerned, here the accusedisresidinginseparateMahollawhilewitnessesare the resident of Chudivas, Dipra Darwaja and it is not explainedbythewitnessesthat,howtheyknowthepresent accused.Inthepresentsetofcircumstances,identification isnecessaryandthereisgraveirregularityonthepartof Investigating Officer M.K.Patel for not conducting IdentificationParade.IdentificationParadeofthisaccused if done during the course of investigation, it would have increased probative value of the evidence of the witness. Here, value become minimal. In these circumstances benefitisrequiredtobegiventotheaccused. Sofaras specific role as attributed by the witnesses is concerned, thatisalsonotsatisfactorilyestablishedbytheprosecution side.Therefore,thefactremainsthat,itisnotsafetohold 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
// 902 //
established,requiresacquittal. Therefore, the defence of the accused that, he has falsely been involved in the crime, he is innocent one is acceptableintheeyeoflaw. [315] AccusedNo.33: PATELKAUSHALKUMARRAMESHBHAI (SessionsCaseNo.180/2002) ThisaccusedisidentifiedbeforetheCourtbyP.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66), P.W.7 Amzadkhan Mahmadkhan Baloch (Exh.86), P.W.9 RashidabibiSattarbhaiBaloch(Exh.88),P.W.10Sugrabibi Mahmadkhan Baloch (Exh.90), P.W.21 Shabbirkhan Ibrahimkhan (Exh.108), P.W.25 Mohmad Hanif Ahmedkhan Baloch (Exh.134), P.W.50 Saidabibi Mahmadhanif Sindhi (Exh.302), P.W.52 Faridabanu AhmedkhanBaloch(Exh.306)andP.W.58Karishmabanu YusufkhanPathan(Exh.502)whereasP.W.9Rashidabibi Sattarbhai Baloch (Exh.88) has in his statement dated 10.03.2002 and P.W.18 Saiyed Nazirmiya Kalumiya (Exh.103)hasinhisstatementdated08.03.2002statedthe involvement of this accused in their statements before Visnagar Police while before S.I.T. they have stated that, theirstatementsarecorrectoneexceptthetimeofincident. WhileasperArrestandRecoveryPanchnama,Panchasare hostile but Dhariya having Handle of Bamboo was
// 903 //
recovered from this accused on 15.05.2002, which is not showntoanywitnessduringthedepositionofwitnesses. Therefore, no reliance can be placed about the said MuddamalArticle. Nowcoming tothedepositionofwitnesses, P.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66) has not named this accused in his complaint. He has identified present accused before the Court. P.W.7 Amzadkhan Mahmadkhan Baloch (Exh.86) has denied in his cross examinationthat,hehasdeposedthenameofthisaccused while deposing names of additional accused. P.W.9 Rashidabibi Sattarbhai Baloch (Exh.88) has deposed that,thisaccusedwaspresentinthemobwhilesettingon fire.Inhersecondtimedepositionalsoshehasstatedthat, thisaccusedwaspresentinthemob. P.W.10Sugrabibi Mahmadkhan Baloch (Exh.90) has deposed that, this accusedwaspresentinthemob.Inhercrossexamination shehasdeniedthat,shehasnotmentionedthenameof presentaccusedinheranyofthePolicestatement.P.W.18 SaiyedNazirmiyaKalumiya(Exh.103)hasdeposedthat, thisaccusedalongwithotheraccusedenteredinthemob while shouting slogans. In his second time deposition he hasdeposedthat,hehasstatedinhisfirstdepositionthat, this accused was entered in the Maholla, while shouting slogans.Inhissecondtimedepositionhehasdeposedthat,
// 904 //
he had seen the cutting and killing incident from the terraceofhishouseandthisaccusedwasinvolvedinthe said incident. P.W.21 Shabbirkhan Ibrahimkhan
(Exh.108) has denied that, he has stated the name of present accused before Police. P.W.25 Mohmad Hanif Ahmedkhan Baloch (Exh.134) has not stated about the involvementofthisaccusedinhisfirstdeposition,whilein his second time deposition, he has deposed that, this accused was present in the mob having Sword in his hands. Hehasfurtherdeposedthat,thisaccused along with other accused is involved in the cutting and killing incident of sons of Banubibi Attaullakhan and Amanaullakhan. He has further deposed that, in the statementbeforeS.I.T.hehasmentionedthat,thisaccused alongwithotheraccused,involvedinthecuttingandkilling incident of Attaullakhan and Amanaullakhan. P.W.48 ManubhaiKarshanbhaiPatel(Exh.228) hasadmittedin hiscrossexaminationthat,hehasrecordedthestatement of Sugarabibi Mahmadkhan and she has not stated the nameofpresentaccusedbeforehim. P.W.51Aminabibi Ahmedkhan Baloch (Exh.303) has deposed that, this accused was present in the mob. P.W.52 Faridabanu Ahmedkhan Baloch (Exh.306) is silent about the involvement of this accused, however,in her second time depositionshehasidentifiedthisaccusedbeforetheCourt. P.W.175GautamkumarVishnubhaiBarot(Exh.912)has
// 905 //
admitted in his crossexamination that, he has recorded the statement of Mahmad Hanif Ahmedkhan and he has not mentioned in his statement before him that, this accusedalongwithotheraccusedpresentinthemoband was involved in the cutting and killing incident of AttaullakhanandAmanaullakhan. ThiswitnessistheresidentofRandalMataMadhand considering the depositions of the above witnesses, no doubt complainant had not named the name of present accused in the complaint, Amzadkhan, Rashidabibi, Sugarabibi, Nazirmiya Kalumiya, Shabbirkhan Ibrahimkhan, Mahmad Hanif, Aminabibi have stated the involvement of present accused in the incident. Nothing fromcrossexaminationofthesewitnessescomesoutfrom whichwecandisregardthesayofthiswitnessaboutthe involvementofthisaccusedintheincident.Sofarasfact regardingcuttingandkillingofalleged11personsseenby Mahmad Hanif Ahmedkhan and Nazirmiya Kalumiya is concerned,asdiscussedearlierthatisnotbelievedbythis Court and therefore, barring those evidence, presence of thisaccused,settingonfirethehouses,causingdamages totheproperties,shoutingslogansetc.involvementofthis accusedisreliableandtrustworthy. Itisnotindisputethat,theaccusedistheresidentof RandalMataMadh,meaningthereby,heistheresidentof
// 906 //
Dipra Darwaja area and witnesses are also resident of Chudivas, Dipra Darwaja, Visnagar. They are known to eachothersincepreviouslyhenceevidenceofwitnessescan safely be accepted as regards to the involvement of this accused and evidence of witnesses as discussed earlier havingseentheaccusedinthemobcannotbedoubtedat all.Onceitisestablishedandacceptedthat,witnessand accusedareresidentofsamelocality,wellknowntoeach other,onlyquestionrequiresaboutfalselyimplicationofthe accused.Thequestionofmakinganymistakeinthatregard doesnotarise.Itdoesnotpossibletoholdfalseimplication ofaccused.Thisaccusedisidentifiedbythewitnessesin theCourt.Therefore,ifnoIdentificationParadetookplace, by the Investigating Officer, that amounts irregularity on the part of I.O. Here, in the present case entering in Chudivasatthetimeofincidentitselfsuggestthecommon objectofthemobaswellasspecificroleattributedtothe accused.TherewasnoreasontoenterinChudivasatthat odd time. Therefore by becoming a member of unlawful assembly accused entered in Chudivas and incident of pelting of stones, ransacking and burning of houses, abusingtheMuslimsandshoutingslogansoccurred.This fact itself suggest overt act in connection with common object of the mob. Meaning thereby accused had participatedinfurtheranceofcommonobjectofthemob. Therefore involvementofaccusediswellestablishedfrom theabovecircumstances.Thebasicdefenceofthisaccused
// 907 //
in his further examination under Section 313 of Cr.P.C. that he has falsely been implicated is not satisfactorily explained and cannot be accepted. Further, there is no previous enmity with witnesses, why they will falsely implicate this accused. There is no reason to falsely implicate the accused. No one would falsely involve an innocentperson,keepingasidetherealculprit. Sofarasdefenceoftheaccusedasnarratedbyhimin hisF.S.that,heisfalselybeenimplicatedinthecrimeis notacceptable. [316] AccusedNo.34: PATELTARUNKUMAR@LALOGUNVANTLAL (SessionsCaseNo.180/2002) ThisaccusedisidentifiedbeforetheCourtbyP.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66), P.W.23 AhmedmiyaHasumiyaBelim(Exh.128),P.W.25Mohmad Hanif Ahmedkhan Baloch (Exh.134) and P.W.58 Karishmabanu Yusufkhan Pathan (Exh.502) whereas P.W.4 Aabidbhai Gulabkhan Sindhi (Exh.71) has in his statement dated 10.03.2002 and P.W.23 Ahmedmiya Hasumiya Belim (Exh.128) has in his statement dated 08.03.2002statedtheinvolvementofthisaccusedintheir statements before Visnagar Police while before S.I.T. they have stated that, their statements are correct one except the time of incident. While as per Arrest and Recovery
// 908 //
Panchnama,PanchasarehostilebutSwordwasrecovered from this accused on 15.05.2002, which is not shown to anywitnessduringthedepositionofwitnesses.Therefore, noreliancecanbeplacedaboutthesaidMuddamalArticle. Now coming to the deposition of witnesses, P.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66) has not named this accused in his complaint. P.W.4 Aabidbhai Gulabkhan Sindhi (Exh.71) is silent in his first time deposition while in his second time deposition he has stated about the involvement of this accused in the incident.P.W.23AhmedmiyaHasumiyaBelim(Exh.128) has stated that, this accused was present in the mob, havingKerosenetinandSwordinhishands.Hehasdenied that, he has not stated before Visnagar Police on 08.03.2002thatthisaccusedwashavingKeroseneTinwith him. P.W.25 Mohmad Hanif Ahmedkhan Baloch (Exh.134)issilentinhisfirsttimedeposition.Inhissecond time deposition he has identified this accused before the Court. Mahmad Iqbal has not named this accused in his complaint, Aabidbhai Gulabkhan Sindhi is narrating the involvementofthisaccusedincutting,killingandburning ofalleged11persons,whichisnotbelievedbythisCourt. The evidence of P.W.23 Ahmedmiya Hasumiya Belim (Exh.128)aboutKeroseneTinandSwordinthehandsof
// 909 //
thisaccusedisnotgettingsupportfromotherevidenceand atatimethisaccusedwashavingtwoMuddamalarticles and in a situation that, up to 08.03.2002 he was silent aboutthecutting,killingandburningofthosepersonsand in that circumstance by relying upon evidence of this witness, present accused cannot be conclude with the incident. It is not in dispute that, the accused is the residentofDipraDarwaja,NearMahakaliDairy,Visnagar. From the evidence of the complainant and witnesses, as discussedabovetheyhaveonlyidentifiedtheaccusedand notattributedtheroletothisaccused.Butforthefirsttime on08.03.2002,hisnamehasbeentakenbythewitnessin thestatementbeforethePolice,tillthenthewitnessesare silent about the involvement of this accused. So far as identification of this accused is concerned, no doubt witnesses and accused are the resident of same locality therefore,questionofIdentificationParadedoesnotsurvive and it can be inferred that, they arewell known to each other.Sofarasspecificroleasattributedbythewitnesses isconcerned,thatisalsonotsatisfactorilyestablishedby theprosecutionside.Therefore,thefactremainsthat,itis not safe to hold accused guilty on the basis of general allegations.Thereisnoothermaterialonrecordagainstthe present accused to show his involvement in the alleged offence.Itwouldbehazardoustobaseaconvictiononlyon
// 910 //
theevidenceofgeneralallegations.Itwouldbeappropriate to give benefit of doubt and acquit the accused. In my opinion though their exist strong suspicion against the accuseditisnotpossibletoholdthat,hisinvolvementin theoffenceisestablished,requiresacquittal. Even other wise on considering the defence of the accusedasnarratedinF.S.that,onthedateofincidenthe was arrested by thePolicefor thebreachofCurfewnear Dosabhai Baug and Criminal Case No.1963/2002 was lodged against him and in that case, he has deposited amount of Fine Rs.100/. In support of his say, he has produced the Receipt of Fine, issued by the Court is plausibleandgenuineone. [317] AccusedNo.35: PATELROHITKUMARSHANTILAL (SessionsCaseNo.180/2002) ThisaccusedisidentifiedbeforetheCourtbyP.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66) and P.W.7 AmzadkhanMahmadkhanBaloch(Exh.86)whereasP.W.10 Sugrabibi Mahmadkhan Baloch (Exh.90) has in his statementdated10.03.2002statedtheinvolvementofthis accused in his statement before Visnagar Police while before S.I.T. they have stated that, their statements are correctoneexceptthetimeofincident.WhileasperArrest andRecoveryPanchnama,PanchasarehostilebutSword
// 911 //
wasrecoveredfromthisaccusedon15.05.2002,whichis not shown to any witness during the deposition of witnesses.Therefore,noreliancecanbeplacedaboutthe saidMuddamalArticle. Now coming to the deposition of witnesses, P.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66) has not namedthisaccusedinhiscomplaint. P.W.10Sugrabibi Mahmadkhan Baloch (Exh.90) has deposed that, this accusedwaspresentinthemob.Inhercrossexamination shehasdeniedthat,shehasnotmentionedthenameof presentaccusedinheranyofthePoliceStatement.Sheis hostilewitness.Inhercrossexaminationshehasadmitted the presence of this accused in the mob but there is no corroboration from other evidence. Therefore, in the circumstance when complainant has not named this accusedinthecomplaint,andtherefore,herevidenceisnot satisfactory to conclude this accused with the incident. P.W.48 Manubhai Karshanbhai Patel (Exh.228) has deposedthat,HusenkhanBadarkhanhasstatedbeforehim that, this accused was entered in the Maholla, having Swordinhishands. Itisnotindisputethat,theaccusedistheresidentof Bethak No Madh, Dipra Darwaja, Visnagar. From the evidence of the complainant and witnesses, as discussed above they have only identified the accused and not
// 912 //
attributedtheroletothisaccused.Butforthefirsttimeon 10.03.2002,hisnamehasbeentakenbythewitnessinthe statement before the Police, till then the witnesses are silent about the involvement of this accused. So far as identification of this accused is concerned, here the accusedisresidinginseparateMahollawhilewitnessesare the resident of Chudivas, Dipra Darwaja and it is not explainedbythewitnessesthat,howtheyknowthepresent accused.Inthepresentsetofcircumstances,identification isnecessaryandthereisgraveirregularityonthepartof Investigating Officer M.K.Patel for not conducting IdentificationParade.IdentificationParadeofthisaccused if done during the course of investigation, it would have increased probative value of the evidence of the witness. Here, value become minimal. In these circumstances benefitisrequiredtobegiventotheaccused. Sofaras specific role as attributed by the witnesses is concerned, thatisalsonotsatisfactorilyestablishedbytheprosecution side.Therefore,thefactremainsthat,itisnotsafetohold 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
// 913 //
established,requiresacquittal. Therefore, the defence of the accused that, he has falsely been involved in the crime, he is innocent one is acceptableintheeyeoflaw. [318] AccusedNo.36: PATELSURESHKUMARJETHALAL (SessionsCaseNo.180/2002) ThisaccusedisidentifiedbeforetheCourtbyP.W.2 MahmadIqbalAhmedkhanBaloch(Exh.66),P.W.18Saiyed Nazirmiya Kalumiya (Exh.103), P.W.25 Mohmad Hanif Ahmedkhan Baloch (Exh.134), P.W.32 Mahmadhanif Dalubhai Sindhi (Exh.150), P.W.50 Saidabibi Mahmadhanif Sindhi (Exh.302), P.W.52 Faridabanu AhmedkhanBaloch(Exh.306)andP.W.58Karishmabanu YusufkhanPathan(Exh.502)whereasP.W.9Rashidabibi Sattarbhai Baloch (Exh.88) has in his statement dated 10.03.2002, P.W.32 Mahmadhanif Dalubhai Sindhi (Exh.150)hasinhisstatementdated08.03.2002statedthe involvement of this accused in his statement before Visnagar Police while before S.I.T. they have stated that, theirstatementsarecorrectoneexceptthetimeofincident. WhileasperArrestandRecoveryPanchnama,Panchasare hostilebutPlasticGallonofWhiteColourofKerosenewas recovered from this accused on 15.05.2002, which is not showntoanywitnessduringthedepositionofwitnesses.
// 914 //
Therefore, no reliance can be placed about the said MuddamalArticle. Now coming to the deposition of witnesses, P.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66) has not namedthisaccusedinhiscomplaint.P.W.9Rashidabibi Sattarbhai Baloch (Exh.88) has deposed that, this accusedwaspresentinthemobinsettingonfireincident. P.W.18 Saiyed Nazirmiya Kalumiya (Exh.103) has admitted in his crossexamination that, he has not mentioned the name of this accused in the Police Statement. P.W.32 Mahmadhanif Dalubhai Sindhi (Exh.150)issilentabouttheinvolvementofthisaccusedin hisfirstdeposition,whileinhissecondtimedepositionhe hasstatedthat,thisaccusedwasenteredintheMaholla, havingKerosenetininhishands.Inhiscrossexamination hehasdeniedthat,hehasnotmentionedinthestatement beforeVisnagarPolicethat,thisaccusedwaspresentinthe mob having Kerosene tin of 5 Ltrs. in his hands. In his crossexamination he has admitted that, he does not remember that, he has mentioned the facts in the statement dated 08.03.2002 before Visnagar Police that, thisaccusedwaspresentinthemob,havingKerosenetin in his hands. P.W.50 Saidabibi Mahmadhanif Sindhi (Exh.302) hasdeposedthat,thisaccusedwaspresentin themob.
// 915 //
Considering above evidence, Rashidabibi has not identifiedthisaccusedintheCourt,whilesheisdeposing the presence of this accused in the mob in fire incident. Therefore, in the absence of identification, her version cannot be relied upon. P.W.32 Mahmadhanif Dalubhai Sindhi (Exh.150) is silent about the involvement of this accused in his first time deposition while he is stating involvementofthisaccusedinhissecondtimedeposition havingKerosenetininhishandsbutashehasnotstated this fact in his statement dated 01.03.2002, which is admittedbyhim,hisversioncannotbesolelyreliedupon. P.W.18 Saiyed Nazirmiya Kalumiya (Exh.103) though identifyingbutnotstatingtheinvolvementofthisaccused in his statement before Police. In the circumstances, presence of accused as deposed by P.W.50 Saidabibi Mahmadhanif Sindhi (Exh.302) in her examination only cannotbeabaseforconviction.Corroborationfromother evidencerequires. Itisnotindisputethat,theaccusedistheresidentof RandalMataMadh,DipraDarwaja.Fromtheevidenceof the complainant and witnesses, as discussed above they haveonlyidentifiedtheaccusedandnotattributedtherole tothisaccused.Butforthefirsttimeon08.03.2002,his name has been taken by the witness in the statement beforethePolice,tillthenthewitnessesare silentabout
// 916 //
theinvolvementofthisaccused.Sofarasidentificationof thisaccusedisconcerned,nodoubtwitnessesandaccused are the resident of same locality therefore, question of IdentificationParadedoesnotsurviveanditcanbeinferred that,theyarewellknowntoeachother.Sofarasspecific role as attributed by the witnesses is concerned, that is alsonotsatisfactorilyestablishedbytheprosecutionside. Therefore, the fact 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 established,requiresacquittal.
Therefore, the defence of the accused that, he has falsely been involved in the crime, he is innocent one is acceptableintheeyeoflaw. [319] AccusedNo.37: PATELVIRALKUMAR@BADSHAHNATVARLAL (SessionsCaseNo.180/2002) ThisaccusedisidentifiedbeforetheCourtbyP.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66), P.W.25
// 917 //
MohmadHanifAhmedkhanBaloch(Exh.134)andP.W.32 MahmadhanifDalubhaiSindhi(Exh.150)whereasP.W.11 Anvarhusen Shabbirhusen Pathan (Exh.91) has in his statement dated 10.03.2002 and P.W.30 Shabbirmiya Hasumiya Belim (Exh.146) has in his statement dated 08.03.2002 stated the involvement of thisaccused in his statement before Visnagar Police while before S.I.T. they have stated that, their statements are correct one except the time of incident. While as per Arrest and Recovery Panchnama, Panchas are hostile but Iron Pipe was recovered from this accused on 15.05.2002, which is not showntoanywitnessduringthedepositionofwitnesses. Therefore, no reliance can be placed about the said MuddamalArticle. Now coming to the deposition of witnesses, P.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66) has not namedthisaccusedinhiscomplaint.P.W.11Anvarhusen Shabbirhusen Pathan (Exh.91) is the Hostile witness. Thereafter, he has admitted that, the presence of this accusedwasinthemob.Inhiscrossexamination,hehas admitted that, this accuses is the resident of Dipra Darwaja,buthisnamewasnotstatedbyhiminhisfirst depositionandthat,hewasarmedwithdeadlyweaponand setonfirethehousesandinvolvedintheincident.P.W.25 MohmadHanifAhmedkhanBaloch(Exh.134) issilentin his first time deposition, while in his second time
// 918 //
deposition, he has identified this accused. P.W.48 ManubhaiKarshanbhaiPatel(Exh.228) hasadmittedin hiscrossexaminationthat,AnvarhusenShabbirhusenhas notstatedbeforehimthat,thisaccusedistheresidentof DipraDarwajaandhewasinvolvedintheincidentandhe saw the incident. Hehasfurther admittedthat,Mahmad Hanif Mahmadbhai has not stated before him that, this accusedalongwithotheraccusedofthemobhadburntthe houseofAkbarmiyaKalumiya. Consideringtheaboveevidence,evidenceofP.W.11 Anvarhusen Shabbirhusen Pathan (Exh.91) requires corroboration.Inacircumstanceswhenheisadmittingnot statingthefactsabouthisinvolvementintheincident,in hispolicestatement,inacircumstanceswhenI.O.issaying that,thisfactisnotstatedbeforehimbyboththesetwo witnesses,MahmadHanifMahmadbhaihasnotstatedthe involvementofthisaccusedinsettingonfirethehouseof Akbarmiya Kalumiya therefore, his this say cannot be concludedconnectingtheinvolvementofaccused. Itisnotindisputethat,theaccusedistheresidentof Ubhi Sheri, Dipra Darwaja. From the evidence of the complainantandwitnesses,asdiscussedabovetheyhave onlyidentified theaccusedandnotattributedtheroleto this accused. But for the first time on 08.03.2002, his name has been taken by the witness in the statement
// 919 //
beforethePolice,tillthenthewitnessesare silentabout theinvolvementofthisaccused.Sofarasidentificationof thisaccusedisconcerned,nodoubtwitnessesandaccused are the resident of same locality therefore, question of IdentificationParadedoesnotsurviveanditcanbeinferred that,theyarewellknowntoeachother.Sofarasspecific role as attributed by the witnesses is concerned, that is alsonotsatisfactorilyestablishedbytheprosecutionside. Therefore, the fact 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 established,requiresacquittal. Therefore, the defence of the accused that, he has falsely been involved in the crime, he is innocent one is acceptableintheeyeoflaw. [320] AccusedNo.38: PATELROHITKUMAR@MADHOSHANKARLAL (SessionsCaseNo.180/2002) ThisaccusedisidentifiedbeforetheCourtbyP.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66), P.W.5
// 920 //
ZubedabibiMahebubkhanBaloch(Exh.84),P.W.18Saiyed Nazirmiya Kalumiya (Exh.103), P.W.21 Shabbirkhan Ibrahimkhan (Exh.108) and P.W.25 Mohmad Hanif AhmedkhanBaloch(Exh.134)whereasP.W.11Anvarhusen ShabbirhusenPathan(Exh.91)hasinhisstatementdated 10.03.2002,P.W.18SaiyedNazirmiyaKalumiya(Exh.103) hasstatedinhisstatementdated08.03.2002andP.W.26 Husenkhan Badarkhan Baloch (Exh.137) has in his statementdated08.03.2002statedtheinvolvementofthis accused in his statement before Visnagar Police while before S.I.T. they have stated that, their statements are correctoneexceptthetimeofincident.WhileasperArrest andRecoveryPanchnama,PanchasarehostilebutDhariya havinghandleofBamboowasrecoveredfromthisaccused on15.05.2002,whichisnotshowntoanywitnessduring thedepositionofwitnesses.Therefore,noreliancecanbe placedaboutthesaidMuddamalArticle. Now coming to the deposition of witnesses, P.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66) has not namedthisaccusedinhiscomplaint. P.W.5Zubedabibi MahebubkhanBaloch(Exh.84) isthehostilewitnessand afterdeclaringhostile,shehasidentifiedtheaccusedand deposed about the involvement of this accused. In her crossexamination,shehasstatedthenameofthisaccused inherPolicestatement.Inhercrossexaminationshehas stated that, she does not remember that, she has
// 921 //
mentioned the name of this accused in the statement before Police / S.I.T./ deposition before the Court. This witness has not stated about the involvement of this accused in her statement before Investigating Officer M.K.Patel. P.W.11 Anvarhusen Shabbirhusen Pathan (Exh.91) hasafterdeclaringhimasHostile,inhiscross examinationbytheprosecutionadmittedthat,thisaccused waspresentinthemob,havingDhariyainhishands.Itis admittedbyhimthat,thisaccusedistheresidentofDipra Darwajaisnotstatedbyhim,inhisfirststatementbefore Policeandthat,hewasarmedwithDhariyaandtheyseton firethehousesandbeatentheMuslims,whichhehimself has shown. P.W.18 Saiyed Nazirmiya Kalumiya (Exh.103) hasdeposedthat,thisaccusedwasinvolvedin themobhavingarminhishands,enteredintheMaholla. Inhiscrossexaminationhehasadmittedthat,hehasnot mentioned the name of this accused in the statement beforePolice.Inhissecondtimedepositionhehasdeposed that,thisaccusedenteredintheMaholla,whileshouting slogans.P.W.21ShabbirkhanIbrahimkhan(Exh.108)has in his crossexamination he has denied that, he has not statedthenameofpresentaccusedinthestatementbefore Police.Thiswitnesshasnotstatedabouttheinvolvementof thisaccusedinhisstatementbeforeInvestigatingOfficer M.K.Patel. P.W.25 Mohmad Hanif Ahmedkhan Baloch (Exh.134) is silent in his first time deposition,about the involvement of this accused, while in his second time
// 922 //
deposition he has stated above the involvement of this accused.P.W.48ManubhaiKarshanbhaiPatel(Exh.228) has admitted in his crossexamination that, he has recordedthestatementofNazirmiyaKalumiyaandhehas notstatedbeforehimthat,thisaccusedwasshoutingand washavingDhariyawithhim. Considering the above evidence, the evidence of complainant as well as Zubedabibi and Anvarhusen requires corroboration from other evidence, as they are Hostile witness and there is contradiction about the involvement of this accused in their statements before Police. As P.W.25 Mohmad Hanif Ahmedkhan Baloch (Exh.134) is silent in his first time deposition about the involvement of this accused, no explanation has been broughtforthatonrecord.Therefore,histhissayisalso requires corroboration from other evidence. Thus, consideringtheaboveevidencepresentaccusedcannotbe concludedwiththeincident. Itisnotindisputethat,theaccusedistheresidentof RandalMataMadh,DipraDarwaja.Fromtheevidenceof the complainant and witnesses, as discussed above they haveonlyidentifiedtheaccusedandnotattributedtherole tothisaccused.Butforthefirsttimeon08.03.2002,his name has been taken by the witness in the statement beforethePolice,tillthenthewitnessesare silentabout
// 923 //
theinvolvementofthisaccused.Sofarasidentificationof thisaccusedisconcerned,nodoubtwitnessesandaccused are the resident of same locality therefore, question of IdentificationParadedoesnotsurviveanditcanbeinferred that,theyarewellknowntoeachother.Sofarasspecific role as attributed by the witnesses is concerned, that is alsonotsatisfactorilyestablishedbytheprosecutionside. Therefore, the fact 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 established,requiresacquittal. Therefore, the defence of the accused that, he has falsely been involved in the crime, he is innocent one is acceptableintheeyeoflaw. [321] AccusedNo.39: PATELMITESHKUMAR@MELNARANDAS (SessionsCaseNo.180/2002) ThisaccusedisidentifiedbeforetheCourtbyP.W.2 MahmadIqbalAhmedkhanBaloch(Exh.66),P.W.18Saiyed
// 924 //
Nazirmiya Kalumiya (Exh.103), P.W.32 Mahmadhanif Dalubhai Sindhi (Exh.150) and P.W.58 Karishmabanu Yusufkhan Pathan (Exh.502) whereas P.W.10 Sugrabibi MahmadkhanBaloch(Exh.90)hasinhisstatementdated 10.03.2002 and P.W.32 Mahmadhanif Dalubhai Sindhi (Exh.150)hasinhisstatementdated08.03.2002statedthe involvement of this accused in his statement before Visnagar Police while before S.I.T. they have stated that, theirstatementsarecorrectoneexceptthetimeofincident. WhileasperArrestandRecoveryPanchnama,Panchasare hostile but Dhariya having handle of Iron Pipe was recovered from this accused on 15.05.2002, which is not showntoanywitnessduringthedepositionofwitnesses. Therefore, no reliance can be placed about the said MuddamalArticle. Now coming to the deposition of witnesses, P.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66) has not namedthisaccusedinhiscomplaint. P.W.10Sugrabibi MahmadkhanBaloch(Exh.90) hasafterdeclaringheras Hostile witness, she has deposed the involvement of this accusedinthemob,armedwithDhariya.P.W.18Saiyed NazirmiyaKalumiya(Exh.103)hasadmittedinhiscross examinationthat,hehasdeniedthat,hehasnotstatedthe nameofpresentaccusedinhisPoliceStatement. Considering above evidence P.W.10 Sugrabibi
// 925 //
Mahmadkhan Baloch (Exh.90) is silent in her chief examinationabouttheinvolvementofthisaccused,while P.W.18 Saiyed NazirmiyaKalumiya(Exh.103)hassimply identifiedtheaccused,notdeposedabouttheinvolvement abouttheaccused.Nodoubtnothinghasbeenbroughtin crossexaminationbytheaccusedsidebutithasnoeffect as,prosecutioncouldnotestablishtheinvolvementofthis accused. Complainanthasnotexplainedwhyhehasnot named this accused in the complaint. In above set of evidence, it is unsafe to connect this accused with the crime. Itisnotindisputethat,theaccusedistheresidentof RandalMataMadh,DipraDarwaja.Fromtheevidenceof the complainant and witnesses, as discussed above they haveonlyidentifiedtheaccusedandnotattributedtherole tothisaccused.Butforthefirsttimeon08.03.2002,his name has been taken by the witness in the statement beforethePolice,tillthenthewitnessesare silentabout theinvolvementofthisaccused.Sofarasidentificationof thisaccusedisconcerned,nodoubtwitnessesandaccused are the resident of same locality therefore, question of IdentificationParadedoesnotsurviveanditcanbeinferred that,theyarewellknowntoeachother.Sofarasspecific role as attributed by the witnesses is concerned, that is alsonotsatisfactorilyestablishedbytheprosecutionside. Therefore, the fact remains that, it is not safe to hold
// 926 //
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 established,requiresacquittal. Therefore, the defence of the accused that, he has falsely been involved in the crime, he is innocent one is acceptableintheeyeoflaw. [322] AccusedNo.40: PATELASHOKKUMAR@KHATAROGOKALDAS (SessionsCaseNo.180/2002) ThisaccusedisidentifiedbeforetheCourtbyP.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66), P.W.5 ZubedabibiMahebubkhanBaloch(Exh.84),P.W.18Saiyed Nazirmiya Kalumiya (Exh.103), P.W.32 Mahmadhanif Dalubhai Sindhi (Exh.150), P.W.50 Saidabibi Mahmadhanif Sindhi (Exh.302), P.W.52 Faridabanu AhmedkhanBaloch(Exh.306)andP.W.58Karishmabanu Yusufkhan Pathan (Exh.502) whereas P.W.10 Sugrabibi MahmadkhanBaloch(Exh.90)hasinhisstatementdated 10.03.2002 and P.W.32 Mahmadhanif Dalubhai Sindhi
// 927 //
(Exh.150)hasinhisstatementdated08.03.2002statedthe involvement of this accused in his statement before Visnagar Police while before S.I.T. they have stated that, theirstatementsarecorrectoneexceptthetimeofincident. WhileasperArrestandRecoveryPanchnama,Panchasare hostile but Short spear having handle of Wooden was recovered from this accused on 15.05.2002, which is not showntoanywitnessduringthedepositionofwitnesses. Therefore, no reliance can be placed about the said MuddamalArticle. Now coming to the deposition of witnesses, P.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66) has not namedthisaccusedinhiscomplaint. P.W.5Zubedabibi MahebubkhanBaloch(Exh.84) hasafterdeclaringheras Hostile witness, nothing stated about the involvement of thisaccusedinherfirstdeposition.However,inhersecond timedepositionshehasadmittedinhercrossexamination that,shedoesnotrememberthat,shehasmentionedthe name of this accused in the Statement before Police / S.I.T. / Deposition before the Court. P.W.10 Sugrabibi MahmadkhanBaloch(Exh.90) hasafterdeclaringheras Hostilewitness,inhercrossexaminationstatedthat,she hadseenpresentaccusedinthemobhavingShortSpearin hishands.P.W.18SaiyedNazirmiyaKalumiya(Exh.103) has in his crossexamination admitted that, he has not mentionedthenameofthisaccusedinhisstatementbefore
// 928 //
Police.P.W.50SaidabibiMahmadhanifSindhi(Exh.302) has deposed that, this accused was present in the mob havingweaponinhishands,alongwithotheraccused. Considering above evidence P.W.10 Sugrabibi Mahmadkhan Baloch (Exh.90) is silent in her chief examinationabouttheinvolvementofthisaccused,while P.W.18 Saiyed NazirmiyaKalumiya(Exh.103)hassimply identifiedtheaccused,notdeposedabouttheinvolvement abouttheaccused.Nodoubtnothinghasbeenbroughtin crossexaminationbytheaccusedsidebutithasnoeffect as,prosecutioncouldnotestablishtheinvolvementofthis accused.P.W.50SaidabibiMahmadhanifSindhi(Exh.302) has involved present accused in the incident but considering the crossexamination, on sustaining stone injury,shewentinsideanditisonlywhenPolicecame,she cameoutandonthebasisofthatevidence,itishazardous toconcludetheinvolvementoftheaccusedwiththecrime. Itisnotindisputethat,theaccusedistheresidentof RandalMataMadh,DipraDarwaja.Fromtheevidenceof the complainant and witnesses, as discussed above they haveonlyidentifiedtheaccusedandnotattributedtherole tothisaccused.Butforthefirsttimeon08.03.2002,his name has been taken by the witness in the statement beforethePolice,tillthenthewitnessesare silentabout theinvolvementofthisaccused.Sofarasidentificationof
// 929 //
thisaccusedisconcerned,nodoubtwitnessesandaccused are the resident of same locality therefore, question of IdentificationParadedoesnotsurviveanditcanbeinferred that,theyarewellknowntoeachother.Sofarasspecific role as attributed by the witnesses is concerned, that is alsonotsatisfactorilyestablishedbytheprosecutionside. Therefore, the fact 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 established,requiresacquittal. Therefore, the defence of the accused that, he has falsely been involved in the crime, he is innocent one is acceptableintheeyeoflaw.
[323]
AccusedNo.41: PATELNITINKUMARDAHYALAL (SessionsCaseNo.180/2002) ThisaccusedisidentifiedbeforetheCourtbyP.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66), P.W.5 Zubedabibi Mahebubkhan Baloch (Exh.84), P.W.7
// 930 //
Amzadkhan Mahmadkhan Baloch (Exh.86), P.W.11 AnvarhusenShabbirhusenPathan(Exh.91),P.W.18Saiyed Nazirmiya Kalumiya (Exh.103), P.W.21 Shabbirkhan Ibrahimkhan (Exh.108), P.W.24 Shermahmad Dalubhai Sindhi (Exh.132), P.W.25 Mohmad Hanif Ahmedkhan Baloch (Exh.134), P.W.30 Shabbirmiya Hasumiya Belim (Exh.146), P.W.32 Mahmadhanif Dalubhai Sindhi (Exh.150), P.W.52 Faridabanu Ahmedkhan Baloch (Exh.306), P.W.58 Karishmabanu Yusufkhan Pathan (Exh.502) and P.W.127 Imrankhan Sabirhusen Pathan (Exh.681) whereas P.W.3 Gulabkhan alias Gulubhai Kayamkhan Sindhi (Exh.70) has in his statement dated 10.03.2002, P.W.22 Yusufkhan Muradkhan Pathan (Exh.112) has stated in his statement dated 08.03.2002 stated the involvement of this accused in his statement beforeVisnagarPolicewhilebeforeS.I.T.theyhavestated that, their statements are correct one except the time of incident. While as per Arrest and Recovery Panchnama, Panchas are hostile but Sword was recovered from this accusedon15.05.2002,whichisnotshowntoanywitness during the depositionofwitnesses.Therefore,noreliance canbeplacedaboutthesaidMuddamalArticle. Now coming to the deposition of witnesses, P.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66) has not named this accusedinhiscomplaint.Hehasinhisfirst time deposition only identified this accused before the
// 931 //
Court,whileinhissecondtimedepositionhehasdeposed that, he has mentioned the name of this accused while lodgingthecomplaintbutitwasnotwrittenbythePolice. Inhissecondtimecrossexaminationhehasdeniedthat, he has not mentioned the name of this accused while lodgingthecomplaintforthemurderof11persons.P.W.5 Zubedabibi Mahebubkhan Baloch (Exh.84) has after declaringherasHostilewitness,inhercrossexamination admittedthat,shehasmentionedthenameofthisaccused in her Statement before Police. She has further admitted that,shedoesnotrememberthat,shehasmentionedthe nameofthisaccusedinherStatementbeforePolice/S.I.T. or deposition before the Court. P.W.7 Amzadkhan Mahmadkhan Baloch (Exh.86) is silent in his first time deposition,abouttheinvolvementofthisaccused,whilein his second time deposition, in crossexamination he has denied that, he hasmentionedthenameofthisaccused subsequently,whilementioningthenamesofsixaccused. P.W.11AnvarhusenShabbirhusenPathan(Exh.91) has deposedthat,thisaccusedwaspresentinthemob,having Sword in his hands. In his crossexamination, he has admittedthat,thisaccusedisresidinginDipraDarwaja. P.W.18SaiyedNazirmiyaKalumiya(Exh.103)hasinhis crossexaminationhehasnotmentionedthenameofthis accused in his statement before Police. P.W.21
ShabbirkhanIbrahimkhan(Exh.108)hasdeniedthat,he
// 932 //
has not mentioned the name of this accused in the statement before the Police. P.W.22 Yusufkhan Muradkhan Pathan (Exh.112) has deposed that, this accused was present in the mob, having Sword in his hands and was very much involved in the incident of beatingtothewitnesses. P.W.23AhmedmiyaHasumiya Belim(Exh.128)issilentinhisfirsttimedepositionabout theinvolvementofthisaccused,whileinhissecondtime deposition,duringcrossexaminationhehasadmittedthat, hedoesnotknowwhetherhehasmentionedthenameof this accused in the statement before S.I.T. for first time. P.W.30ShabbirmiyaHasumiyaBelim(Exh.146)issilent in his first time deposition about the involvement of this accused, while in his second time deposition, he has deposedthat,thisaccusedwaspresentinthemob,having Swordinhishands.Inhissecondtimecrossexamination, hehasdeniedthat,hehasnotmentionedinthestatement beforeVisnagarPolicethat,thisaccusedwaspresentinthe mob,havingSwordinhishands. P.W.32Mahmadhanif Dalubhai Sindhi (Exh.150) is silent in his first time depositionabouttheinvolvementofthisaccused,whilein hissecondtimedeposition,hehasseentheaccusedinthe mob, having Sword in his hands. P.W.48 Manubhai KarshanbhaiPatel(Exh.228)hasinhiscrossexamination admitted that, he has recorded the statements of Amzadkhan Mahmadkhan andShabbirkhan Ibrahimkhan
// 933 //
andtheyhavenotmentionedthenameofthisaccusedin theirrespectivestatementbeforehim. Considering above evidence, complainant has in his firsttimedepositionidentifiedthepresentaccusedinthe incident.Butinhisfirsttimedepositionhewassilent,why hehasnotmentionedthenameofthepresentaccusedin thecomplaint,whileinhissecondtimedeposition,hehas explainedthat,henamedtheaccusedinthecomplaintbut wasnotwrittenbythePolice.Butlookingtothecomplaint, nameofthisaccusedisnotmentionedinthecomplaint.As discussed earlier, the say of the complainant that, some factswerenotwrittenbythePoliceinthecomplaintisnot believed therefore, this second time explanation has no forceatall.Underabovecircumstancestheinvolvementof this accused by complainant requires corroboration from other evidence. So far as evidence of P.W.5 Zubedabibi MahebubkhanBaloch(Exh.84)isconcerned,sheissilent in her chiefexamination about the involvement of this accused. But after declaring her as Hostile, she has involvedthepresentaccusedintheincident.Considering the deposition of this witness, corroboration about the involvementofthisaccusedintheincidentrequires.Sofar as evidence of P.W.7 Amzadkhan Mahmadkhan Baloch (Exh.86) is concerned,asit isnotsufficient, to conclude the involvement of accused as it is not stated in his statementbeforePolice.P.W.11AnvarhusenShabbirhusen
// 934 //
Pathan (Exh.91) is involving and identifying the accused beforedeclaringHostile.ButinhisstatementbeforePolice, hehasnotstatedtheinvolvementofthisaccused.Insuch circumstances corroboration from other evidence is required.Evidenceof P.W.18SaiyedNazirmiyaKalumiya (Exh.103)is not sufficienttoholdtheinvolvementofthis accusedwiththecrime.EvidenceofP.W.21Shabbirkhan Ibrahimkhan(Exh.108)isalsonotsufficient,thereisonly identification, thereisnostatement involving thepresent accusedinthecrimebeforeInvestigatingOfficer.P.W.22 YusufkhanMuradkhanPathan(Exh.112)hasinvolvedthe present accused, nothing has come out from the cross examination,fromwhichwecandiscardtheinvolvementof thisaccusedinthecrimebutconsideringtheevidenceof thiswitness,hehasinvolvedthisaccusedincutting,killing andburningofalleged11deceasedpersons,whichisnot believedbythisCourt,asdiscussedearlierandtherefore, involvementofthisaccusedbythiswitness,requiressome more corroboration. Theevidenceof P.W.23 Ahmedmiya Hasumiya Belim (Exh.128) is not sufficient to hold the involvementofaccusedintheCrime.P.W.30Shabbirmiya Hasumiya Belim (Exh.146) and P.W.32 Mahmadhanif DalubhaiSindhi(Exh.150)whytheyweresilentaboutthe involvementofthisaccusedisnotsatisfactorilyexplained, much reliance cannot be placed on the say of these witnesses.Thus,byrelyingupontheevidenceofP.W.22 YusufkhanMuradkhanPathan(Exh.112),itisriskytoheld
// 935 //
guiltyaperson. Itisnotindisputethat,theaccusedistheresidentof RandalMataMadh,DipraDarwaja.Fromtheevidenceof the complainant and witnesses, as discussed above they haveonlyidentifiedtheaccusedandnotattributedtherole tothisaccused.Butforthefirsttimeon08.03.2002,his name has been taken by the witness in the statement beforethePolice,tillthenthewitnessesare silentabout theinvolvementofthisaccused.Sofarasidentificationof thisaccusedisconcerned,nodoubtwitnessesandaccused are the resident of same locality therefore, question of IdentificationParadedoesnotsurviveanditcanbeinferred that,theyarewellknowntoeachother.Sofarasspecific role as attributed by the witnesses is concerned, that is alsonotsatisfactorilyestablishedbytheprosecutionside. Therefore, the fact 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 established,requiresacquittal.
// 936 //
Therefore, the defence of the accused that, he has falsely been involved in the crime, he is innocent one is acceptableintheeyeoflaw.
[324]
AccusedNo.42: PATELJITENDRAKUMARHASMUKHBHAIASOBIYA (SessionsCaseNo.180/2002) ThisaccusedisidentifiedbeforetheCourtbyP.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66), P.W.5 Zubedabibi Mahebubkhan Baloch (Exh.84), P.W.11 AnvarhusenShabbirhusenPathan(Exh.91),P.W.18Saiyed Nazirmiya Kalumiya (Exh.103), P.W.24 Shermahmad DalubhaiSindhi(Exh.132),P.W.30ShabbirmiyaHasumiya Belim (Exh.146) and P.W.52 Faridabanu Ahmedkhan Baloch (Exh.306) whereas P.W.8 Reshmaben Sattarbhai (Exh.87)hasinhisstatementdated10.03.2002andP.W.24 Shermahmad Dalubhai Sindhi (Exh.132) has in his statementdated08.03.2002statedtheinvolvementofthis accused in his statement before Visnagar Police while before S.I.T. they have stated that, their statements are correctoneexceptthetimeofincident.WhileasperArrest andRecoveryPanchnama,PanchasarehostilebutPlastic Gallon of Yellow Colour of Kerosene was recovered from this accused on 15.05.2002, which is not shown to any witness during the deposition of witnesses. Therefore, no reliancecanbeplacedaboutthesaidMuddamalArticle.
// 937 //
Now coming to the deposition of witnesses, P.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66) has not namedthisaccusedinhiscomplaint.P.W.11Anvarhusen Shabbirhusen Pathan (Exh.91) has deposed that, this accused was present in the mob having Sword in his hands. In his crossexamination, he has admitted that, this accused is residing in Dipra Darwaja. P.W.24 Shermahmad Dalubhai Sindhi (Exh.132) has deposed that,thisaccusedwaspresentinthemob. Complainant has not explained why he was silent about naming the accused in his complaint but he has involved and identified the present accused in his deposition, in such circumstances, corroboration from other evidence requires to be considered. P.W.11 Anvarhusen Shabbirhusen Pathan (Exh.91) has involved the present accusedintheincident,havingSwordinhis hands,beforeheisdeclaredHostile.Hehasalsoidentified theaccusedbeforetheCourt,whileP.W.24Shermahmad DalubhaiSindhi(Exh.132)hasinvolvedaswellasstatedin his statement dated08.03.2002abouttheinvolvementof thisaccused.Nothinghasbeenbroughtonrecordincross examination of these two witnesses, from which we can discard the say of these two witnesses about the involvement of this accused. On the contrary, in cross examination it has been brought on record that, this accusedistheresidentofDipraDarwaja. P.W.18Saiyed
// 938 //
NazirmiyaKalumiya(Exh.103)hasnotinvolvedthepresent accused in his deposition but has identified the present accused but has not mentioned the involvement of this accusedinhisstatement.P.W.30ShabbirmiyaHasumiya Belim (Exh.146) also identifies and involves the present accused in his second time deposition but in his police statement, he has not involved present accused. In first timedepositionhewassilentabouttheinvolvementofthis accused. P.W.52 Faridabanu Ahmedkhan Baloch (Exh.306)onlyidentifiestheaccusedandsilentaboutthe involvement. Itisnotindisputethat,theaccusedistheresidentof Khajuri Maholla, Kada Darwaja, Visnagar, meaning thereby, he is the resident of Dipra Darwaja area and witnesses are also resident of Chudivas, Dipra Darwaja, Visnagar. They are known to each other since previously hence evidence of witnesses can safely be accepted as regardstotheinvolvementofthisaccusedandevidenceof witnessesasdiscussedearlierhavingseentheaccusedin the mob cannot bedoubtedatall.Onceitisestablished 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.Thisaccusedisidentifiedbythewitnessesinthe
// 939 //
Court.Therefore,ifnoIdentificationParadetookplace,by theInvestigatingOfficer,thatamountsirregularityonthe partofI.O.Here,inthepresentcaseenteringinChudivas atthetimeofincidentitselfsuggestthecommonobjectof themobaswellasspecificroleattributedtotheaccused. TherewasnoreasontoenterinChudivasatthatoddtime. Therefore by becoming a member of unlawful assembly accused entered in Chudivas and incident of pelting of stones, ransacking and burning of houses, abusing the Muslims and shouting slogans occurred. This fact itself suggestovertactinconnectionwithcommonobjectofthe mob. Meaning thereby accused had participated in furtherance of common object of the mob. Therefore involvementofaccusediswellestablishedfromtheabove circumstances. The basic defence of this accused in his furtherexaminationunderSection313 ofCr.P.C.thathe hasfalselybeenimplicated andhedoesnotknowabout theincident,onthedateofincident,hisshoprunningin the name of Jansangh and other two shops, which are situatedintheMainmarketofVisnagarweresetonfireand theirshopsaresituatedintheMuslimareaandthemobof Muslimshavesetonfireandransackedandrobbedtheir shopsandhealongwithmalemembersofhisfamilystayed in the shop for two days and Police has recorded their complainton28.02.2002at05.00P.M.atI.CR.No.72/2002 andPanchnamaoftheirshopwaspreparedbythePolice and their shops damaged worth Rs.11,00,000/. This
// 940 //
defenceonlyaboutsettingonfireofhisshopanddamage tohispropertycanbeinferredbutwhetherthisaccusedis stayedintheShopfortwodays,forthathehastosatisfy the Court but there is no other evidence except his this versionfromwhichprobabilityofthisaccusedbeinginthe Shop for two days can be inferred. The this alibi is not satisfiedbytheaccusedandcannotbeaccepted.Further, thereisnopreviousenmitywithwitnesses,whytheywill falselyimplicatethisaccused.Thereisnoreasontofalsely implicate the accused. No one would falsely involve an innocentperson,keepingasidetherealculprit. [325] AccusedNo.43: PATELAMRUTLALNANALAL (SessionsCaseNo.180/2002) This accused is not identified by any of thewitness before the Court whereas P.W.3 Gulabkhan alias GulubhaiKayamkhanSindhi(Exh.70)hasinhisstatement dated10.03.2002andP.W.25MohmadHanifAhmedkhan Baloch (Exh.134) has in his statement dated 08.03.2002 stated the involvement of this accused in his statement beforeVisnagarPolicewhilebeforeS.I.T.theyhavestated that, their statements are correct one except the time of incident. While as per Arrest and Recovery Panchnama, Panchas are hostile but Sword was recovered from this accusedon15.05.2002,whichisnotshowntoanywitness during the depositionofwitnesses.Therefore,noreliance
// 941 //
canbeplacedaboutthesaidMuddamalArticle. Now coming to the deposition of witnesses, P.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66) has not namedthisaccusedinhiscomplaint.Complainanthasnot explainedwhyhewassilentaboutnamingthenameofthis accused. P.W.25 Mohmad Hanif Ahmedkhan Baloch (Exh.134) has deposedthat,thisaccusedwaspresentin themob,havingSwordinhishands. No one has identified this accused in the Court, P.W.25 Mohmad Hanif Ahmedkhan Baloch (Exh.134) thoughspeakingabouttheinvolvementofthisaccusedin hisdepositionbutintheabsenceofidentificationitcannot bereliedupon. Itisnotindisputethat,theaccusedistheresidentof Khajuri Maholla, Kada Darwaja, Visnagar. From the evidence of the complainant and witnesses, as discussed above they have only identified the accused and not attributedtheroletothisaccused.Butforthefirsttimeon 08.03.2002,hisnamehasbeentakenbythewitnessinthe statement before the Police, till then the witnesses are silent about the involvement of this accused. So far as identification of this accused is concerned, no doubt witnesses and accused are the resident of same locality therefore,questionofIdentificationParadedoesnotsurvive
// 942 //
and it can be inferred that, they arewell known to each other.Sofarasspecificroleasattributedbythewitnesses isconcerned,thatisalsonotsatisfactorilyestablishedby theprosecutionside.Therefore,thefactremainsthat,itis 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 toacquittheaccused. Therefore, the defence of the accused that, he has falsely been involved in the crime, he is innocent one is acceptableintheeyeoflaw. [326] AccusedNo.44: PATELDASHRATHKUMARSHIVABHAI (SessionsCaseNo.180/2002) ThisaccusedisidentifiedbeforetheCourtbyP.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66), P.W.5 Zubedabibi Mahebubkhan Baloch (Exh.84), P.W.8 Reshmaben Sattarbhai (Exh.87), P.W.25 Mohmad Hanif Ahmedkhan Baloch (Exh.134) and P.W.52 Faridabanu AhmedkhanBaloch(Exh.306)whereasP.W.8Reshmaben Sattarbhai(Exh.87)hasinherstatementdated10.03.2002 andP.W.25MohmadHanifAhmedkhanBaloch(Exh.134) has in his statement dated 08.03.2002 stated the
// 943 //
involvement of this accused in his statement before Visnagar Police while before S.I.T. they have stated that, theirstatementsarecorrectoneexceptthetimeofincident. WhileasperArrestandRecoveryPanchnama,Panchasare hostile but Sword was recovered from this accused on 15.05.2002,whichisnotshowntoanywitnessduringthe deposition of witnesses. Therefore, no reliance can be placedaboutthesaidMuddamalArticle. Now coming to the deposition of witnesses, P.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66) has not namedthisaccusedinhiscomplaint. P.W.5Zubedabibi MahebubkhanBaloch(Exh.84)hasafterdeclaringheras Hostile witness, in her crossexamination admitted that, she has mentioned the name of this accused in her statement before Police.Thiswitnessissilentinher first time deposition about the involvement of this accused, whileinhersecondtimedepositionshehasdeposedthat, thisaccusedalongwithotheraccusedinvolvedincausing injuriestohisFatherinlawAnvarkhan.Inhersecondtime crossexamination,shehasdeniedthat,shehasnotstated that,thisaccusedwaspresentinthemob,inherstatement beforePoliceorbeforeS.I.T.ordepositionbeforetheCourt. P.W.8ReshmabenSattarbhai(Exh.87)hasinvolvedand identifiedthepresentaccusedinherdepositionandinher crossexamination admitted that, this accused, whose name is mentioned by her in her second time statement
// 944 //
before Police, is residing in Dipra Darwaja. P.W.25 Mohmad Hanif Ahmedkhan Baloch (Exh.134) has deposedthat,thisaccusedwaspresentinthemob,having Sword in his hands. In his crossexamination, he has admittedthat,inhisstatementdated08.03.2002beforethe Police,hehasmentionedthat,thisaccusedwaspresentin themob,havingSwordinhishands. P.W.48Manubhai KarshanbhaiPatel(Exh.228)hasinhiscrossexamination admittedthat,hehasrecordedthestatementofAabidmiya Gulabkhanandhehasnotstatedthenameofthisaccused beforehim. Considering above evidence, complainant has not explainedwhyhehasnotmentionedthenameofpresent accusedinthecomplaint.Complainanthasidentifiedand involved present accused in his deposition. In such circumstancescorroborationfromotherevidencerequires. Considering the deposition P.W.5 Zubedabibi Mahebubkhan Baloch (Exh.84) corroboration about the involvement of this accused in the incident requires. Evidence of P.W.8 Reshmaben Sattarbhai (Exh.87) has involved and identified the present accused in her deposition and has also stated the involvement of this accused in her statement dated 10.03.2002. There is nothinginhercrossexaminationtodiscardhersayabout theinvolvementofthisaccusedintheincident.Sofaras identification is concerned, in crossexamination it is
// 945 //
specifically stated by her that, he is residing in Dipra DarwajainthatcircumstancesIdentificationParadeisnot necessary. P.W.25 Mohmad Hanif Ahmedkhan Baloch (Exh.134) has also involved the present accused in the incidentwithSword.Inhisstatementdated08.03.2002he has involved the present accused in the incident with Sword. In his crossexamination contradiction has been broughtabouttheinvolvementofthisaccusedwithSword but that contradiction is not such from which we can discardthewholesayofthiswitnessthatthisaccusedwas involvedintheincidentwithSword.Thatcontradictionat the most can be considered as minor one. Thus, considering over allevidenceagainstthepresentaccused hispresenceaswellasinvolvementintheincidentiswell establishedbytheprosecution. So far as Muddamal article Sword is concerned, witnesses have deposed about the use of Sword, by the accused but no identification of Muddamal Article took placeintheCourtandtherefore,noreliancecanbeplaced ontheevidenceofrecoveryofSword.Therefore,theversion ofwitnesshavingSwordbythisaccusedinthemobcanbe considered for involvement of this accused. Further, the factthat,thisaccusedwaspresentinChudivasinthemob, at the time of occurrence. The witnesses, as discussed abovehavestatedthepresenceofthisaccusedinthemob.
// 946 //
Itisnotindisputethat,theaccusedistheresidentof Para,OutsideKadaDarwaja,Visnagar,meaningthereby,he is the resident of Dipra Darwaja area and witnesses are also resident of Chudivas,DipraDarwaja,Visnagar.They areknowntoeachothersincepreviouslyhenceevidenceof witnesses can safely be accepted as regards to the involvementof thisaccusedandevidenceofwitnessesas discussed earlier having seen the accused in 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 makinganymistakeinthatregarddoesnotarise.Itdoes not possible to hold false implication of accused. This accused is identified by the witnesses in the Court. Therefore, if no Identification Parade took place, by the InvestigatingOfficer,thatamountsirregularityonthepart ofI.O.Here,inthepresentcaseenteringinChudivasatthe time of incident itself suggest the common object of the mobaswellasspecificroleattributedtotheaccused.There was no reason to enter in Chudivas at that odd time. Therefore by becoming a member of unlawful assembly accused entered in Chudivas and incident of pelting of stones, ransacking and burning of houses, abusing the Muslims and shouting slogans occurred. This fact itself suggestovertactinconnectionwithcommonobjectofthe mob. Meaning thereby accused had participated in
// 947 //
furtherance of common object of the mob. Therefore involvementofaccusediswellestablishedfromtheabove circumstances. The basic defence of this accused in his furtherexaminationunderSection313 ofCr.P.C.thathe has falsely been implicated is not satisfactorily explained and cannot be accepted. Further, there is no previous enmitywithwitnesses,whytheywillfalselyimplicatethis accused. There is no reason to falsely implicate the accused.Noonewouldfalselyinvolveaninnocentperson, keepingasidetherealculprit. [327] AccusedNo.45: PATELAMRUTBHAILILACHAND (SessionsCaseNo.180/2002) ThisaccusedisidentifiedbeforetheCourtbyP.W.58 Karishmabanu Yusufkhan Pathan (Exh.502) whereas P.W.25MohmadHanifAhmedkhanBaloch(Exh.134)has inhisstatementdated08.03.2002statedtheinvolvement of this accused in his statement before Visnagar Police whilebeforeS.I.T.theyhavestatedthat,theirstatements are correct one except the time of incident. While as per ArrestandRecoveryPanchnama,Panchasarehostilebut Sword was recovered from this accused on 15.05.2002, whichisnotshowntoanywitnessduringthedepositionof witnesses.Therefore,noreliancecanbeplacedaboutthe saidMuddamalArticle.
// 948 //
Now coming to the deposition of witnesses, P.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66) has not named this accused in his complaint. P.W.25 Mohmad Hanif Ahmedkhan Baloch (Exh.134) has deposed that, thisaccusedwaspresentinthemob,havingSwordinhis hands. Consideringaboveevidence,complainanthasneither involved nor identified the present accused nor has explainedwhyhehasnotmentionedthenameofpresent accused in the complaint. Considering the deposition of P.W.25 MohmadHanifAhmedkhanBaloch(Exh.134),in chiefexamination he is not naming the present accused, whileincrossexaminationhehasstatedthisaccusedwith Sword,andtherefore,byrelyinguponhisevidencesolely,it isquiteriskytoconvictanaccused.Someotherevidence requires. P.W.58 Karishmabanu Yusufkhan Pathan (Exh.502) simply identifies the accused by face but not statingabouttheinvolvementofthisaccused. Itisnotindisputethat,theaccusedistheresidentof Shamal Sheri, Darbar Road, Dipra Darwaja. From the evidence of the complainant and witnesses, as discussed above they have only identified the accused and not attributedtheroletothisaccused.Butforthefirsttimeon 08.03.2002,hisnamehasbeentakenbythewitnessinthe
// 949 //
statement before the Police, till then the witnesses are silent about the involvement of this accused. So far as identification of this accused is concerned, no doubt witnesses and accused are the resident of same locality therefore,questionofIdentificationParadedoesnotsurvive and it can be inferred that, they arewell known to each other.Sofarasspecificroleasattributedbythewitnesses isconcerned,thatisalsonotsatisfactorilyestablishedby theprosecutionside.Therefore,thefactremainsthat,itis 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 toacquittheaccused. Even other wise on considering the defence of the accused as narrated in F.S. that, he is politically, economically and socially leading and therefore, he is falsely implicated in the offence is plausible and genuine one. [328] AccusedNo.46: PATELYOGESHKUMARVITTHALBHAI (SessionsCaseNo.180/2002) This accused is not identified by any witness before the Court whereas P.W.25 Mohmad Hanif Ahmedkhan
// 950 //
Baloch (Exh.134) has in his statement dated 08.03.2002 stated the involvement of this accused in his statement beforeVisnagarPolicewhilebeforeS.I.T.theyhavestated that, their statements are correct one except the time of incident. While as per Arrest and Recovery Panchnama, Panchas are hostile but Sword was recovered from this accusedon15.05.2002,whichisnotshowntoanywitness during the depositionofwitnesses.Therefore,noreliance canbeplacedaboutthesaidMuddamalArticle. Now coming to the deposition of witnesses, P.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66) has not named this accused in his complaint. P.W.25 Mohmad Hanif Ahmedkhan Baloch (Exh.134) has in his cross examinationstatedthat,thisaccusedwaspresentinthe mob,havingSwordinhishands. Consideringaboveevidence,complainanthasneither identified nor involved the present accused and has not explainedwhyhehasnotmentionedthenameofpresent accused in the complaint. Considering the deposition of P.W.25 MohmadHanifAhmedkhanBaloch(Exh.134),in chiefexamination he is not naming the present accused, while in crossexamination he has paused this accused with Sword, and therefore, by relying upon his evidence solely,itisquiteriskytoconvictanaccused.Someother evidencerequires.
// 951 //
Itisnotindisputethat,theaccusedistheresidentof Para,OutsideKadaDarwaja,Visnagar.Fromtheevidence ofthecomplainantandwitnesses,asdiscussedabovethey haveonlyidentifiedtheaccusedandnotattributedtherole tothisaccused.Butforthefirsttimeon08.03.2002,his name has been taken by the witness in the statement beforethePolice,tillthenthewitnessesare silentabout theinvolvementofthisaccused.Sofarasidentificationof thisaccusedisconcerned,nodoubtwitnessesandaccused are the resident of same locality therefore, question of IdentificationParadedoesnotsurviveanditcanbeinferred that,theyarewellknowntoeachother.Sofarasspecific role as attributed by the witnesses is concerned, that is alsonotsatisfactorilyestablishedbytheprosecutionside. Therefore, the fact 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 general allegations. It would be appropriate to acquit the accused. Even other wise on considering the defence of the accused as narratedinF.S.that,onthedateofincident therewasBandhandtherefore,byclosinghisPanShop,he alongwithhisfamilymembersdoingagriculturalworkin
// 952 //
their Field as there was season of Wheat and as he is running the Pan Shop, many Muslims knows him and therefore, they have falsely implicated his name as an accusedisplausibleandgenuineone.
[329]
AccusedNo.47: PATELSURENDRAKUMAR@MADHOBABULAL (SessionsCaseNo.180/2002) ThisaccusedisidentifiedbeforetheCourtbyP.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66), P.W.5 ZubedabibiMahebubkhanBaloch(Exh.84),P.W.18Saiyed Nazirmiya Kalumiya (Exh.103), P.W.21 Shabbirkhan Ibrahimkhan (Exh.108), P.W.24 Shermahmad Dalubhai Sindhi (Exh.132), P.W.25 Mohmad Hanif Ahmedkhan Baloch(Exh.134),P.W.32MahmadhanifDalubhaiSindhi (Exh.150),P.W.33AnvarkhanBasirkhanBaloch(Exh.166), P.W.50SaidabibiMahmadhanifSindhi(Exh.302),P.W.51 Aminabibi Ahmedkhan Baloch (Exh.303), P.W.52 Faridabanu Ahmedkhan Baloch (Exh.306), P.W.58 KarishmabanuYusufkhanPathan(Exh.502)andP.W.127 ImrankhanSabirhusenPathan(Exh.681)whereasP.W.11 Anvarhusen Shabbirhusen Pathan (Exh.91) has in his statementdated10.03.2002andP.W.18SaiyedNazirmiya Kalumiya(Exh.103)hasinhisstatementdated08.03.2002 stated the involvement of this accused in his statement beforeVisnagarPolicewhilebeforeS.I.T.theyhavestated that, their statements are correct one except the time of
// 953 //
incident. While as per Arrest and Recovery Panchnama, Panchas are hostile but Sword was recovered from this accusedon15.05.2002,whichisnotshowntoanywitness during the depositionofwitnesses.Therefore,noreliance canbeplacedaboutthesaidMuddamalArticle. Now coming to the deposition of witnesses, P.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66) has not namedthisaccusedinhiscomplaint.P.W.11Anvarhusen Shabbirhusen Pathan (Exh.91) has in his cross examinationadmittedthat,thisaccusedwaspresentinthe mob,havingSwordinhishands.Hehasadmittedthat,he has mentioned the name of this accused in the second statementbeforePoliceandhasnotmentionedhisnamein his first statement before Police. P.W.18 Saiyed Nazirmiya Kalumiya (Exh.103) is silent about the involvement of this accused, while in his second time deposition, he hasdeposedthat,thisaccusedalong with otheraccusedenteredintheMahollaandwasshoutingthe slogansandhehasstatedsamefactsbeforehisfirsttime deposition.Hehasfurtherdeposedthat,hehasseenthis accusedalongwithotheraccusedwhilecuttingandkilling of the persons, with Sword. P.W.24 Shermahmad DalubhaiSindhi(Exh.132)issilentabouttheinvolvement of this accused in the Court, while in his second time deposition,hehasstatedthat,thisaccusedwaspresentin themob.Inhiscrossexaminationhehasdeniedthat,he
// 954 //
has not mentioned the name of this accused in his statementbeforePoliceorbeforeS.I.T.orinthedeposition beforetheCourt. P.W.30ShabbirmiyaHasumiyaBelim (Exh.146)issilentabouttheinvolvementofthisaccusedin hisfirstdeposition,whileinhissecondtimedeposition,he has deposed that, this accused was present in the mob, having Sword in his hands. In his crossexamination, he has denied that, he has not mentioned in the statement beforethePolicethat,thisaccusedwaspresentinthemob, having Sword in his hands. P.W.32 Mahmadhanif DalubhaiSindhi(Exh.150)issilentabouttheinvolvement ofthisaccusedinhisfirstdeposition,whileinhissecond time deposition, he has deposed that, this accused was present in the mob, having Sword in his hands. In his crossexamination, he has denied that, he has not mentioned in the statement before the Police that, this accused was present in the mob, having Sword in his hands. P.W.58 Karishmabanu Yusufkhan Pathan (Exh.502)hasdeposedthat,thisaccusedhadpeltedstone andhascausedinjuryonherHead. Considering the above evidence complainant has involvedandidentifiedthepresentaccusedbutinhisfirst timedepositionheissilentabouttheinvolvementofthis accused and he has not made any explanation for not namingtheaccusedinhisfirsttimedeposition.Hehasalso not explained why hehasnot named theaccused in the
// 955 //
complaint, in such circumstances corroboration requires. Evidence of P.W.11 Anvarhusen Shabbirhusen Pathan (Exh.91) is such a weak evidence it is quite risky to rely solely on the evidence of this witness. Some more satisfactory evidence to conclude the involvement of accused requires. P.W.18 Saiyed Nazirmiya Kalumiya (Exh.103)hasnotexplainedthat,whyhewassilentinhis firsttimedepositionandsecondtimedepositionregarding cutting,killingandburningisnotacceptedbythiscourtas discussedearlierandtherefore,inthesecircumstance,by relyingsolelyuponthisevidence,wecannotconcludethe involvementofthisaccusedwiththecrime.Thedeposition ofP.W.24ShermahmadDalubhaiSindhi(Exh.132),P.W.30 Shabbirmiya Hasumiya Belim (Exh.146) and P.W.32 Mahmadhanif Dalubhai Sindhi (Exh.150) also requires corroborationfromotherevidence,whytheyweresilentin theirfirsttimedepositionisnotexplainedsatisfactorilyand therefore, their second time evidence can only be consideredforcorroborationpurpose.ThesayofP.W.58 KarishmabanuYusufkhanPathan(Exh.502)aboutinjuries of pelting stone is concerned, she has deposed that, she hassustainedinjuryonherHeadinpeltingstone,bythis accused, which is not corroborated by Medical evidence hence this evidence cannot beaccepted to hold a person guilty. Itisnotindisputethat,theaccusedistheresidentof
// 956 //
RandalMataMadh,DipraDarwaja.Fromtheevidenceof the complainant and witnesses, as discussed above they haveonlyidentifiedtheaccusedandnotattributedtherole tothisaccused.Butforthefirsttimeon08.03.2002,his name has been taken by the witness in the statement beforethePolice,tillthenthewitnessesare silentabout theinvolvementofthisaccused.Sofarasidentificationof thisaccusedisconcerned,nodoubtwitnessesandaccused are the resident of same locality therefore, question of IdentificationParadedoesnotsurviveanditcanbeinferred that,theyarewellknowntoeachother.Sofarasspecific role as attributed by the witnesses is concerned, that is alsonotsatisfactorilyestablishedbytheprosecutionside. Therefore, the fact 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 established,requiresacquittal.
Therefore, the defence of the accused that, he has falsely been involved in the crime, he is innocent one is acceptableintheeyeoflaw.
// 957 //
[330]
AccusedNo.48: PATELALKESHKUMARSANKALCHAND (SessionsCaseNo.180/2002) ThisaccusedisidentifiedbeforetheCourtbyP.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66), P.W.5 Zubedabibi Mahebubkhan Baloch (Exh.84), P.W.8 ReshmabenSattarbhai(Exh.87),P.W.18SaiyedNazirmiya Kalumiya(Exh.103),P.W.23AhmedmiyaHasumiyaBelim (Exh.128), P.W.25 Mohmad Hanif Ahmedkhan Baloch (Exh.134) and P.W.30 Shabbirmiya Hasumiya Belim (Exh.146) whereas P.W.4 Aabidbhai Gulabkhan Sindhi (Exh.71)hasinhisstatementdated10.03.2002andP.W.23 Ahmedmiya Hasumiya Belim (Exh.128) has in his statementdated08.03.2002statedtheinvolvementofthis accused in his statement before Visnagar Police while before S.I.T. they have stated that, their statements are correctoneexceptthetimeofincident.WhileasperArrest and Recovery Panchnama, Panchas are hostile but Sky Colour Kerosene Tin was recovered from this accused on 15.05.2002,whichisnotshowntoanywitnessduringthe deposition of witnesses. Therefore, no reliance can be placedaboutthesaidMuddamalArticle. Now coming to the deposition of witnesses, P.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66) has not namedthisaccusedinhiscomplaint. P.W.5Zubedabibi MahebubkhanBaloch(Exh.84) hasafterdeclaringheras
// 958 //
Hostile witness, in her crossexamination admitted that, she has mentioned the name of this accused in her statement before Police. In her second time cross examination, she has admitted that, she does not remember that, she has mentioned the name of this accused in her statement beforePolice or before S.I.T. or deposition before the Court. While this witness has not stated in her statement before the Investigating Officer abouttheinvolvementofthisaccused.P.W.8Reshmaben Sattarbhai (Exh.87) hasdeniedinhercrossexamination that,shehasnotmentionedthenameofthisaccusedin her statement before Police. While this witness has not stated in her statement before the Investigating Officer about the involvement of this accused. P.W.23
Ahmedmiya Hasumiya Belim (Exh.128) has deposed that,thisaccusedwaspresentinthemobalongwithother accused and he had blow by Sword on Banubibi, Attaullakhan and Amanaullakhan. In his cross examination, he has denied that, he has not mentioned that this accused had blow by Sword, in his statement beforePolice.Inhissecondtimedeposition,hehasdenied that, he has not mentioned in the Statement dated 08.03.2002 before Visnagar Policethat, thisaccusedwas presentinthemob,havingSwordinhishands.Whilethis witness has not stated in his statement before the InvestigatingOfficerabouttheinvolvementofthisaccused thathewaspresentinthemob,havingSwordinhishands.
// 959 //
P.W.30ShabbirmiyaHasumiyaBelim(Exh.146)issilent in his first time deposition about the involvement of this accused, while in his second time deposition he has deposedthat,thisaccusedwaspresentinthemob,having Swordinhishands. P.W.158NazirMahmadSuleman (Exh.812)hasdeposedthat,offenceunderSection307was registered against this accused vide I.CR.No.121/2006. It hasnorelevancywiththiscrime. Considering the above evidence, complainant has involved and identified the accused in his deposition but not explained why he has not mentioned the name of present accused in thecomplaint, insuch circumstances corroboration requires. Evidence of P.W.5 Zubedabibi MahebubkhanBaloch(Exh.84)isnotsufficient.Sofaras evidenceofP.W.8ReshmabenSattarbhai(Exh.87)shehas simply identified this accused and therefore, on the strengthofheridentificationaccusedcannotbeheldguilty. Some more evidence is required. So far as evidence of P.W.23 Ahmedmiya Hasumiya Belim (Exh.128) about cutting, killing and burning of alleged 11 persons is concerned,asdiscussedhereinabove,itisnotbelievedby thiscourtandtherefore,byrelyingthatevidencecannotbe held guilty. Some more evidence is required. P.W.30 Shabbirmiya Hasumiya Belim (Exh.146) is not explaining whyhewassilentabouttheinvolvementofthisaccusedin hisfirsttimedepositionandtherefore,onthestrengthof
// 960 //
theevidenceonrecord,itisquiteriskytoheldguiltythis accused. Itisnotindisputethat,theaccusedistheresidentof Para,KotvaliSheri,OutsideKadaDarwaja,Visnagar.From the evidence of the complainant and witnesses, as discussedabovetheyhaveonlyidentifiedtheaccusedand notattributedtheroletothisaccused.Butforthefirsttime on08.03.2002,hisnamehasbeentakenbythewitnessin thestatementbeforethePolice,tillthenthewitnessesare silent about the involvement of this accused. So far as identification of this accused is concerned, no doubt witnesses and accused are the resident of same locality therefore,questionofIdentificationParadedoesnotsurvive and it can be inferred that, they arewell known to each other.Sofarasspecificroleasattributedbythewitnesses isconcerned,thatisalsonotsatisfactorilyestablishedby theprosecutionside.Therefore,thefactremainsthat,itis 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 theoffenceisestablished,requiresacquittal.
// 961 //
Even other wise on considering the defence of the accusedasnarratedinF.S.that,heisinnocentandheis falselyimplicatedintheincident,hisshoprunninginthe nameofJansanghandothertwoshops,whicharesituated intheMainmarketofVisnagarweresetonfireandtheir shops are situated in the Muslim area and the mob of Muslimshavesetonfireandransackedandrobbedtheir shopsandhealongwithmalemembersofhisfamilystayed in the shop for two days and Police has recorded their complaintandPanchnamaoftheirshopwaspreparedby thePoliceandtheirshopsdamagedworthRs.11,00,000/. Hehasfurtherstatedthat,thePolicehaslodgedCriminal CaseNo.211/2006,undersection307,147ofI.P.C.against himbutinthesaidcasehisnamewasfalselyimplicated because said case was lodged against Anikeshbhai Sankalchandbhai Shankarbhai whereas his name is Alkeshbhai Sankalchand Kacharabhai and thus, he isby mistake involved intheincidentisplausibleandgenuine one.
[331]
AccusedNo.49: PATELVIJAYKUMARBHOGILAL (SessionsCaseNo.180/2002) ThisaccusedisidentifiedbeforetheCourtbyP.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66), P.W.5 Zubedabibi Mahebubkhan Baloch (Exh.84), P.W.7
// 962 //
Amzadkhan Mahmadkhan Baloch (Exh.86), P.W.11 AnvarhusenShabbirhusenPathan(Exh.91),P.W.18Saiyed Nazirmiya Kalumiya (Exh.103), P.W.21 Shabbirkhan Ibrahimkhan (Exh.108), P.W.25 Mohmad Hanif Ahmedkhan Baloch (Exh.134), P.W.50 Saidabibi Mahmadhanif Sindhi (Exh.302) and P.W.52 Faridabanu Ahmedkhan Baloch (Exh.306) whereas P.W.25 Mohmad Hanif Ahmedkhan Baloch (Exh.134) has in his statement dated 08.03.2002 and P.W.26 Husenkhan Badarkhan Baloch (Exh.137) has in his statement dated 08.03.2002 stated the involvement of this accused in his statement beforeVisnagarPolicewhilebeforeS.I.T.theyhavestated that, their statements are correct one except the time of incident. While as per Arrest and Recovery Panchnama, Panchas are hostile but Short Spear, having handle of Wooden was recovered from this accused on 15.05.2002, whichisnotshowntoanywitnessduringthedepositionof witnesses.Therefore,noreliancecanbeplacedaboutthe saidMuddamalArticle. Now coming to the deposition of witnesses, P.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66) has not namedthisaccusedinhiscomplaint. P.W.5Zubedabibi MahebubkhanBaloch(Exh.84) hasafterdeclaringheras Hostile witness, in her crossexamination admitted that, shedoesnotrememberthat,shehasmentionedthename of this accused in her StatementbeforePolice/S.I.T.or
// 963 //
deposition before the Court. P.W.7 Amzadkhan Mahmadkhan Baloch (Exh.86) has denied in his cross examinationthat,hehasdeposedthenameofthisaccused whiledeposingnamesofadditionalaccused.Thiswitness hasnotstatedthenameofthisaccusedinthestatement before Investigating Officer M.K.Patel. P.W.11 Anvarhusen Shabbirhusen Pathan (Exh.91) has after declaringhimasHostile,inhiscrossexaminationbythe prosecutionadmittedthat,thisaccusedwaspresentinthe mob,havingIronPipeinhishands.Itisadmittedbyhim that,thisaccusedistheresidentofDipraDarwaja.P.W.18 SaiyedNazirmiyaKalumiya(Exh.103)hasinhiscross examination,hehasdeniedthat,hehasnotstatedbefore Police the name of this accused. P.W.21 Shabbirkhan Ibrahimkhan (Exh.108) has denied in his cross examinationthat,inhisstatementbeforePolice,hehasnot stated the name of this accused. This witness has not stated the name of this accused in the statement before InvestigatingOfficerM.K.Patel. P.W.25MohmadHanif Ahmedkhan Baloch (Exh.134) has deposed that, this accusedwasinthemobhavingShortSpearinhishands. In his crossexamination he has admitted that, he has mentioned the name of this accused in the application, preferred before the Magistrate about the involvement of this accused, having Dhariya in his hands. P.W.50 Saidabibi Mahmadhanif Sindhi (Exh.302) has stated in
// 964 //
herdepositionthat,thisaccusedwaspresentinthemob withweapon. Considering the above evidence, complainant has simply identified the accused in the Court but not disclosingtheinvolvementofthisaccusedinhisfirsttime deposition. No other evidence involving the accused therefore, corroboration of other evidence requires. Considering the deposition of P.W.5 Zubedabibi Mahebubkhan Baloch (Exh.84) and P.W.7 Amzadkhan Mahmadkhan Baloch (Exh.86), corroboration requires. Thus,evidenceisnotsufficientandcorroborationrequires toconvicttheaccused.P.W.11AnvarhusenShabbirhusen Pathan (Exh.91) is the Hostile witness, after declaring Hostile, he is admitting about the involvement of this accused,inthatcircumstancesalsocorroborationrequires. P.W.18 Saiyed Nazirmiya Kalumiya (Exh.103) simply identifying the accused and denial in crossexamination aboutnotnamingtheaccusedbeforethePoliceisnotthe sufficient evidence to convict the accused. There is contradictionbetweenthedepositionofInvestigatingOfficer andthiswitnessandtherefore,noreliancecanbeplaced forconvictingtheaccused.SofarasdepositionofP.W.25 MohmadHanifAhmedkhanBaloch(Exh.134)isconcerned, the evidence of this witness is about the involvement of accused is reliable, as in his earlier statement dated 08.03.2002 also he has stated the involvement of this
// 965 //
accusedbuttheidentificationisnecessaryasthisaccused istheresidentofKarshannagarSociety,howthiswitness knowthepresentaccusedisnotexplainedtherefore,inthe absenceofIdentificationParadeitisquiteriskybyrelying upontheaboveevidenceandtoconvicttheaccusedonthat basis. So far as evidence of P.W.50 Saidabibi Mahmadhanif Sindhi (Exh.302) is concerned, she has involved present accused in the incident but there is no Identification ParadebytheInvestigating Officeranditis onlyinsecondtimedeposition,thisaccusedhasidentified by this witness and she is saying that, she know the accused and in her first time deposition she has not identified this accused before the Court and in that circumstanceitisquiteriskytoconcludetheinvolvement ofthisaccusedinthecrime. Itisnotindisputethat,theaccusedistheresidentof KarshannagarSociety,DipraDarwaja,Visnagar.Fromthe evidence of the complainant and witnesses, as discussed above they have only identified the accused and not attributedtheroletothisaccused.Butforthefirsttimeon 08.03.2002,hisnamehasbeentakenbythewitnessinthe statement before the Police, till then the witnesses are silent about the involvement of this accused. So far as identification of this accused is concerned, here the accusedisresidinginseparateMahollawhilewitnessesare the resident of Chudivas, Dipra Darwaja and it is not explainedbythewitnessesthat,howtheyknowthepresent
// 966 //
accused.Inthepresentsetofcircumstances,identification isnecessaryandthereisgraveirregularityonthepartof Investigating Officer M.K.Patel for not conducting IdentificationParade.IdentificationParadeofthisaccused if done during the course of investigation, it would have increased probative value of the evidence of the witness. Here, value become minimal. In these circumstances benefitisrequiredtobegiventotheaccused. Sofaras specific role as attributed by the witnesses is concerned, thatisalsonotsatisfactorilyestablishedbytheprosecution side.Therefore,thefactremainsthat,itisnotsafetohold 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 established,requiresacquittal. Therefore, the defence of the accused that, he has falsely been involved in the crime, he is innocent one is acceptableintheeyeoflaw. [332] AccusedNo.50: PATELJITUBHAIBHARATBHAI (SessionsCaseNo.180/2002)
// 967 //
ThisaccusedisidentifiedbeforetheCourtbyP.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66), P.W.5 ZubedabibiMahebubkhanBaloch(Exh.84),P.W.18Saiyed Nazirmiya Kalumiya (Exh.103), P.W.21 Shabbirkhan Ibrahimkhan (Exh.108), P.W.25 Mohmad Hanif Ahmedkhan Baloch (Exh.134), P.W.30 Shabbirmiya Hasumiya Belim (Exh.146), P.W.52 Faridabanu AhmedkhanBaloch(Exh.306)andP.W.58Karishmabanu Yusufkhan Pathan (Exh.502) whereas P.W.4 Aabidbhai Gulabkhan Sindhi (Exh.71) has in his statement dated 10.03.2002 and P.W.26 Husenkhan Badarkhan Baloch (Exh.137)hasinhisstatementdated08.03.2002statedthe involvement of this accused in his statement before Visnagar Police while before S.I.T. they have stated that, theirstatementsarecorrectoneexceptthetimeofincident. WhileasperArrestandRecoveryPanchnama,Panchasare hostile but Short Spear, having handle of Wooden was recovered from this accused on 15.05.2002, which is not showntoanywitnessduringthedepositionofwitnesses. Therefore, no reliance can be placed about the said MuddamalArticle.
Now coming to the deposition of witnesses, P.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66) has not named this accused in his complaint. P.W.4 Aabidbhai
// 968 //
Gulabkhan Sindhi (Exh.71) is silent in his first time depositionabouttheinvolvementofthisaccused,whilein hissecondtimedepositionhehasstatedthat,hesawthis accusedwhilebeatingthewitnesses.P.W.11Anvarhusen Shabbirhusen Pathan (Exh.91) has deposed that, this accused was present in the mob having Dhariya in his hands. In his crossexamination, he has admitted that, thisaccusedisresidinginDipraDarwaja.P.W.18Saiyed Nazirmiya Kalumiya (Exh.103) has in his cross examination,hehasdeniedthat,hehasnotstatedbefore Police the name of this accused. P.W.48 Manubhai KarshanbhaiPatel(Exh.228)hasinhiscrossexamination admitted that, he has recorded the statement of Ahmedmiya Hasumiya and he has not stated in the statementbeforehimthat,thisaccusedwashavingSword inhishands. Consideringtheaboveevidence,theevidenceofP.W.2 MahmadIqbalAhmedkhanBaloch(Exh.66)issilentinhis firsttimedepositionabouttheinvolvementofthisaccused, itisonlyinsecondtimehehasinvolvedpresentaccusedin theincident.Itisnothingbutsimplyidentificationofthe accused,noexplanationfornotnamingtheaccusedinthe complaint, not sufficient for involving the accused in the crime. P.W.4 Aabidbhai Gulabkhan Sindhi (Exh.71) has deposed in his second time deposition about the involvementofthisaccusedinthecrimeandhehasalso
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stated the involvement of this accused in his statement dated10.03.2002.Heissilentinhisfirsttimedeposition. Corroboration requires from other evidence. P.W.11 Anvarhusen Shabbirhusen Pathan (Exh.91) neither identifyingtheaccusedintheCourtnorstatedinhisanyof thestatementabouttheinvolvementofthisaccusedinthe incident therefore, simply by solely relying upon his depositionabouttheinvolvementofthiswitness,accused cannotbeheldguilty.P.W.18SaiyedNazirmiyaKalumiya (Exh.103),thoughidentifyingandinvolvingtheaccusedin theincident,intheCourtbuthasnotmadeanystatement abouttheinvolvementofthisaccused,intheincidentand inthatcircumstances,wecannotconnecttheinvolvement oftheaccusedintheCrimesolelyonthisbasis. Itisnotindisputethat,theaccusedistheresidentof RandalMataMadh,DipraDarwaja.Fromtheevidenceof the complainant and witnesses, as discussed above they haveonlyidentifiedtheaccusedandnotattributedtherole tothisaccused.Butforthefirsttimeon08.03.2002,his name has been taken by the witness in the statement beforethePolice,tillthenthewitnessesare silentabout theinvolvementofthisaccused.Sofarasidentificationof thisaccusedisconcerned,nodoubtwitnessesandaccused are the resident of same locality therefore, question of IdentificationParadedoesnotsurviveanditcanbeinferred that,theyarewellknowntoeachother.Sofarasspecific
// 970 //
role as attributed by the witnesses is concerned, that is alsonotsatisfactorilyestablishedbytheprosecutionside. Therefore, the fact 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. Therefore, the defence of the accused that, he has falsely been involved in the crime, he is innocent one is acceptableintheeyeoflaw.
[333]
AccusedNo.51: PATELDAHYABHAIPARSHOTTAMDAS (SessionsCaseNo.28/2004) ThisaccusedisidentifiedbeforetheCourtbyP.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66), P.W.5 ZubedabibiMahebubkhanBaloch(Exh.84),P.W.18Saiyed Nazirmiya Kalumiya (Exh.103), P.W.23 Ahmedmiya Hasumiya Belim (Exh.128), P.W.24 Shermahmad
// 971 //
Dalubhai Sindhi (Exh.132), P.W.25 Mohmad Hanif Ahmedkhan Baloch (Exh.134), P.W.30 Shabbirmiya HasumiyaBelim(Exh.146),P.W.31AarifkhanYakubkhan Pathan (Exh.147) and P.W.32 Mahmadhanif Dalubhai Sindhi(Exh.150)whereasP.W.6MahmadkhanBadarkhan Baloch (Exh.85) has in his statement dated 10.03.2002, P.W.18 Saiyed Nazirmiya Kalumiya (Exh.103) has in his statement dated 08.03.2002, P.W.22 Yusufkhan Muradkhan Pathan (Exh.112) has in his statement dated 08.03.2002, P.W.23 Ahmedmiya Hasumiya Belim (Exh.128)hasinhisstatementdated08.03.2002,P.W.26 Husenkhan Badarkhan Baloch (Exh.137) has in his statement dated 08.03.2002, P.W.31 Aarifkhan Yakubkhan Pathan (Exh.147) has in his statement dated 08.03.2002 and P.W.33 Anvarkhan Basirkhan Baloch (Exh.166)hasinhisstatementdated08.03.2002statedthe involvement of this accused in his statement before Visnagar Police while before S.I.T. they have stated that, theirstatementsarecorrectoneexceptthetimeofincident. WhileasperArrestandRecoveryPanchnama,Panchasare hostile but Sword was recovered from this accused on 23.10.2002,whichisnotshowntoanywitnessduringthe deposition of witnesses. Therefore, no reliance can be placedaboutthesaidMuddamalArticle. Now coming to the deposition of witnesses, P.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66) has not
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named this accused in his complaint. In his cross examinationhehasdeniedbyhimthat,inhiscomplaintor inhisearlierdepositionhehasnotmentionedthenameof thisaccusedalongwithotheraccused,inkillingincidentof 11persons.P.W.4AabidbhaiGulabkhanSindhi(Exh.71) is silent in his first time deposition, while in his second timedepositionhehasnamedthepresentaccusedinthe mob,intheincidentofalleged killingandburningof11 persons.Inhiscrossexaminationhehasdeniedthat,he hasnotstatedbeforeVisnagarPoliceabouttheinvolvement ofthisaccusedinthekillingincident. P.W.5Zubedabibi Mahebubkhan Baloch (Exh.84) issilent in his first time deposition, while in his second time deposition, he has identifiedthepresentaccused.Inhiscrossexaminationby accused Nos.1 to 82, he has deposed that, he does not remember whether before S.I.T. or Police or during first timedeposition,hehasnamedpresentaccused. P.W.18 SaiyedNazirmiyaKalumiya(Exh.103) hasdeposedthat, this accused was having Sword while entering in the Maholla. In his second time deposition, he has deposed about shouting by the accused to threaten the Muslim persons that, they will kill them and entered in the Maholla. P.W.22 Yusufkhan Muradkhan Pathan (Exh.112) has deposed that, this accused was having Swordinhishands,whenthemobenteredintheMaholla andalsoatthetimeofkillingofalleged11personsandthis accusedwasverymuchinvolvedintheallegedkillingof11
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persons.P.W.23AhmedmiyaHasumiyaBelim(Exh.128) has deposed that, this accused was having Sword in his hands.Inhissecondtimedeposition,hehasdeposedabout thepresenceofthisaccusedinthemob,havingSwordin hishands.Inhiscrossexaminationhehadadmittedthat, hedoesnotrememberwhetherhehasstatedthenameof thisaccusedbeforeS.I.T.P.W.24ShermahmadDalubhai Sindhi(Exh.132)issilentinhisfirsttimedeposition,while in his second time deposition he has stated that, this accusedwasleadingthemob.Itisdeniedbythiswitness that,beforePoliceorinthefirsttimedepositionbeforethe CourtorintheapplicationdatedNilbeforetheS.I.T.,has notstatedthat,whenthemobwasbreakingandsettingon firethehouseofAkbarmiyaKalumiya,atthattimesome personsweresayingthat,thereareotherhousesinDipra Darwaja, to burn them, why they are burning only one house and in that mob the present accused was also leading the mob. P.W.25 Mohmad Hanif Ahmedkhan Baloch(Exh.134)issilentinhisfirsttimedeposition,while inhissecondtimedepositionhehastakenthenameofthis accusedandhadidentifiedhimbeforetheCourt.P.W.30 Shabbirmiya Hasumiya Belim (Exh.146) is silent in his firsttimedeposition,whileinhissecondtimedeposition, hehasdeposedthat,thisaccusedwashavingSwordinhis hands.Itisdeniedbyhimthat,hehasnotstatedbefore VisnagarPoliceabouttheinvolvementofthisaccusedwith
// 974 //
Swordinthemob.P.W.31AarifkhanYakubkhanPathan (Exh.147) issilentinhisfirsttimedeposition,whileinhis second time deposition, he has identified this accused beforetheCourt.P.W.32MahmadhanifDalubhaiSindhi (Exh.150)issilentinhisfirsttimedeposition,whileinhis secondtimedeposition,hehasdeposedthat,thisaccused was present in the mob with Sword. In his cross examination it is denied by him that, he has not stated beforePolicethat,presentaccusedwaspresentinthemob withSword,whichhesawfromtheWindowofFirstfloorof his house. P.W.48 Manubhai Karshanbhai Patel (Exh.228) has deposed that, Husenkhan Badarkhan has stated before him that, this accused was present in the mobwithSword.P.W.50SaidabibiMahmadhanifSindhi (Exh.302) hasdeposedthat,thisaccusedwasenteredin theMaholla,havingarminhishandsandwasinvolvedin the incident. She has deposed that, this accused is not present in the Court. P.W.52 Faridabanu Ahmedkhan Baloch(Exh.306)hasdeposedthat,thisaccusedwasvery muchinvolvedintheincident,havingdeadlyweaponinhis handsandenteredintheMahollaandpeltedStones. In hersecondtimedeposition,shehasidentifiedthisaccused. P.W.58KarishmabanuYusufkhanPathan(Exh.502)has deposed that, this accused was present in the mob and verymuchinvolvedintheincidentofkilling.Shehasnot identifiedthisaccusedbeforetheCourt.
// 975 //
Considering the evidence of P.W.2 Mahmad Iqbal AhmedkhanBaloch(Exh.66)theincidentofcutting,killing andburningof11allegeddeceasedpersonsisnotaccepted by the Court. He has identified and involved the present accusedinhisdepositionbuthasnotnamedtheaccused in the complaint. In first time deposition he has not explainedaboutnotnamingtheaccusedincomplaint.So farashisdepositionabouttheincidentofcutting,killing andburningof11allegeddeceasedpersonsisconcerned,it is not accepted by the Court, as discussed earlier. Therefore,onthebasisofhisabovedepositionaboutthe involvement of this accused and that too, in absence of nameofthisaccusedinthecomplaint,isnotsufficientto heldguiltyaccusedbysolelyrelyinguponpresentevidence, corroboration requires. P.W.4 Aabidbhai Gulabkhan Sindhi(Exh.71) hasnotidentifiedtheaccusedbeforethe Court. P.W.5 ZubedabibiMahebubkhanBaloch(Exh.84) thereisnostatementofthiswitness,involvingthepresent accused and that she was first time silent about the involvement of this accused and whether she has stated before S.I.T. or Police about the involvement of this accused, she does not remember, in such a piece of evidence,itisquiteriskytoinvolvetheaccusedwiththe crime. P.W.18 Saiyed Nazirmiya Kalumiya (Exh.103) has identifiedaswellasstatedinvolvementofthisaccusedin his statement and has also supported the fact in his
// 976 //
deposition regarding involvement of this accused in the incident,thatisacceptable.Nothingincrossexamination isbroughtfromwhichwecandiscardtheevidenceofthis witness.SofarasP.W.22YusufkhanMuradkhanPathan (Exh.112)isconcerned,hehasinvolvedthisaccusedinthe cutting,killingandburningof11allegeddeceasedpersons but has not identified this accused before the Court, thoughhas statedtheinvolvementofthisaccusedinhis statement. As discussed in the earlier part of this Judgement, this court has not believed the cutting and killingincidentandtherefore,thatpartofevidenceisnot acceptablewhileenteringintheMahollainthemobbythis accused is acceptable. Nothing in crossexamination has beenbrought,fromwhichwecandiscardtheaboveportion of his evident, which is acceptable. P.W.23 Ahmedmiya Hasumiya Belim (Exh.128) has identified as well as has stated the involvement of this accused in the incident, though in his crossexamination he does not remember whether he has namedthisaccusedbeforeS.I.T.,itdoes notmakemuchdifference,astheevidenceofthiswitnessis otherwise satisfactory regarding the involvement of this accused.P.W.24ShermahmadDalubhaiSindhi(Exh.132) hasdeposedabouttheinvolvementofthisaccusedinhis second time deposition. Though he was first time silent abouttheinvolvementofthisaccused.He hasattributed specificroletothepresentaccused.Hehasidentified the accused. This accused was leading the mob is stated by
// 977 //
thiswitness.Thus,enteringintheMahollaandtakingpart in the incident is acceptable. P.W.25 Mohmad Hanif Ahmedkhan Baloch (Exh.134) identifying the accused but has not stated in any of his statement about the involvementofthisaccusedintheincidentandfirsttimehe wassilenttherefore,itisdifficulttoplacerelianceuponhis sayinsecondtimedepositionaboutnamingtheaccusedin themob.P.W.30ShabbirmiyaHasumiyaBelim(Exh.146) though identifying the accused but not making any statement before Police about the involvement of this accused and in his first time deposition also not making any statement about the involvement of this accused in thatcircumstances,involvementoftheaccusedinsecond timedepositioncannotbeacceptedassafetoheldguiltof the accused. P.W.31 Aarifkhan Yakubkhan Pathan (Exh.147)thoughidentifyingtheaccusedintheCourtand statinginvolvementoftheaccusedinhisstatementbefore Police but first time, he is silent in the Court, in such circumstances only identification before the Court is not sufficient to held guilty. P.W.32 Mahmadhanif Dalubhai Sindhi (Exh.150) has not stated in his any of statement about the involvement of this accused and in that circumstances,involvementofthisaccusedinsecondtime deposition is not sufficient to hold the involvement of accused.P.W.50SaidabibiMahmadhanifSindhi(Exh.302) hadneitheridentifiednormadeanystatementbeforePolice andinthesecircumstanceshersayabouttheinvolvement
// 978 //
ofthisaccusedisquiteriskyagainstthisaccused.P.W.52 Faridabanu Ahmedkhan Baloch (Exh.306) neither identifying before the Court nor making any statement before Police, in that circumstances, her say about the involvementofaccusedcannotsolelybereliedupontoheld guiltytheaccused.AsP.W.58KarishmabanuYusufkhan Pathan(Exh.502)hasnotidentifiedtheaccusedbeforethe Court, it is difficult to accept her evidence against the accused. Thus considering above all evidence, there is sufficient evidenceagainstthepresent accusedabout his involvement in the incident. There is nothing in cross examination of the witnesses from which we can discard theevidenceagainstthepresentaccused,whichisbrought onrecordbyprosecution. So far as Muddamal article Sword is concerned, witnesses have deposed about the use of Sword, by the accused but no identification of Muddamal Article took placeintheCourtandtherefore,noreliancecanbeplaced ontheevidenceofrecoveryofSword.Therefore,theversion ofwitnesshavingSwordbythisaccusedinthemobcanbe considered for involvement of this accused. Further, the factthat,thisaccusedwaspresentinChudivasinthemob, at the time of occurrence. The witnesses, as discussed abovehavestatedthepresenceofthisaccusedinthemob. Itisnotindisputethat,theaccusedistheresidentof
// 979 //
Dipra Darwaja, Visnagar, meaning thereby, he is the resident of Dipra Darwaja area and witnesses are also resident of Chudivas, Dipra Darwaja, Visnagar. They are known to each other since previously hence evidence of witnesses can safely be accepted as regards to the involvementof thisaccusedandevidenceofwitnessesas discussed earlier having seen the accused in 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 makinganymistakeinthatregarddoesnotarise.Itdoes not possible to hold false implication of accused. This accused is identified by the witnesses in the Court. Therefore, if no Identification Parade took place, by the InvestigatingOfficer,thatamountsirregularityonthepart ofI.O.Here,inthepresentcaseenteringinChudivasatthe time of incident itself suggest the common object of the mobaswellasspecificroleattributedtotheaccused.There was no reason to enter in Chudivas at that odd time. Therefore by becoming a member of unlawful assembly accused entered in Chudivas and incident of pelting of stones, ransacking and burning of houses, abusing the Muslims and shouting slogans occurred. This fact itself suggestovertactinconnectionwithcommonobjectofthe mob. Meaning thereby accused had participated in furtherance of common object of the mob. Therefore
// 980 //
involvementofaccusediswellestablishedfromtheabove circumstances. The basic defence of this accused in his furtherexaminationunderSection313 ofCr.P.C.thathe has falsely been implicated is not satisfactorily explained and cannot be accepted. Further, there is no previous enmitywithwitnesses,whytheywillfalselyimplicatethis accused. There is no reason to falsely implicate the accused.Noonewouldfalselyinvolveaninnocentperson, keepingasidetherealculprit. [334] AccusedNo.52: PATELBHARATBHAIISHVARBHAI (SessionsCaseNo.28/2004) ThisaccusedisidentifiedbeforetheCourtbyP.W.18 SaiyedNazirmiyaKalumiya(Exh.103),P.W.22Yusufkhan Muradkhan Pathan (Exh.112), P.W.23 Ahmedmiya Hasumiya Belim (Exh.128), P.W.25 Mohmad Hanif Ahmedkhan Baloch (Exh.134), P.W.30 Shabbirmiya Hasumiya Belim (Exh.146) and P.W.52 Faridabanu AhmedkhanBaloch(Exh.306)whereasP.W.3Gulabkhan alias Gulubhai Kayamkhan Sindhi (Exh.70)hasstatedin his statement dated 10.03.2002 and P.W.22 Yusufkhan MuradkhanPathan(Exh.112)hasstatedinhisstatement dated08.03.2002statedtheinvolvementofthisaccusedin his statement before Visnagar Police while before S.I.T. they have stated that, their statements are correct one except the time of incident. While as per Arrest and
// 981 //
RecoveryPanchnama,PanchasarehostilebutSwordwas recovered from this accused on 23.10.2002, which is not showntoanywitnessduringthedepositionofwitnesses. Therefore, no reliance can be placed about the said MuddamalArticle. Now coming to the deposition of witnesses, P.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66) has not named this accused in his complaint. He is silent in his firsttimedeposition,whileinhissecondtimedepositionhe hasstatedthat,atthetimeofrecordingofcomplaint,he hasnamedpresentaccusedbuthisnamewasnotwritten in the Complaint. As per his say this accused was not presentintheCourt.Itisdeniedbyhimthat,hehasnot stated the name of present accused in the Complaint. P.W.18 Saiyed Nazirmiya Kalumiya (Exh.103) has deposedthat,thisaccusedwaspresentinthemob.P.W.22 Yusufkhan Muradkhan Pathan (Exh.112) has deposed that,thisaccusedwaspresentinthemobwithSword.As perhissay,thisaccusedwasverymuchinvolvedincutting, killingandburningofalleged11deceasedpersons.P.W.23 AhmedmiyaHasumiyaBelim(Exh.128) issilentinhis firsttimedeposition,whileinhissecondtimedepositionhe has stated that, he does not remember whether he has statedthenameofpresentaccusedfirsttimebeforeS.I.T. P.W.25MohmadHanifAhmedkhanBaloch(Exh.134)is
// 982 //
silentinhisfirsttimedeposition,whileinhissecondtime deposition he has identified this accused. P.W.30 ShabbirmiyaHasumiyaBelim(Exh.146) issilentinhis firsttimedeposition,whileinhissecondtimedepositionhe hasdeposedthat,thisaccusedwasverymuchinvolvedin theincident,armedwithSwordinhishands.Itisdenied byhimthat,hehasnotstatedbeforeVisnagarPolicethat, thisaccusedwaspresentinthemobwithSword.P.W.52 FaridabanuAhmedkhanBaloch(Exh.306)issilentinher first time deposition, whilein her second time deposition shehasnamedpresentaccusedinthemob. ConsideringtheevidenceofP.W.18SaiyedNazirmiya Kalumiya (Exh.103) though has identified the accused in the Court but has not made any statement before any Police regarding the involvement of the accused in the incident, in such circumstances, his deposition regarding the presence of this accused in the mob cannot be considered sufficient to held guilt of the accused, some more corroboration requires. So far as evidence P.W.2 MahmadIqbalAhmedkhanBaloch(Exh.66)inthisregard is concerned, as discussed in the earlier part of this Judgement, the say of the complainant regarding not recordingoffactsinthecomplaint,asperhisnarrationis alreadydiscussed.Consideringthefactthat,thisaccused isnotidentifiedbeforetheCourt,accusedcannotbeheld guiltyinsuchpieceofevidence.Itwastheboundeddutyof
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theprosecutiontogiveachanceoftothewitnesstoidentify the accused. Here, it appears missing, specially in the circumstances when no Identification Parade was taken place during the investigation. P.W.22 Yusufkhan Muradkhan Pathan (Exh.112) has identified the accused and stated the involvement of accused in his statement before Police. As discussed earlier, cutting, killing and burning of 11 deceased persons is not accepted by this Court.Theevidenceofthiswitnessissolelynotsufficient toconcludeagainsttheaccused.TheevidenceofP.W.23 Ahmedmiya Hasumiya Belim (Exh.128) though identifying notmakinganystatementbeforethePoliceregardingthe involvementofaccusedisnotsufficienttoconcludeagainst the accused. P.W.25MohmadHanifAhmedkhanBaloch (Exh.134) though identifying the accused but not making any statement before Police regarding involvement of this accused,intheincident.Theevidenceofthiswitnessonly identifying the accused in the Court is not sufficient. P.W.30 Shabbirmiya Hasumiya Belim (Exh.146) though identifyingtheaccusedintheCourtbuthasnotmadeany statement before Police and his silence in his first time depositionissufficientfornotconsideringtheinvolvement ofthisaccusedintheincidentasnarratedbythiswitness in Second time deposition. P.W.52 Faridabanu Ahmedkhan Baloch (Exh.306) identified the accused but notstatedagainstthepresentaccusedinheranystatement beforePoliceandinherfirsttimedepositionsheissilent
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and hence simply in second time deposition naming the accusedisnotsufficienttoheldguiltytheaccused. Itisnotindisputethat,theaccusedistheresidentof Ishwarkrupa Society, Visnagar. From the evidence of the complainantandwitnesses,asdiscussedabovetheyhave onlyidentified theaccusedandnotattributedtheroleto this accused. But for the first time on 08.03.2002, his name has been taken by the witness in the statement beforethePolice,tillthenthewitnessesare silentabout theinvolvementofthisaccused.Sofarasidentificationof thisaccusedisconcerned,heretheaccusedisresidingin separate Maholla while witnesses are the resident of Chudivas, Dipra Darwaja and it is not explained by the witnessesthat,howtheyknowthepresentaccused.Inthe present set of circumstances, identification is necessary andthereisgraveirregularityonthepartofInvestigating OfficerM.K.PatelfornotconductingIdentificationParade. Identification Parade of this accused if done during the course of investigation, it would have increased probative value of the evidence of the witness. Here, value become minimal.Inthesecircumstancesbenefitisrequiredtobe giventotheaccused. Sofarasspecificroleasattributed bythewitnessesisconcerned,thatisalsonotsatisfactorily established by the prosecution side. Therefore, the fact remainsthat,itisnotsafetoholdaccusedguiltyonthe basisofgeneralallegations.Thereisnoothermaterialon
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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. Therefore, the defence of the accused that, he has
falsely been involved in the crime, he is innocent one is acceptableintheeyeoflaw. [335] AccusedNo.53: PATELRAMESHKUMARMADHAVLAL (SessionsCaseNo.28/2004) ThisaccusedisidentifiedbeforetheCourtbyP.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66), P.W.5 ZubedabibiMahebubkhanBaloch(Exh.84),P.W.18Saiyed Nazirmiya Kalumiya (Exh.103), P.W.23 Ahmedmiya Hasumiya Belim (Exh.128), P.W.24 Shermahmad Dalubhai Sindhi (Exh.132), P.W.25 Mohmad Hanif Ahmedkhan Baloch (Exh.134), P.W.30 Shabbirmiya Hasumiya Belim (Exh.146), P.W.32 Mahmadhanif Dalubhai Sindhi (Exh.150) and P.W.58 Karishmabanu Yusufkhan Pathan (Exh.502) whereas P.W.3 Gulabkhan
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alias Gulubhai Kayamkhan Sindhi (Exh.70)hasstatedin his statement dated 10.03.2002, P.W.22 Yusufkhan MuradkhanPathan(Exh.112)hasstatedinhisstatement dated 08.03.2002 and P.W.33 Anvarkhan Basirkhan Baloch(Exh.166)hasinhis statementdated08.03.2002 stated the involvement of this accused in his statement beforeVisnagarPolicewhilebeforeS.I.T.theyhavestated that, their statements are correct one except the time of incident. While as per Arrest and Recovery Panchnama, Panchas are hostilebutPlasticGallonofWhiteColourof Petrol was recovered from this accused on 23.10.2002, whichisnotshowntoanywitnessduringthedepositionof witnesses.Therefore,noreliancecanbeplacedaboutthe saidMuddamalArticle. Now coming to the deposition of witnesses, P.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66) has not named this accused in his complaint. He is silent in his firsttimedeposition,whileinhissecondtimedepositionhe hasidentifiedthisaccused.Itisdeniedbyhimthat,hehas notstatedthenameofpresentaccusedintheComplaint. P.W.5ZubedabibiMahebubkhanBaloch(Exh.84) isthe Hostile witness. Sheissilentinherfirsttimedeposition, whileinhersecondtimedepositionshehasstatedabout theinvolvementofthisaccusedintheincident.Itisdenied by her that, there was no such person in the mob. It is deniedbyherthat,inherearlierdepositionaswellasin
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her earlier Statements before Police or S.I.T. she has not mentionedthenameofpresentaccused.Inhersecondtime deposition,shehasidentified RameshbhaiMadhabhaias Ramanbhai Madhabhai. P.W.18 Saiyed Nazirmiya Kalumiya(Exh.103)hasdeposedthat,thisaccusedisnot presentinthecourtbuthasstatedthat,thisaccusedwas present in the mob. He has denied that, in his Police Statement,hehasnotmentionedthenameofthisaccused. In his second time deposition he has identified this accused. P.W.22 Yusufkhan Muradkhan Pathan (Exh.112) has deposedthat,thisaccusedwaspresentin themobwithPetrolTin.Thiswitnesshasdeposedabout the involvement of this accused in the killing incident. P.W.23AhmedmiyaHasumiyaBelim(Exh.128)issilent in his first time deposition, while in his second time deposition he has identified this accused. In his cross examination he has stated that, he does not remember whetherhehasmentionedthenameofthisaccusedbefore S.I.T. P.W.24 Shermahmad Dalubhai Sindhi (Exh.132) is silent in his first time deposition, while in his second timedepositionhehasstatedthat,identifiedthisaccused. P.W.29 Hanifabibi Shabbirbhai Pathan (Exh.144) is silentinhisfirsttimedeposition,whileinhissecondtime deposition he has identified this accused. P.W.30 Shabbirmiya Hasumiya Belim (Exh.146) is silent in his firsttimedeposition,whileinhissecondtimedepositionhe
// 988 //
has stated that, this accused was having Dhariya in his handsandinvolvedintheincident.Hehasidentifiedthis accused.Itisdeniedbyhimthat,hehasnotstatedbefore VisnagarPolicethat,thisaccusedwaspresentinthemob with Dhariya. P.W.32 Mahmadhanif Dalubhai Sindhi (Exh.150)issilentinhisfirsttimedeposition,whileinhis second time deposition he has identified this accused. P.W.48ManubhaiKarshanbhaiPatel(Exh.228) hasin hiscrossexaminationadmittedthat,hehasrecordedthe statement of Anvarkhan Bashirkhan, who has not stated before him that, thisaccusedwasinstigating themobto proceed. P.W.52 Faridabanu Ahmedkhan Baloch (Exh.306)issilentinherfirsttimedeposition,whileinher second time deposition she has identified this accused. P.W.58KarishmabanuYusufkhanPathan(Exh.502)has deposed that, this accused was present in the mob in killingincident.Shehasidentifiedthisaccused. SofarasevidenceP.W.2MahmadIqbalAhmedkhan Baloch(Exh.66)inthisregardisconcerned,asdiscussedin the earlier part of this Judgement, the say of the complainant regarding not recording of facts in the complaint,asperhisnarrationisalreadydiscussed.This accusedisidentifiedbeforetheCourtandhasstatedabout theinvolvementofthisaccusedinhisdepositionbutnot namedinthecomplaintandhasnotexplainedaboutnot naming the accused in the Complaint, in his first time
// 989 //
deposition.Insuchcircumstances,corroborationrequires. P.W.5ZubedabibiMahebubkhanBaloch(Exh.84)though identifying the accused but not stated about the involvement of this accused in any of her statement. Consideringherevidenceitisquiteriskytoconcludethe involvement of accusedinabovesetofevidence.P.W.18 SaiyedNazirmiyaKalumiya(Exh.103)thoughhasidentified theaccusedintheCourtbuthasnotmadeanystatement beforeanyPoliceregardingtheinvolvementoftheaccused in the incident, in such circumstances, his deposition regardingthepresenceofthisaccusedinthemobcannot beconsideredsufficienttoheldguiltytheaccused.P.W.22 YusufkhanMuradkhanPathan(Exh.112)hasnotidentified theaccusedbuthasstatedtheinvolvementofaccusedin his statement before Police. As discussed earlier, cutting, killingandburningof11deceasedpersonsisnotaccepted bythisCourt.Theevidenceofthiswitnessisnotsufficient toconcludeagainsttheaccused.TheevidenceofP.W.23 Ahmedmiya Hasumiya Belim (Exh.128) is concerned, considering the contradiction and deposition of this witness, evidence is not sufficient to conclude against accused.P.W.24ShermahmadDalubhaiSindhi(Exh.132) though identifying not involving this accused in his statement before Police, it is only in his second time deposition, identification of accused exists, thus his evidenceisnotsufficienttoconnecttheaccusedwiththe crime. P.W.29 Hanifabibi Shabbirbhai Pathan (Exh.144)
// 990 //
neitheridentifyingtheaccusednotmakinganystatement beforePoliceregardinginvolvementofthisaccused,inthe incident.Simplyidentificationinsecondtimedepositionis notsufficienttoinvolvethisaccusedwiththecrime.P.W.30 Shabbirmiya Hasumiya Belim (Exh.146) though identifyingtheaccusedintheCourtbuthasnotmadeany statementbeforePoliceandinsuchcircumstancetoinvolve the accused in second time deposition is quite risky to adoptit.P.W.32MahmadhanifDalubhaiSindhi(Exh.150) is simply identifying and not stating the name of this accused in his any of his statement before the Police, in such circumstances identification of the accused in his secondtimedepositionisnotsufficienttoconcludeagainst accused. P.W.52 Faridabanu Ahmedkhan Baloch (Exh.306) neitheridentifyingtheaccusednorstatingthe name of accused in his statement before Police and therefore,itisquiteriskytoaccepthersayinsecondtime deposition. P.W.58 Karishmabanu Yusufkhan Pathan (Exh.502)hasidentifiedtheaccusedbutnotstatingbefore Policeagainstthepresentaccused,therefore,herevidence cannot be accepted against the accused, especially when cutting,killingandburningincidentisnotacceptedbythis Court. Itisnotindisputethat,theaccusedistheresidentof DipraDarwaja.Fromtheevidenceofthecomplainantand witnesses,asdiscussedabovetheyhaveonlyidentifiedthe
// 991 //
accusedandnotattributedtheroletothisaccused.Butfor thefirsttimeon08.03.2002,hisnamehasbeentakenby thewitnessinthestatementbeforethePolice,tillthenthe witnessesaresilentabouttheinvolvementofthisaccused. So far as identification of this accused is concerned, no doubt witnesses and accused are the resident of same localitytherefore,questionofIdentificationParadedoesnot surviveanditcanbeinferredthat,theyarewellknownto each other. So far as specific role as attributed by the witnesses is concerned, that is also not satisfactorily established by the prosecution side. Therefore, the fact remainsthat,itisnotsafetoholdaccusedguiltyonthe 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. Even other wise on considering the defence of the accused as narrated in F.S. that, he is politically, economically and socially leading and therefore, he is falsely implicated in the offence is plausible and genuine
// 992 //
one.
[336]
AccusedNo.54: PATELJITENDRAKUMARALIASJITUBHAI SHIVRAMBHAI@SHIVABHAI (SessionsCaseNo.28/2004) ThisaccusedisidentifiedbeforetheCourtbyP.W.5 ZubedabibiMahebubkhanBaloch(Exh.84),P.W.18Saiyed Nazirmiya Kalumiya (Exh.103), P.W.22 Yusufkhan Muradkhan Pathan (Exh.112), P.W.23 Ahmedmiya Hasumiya Belim (Exh.128) and P.W.30 Shabbirmiya Hasumiya Belim (Exh.146) whereas P.W.6 Mahmadkhan Badarkhan Baloch (Exh.85) has in his statement dated 10.03.2002 and P.W.22 Yusufkhan Muradkhan Pathan (Exh.112) has stated in his statement dated 08.03.2002 stated the involvement of this accused in his statement beforeVisnagarPolicewhilebeforeS.I.T.theyhavestated that, their statements are correct one except the time of incident. While as per Arrest and Recovery Panchnama, PanchasarehostilebutDhariyahavinghandleofIronPipe wasrecoveredfromthisaccusedon23.10.2002,whichis not shown to any witness during the deposition of witnesses.Therefore,noreliancecanbeplacedaboutthe saidMuddamalArticle. Now coming to the deposition of witnesses, P.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66) has not
// 993 //
named this accused in his complaint. He is silent in his firsttimedeposition,whileinhissecondtimedepositionhe hasdeposedthat,hehasstatedthenameofthisaccused whilerecordingthecomplaintbuthisnamewasnotwritten inthecomplaint.Itisdeniedbyhimthat,hehasnotstated the name of present accused in the complaint. P.W.18 SaiyedNazirmiyaKalumiya(Exh.103)issilentinhisfirst timedeposition,whileinhissecondtimedepositionhehas identified this accused. P.W.23 Ahmedmiya Hasumiya Belim(Exh.128)issilentinhisfirsttimedeposition,while in his second time deposition he has identified this accused.Inhiscrossexaminationhehasadmittedthat,he doesnotrememberwhetherhehasnamedthisaccusedin his statement before S.I.T. P.W.30 Shabbirmiya Hasumiya Belim (Exh.146) is silent in his first time deposition, while in his second time deposition he has deposed that, this accused was present in the mob with Dhariya.Hehasalsodeposedabouttheinvolvementofthis accusedintheincident.Inhissecondtimedepositionhe hasidentifiedthisaccused.Hehasdeniedthat,hehasnot statedbeforeVisnagarPoliceabouttheinvolvementofthis accusedinthemob,withDhariya,intheincident. SofarasevidenceP.W.2MahmadIqbalAhmedkhan Baloch(Exh.66)inthisregardisconcerned,asdiscussedin the earlier part of this Judgement, the say of the complainant regarding not recording of facts in the
// 994 //
complaint,asperhisnarrationisalreadydiscussed.This accusedisidentifiedbeforetheCourtandhasstatedabout theinvolvementofthisaccusedinhisdepositionbutnot namedinthecomplaintandhasnotexplainedaboutnot naming the accused in the Complaint, in his first time deposition.Insuchcircumstances,corroborationrequires. P.W.18SaiyedNazirmiyaKalumiya(Exh.103)thoughhas identifiedtheaccusedintheCourtbuthasnotmadeany statement before any Police regarding the involvement of the accused in the incident, in such circumstances, consideringhissecondtimedepositionitisnotsufficientto held guilty the accused. The evidence of P.W.23 Ahmedmiya Hasumiya Belim (Exh.128) is concerned, considering the contradiction and deposition of this witness, evidence is not sufficient to conclude against accused.P.W.30ShabbirmiyaHasumiyaBelim(Exh.146) though identifying the accused in the Court but has not madeanystatementbeforePoliceandinsuchcircumstance toacceptthesecondtimedepositionagainsttheaccusedis quiteriskytoadoptit. Itisnotindisputethat,theaccusedistheresidentof DipraDarwaja.Fromtheevidenceofthecomplainantand witnesses,asdiscussedabovetheyhaveonlyidentifiedthe accusedandnotattributedtheroletothisaccused.Butfor thefirsttimeon08.03.2002,hisnamehasbeentakenby thewitnessinthestatementbeforethePolice,tillthenthe
// 995 //
witnessesaresilentabouttheinvolvementofthisaccused. So far as identification of this accused is concerned, no doubt witnesses and accused are the resident of same localitytherefore,questionofIdentificationParadedoesnot surviveanditcanbeinferredthat,theyarewellknownto each other. So far as specific role as attributed by the witnesses is concerned, that is also not satisfactorily established by the prosecution side. Therefore, the fact remainsthat,itisnotsafetoholdaccusedguiltyonthe 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. Even other wise on considering the defence of the accused as narrated in F.S. that, has stated that, he is politically,economicallyandsociallyleadingandtherefore, with intention to defame he is falsely implicated in the offenceisplausibleandgenuineone.
// 996 //
[337]
AccusedNo.55: PATELPARSHOTTAMBHAIJOITARAM (SessionsCaseNo.28/2004) ThisaccusedisidentifiedbeforetheCourtbyP.W.18 SaiyedNazirmiyaKalumiya(Exh.103),P.W.22Yusufkhan Muradkhan Pathan (Exh.112), P.W.25 Mohmad Hanif Ahmedkhan Baloch (Exh.134) and P.W.50 Saidabibi MahmadhanifSindhi(Exh.302)whereasP.W.3Gulabkhan alias Gulubhai Kayamkhan Sindhi (Exh.70)hasstatedin his statement dated 10.03.2002 and P.W.22 Yusufkhan Muradkhan Pathan (Exh.112) has in his statement dated 08.03.2002 stated the involvement of thisaccused in his statement before Visnagar Police while before S.I.T. they have stated that, their statements are correct one except the time of incident. While as per Arrest and Recovery Panchnama, Panchas are hostile but Short Spear having Wooden handle was recovered from this accused on 23.10.2002,whichisnotshowntoanywitnessduringthe deposition of witnesses. Therefore, no reliance can be placedaboutthesaidMuddamalArticle. Now coming to the deposition of witnesses, P.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66) has not named this accused in his complaint. He is silent in his firsttimedeposition,whileinhissecondtimedepositionhe hasdeposedthat,hehasstatedthenameofthisaccused whilerecordingthecomplaintbuthisnamewasnotwritten
// 997 //
inthecomplaint.Itisdeniedbyhimthat,hehasnotstated the name of present accused in the complaint. P.W.18 SaiyedNazirmiyaKalumiya(Exh.103)issilentinhisfirst timedeposition,whileinhissecondtimedepositionhehas deposed that, thisaccused was not present in the Court but he was present in the mob. In his second time depositionhehasstatedthat,ParshottamJoitarammeans Engineer. P.W.22 Yusufkhan Muradkhan Pathan (Exh.112) has deposedthat,thisaccusedwaspresentin themob,havingShortSpearinhishandsandinvolvedin thehands. P.W.25MohmadHanifAhmedkhanBaloch (Exh.134)issilentinhisfirsttimedeposition,whileinhis secondtimedepositionhehasdeposedthat,thisaccused along with other accused is involved in the cutting and killing incident of sons of Banubibi Attaullakhan and Amanaullakhan. SofarasevidenceP.W.2MahmadIqbalAhmedkhan Baloch(Exh.66)inthisregardisconcerned,asdiscussedin the earlier part of this Judgement, the say of the complainant regarding not recording of facts in the complaint,asperhisnarrationisalreadydiscussed.This accusedisidentifiedbeforetheCourtandhasstatedabout theinvolvementofthisaccusedinhisdepositionbutnot namedinthecomplaintandhasnotexplainedaboutnot naming the accused in the Complaint, in his first time deposition.Insuchcircumstances,corroborationrequires.
// 998 //
P.W.18SaiyedNazirmiyaKalumiya(Exh.103)thoughhas identifiedtheaccusedintheCourtbuthasnotmadeany statement before any Police regarding the involvement of the accused in the incident, in such circumstances, consideringhissecondtimedepositionitisnotsufficientto held guilty the accused. The evidence of P.W.22 YusufkhanMuradkhanPathan(Exh.112)hasidentifiedthe accused as well hasstatedabout theinvolvement ofthis accusedinhisPoliceStatement.Inthedepositionhehas alsoinvolvedthisaccusedwiththecrime.Thisevidenceis requirescorroborationfromotherevidence,asthiswitness hasinvolvedtheaccusedinkillingofalleged11deceased persons. Therefore, in the absence of other satisfactory corroboration, it is quite risky to held a person guilty. P.W.25 Mohmad Hanif Ahmedkhan Baloch (Exh.134) though identified the accused, has not stated the involvementofthisaccusedinanyofhisstatementbefore Police, therefore, in the circumstances, his second time depositionregardinginvolvementofthisaccusedincutting, killingandburningincidentcannotbeaccepted. Itisnotindisputethat,theaccusedistheresidentof KadaDarwaja.Fromtheevidenceofthecomplainantand witnesses,asdiscussedabovetheyhaveonlyidentifiedthe accusedandnotattributedtheroletothisaccused.Butfor thefirsttimeon08.03.2002,hisnamehasbeentakenby thewitnessinthestatementbeforethePolice,tillthenthe
// 999 //
witnessesaresilentabouttheinvolvementofthisaccused. So far as identification of this accused is concerned, no doubt witnesses and accused are the resident of same localitytherefore,questionofIdentificationParadedoesnot surviveanditcanbeinferredthat,theyarewellknownto each other. So far as specific role as attributed by the witnesses is concerned, that is also not satisfactorily established by the prosecution side. Therefore, the fact remainsthat,itisnotsafetoholdaccusedguiltyonthe 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. Even other wise on considering the defence of the accusedasnarratedinF.S.that,heisGovernmentServant andon27.02.2002and28.02.2002hewasondutyandin supportofhissay,hehasproducedcertifiedcopyofMuster Roll, Certificate of the Executive Engineer, regarding his attendance, statements of all employees and peons and personwhoisrunningtheCanteen.Hehasfurtherstated
// 1000 //
that, after said incident also he has worked with the Executive Engineer as Member of Peace Committee is plausibleandgenuineone.
[338]
AccusedNo.56: PATELDAHYABHAIMADHAVLAL (SessionsCaseNo.28/2004) ThisaccusedisidentifiedbeforetheCourtbyP.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66), P.W.4 AabidbhaiGulabkhanSindhi(Exh.71),P.W.5Zubedabibi MahebubkhanBaloch(Exh.84),P.W.18SaiyedNazirmiya Kalumiya (Exh.103), P.W.22 Yusufkhan Muradkhan Pathan (Exh.112), P.W.23 Ahmedmiya Hasumiya Belim (Exh.128), P.W.24 Shermahmad Dalubhai Sindhi (Exh.132),P.W.30ShabbirmiyaHasumiyaBelim(Exh.146), P.W.32MahmadhanifDalubhaiSindhi(Exh.150),P.W.52 Faridabanu Ahmedkhan Baloch (Exh.306) and P.W.58 Karishmabanu Yusufkhan Pathan (Exh.502) whereas P.W.4AabidbhaiGulabkhanSindhi(Exh.71)hasstatedin his statement dated 10.03.2002, P.W.23 Ahmedmiya Hasumiya Belim (Exh.128) has stated in his statement dated08.03.2002,P.W.26HusenkhanBadarkhanBaloch (Exh.137) has in his statement dated 08.03.2002 and P.W.33AnvarkhanBasirkhanBaloch(Exh.166)hasinhis statementdated08.03.2002statedtheinvolvementofthis accused in his statement before Visnagar Police while before S.I.T. they have stated that, their statements are
// 1001 //
correctoneexceptthetimeofincident.WhileasperArrest andRecoveryPanchnama,PanchasarehostilebutSword wasrecoveredfromthisaccusedon23.10.2002,whichis not shown to any witness during the deposition of witnesses.Therefore,noreliancecanbeplacedaboutthe saidMuddamalArticle. Now coming to the deposition of witnesses, P.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66) has not named this accused in his complaint. He is silent in his firsttimedeposition,whileinhissecondtimedepositionhe hasidentifiedthisaccused. P.W.4AabidbhaiGulabkhan Sindhi(Exh.71)hasdeposedthat,thisaccusedwasinthe mobandinvolvedintheincidentandhehasidentifiedthis accused.Inhiscrossexaminationhehasdeniedthat,he hasnotstatedbeforethePoliceaboutthepresentofthis accusedinthemobatthetimeofincident.Inhissecond time deposition he has deposedabout theinvolvementof thisaccusedincutting,killingandburningincident.Itis denied by him that, he has not stated before the Police about the involvement of this accused in the incident. P.W.48 Manubhai Karshanbhai Patel (Exh.228) has deposed that, this witness has not stated the name of presentaccusedinthemob,inthestatementbeforehim. P.W.5ZubedabibiMahebubkhanBaloch(Exh.84) isthe Hostile witness. Sheissilentinherfirsttimedeposition, whileinhersecondtimedepositionshehasidentifiedthis
// 1002 //
accused.Shehasadmittedinhercrossexaminationthat, shedoesnotrememberwhethershehasstatedthenameof presentaccusedbeforePoliceorS.I.T.orinthefirsttime deposition before the Court. P.W.18 Saiyed Nazirmiya Kalumiya (Exh.103) issilentinhisfirsttimedeposition, whileinhissecondtimedepositionhehasdeposedthat, this accused was not present in the Court but he was presentinthemob.Inhiscrossexaminationhehasdenied that,hehasnotstatedthenameofpresentaccusedinthe statement before Police. P.W.23 Ahmedmiya Hasumiya Belim (Exh.128) has deposed that, this accused was present in the mob with Sword. In his second time deposition he has deposed about the involvement of this accused. P.W.24 Shermahmad Dalubhai Sindhi (Exh.132)issilentinhisfirsttimedeposition,whileinhis second time deposition he has identified this accused. P.W.25 Mohmad Hanif Ahmedkhan Baloch (Exh.134) hasinhiscrossexaminationhehasadmittedthat,inhis application before Magistrate as well as his statement beforePolice,hehasaddedthenameofpresentaccused. P.W.30ShabbirmiyaHasumiyaBelim(Exh.146)issilent in his first time deposition, while in his second time deposition he has identified this accused. He has denied that, he has not stated before the Police about the involvement of this accused in the incident, armed with Sword. P.W.31AarifkhanYakubkhanPathan(Exh.147)
// 1003 //
is silent in his first time deposition, while in his second time deposition he has identified this accused. It is admittedbyhimthat,hehasnotstatedthenameofthis accused earlier anywhere, in any statement. P.W.48 ManubhaiKarshanbhaiPatel(Exh.228)hasdeposedthat, Husenkhan Badarkhan has stated before him that, this accused was present in the mob, armed with weapon. P.W.50 Saidabibi Mahmadhanif Sindhi (Exh.302) has deposed that, this accused was involved in the incident, armed with weapon. She has further stated that, this accusedwasnotpresentintheCourt.Inhersecondtime deposition she has identified this accused. P.W.52 Faridabanu Ahmedkhan Baloch (Exh.306) has deposed that,thisaccusedwasinvolvedintheincidentandpresent inthemob.Inhersecondtimedepositionshehasdeposed that,shehadseenthepresentaccusedon28.02.2002at the time of incident. P.W.58 Karishmabanu Yusufkhan Pathan (Exh.502) has deposed that, this accused was involvedintheincidentandverymuchpresentinthemob. Shehasidentifiedtheaccused. P.W.158NazirMahmad Suleman (Exh.812) has deposed that, one offence is registeredagainstthepresentaccusedforanoffenceunder Section188. SofarasevidenceP.W.2MahmadIqbalAhmedkhan Baloch(Exh.66)inthisregardisconcerned,asdiscussedin
// 1004 //
the earlier part of this Judgement, the say of the complainant regarding not recording of facts in the complaint,asperhisnarrationisalreadydiscussed.This accusedisidentifiedbeforetheCourtandhasstatedabout theinvolvementofthisaccusedinhisdepositionbutnot namedinthecomplaintandhasnotexplainedaboutnot naming the accused in the Complaint, in his first time deposition.Insuchcircumstances,corroborationrequires. ConsideringtheevidenceofP.W.4AabidbhaiGulabkhan Sindhi(Exh.71)itiscorroboratedbyhisstatementbefore Policeaswellashehasinhisfirsttimedepositiondeposed abouttheinvolvementofthisaccused,whichisacceptable andreliableonebuthissecondtimedepositionregarding involvementofaccusedincutting,killingandburningof11 deceasedpersonsincidentisconcerned,itisconsideredas an exaggeration while discussing his evidence in earlier pointoftimetherefore,thisportionofhisevidencecannot be relied upon against the accused. Considering the deposition of P.W.5 Zubedabibi Mahebubkhan Baloch (Exh.84)shehasnotstatedinanyofherstatementbefore Police against the present accused. The evidence against thepresentaccusedisnotsufficienttoaccepttoconclude againsttheaccused. P.W.18SaiyedNazirmiyaKalumiya (Exh.103)though hasidentifiedtheaccusedintheCourt buthasnotmadeanystatementbeforeanyPoliceregarding the involvement of the accused in the incident, in such circumstances,consideringhissecondtimedepositionitis
// 1005 //
not sufficient to held guilty the accused. P.W.23 Ahmedmiya Hasumiya Belim (Exh.128) has identified the accused as well hasstatedabout theinvolvement ofthis accused in his Police Statement. His evidence is not contradicted in the crossexamination therefore, his evidence is reliable one. P.W.24 Shermahmad Dalubhai Sindhi (Exh.132) though identifying but not stating the name of this accused in any of his statement about the involvement of this accused. In such circumstances, his evidenceisnotsufficienttoconnectthisaccusedwiththe crime. P.W.25 Mohmad Hanif Ahmedkhan Baloch (Exh.134)neitheridentifiedtheaccusednorstatedinanyof his statement about the involvement of this accused in such circumstances above evidence is not sufficient to conclude against the accused. P.W.30 Shabbirmiya HasumiyaBelim(Exh.146)thoughidentifyingtheaccused notmakinganystatementbeforePolicenorfirsttimeinhis deposition,insuchcircumstances,hissecondtimeversion isquiteriskytoacceptit. P.W.31AarifkhanYakubkhan Pathan (Exh.147) neitheridentifyingnor stating inany of his statement before Police nor in first time deposition about the involvement of this accused and therefore, his evidenceisquite riskytoaccepttoconcludetheaccused with the crime. P.W.50 Saidabibi Mahmadhanif Sindhi (Exh.302) has identified this accused in his second time depositionbuthasnotstatedinanyofhisstatementbefore the Police about the involvement of this accused,
// 1006 //
consideringthispositionherevidenceisnotsatisfactoryto conclude this evidence against the accused. P.W.52 Faridabanu Ahmedkhan Baloch (Exh.306) not stating in anyofherstatementabouttheinvolvementofthisaccused. It is only in the evidence she has deposed regarding the involvement of this accused in the incident. In such circumstancescorroborationfromotherevidencerequired. P.W.58 Karishmabanu Yusufkhan Pathan (Exh.502) though identifying theaccusedbuthasnotstatedinher anyofthestatementabouttheinvolvementofaccused,in such circumstances we cannot solely rely upon the evidenceofthesetwowitnessesagainsttheaccused. Itisnotindisputethat,theaccusedistheresidentof RandalMataMadh,DipraDarwaja.Fromtheevidenceof the complainant and witnesses, as discussed above they haveonlyidentifiedtheaccusedandnotattributedtherole tothisaccused.Butforthefirsttimeon08.03.2002,his name has been taken by the witness in the statement beforethePolice,tillthenthewitnessesare silentabout theinvolvementofthisaccused.Sofarasidentificationof thisaccusedisconcerned,nodoubtwitnessesandaccused are the resident of same locality therefore, question of IdentificationParadedoesnotsurviveanditcanbeinferred that,theyarewellknowntoeachother.Sofarasspecific role as attributed by the witnesses is concerned, that is alsonotsatisfactorilyestablishedbytheprosecutionside.
// 1007 //
Therefore, the fact 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. Therefore, the defence of the accused that, he has falsely been involved in the crime, he is innocent one is acceptableintheeyeoflaw.
[339]
AccusedNo.57: PATELSANKALCHANDKACHARABHAI (SessionsCaseNo.28/2004) ThisaccusedisidentifiedbeforetheCourtbyP.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66), P.W.4 Aabidbhai Gulabkhan Sindhi (Exh.71), P.W.18 Saiyed Nazirmiya Kalumiya (Exh.103), P.W.23 Ahmedmiya Hasumiya Belim (Exh.128), P.W.25 Mohmad Hanif Ahmedkhan Baloch (Exh.134), P.W.30 Shabbirmiya Hasumiya Belim (Exh.146), P.W.52 Faridabanu
// 1008 //
Ahmedkhan Baloch (Exh.306) and P.W.127 Imrankhan SabirhusenPathan(Exh.681) whereasP.W.3Gulabkhan alias Gulubhai Kayamkhan Sindhi (Exh.70)hasstatedin his statement dated 10.03.2002, P.W.23 Ahmedmiya Hasumiya Belim (Exh.128) has stated in his statement dated 08.03.2002 and P.W.33 Anvarkhan Basirkhan Baloch (Exh.166) has stated in his statement dated 08.03.2002 stated the involvement of thisaccused in his statement before Visnagar Police while before S.I.T. they have stated that, their statements are correct one except the time of incident. While as per Arrest and Recovery Panchnama,PanchasarehostilebutPlasticGallonofWhite Colour of Kerosene was recovered from this accused on 23.10.2002,whichisnotshowntoanywitnessduringthe deposition of witnesses. Therefore, no reliance can be placedaboutthesaidMuddamalArticle. Now coming to the deposition of witnesses, P.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66) has not named this accused in his complaint. He is silent in his firsttimedeposition,whileinhissecondtimedepositionhe hasidentifiedthisaccused.Hehasadmittedthat,hedoes not remember whether he has made complaint to Geeta Johri about not lodging the complaint properly, under politicalpressureofthisaccused,alongwithotherpolitical persons.Hehasadmittedthat,thisaccusedistheresident oftheirMahollaandhewaspresentatthetimeofincident,
// 1009 //
henceheknowhim.P.W.4AabidbhaiGulabkhanSindhi (Exh.71) issilentinhisfirsttimedeposition,whileinhis secondtimedepositionhehasidentifiedthisaccusedand has deposed about the involvement of this accused in cuttingandkillingincidentofpersons.Itisdeniedbyhim that,hehasnotstatedinthePoliceStatementaboutthe name of present accused in killing of family members of YusufkhanMuradkhan.P.W.5ZubedabibiMahebubkhan Baloch(Exh.84)istheHostilewitness.Sheissilentinher first time deposition, whilein her second time deposition shehasdeposedthat,shesawtheaccusedinthemoband hasstatedabouttheinvolvementofthisaccusedincutting, killingof11allegeddeadpersons.Itisdeniedbyherthat, shehasnotstatedthenameofpresentaccusedinthemob inherstatementbeforePoliceorS.I.T.orinthefirsttime deposition. P.W.18 Saiyed Nazirmiya Kalumiya
(Exh.103) issilentinhisfirsttimedeposition,whileinhis second time deposition he has identified this accused. P.W.22 Yusufkhan Muradkhan Pathan (Exh.112) is silentinhisfirsttimedeposition,whileinhissecondtime deposition he has statedthenameofpresent accusedin the mob. He has identified this accused. In his cross examination, he has denied that, he has not stated the nameofthisaccusedinthestatementbeforethePoliceor S.I.T. or deposition before the Court. However, P.W.175 GautamkumarVishnubhaiBarot(Exh.912)hasadmittedin hiscrossexaminationthat,hehasrecordedthestatement
// 1010 //
ofYusufkhanMuradkhanandhehasnotstatedthename of this accused before him. P.W.23 Ahmedmiya HasumiyaBelim(Exh.128)hasdeposedthat,thisaccused was present in the mob with Sword. In his second time deposition, he has identified this accused. In his cross examinationhehasadmittedthat,hedoesnotremember whether,hehasstatedthenameofpresentaccusedbefore PoliceorS.I.T.Hehasdeniedthat,inhisstatementdated 08.03.2002 before Police he has not stated the name of present accused with Sword. P.W.48 Manubhai KarshanbhaiPatel(Exh.228) hasinhiscrossexamination admitted that, he has recorded the statement of this witnessandhehasnotstatedbeforehimthat,hesawthe incident from the window of his House and this accused was armed with Sword. P.W.25 Mohmad Hanif Ahmedkhan Baloch (Exh.134) is silent in his first time deposition, while in his second time deposition he has identified this accused. P.W.30 Shabbirmiya Hasumiya Belim(Exh.146)issilentinhisfirsttimedeposition,while in his second time deposition he has deposed that, this accusedwaspresentinthemobwithSword.Hehasstated that, this accused was involved in the incident. In his second time depositionhehasidentifiedthisaccused.In hiscrossexaminationhehasdeniedthat,hehasnotstated beforetheVisnagarPolicethat,thisaccusedwaspresentin the mob with Sword. P.W.50 Saidabibi Mahmadhanif
// 1011 //
Sindhi (Exh.302) has deposed that, this accused was presentandinvolvedintheincidentandwasarmedwith weapon. P.W.52 Faridabanu Ahmedkhan Baloch (Exh.306) hasdeposedthat,thisaccusedwaspresentin the mob. In her second time deposition, she has stated that,shesawtheaccusedon28.02.2002andhasidentified this accused. P.W.127 Imrankhan Sabirhusen Pathan (Exh.681)hasidentifiedthisaccused. SofarasevidenceP.W.2MahmadIqbalAhmedkhan Baloch(Exh.66)inthisregardisconcerned,asdiscussedin the earlier part of this Judgement, the say of the complainant regarding not recording of facts in the complaint,asperhisnarrationisalreadydiscussed.This accusedisidentifiedbeforetheCourtandhasstatedabout theinvolvementofthisaccusedinhisdepositionbutnot namedinthecomplaintandhasnotexplainedaboutnot naming the accused in the Complaint, in his first time deposition.Insuchcircumstances,corroborationrequires. SofarasmakingcomplainttohigherauthoritiesofPolice regardingnotlodgingthecomplaintproperlyisconcerned, thiswitnesshasnotstatedanythinginthisregardinhis firsttime depositionandasdiscussedhereinabove,this courthasnotbelievedthat,hiscomplaintwasnotlodged property,andtherefore,hisevidencecannotbeconcluded as sufficient evidence to connect the accused with the crime. P.W.4 Aabidbhai Gulabkhan Sindhi (Exh.71)
// 1012 //
though identifying but has not stated the involvement of this accused in any of his statement therefore, his deposition in second time and that is also in respect of cutting,killingandburningof11deceasedpersons,which isnotbelievedbythisCourt,theevidenceofthiswitness not acceptable. Considering the deposition of P.W.5 ZubedabibiMahebubkhanBaloch(Exh.84)shehasneither identifiednorstatedinanyofherstatementbeforePolice against the present accused. And in the Court after declaring as Hostile,shehasnarratedtheinvolvementof this accused, which requires corroboration from other evidence.Sofaraskillingof11allegedpersons,whichis notacceptedbythisCourt.Thus,theevidenceagainstthe presentaccusedisnotsufficienttoconclude theaccused with the incident. P.W.18 Saiyed Nazirmiya Kalumiya (Exh.103)though hasidentifiedtheaccusedintheCourt buthasnotmadeanystatementbeforeanyPoliceregarding the involvement of the accused in the incident, in such circumstances,consideringhissecondtimedepositionitis not sufficient to held guilty the accused. P.W.22 YusufkhanMuradkhanPathan(Exh.112)neitheridentifying norstatinginanyofhisstatementabouttheinvolvementof this accused, it isonly insecondtimedepositionhehas involved this accused and in this circumstances the evidence of this witness is not sufficient. P.W.23 Ahmedmiya Hasumiya Belim (Exh.128) has identified the accused as well hasstatedabout theinvolvement ofthis
// 1013 //
accused in his Police Statement. But considering his depositionitisnotsufficienttoacceptthisevidenceagainst accused. P.W.25 Mohmad Hanif Ahmedkhan Baloch (Exh.134)identifyingtheaccusedbut notstatedinanyof hisstatementabouttheinvolvementofthisaccused,itis onlyinsecondtimedepositionheisidentifyingtheaccused therefore, it is not sufficient to accept it against the accused.P.W.30ShabbirmiyaHasumiyaBelim(Exh.146) though identifying the accused but not making any statementbeforePolice,itisonlyinsecondtimedeposition hehasinvolvedpresentaccused,insuchcircumstanceitis quiteriskytoconvicttheaccusedsolelyonthebasisofthis evidence. P.W.50 Saidabibi Mahmadhanif Sindhi (Exh.302) has neither identified not stated in any of her statement involving this accused. P.W.52 Faridabanu Ahmedkhan Baloch (Exh.306) though identifying the accusedbutnotstatinginanyofherstatementaboutthe involvementofthisaccused.Itisonlyinthesecondtime deposition shehasdeposedregardingtheinvolvementof this accused in the incident. In such circumstances corroboration from other evidence required. P.W.127 Imrankhan Sabirhusen Pathan (Exh.681) has also not madeanystatementbeforethePolice.
Itisnotindisputethat,theaccusedistheresidentof Kada Darwaja, Visnagar. From the evidence of the complainantandwitnesses,asdiscussedabovetheyhave
// 1014 //
onlyidentified theaccusedandnotattributedtheroleto this accused. But for the first time on 08.03.2002, his name has been taken by the witness in the statement beforethePolice,tillthenthewitnessesare silentabout theinvolvementofthisaccused.Sofarasidentificationof thisaccusedisconcerned,nodoubtwitnessesandaccused are the resident of same locality therefore, question of IdentificationParadedoesnotsurviveanditcanbeinferred that,theyarewellknowntoeachother.Sofarasspecific role as attributed by the witnesses is concerned, that is alsonotsatisfactorilyestablishedbytheprosecutionside. Therefore, the fact 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.
Even other wise on considering the defence of the accusedasnarratedinF.S.that,heisinnocentandheis falselyimplicatedintheincident.hedoesnotknowabout
// 1015 //
saidincident.On28.02.2002atabout04.00P.M.hisshop, situated in the Market ofVisnagar wasransackedbythe mobandtherefore,healongwithhisson,withthehelpof Policereachedattheshopandhaslodgedcomplaintofsaid incident and Police has recorded their Complaint at I.CR.No.72/2002 on 28.02.2002 at about 05.00 P.M. Moreover, he has further stated that, he is socially and religiouslyleadingandtherefore,hisnameissubsequently implicated in the incident. In support of his say he has attachedseparatesheet,containingthereinthat, heis78 yearsoldandon28.02.2002theirshopwasransackedby themobofMuslimsandtherefore,healongwithhissons reachedattheirshop,withthehelpofPoliceandhealong with other businessmen reached at the Police Station for lodging the complaint and complaint was given by the ownerofoneshopandPanchnamaofalltheshopswhich werelootedandransackedwasdrawnbythePoliceandas per Panchnama, their shop was damaged worth Rs.11,00,000/ and said complaint was lodged at I.CR.No.72/2002 on 28.02.2002 and on the date of incident, except their shop he had not gone to anywhere and he was not knowing what happened in the Visnagar towninotherareas.hedoesnotknowabouttheincident occurredinDipraDarwaja.Hehasfurtherstatedthat,to harass his family, names of his family members Patel Sankalchand Kacharabhai, Patel Hasmukhbhai Sankalchand, Patel Alkeshbhai Sankalchand, Patel
// 1016 //
Hemandrabhai Alkeshbhai and Patel Jitubhai Hasmukhbhai were implicated as an accused in the said incident.Hehasfurtherstatedthat,fivemalemembersof hisfamilyarefalselyinvolvedinthesaidincident.Hehas further stated that, he and his son Hasmukhbhai are involvedinthesaidincidentaftertwoyears.Hehasfurther statedthat,heisdoingbusinesssincelast55yearsandhe is leading in the work of Jivdaya, Panjarapole, Gaushala and he is also the President of Vepari Mahamandal and KapadMahajan,heisGeneralSecretarysincelast35years of their Societyandheisalsodoingotherreligiouswork and they have noenmitywithanyoneeventhoughwith intentiontoharasstheirfamilymembers,theyarefalsely implicatedinthiscase.Hehasfurtherstatedthat,itisnot possible for us to go elsewhere when our own shops ransackedandlootedbythemob.Insupportofhissay,he has also produced copy of F.I.R. of I.CR.No.72/2002 is plausibleandgenuineone.
[340]
AccusedNo.58: PATELHASMUKHBHAISANKALCHAND (SessionsCaseNo.28/2004) ThisaccusedisidentifiedbeforetheCourtbyP.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66), P.W.5 ZubedabibiMahebubkhanBaloch(Exh.84),P.W.18Saiyed Nazirmiya Kalumiya (Exh.103), P.W.22 Yusufkhan Muradkhan Pathan (Exh.112), P.W.25 Mohmad Hanif
// 1017 //
Ahmedkhan Baloch (Exh.134), P.W.30 Shabbirmiya Hasumiya Belim (Exh.146), P.W.32 Mahmadhanif Dalubhai Sindhi (Exh.150), P.W.52 Faridabanu Ahmedkhan Baloch (Exh.306), P.W.58 Karishmabanu Yusufkhan Pathan (Exh.502) and P.W.127 Imrankhan Sabirhusen Pathan (Exh.681) whereas P.W.23 Ahmedmiya Hasumiya Belim (Exh.128) has stated in his statement dated 08.03.2002 and P.W.29 Hanifabibi ShabbirbhaiPathan(Exh.144)hasinhisstatementdated 08.03.2002 stated the involvement of thisaccused in his statement before Visnagar Police while before S.I.T. they have stated that, their statements are correct one except the time of incident. While as per Arrest and Recovery Panchnama,PanchasarehostilebutPlasticGallonofWhite Colour of Kerosene was recovered from this accused on 23.10.2002,whichisnotshowntoanywitnessduringthe deposition of witnesses. Therefore, no reliance can be placedaboutthesaidMuddamalArticle. Now coming to the deposition of witnesses, P.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66) has not named this accused in his complaint. He is silent in his firsttimedeposition,whileinhissecondtimedepositionhe hasidentifiedthisaccused. P.W.4AabidbhaiGulabkhan Sindhi(Exh.71)issilentinhisfirsttimedeposition,while inhissecondtimedepositionhehasidentifiedthisaccused P.W.5ZubedabibiMahebubkhanBaloch(Exh.84) isthe
// 1018 //
Hostilewitness. Sheissilentinherfirsttimedeposition, whileinhersecondtimedepositionshehasdeposedthat, thisaccusedalongwithotheraccusedinvolvedincausing injuriestohisFatherinlawAnvarkhan.Inhersecondtime crossexamination,shehasdeniedthat,shehasnotstated that,thisaccusedwaspresentinthemob,inherstatement beforePoliceorbeforeS.I.T.ordepositionbeforetheCourt. Inhercrossexamination,shehasdeposedthat,shedoes not remember whether she has stated before Visnagar Police,beforeS.I.T.orintheCourt'sfirsttimedeposition about the name of this accused. P.W.18 Saiyed Nazirmiya Kalumiya (Exh.103) has deposed that, this accused was present in the mob and involved in the incident but not present in the Court. In his cross examination, he has stated that, he has not stated the nameofpresentaccusedbeforePolice.P.W.22Yusufkhan Muradkhan Pathan (Exh.112) is silent in his first time deposition, while in his second time deposition he has identified this accused. In his crossexamination, he has deniedthat,hehasnotstatedthenameofpresentaccused inthestatementbeforeVisnagarPoliceorbeforeS.I.T.orin theDepositionbeforetheCourtorintheapplicationbefore the Magistrate. P.W.23 Ahmedmiya Hasumiya Belim (Exh.128) has deposedthat,thisaccusedwaspresentin themobandwasgivingSwordblowwithotheraccusedto Attaullakhan,AmanaullakhanandBanubibi.Inhiscross examination,hehasdeniedthat,hehasnotstatedbefore
// 1019 //
thePolicethat,thisaccusedalongwithotheraccusedhad given Sword blow to the witnesses. In his second time deposition he has identified this accused. In his second time crossexamination, he has denied that, he has not stated before the Visnagar Police in his statement dated 08.03.2002 that, this accused was having Sword in his handsinthemob. P.W.48ManubhaiKarshanbhaiPatel (Exh.228) has admittedinhiscrossexaminationthat,he hasrecordedthestatementofAhmedmiyaHasumiyaand he has not stated before him about the involvement of presentaccusedinthekillingincidentbySword. P.W.25 Mohmad Hanif Ahmedkhan Baloch (Exh.134) has is silentinhisfirsttimedeposition,whileinhissecondtime deposition he has identified this accused. P.W.30 Shabbirmiya Hasumiya Belim (Exh.146) is silent in his firsttimedeposition,whileinhissecondtimedepositionhe hasidentifiedthisaccused.Itisdeniedbyhimthat,hehas notstatedbeforePolicethat,thisaccusedwaspresentin themobandinvolvedintheincident,havingSwordinhis hands.P.W.32MahmadhanifDalubhaiSindhi(Exh.150) is silent in his first time deposition, while in his second time deposition he has identified this accused. P.W.50 Saidabibi Mahmadhanif Sindhi (Exh.302) has involved thepresentaccusedwithweaponinthemobbuthasnot identified the accused before the Court in first time deposition. Second time also he has not identified the
// 1020 //
accused. P.W.52 Faridabanu Ahmedkhan Baloch (Exh.306) hasdeposedthat,thisaccusedwasinvolvedin themob.Hehasnotidentifiedtheaccusedbeforethecourt during first time deposition while in her second time deposition she has identified the accused but has not stated about the involvement of this accused in her statementbeforethePolice.UnderSuchcircumstancesthat itisonlyinsecondtimedepositionshehasidentifiedthe accused, corroboration her deposition about the involvementofthisaccusedrequires.P.W.127Imrankhan Sabirhusen Pathan (Exh.681) has not involved the accused in the offence. P.W.175 Gautamkumar Vishnubhai Barot (Exh.912) has admitted in his cross examination that, he has recorded the statement of ImrankhanSabirkhanandhehasnotstatedthenameof this accused before him about the involvement of this accused in the mob. He has also admitted in his cross examination that, he has recorded the statement of YusfkhanMuradkhanandhehasnotstatedthenameof this accused before him about the involvement of this accusedinthemob. SofarasevidenceP.W.2MahmadIqbalAhmedkhan Baloch(Exh.66)inthisregardisconcerned,asdiscussedin the earlier part of this Judgement, the say of the complainant regarding not recording of facts in the complaint,asperhisnarrationisalreadydiscussed.This
// 1021 //
accusedisidentifiedbeforetheCourtandhasstatedabout theinvolvementofthisaccusedinhisdepositionbutnot namedinthecomplaintandhasnotexplainedaboutnot naming the accused in the Complaint, in his first time deposition.Insuchcircumstances,corroborationrequires. P.W.4 Aabidbhai Gulabkhan Sindhi (Exh.71) neither identifiedtheaccusednorhasstatedanythinginanyofhis statement before thePoliceabout the involvement of this accused.Hehasonlyidentifiedthisaccusedinhissecond timedepositionandtherefore,hisevidenceisnotsufficient andnotreliableone.ConsideringthedepositionofP.W.5 Zubedabibi Mahebubkhan Baloch (Exh.84) though identifiedtheaccusedbuthasnotstatedanythinginher any of the statement before the Police about the involvement of this accused and in the Court after declaring as Hostile,shehasnarratedtheinvolvementof this accused, which requires corroboration from other evidence.P.W.18SaiyedNazirmiyaKalumiya(Exh.103)has not made any statement before any Police regarding the involvementoftheaccusedintheincidentandtheaccused wasnotpresentintheCourtandinsuchcircumstances, his evidence is not sufficient to held guilty the accused. P.W.22 Yusufkhan MuradkhanPathan(Exh.112)though identifiedtheaccusednotstatedanythinginhisanyofthe statement before thePoliceabout the involvement of this accused, it is only in second time deposition he has involved this accused and in this circumstances, it is
// 1022 //
hazardoustoconnecttheaccusedwiththecrime.P.W.23 Ahmedmiya Hasumiya Belim (Exh.128) has not identified the accused but has stated in his statement before the Policeabouttheinvolvementofthisaccused.Sofarashis say about the cutting, killing and burning of alleged 11 personsisconcerned,asdiscussedhereinabovethiscourt hasnotbelievedthisfactandtherefore,hisevidenceisnot sufficient to held guilty the accused. P.W.25 Mohmad HanifAhmedkhanBaloch(Exh.134)thoughidentifyingthe accusedbutnotstatinginanyofhisstatementaboutthe involvement of this accused, it is only in second time depositionheisidentifyingtheaccusedtherefore,itisnot sufficient to accept it against the accused. P.W.30 ShabbirmiyaHasumiyaBelim(Exh.146)thoughidentifying theaccusedbutnotmakinganystatementbeforePolice,it isonlyinsecondtimedepositionhehasinvolvedpresent accused,insuchcircumstanceitisquiteriskytoconvict theaccusedsolelyonthebasisofthisevidence.P.W.32 MahmadhanifDalubhaiSindhi(Exh.150)thoughidentified theaccusednotstatedanythinginhisanyofthestatement beforethePoliceabouttheinvolvementofthisaccusedand therefore, his evidence is not sufficient to conclude the accusedwiththecrime.
Itisnotindisputethat,theaccusedistheresidentof Khajuri Maholla, Kada Darwaja, Visnagar. From the evidence of the complainant and witnesses, as discussed
// 1023 //
above they have only identified the accused and not attributedtheroletothisaccused.Butforthefirsttimeon 08.03.2002,hisnamehasbeentakenbythewitnessinthe statement before the Police, till then the witnesses are silent about the involvement of this accused. So far as identification of this accused is concerned, no doubt witnesses and accused are the resident of same locality therefore,questionofIdentificationParadedoesnotsurvive and it can be inferred that, they arewell known to each other.Sofarasspecificroleasattributedbythewitnesses isconcerned,thatisalsonotsatisfactorilyestablishedby theprosecutionside.Therefore,thefactremainsthat,itis 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.
Even other wise on considering the defence of the accusedasnarratedinF.S.that,heisinnocentandheis falselyimplicatedintheincident,hisshoprunninginthe
// 1024 //
nameofJansanghandothertwoshops,whicharesituated intheMainmarketofVisnagarweresetonfireandtheir shops are situated in the Muslim area and the mob of Muslimshavesetonfireandransackedandrobbedtheir shopsandhealongwithmalemembersofhisfamilystayed in the shop for two days and Police has recorded their complaintandPanchnamaoftheirshopwaspreparedby thePoliceandtheirshopsdamagedworthRs.11,00,000/. In support of his say, he has produced the F.I.R. of I.CR.No.72/2002,underSection436,427,143ofI.P.C.and Sec.135 of the B.P.Act. and Panchnama, drawn by the Policeisplausibleandgenuineone.
[341]
AccusedNo.59: PATELAMRUTBHAIMADHAVLAL (SessionsCaseNo.28/2004) ThisaccusedisidentifiedbeforetheCourtbyP.W.2 MahmadIqbalAhmedkhanBaloch(Exh.66),P.W.18Saiyed Nazirmiya Kalumiya (Exh.103) and P.W.22 Yusufkhan MuradkhanPathan(Exh.112)whereasP.W.8Reshmaben Sattarbhai(Exh.87)hasinhisstatementdated10.03.2002 andP.W.24ShermahmadDalubhaiSindhi(Exh.132)has inhisstatementdated08.03.2002statedtheinvolvement of this accused in his statement before Visnagar Police whilebeforeS.I.T.theyhavestatedthat,theirstatements are correct one except the time of incident. While as per ArrestandRecoveryPanchnama,Panchasarehostilebut
// 1025 //
Sword was recovered from this accused on 23.10.2002, whichisnotshowntoanywitnessduringthedepositionof witnesses.Therefore,noreliancecanbeplacedaboutthe saidMuddamalArticle. Now coming to the deposition of witnesses, P.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66) has not named this accused in his complaint. He is silent in his firsttimedeposition,whileinhissecondtimedepositionhe has identified this accused. P.W.18 Saiyed Nazirmiya Kalumiya (Exh.103) has deposed that, this accused was present in the mob and involved in the incident but not present in the Court. In his crossexamination, he has statedthat,hehasnotstatedthenameofpresentaccused before Police. P.W.22 Yusufkhan Muradkhan Pathan (Exh.112)issilentinhisfirsttimedeposition,whileinhis second time depositionhehasidentifiedthisaccused.In his crossexamination, he has denied that, he has not statedthenameofpresentaccusedinthestatementbefore VisnagarPoliceorbeforeS.I.T.orintheDepositionbefore the Court or in the application before the Magistrate. P.W.24 Shermahmad Dalubhai Sindhi (Exh.132) has deposedthat,thisaccusedwaspresentinthemob. This accused was very much involved in cutting, killing and burningof11persons.
// 1026 //
SofarasevidenceP.W.2MahmadIqbalAhmedkhan Baloch(Exh.66)inthisregardisconcerned,asdiscussedin the earlier part of this Judgement, the say of the complainant regarding not recording of facts in the complaint,asperhisnarrationisalreadydiscussed.This accusedisidentifiedbeforetheCourtandhasstatedabout theinvolvementofthisaccusedinhisdepositionbutnot namedinthecomplaintandhasnotexplainedaboutnot naming the accused in the Complaint, in his first time deposition.Insuchcircumstances,corroborationrequires. P.W.18SaiyedNazirmiyaKalumiya(Exh.103)hasidentified the accused but has not made any statement before any Police regarding the involvement of the accused in the incident and in such circumstances, his evidence is not sufficient to held guilty theaccused.P.W.22Yusufkhan MuradkhanPathan(Exh.112)thoughidentifiedtheaccused but has not stated anything in his any of the statement beforethePoliceabouttheinvolvementofthisaccused,itis onlyinsecondtimedepositionhehasinvolvedthisaccused andinthiscircumstances,itishazardoustoconnectthe accused with the crime. P.W.24 Shermahmad Dalubhai Sindhi (Exh.132) has not identified the accused but has stated in his statement before the Police about the involvement of this accused. So far as his say about the cutting, killing and burning of alleged 11 persons is concerned, as discussedhereinabovethiscourthasnot
// 1027 //
believed this fact and therefore, his evidence is not sufficienttoheldguiltytheaccused.
Itisnotindisputethat,theaccusedistheresidentof NearAashapuratemple,DipraDarwaja,Visnagar.Fromthe evidence of the complainant and witnesses, as discussed above they have only identified the accused and not attributedtheroletothisaccused.Butforthefirsttimeon 08.03.2002,hisnamehasbeentakenbythewitnessinthe statement before the Police, till then the witnesses are silent about the involvement of this accused. So far as identification of this accused is concerned, here the accusedisresidinginseparateMahollawhilewitnessesare the resident of Chudivas, Dipra Darwaja and it is not explainedbythewitnessesthat,howtheyknowthepresent accused.Inthepresentsetofcircumstances,identification isnecessaryandthereisgraveirregularityonthepartof Investigating Officer M.K.Patel for not conducting IdentificationParade.IdentificationParadeofthisaccused if done during the course of investigation, it would have increased probative value of the evidence of the witness. Here, value become minimal. In these circumstances benefitisrequiredtobegiventotheaccused. Sofaras specific role as attributed by the witnesses is concerned, thatisalsonotsatisfactorilyestablishedbytheprosecution side.Therefore,thefactremainsthat,itisnotsafetohold accusedguiltyonthebasisofgeneralallegations.Thereis
// 1028 //
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 established,requiresacquittal. Even other wise on considering the defence of the accusedasnarratedinF.S.that,onthedateofincidenthe was present in the Court of Principal Civil Judge at Porbandarandinsupportofhissay,hehasproducedcopy ofCertificate,issuedbytheCourt. Hehasfurtherstated that,heissociallyandeconomicallyleadingandasheis functioning as President of Vepari Maha Mandal, with intention to defame him, he was falsely implicated as an accusedintheincidentisplausibleandgenuineone.
[342]
AccusedNo.60: PATELBABUBHAIPARSHOTTAMDAS (SessionsCaseNo.28/2004) ThisaccusedisidentifiedbeforetheCourtbyP.W.2 MahmadIqbalAhmedkhanBaloch(Exh.66),P.W.18Saiyed Nazirmiya Kalumiya (Exh.103), P.W.22 Yusufkhan Muradkhan Pathan (Exh.112), P.W.24 Shermahmad Dalubhai Sindhi (Exh.132), P.W.25 Mohmad Hanif
// 1029 //
Ahmedkhan Baloch (Exh.134), P.W.30 Shabbirmiya Hasumiya Belim (Exh.146), P.W.50 Saidabibi Mahmadhanif Sindhi (Exh.302), P.W.52 Faridabanu AhmedkhanBaloch(Exh.306)andP.W.58Karishmabanu YusufkhanPathan(Exh.502)whereasP.W.8Reshmaben Sattarbhai(Exh.87)hasinhisstatementdated10.03.2002, P.W.24ShermahmadDalubhaiSindhi(Exh.132)hasinhis statement dated 08.03.2002 and P.W.33 Anvarkhan Basirkhan Baloch (Exh.166) has in his statement dated 08.03.2002 stated the involvement of thisaccused in his statement before Visnagar Police while before S.I.T. they have stated that, their statements are correct one except the time of incident. While as per Arrest and Recovery Panchnama,PanchasarehostilebutSwordwasrecovered from this accused on 23.10.2002, which is not shown to anywitnessduringthedepositionofwitnesses.Therefore, noreliancecanbeplacedaboutthesaidMuddamalArticle. Now coming to the deposition of witnesses, P.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66) has not named this accused in his complaint. He is silent in his firsttimedeposition,whileinhissecondtimedepositionhe hasidentifiedthisaccused. P.W.4AabidbhaiGulabkhan Sindhi(Exh.71) issilentinhisfirsttimedepositionabout theinvolvementofthisaccused,whileinhissecondtime depositionhehasstatedthat,thisaccusedwasinvolvedin thecutting,killingandburningincidentof11persons.Itis
// 1030 //
deniedbyhimthat,hehasnotstatedbeforeVisnagarPolice that,thisaccusedwaspresentinthemobhavingweapon andwasbeatingthewitnesses.P.W.18SaiyedNazirmiya Kalumiya (Exh.103) has deposed that, this accused was presentinthemobhavingSwordinhishands.Inhiscross examination, he has stated that, he has not stated the nameofthisaccusedinhisPoliceStatement.Inhissecond time deposition, hehasdeposedthat,thisaccusedalong with other accused was shouting slogans and was threateningtheMuslims.Hehasadmittedthat,hesawthe cutting and killing incident and this accused was very much present in the incident. P.W.48 Manubhai Karshanbhai Patel (Exh.228) has admitted in his cross examination that, he has recorded the statement of Nazirmiya Kalumiya and he has not stated the name of present accused before him about the involvement and presence of present accused in the incident. P.W.22 YusufkhanMuradkhanPathan(Exh.112) issilentinhis firsttimedeposition,whileinhissecondtimedepositionhe hasidentifiedthisaccused. Inhiscrossexamination,he hasstatedthat,hehasnotstatedthatpresentaccusedwas involvedintheincident,havingSwordinhishands,before Police or S.I.T. or deposition before the Court or in his application. P.W.175 Gautamkumar Vishnubhai Barot (Exh.912) has admitted in his crossexamination that, he hasrecordedthestatementofYusufkhanMuradkhanand he has not stated the name of this accused before him.
// 1031 //
P.W.24 Shermahmad Dalubhai Sindhi (Exh.132) has deposedthat,thisaccusedwaspresentinthemob. This accused was very much involved in cutting, killing and burning of 11 persons. It is denied by him in his cross examination that, hehas notstatedthenameofpresent accused in the application and before S.I.T. about the involvementofthepresentaccusedintheincident.P.W.25 MohmadHanifAhmedkhanBaloch(Exh.134)issilentin his first time deposition, while in his second time deposition he has identified this accused. P.W.30 Shabbirmiya Hasumiya Belim (Exh.146) is silent in his firsttimedeposition,whileinhissecondtimedepositionhe has deposed that, this accused was present in the mob havingSwordinhishandsandhasidentifiedthisaccused. Itisdeniedbyhiminhiscrossexaminationthat,hehas notstatedthenameofpresentaccusedbeforePoliceabout theinvolvementofthepresentaccusedintheincidentwith Sword. P.W.31AarifkhanYakubkhanPathan(Exh.147) is silent in his first time deposition, while in his second timedepositionhehasidentifiedthisaccused.Inhiscross examination he hasadmittedthat,hehasnotstatedthe nameofpresentaccusedinhisearlierstatement.P.W.32 MahmadhanifDalubhaiSindhi(Exh.150) issilentinhis firsttimedeposition,whileinhissecondtimedepositionhe has deposed that, this accused was present in the mob havingSwordinhishandsandinvolvedintheincidentand
// 1032 //
hasidentifiedthisaccused.Itisdeniedbyhiminhiscross examinationthat,hehasnotstatedbeforeVisnagarPolice that, from the Window of First Floor he saw present accused with Sword. P.W.50 Saidabibi Mahmadhanif Sindhi (Exh.302) has deposed that, this accused was presentandinvolvedintheincidentandwasarmedwith weapon. P.W.52 Faridabanu Ahmedkhan Baloch (Exh.306) hasdeposedthat,thisaccusedwaspresentin the mob. In her second time deposition, she has stated that,shesawtheaccusedon28.02.2002andhasidentified thisaccused. P.W.58KarishmabanuYusufkhanPathan (Exh.502) hasdeposedthat,thisaccusedwaspresentin the mob and was involved in cutting and killing incident andhasidentifiedthisaccused. SofarasevidenceP.W.2MahmadIqbalAhmedkhan Baloch(Exh.66)inthisregardisconcerned,asdiscussedin the earlier part of this Judgement, the say of the complainant regarding not recording of facts in the complaint,asperhisnarrationisalreadydiscussed.This accusedisidentifiedbeforetheCourtandhasstatedabout theinvolvementofthisaccusedinhisdepositionbutnot namedinthecomplaintandhasnotexplainedaboutnot naming the accused in the Complaint, in his first time deposition.Insuchcircumstances,corroborationrequires. P.W.4 Aabidbhai Gulabkhan Sindhi (Exh.71) neither identifiedtheaccusednorhasstatedanythinginanyofhis
// 1033 //
statement before thePoliceabout the involvement of this accused.Hehasonlyidentifiedthisaccusedinhissecond timedepositionandtherefore,hisevidenceisnotsufficient andnotreliableone.Sofarashissayaboutthecutting, killingandburningofalleged11personsisconcerned,as discussed hereinabove this court has not believed this fact and therefore, his evidence is not sufficient to held guiltytheaccused.ConsideringthedepositionofP.W.18 Saiyed Nazirmiya Kalumiya (Exh.103) though identifying hasnotmadeanystatementbeforeanyPoliceregardingthe involvement of the accused in the incident, it is only in secondtimedeposition,hehasinvolvedtheaccusedinthe incident. So far as his evidence regarding seeing the incident of cutting, killing and burning of alleged 11 personsisconcerned,asdiscussedhereinabovethiscourt hasnotbelievedthisfactandtherefore,hisevidenceisnot sufficient to held guilty theaccused.P.W.22Yusufkhan Muradkhan Pathan (Exh.112) though identified the accused, has not stated anything in his any of the statement before thePoliceabout the involvement of this accused, it is only in second time deposition he has involved this accused and in this circumstances, it is hazardoustoconnecttheaccusedwiththecrime.P.W.24 ShermahmadDalubhaiSindhi(Exh.132)hasidentifiedthe accusedaswellashasstated inhisstatementbeforethe Policeabouttheinvolvementofthisaccused.Sofarashis say about the cutting, killing and burning of alleged 11
// 1034 //
personsisconcerned,asdiscussedhereinabovethiscourt hasnotbelievedthisfactandtherefore,hisevidenceisnot sufficient to held guilty the accused. P.W.25 Mohmad HanifAhmedkhanBaloch(Exh.134)thoughidentifyingthe accusedbutnotstatinginanyofhisstatementaboutthe involvement of this accused, it is only in second time depositionheisidentifyingtheaccusedtherefore,itisnot sufficient to accept it against the accused. P.W.30 ShabbirmiyaHasumiyaBelim(Exh.146)thoughidentifying theaccusedbutnotmakinganystatementbeforePolice,it isonlyinsecondtimedepositionhehasinvolvedpresent accused,insuchcircumstanceitisquiteriskytoconvict theaccusedsolelyonthebasisofthisevidence.P.W.31 Aarifkhan Yakubkhan Pathan (Exh.147) neither identified the accused nor has stated anything in any of his statement before thePoliceabout the involvement of this accused,onlyinsecondtimedepositionnarratedaboutthe involvementofaccusedandtherefore,theevidenceofthis witnessisnotsufficienttoheldguiltytheaccused.P.W.32 MahmadhanifDalubhaiSindhi(Exh.150)neitheridentified the accused nor has stated anything in any of his statement before thePoliceabout the involvement of this accused,onlyinsecondtimedepositionnarratedaboutthe involvementofaccusedintheincident.P.W.50Saidabibi Mahmadhanif Sindhi (Exh.302) though identified the accused not stated anything in his any of the statement beforethePoliceabouttheinvolvementofthisaccused,itis
// 1035 //
only in deposition she has involved the accused in the incident,whichrequirescorroborationformotherevidence, it is quite risky to solely rely upon the evidence of this witness.P.W.52FaridabanuAhmedkhanBaloch(Exh.306) though identified the accused not stated anything in his any of the statement before the Police about the involvementofthisaccused.Thiswitnesshasinthefirst timedepositionnarratedthepresenceoftheaccusedinthe mob, while in second time deposition she has narrated detailedincident,toacceptitcorroborationrequiresasin any of her statement she has not involved the accused. P.W.58 Karishmabanu Yusufkhan Pathan (Exh.502) though identified the accused not stated anything in his any of the statement before the Police about the involvement of this accused. So far as his say about the cutting, killing and burning of alleged 11 persons is concerned, as discussedhereinabovethiscourthasnot believed this fact and therefore, her evidence cannot be reliedtoconcludetheaccused. Itisnotindisputethat,theaccusedistheresidentof RandalMataMadh,DipraDarwaja.Fromtheevidenceof the complainant and witnesses, as discussed above they haveonlyidentifiedtheaccusedandnotattributedtherole tothisaccused.Butforthefirsttimeon08.03.2002,his name has been taken by the witness in the statement beforethePolice,tillthenthewitnessesare silentabout
// 1036 //
theinvolvementofthisaccused.Sofarasidentificationof thisaccusedisconcerned,nodoubtwitnessesandaccused are the resident of same locality therefore, question of IdentificationParadedoesnotsurviveanditcanbeinferred that,theyarewellknowntoeachother.Sofarasspecific role as attributed by the witnesses is concerned, that is alsonotsatisfactorilyestablishedbytheprosecutionside. Therefore, the fact 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 established,requiresacquittal.
Even other wise on considering the defence of the accused as narrated in F.S. that, he is socially and economicallyleadingandtherefore,heisfalselyimplicated intheincidentasanaccusedisplausibleandgenuineone. [343] AccusedNo.61: PATELNIKESHKUMARJITENDRABHAIALIASJITUBHAI (SessionsCaseNo.28/2004) ThisaccusedisidentifiedbeforetheCourtbyP.W.2
// 1037 //
MahmadIqbalAhmedkhanBaloch(Exh.66)whereasP.W.24 ShermahmadDalubhaiSindhi(Exh.132)hasstatedinhis statement dated 08.03.2002 the involvement of this accused in his statement before Visnagar Police while before S.I.T. they have stated that, their statements are correctoneexceptthetimeofincident.WhileasperArrest and Recovery Panchnama, Panchas are hostile but Axe, havingwoodenhandlewasrecoveredfromthisaccusedon 23.10.2002,whichisnotshowntoanywitnessduringthe deposition of witnesses. Therefore, no reliance can be placedaboutthesaidMuddamalArticle. Now coming to the deposition of witnesses, P.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66) has not named this accused in his complaint. He is silent in his firsttimedeposition,whileinhissecondtimedepositionhe has identified this accused. Considering the evidence againstthisaccused,thereisnosubstanceintheevidence toinvolvethisaccusedinthecrime. Itisnotindisputethat,theaccusedistheresidentof DipraDarwaja.Fromtheevidenceofthecomplainantand witnesses,asdiscussedabovetheyhaveonlyidentifiedthe accusedandnotattributedtheroletothisaccused.Butfor thefirsttimeon08.03.2002,hisnamehasbeentakenby thewitnessinthestatementbeforethePolice,tillthenthe witnessesaresilentabouttheinvolvementofthisaccused.
// 1038 //
So far as identification of this accused is concerned, no doubt witnesses and accused are the resident of same localitytherefore,questionofIdentificationParadedoesnot surviveanditcanbeinferredthat,theyarewellknownto each other. So far as specific role as attributed by the witnesses is concerned, that is also not satisfactorily established by the prosecution side. Therefore, the fact remainsthat,itisnotsafetoholdaccusedguiltyonthe basisofgeneralallegations.Thereisnoothermaterialon recordagainstthepresentaccusedtoshowhisinvolvement in the alleged offence. It would be hazardous to base a conviction only on the evidence of general allegations. It wouldbeappropriatetoacquittheaccused. Even other wise on considering the defence of the accused as narrated in F.S. that, he is socially and economicallyleadingandtherefore,heisfalselyimplicated intheincidentasanaccusedisplausibleandgenuineone. [344] AccusedNo.62: PATELMAHENDRAKUMARALIASMUKRIMADHAVLAL (SessionsCaseNo.28/2004) This accused is not identified by any witness before theCourtwhereasP.W.24ShermahmadDalubhaiSindhi (Exh.132) has stated in his statement dated 08.03.2002 stated the involvement of this accused in his statement beforeVisnagarPolicewhilebeforeS.I.T.theyhavestated
// 1039 //
that, their statements are correct one except the time of incident. While as per Arrest and Recovery Panchnama, Panchas are hostilebutPlasticGallonofWhiteColourof Kerosenewasrecoveredfromthisaccusedon23.10.2002, whichisnotshowntoanywitnessduringthedepositionof witnesses.Therefore,noreliancecanbeplacedaboutthe saidMuddamalArticle. Now coming to the deposition of witnesses, P.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66) has not named this accused in his complaint. Considering the evidenceagainstthisaccused,thereisnosubstanceinthe evidencetoinvolvethisaccusedinthecrime. Itisnotindisputethat,theaccusedistheresidentof KarshannagarSociety,Visnagar.Fromtheevidenceofthe complainantandwitnesses,asdiscussedabovetheyhave onlyidentified theaccusedandnotattributedtheroleto this accused. But for the first time on 08.03.2002, his name has been taken by the witness in the statement beforethePolice,tillthenthewitnessesare silentabout theinvolvementofthisaccused.Sofarasidentificationof thisaccusedisconcerned,heretheaccusedisresidingin separate Maholla while witnesses are the resident of Chudivas, Dipra Darwaja and it is not explained by the witnessesthat,howtheyknowthepresentaccused.Inthe present set of circumstances, identification is necessary
// 1040 //
andthereisgraveirregularityonthepartofInvestigating OfficerM.K.PatelfornotconductingIdentificationParade. Identification Parade of this accused if done during the course of investigation, it would have increased probative value of the evidence of the witness. Here, value become minimal.Inthesecircumstancesbenefitisrequiredtobe giventotheaccused. Sofarasspecificroleasattributed bythewitnessesisconcerned,thatisalsonotsatisfactorily established by the prosecution side. Therefore, the fact remainsthat,itisnotsafetoholdaccusedguiltyonthe basisofgeneralallegations.Thereisnoothermaterialon recordagainstthepresentaccusedtoshowhisinvolvement in the alleged offence. It would be hazardous to base a conviction only on the evidence of general allegations. It wouldbeappropriatetoacquittheaccused.
Therefore, the defence of the accused that, he has falsely been involved in the crime, he is innocent one is acceptableintheeyeoflaw. [345] AccusedNo.63: PATELMUNNABHAISHANTILAL (SessionsCaseNo.28/2004) ThisaccusedisidentifiedbeforetheCourtbyP.W.25 Mohmad Hanif Ahmedkhan Baloch (Exh.134) whereas P.W.10SugrabibiMahmadkhanBaloch(Exh.90)hasinhis statement dated 10.03.2002 and P.W.26 Husenkhan
// 1041 //
Badarkhan Baloch (Exh.137) has in his statement dated 08.03.2002 stated the involvement of thisaccused in his statement before Visnagar Police while before S.I.T. they have stated that, their statements are correct one except the time of incident. While as per Arrest and Recovery Panchnama,PanchasarehostilebutSwordwasrecovered from this accused on 23.10.2002, which is not shown to anywitnessduringthedepositionofwitnesses.Therefore, noreliancecanbeplacedaboutthesaidMuddamalArticle. Now coming to the deposition of witnesses, P.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66) has not namedthisaccusedinhiscomplaint. P.W.10Sugrabibi MahmadkhanBaloch(Exh.90) hasafterdeclaringheras Hostile witness, she has admitted that, present accused wasinthemobwithotheraccused,armedwithweapons. Inhercrossexamination,itisdeniedbyherthat,shehas not stated in her statement about the presence of this accused and involvement of this accused in burning the houses, with burning rags etc. P.W.25 Mohmad Hanif Ahmedkhan Baloch (Exh.134) is silent in his first time deposition, while in his second time deposition he has identifiedthisaccused. SofarasevidenceP.W.2MahmadIqbalAhmedkhan Baloch(Exh.66)inthisregardisconcerned,asdiscussedin the earlier part of this Judgement, the say of the
// 1042 //
complainant regarding not recording of facts in the complaint,asperhisnarrationisalreadydiscussed.This accusedisidentifiedbeforetheCourtandhasstatedabout theinvolvementofthisaccusedinhisdepositionbutnot namedinthecomplaintandhasnotexplainedaboutnot naming the accused in the Complaint, in his first time deposition.Insuchcircumstances,corroborationrequires. P.W.10SugrabibiMahmadkhanBaloch(Exh.90)hasnot identified the accused but has stated in her statement before the Police about the involvement of this accused. After declaring her as Hostile, she has involved present accused in the incident, which requires corroboration. P.W.25 Mohmad Hanif Ahmedkhan Baloch (Exh.134) though identified the accused not stated anything in his any of the statement before the Police about the involvement of this accused, it is only in second time depositionhehasidentifiedtheaccusedandtherefore,in such a circumstances it is quite risky to accept the evidenceofthiswitnessagainstpresentaccused. Itisnotindisputethat,theaccusedistheresidentof Bethak No Madh, Dipra Darwaja, Visnagar. From the evidence of the complainant and witnesses, as discussed above they have only identified the accused and not attributedtheroletothisaccused.Butforthefirsttimeon 08.03.2002,hisnamehasbeentakenbythewitnessinthe statement before the Police, till then the witnesses are
// 1043 //
silent about the involvement of this accused. So far as identification of this accused is concerned, here the accusedisresidinginseparateMahollawhilewitnessesare the resident of Chudivas, Dipra Darwaja and it is not explainedbythewitnessesthat,howtheyknowthepresent accused.Inthepresentsetofcircumstances,identification isnecessaryandthereisgraveirregularityonthepartof Investigating Officer M.K.Patel for not conducting IdentificationParade.IdentificationParadeofthisaccused if done during the course of investigation, it would have increased probative value of the evidence of the witness. Here, value become minimal. In these circumstances benefitisrequiredtobegiventotheaccused. Sofaras specific role as attributed by the witnesses is concerned, thatisalsonotsatisfactorilyestablishedbytheprosecution side.Therefore,thefactremainsthat,itisnotsafetohold accusedguiltyonthebasisofgeneralallegations.Thereis noothermaterialonrecordagainstthepresentaccusedto show his involvement in the alleged offence. It would be hazardous to base a conviction only on the evidence of general allegations. It would be appropriate to acquit the accused. Therefore, the defence of the accused that, he has falsely been involved in the crime, he is innocent one is acceptableintheeyeoflaw.
// 1044 //
[346]
AccusedNo.64: PATELKAMLESHKUMARRANCHHODBHAI (SessionsCaseNo.28/2004) ThisaccusedisidentifiedbeforetheCourtbyP.W.4 Aabidbhai Gulabkhan Sindhi (Exh.71), P.W.24 Shermahmad Dalubhai Sindhi (Exh.132) and P.W.25 Mohmad Hanif Ahmedkhan Baloch (Exh.134) whereas P.W.10SugrabibiMahmadkhanBaloch(Exh.90)hasinhis statement dated 10.03.2002 and P.W.26 Husenkhan Badarkhan Baloch (Exh.137) has in his statement dated 08.03.2002 stated the involvement of thisaccused in his statement before Visnagar Police while before S.I.T. they have stated that, their statements are correct one except the time of incident. While as per Arrest and Recovery Panchnama,PanchasarehostilebutSwordwasrecovered from this accused on 23.10.2002, which is not shown to anywitnessduringthedepositionofwitnesses.Therefore, noreliancecanbeplacedaboutthesaidMuddamalArticle. Now coming to the deposition of witnesses, P.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66) has not named this accused in his complaint. P.W.4 Aabidbhai Gulabkhan Sindhi (Exh.71) is silent in his first time deposition, while in his second time deposition he has identifiedthisaccused. P.W.10SugrabibiMahmadkhan Baloch(Exh.90)hasafterdeclaringherasHostilewitness, she has admitted that, present accused was in the mob
// 1045 //
with other accused, armed with weapons. In her cross examination,itisdeniedbyherthat,shehasnotstatedin her statement about the presence of this accused and involvement of this accused in burning the houses, with burning rags etc. P.W.25 Mohmad Hanif Ahmedkhan Baloch(Exh.134)issilentinhisfirsttimedeposition,while in his second time deposition he has identified this accused.P.W.48ManubhaiKarshanbhaiPatel(Exh.228) has deposed that, Husenkhan Badarkhan has not stated before him about the involvement of this accused in the incident, armed with Sword. P.W.127 Imrankhan Sabirhusen Pathan (Exh.681) has deposed that, this accusedwaspresentinthemob.Inhiscrossexamination hehasdeniedthat,hehasnotstatedbeforeS.I.T.that,this accusedwaspresentinthemob.P.W.175Gautamkumar Vishnubhai Barot (Exh.912) has admitted in his cross examination that, Imrankhan Shabirkhan has not stated beforehimthenameofpresentaccusedinthemob. SofarasevidenceP.W.2MahmadIqbalAhmedkhan Baloch(Exh.66)inthisregardisconcerned,thisaccusedis not identified before the Court, accused cannot be held guiltyinsuchpieceofevidence.Itwastheboundeddutyof theprosecutiontogiveachancetothewitnesstoidentify the accused. Here, it appears missing, specially in the circumstances when no Identification Parade was taken place during the investigationand therefore, hisevidence
// 1046 //
cannotbeconcludedassufficientevidencetoconnectthe accused with the crime. P.W.4 Aabidbhai Gulabkhan Sindhi (Exh.71) though identified the accused not stated anythinginhisanyofthestatementbeforethePoliceabout theinvolvementofthisaccused,itisonlyinsecondtime depositionforthefirsttime,heisinvolvingthisaccused. P.W.10SugrabibiMahmadkhanBaloch(Exh.90)hasnot identified the accused but has stated in her statement before the Police about the involvement of this accused. After declaring her as Hostile, she has involved present accused in the incident, which requires corroboration. P.W.25 Mohmad Hanif Ahmedkhan Baloch (Exh.134) though identified the accused not stated anything in his any of the statement before the Police about the involvement of this accused, it is only in second time depositionhehasidentifiedtheaccusedandtherefore,in such a circumstances it is quite risky to accept the evidenceofthiswitnessagainstpresentaccused.P.W.127 Imrankhan Sabirhusen Pathan (Exh.681) has neither identifiedtheaccusednorhasstatedanythinginanyofhis statement before thePoliceabout the involvement of this accused. P.W.175 Gautamkumar Vishnubhai Barot (Exh.912)contradictsthesayofthisaccusedandtherefore, hisevidencecannotbereliedupon. Itisnotindisputethat,theaccusedistheresidentof Modasi Chopta, Dipra Darwaja, Visnagar. From the
// 1047 //
evidence of the complainant and witnesses, as discussed above they have only identified the accused and not attributedtheroletothisaccused.Butforthefirsttimeon 08.03.2002,hisnamehasbeentakenbythewitnessinthe statement before the Police, till then the witnesses are silent about the involvement of this accused. So far as identification of this accused is concerned, here the accusedisresidinginseparateMahollawhilewitnessesare the resident of Chudivas, Dipra Darwaja and it is not explainedbythewitnessesthat,howtheyknowthepresent accused.Inthepresentsetofcircumstances,identification isnecessaryandthereisgraveirregularityonthepartof Investigating Officer M.K.Patel for not conducting IdentificationParade.IdentificationParadeofthisaccused if done during the course of investigation, it would have increased probative value of the evidence of the witness. Here, value become minimal. In these circumstances benefitisrequiredtobegiventotheaccused. Sofaras specific role as attributed by the witnesses is concerned, thatisalsonotsatisfactorilyestablishedbytheprosecution side.Therefore,thefactremainsthat,itisnotsafetohold 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
// 1048 //
their exist strong suspicion against the accused it is not possible to hold that, his involvement in the offence is established,requiresacquittal. Therefore, the defence of the accused that, he has falsely been involved in the crime, he is innocent one is acceptableintheeyeoflaw. [347] AccusedNo.65: PATELJIGESHKUMARALIASJAGOKANTILAL (SessionsCaseNo.28/2004) This accused is neither identified by any witness before the Court not any witness has stated the involvement of this accused in his statement before Visnagar Police. While as per Arrest and Recovery Panchnama, Panchas are hostile but Dhariya, having wooden handle was recovered from this accused on 23.10.2002,whichisnotshowntoanywitnessduringthe deposition of witnesses. Therefore, no reliance can be placedaboutthesaidMuddamalArticle. Now coming to the deposition of witnesses, P.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66) has not namedthisaccusedinhiscomplaint.P.W.11Anvarhusen ShabbirhusenPathan(Exh.91) istheHostilewitness.He has admitted in his crossexamination that, he saw the accused while setting on fire and beating the Muslim
// 1049 //
persons.Hehasadmittedthat,thiswitnessistheresident ofDipraDarwaja,Visnagar. SofarasevidenceP.W.2MahmadIqbalAhmedkhan Baloch(Exh.66)inthisregardisconcerned,thisaccusedis not identified before the Court, accused cannot be held guiltyinsuchpieceofevidence.Itwastheboundeddutyof theprosecutiontogiveachancetothewitnesstoidentify the accused. Here, it appears missing, specially in the circumstances when no Identification Parade was taken place during the investigationand therefore, hisevidence cannotbeconcludedassufficientevidencetoconnectthe accusedwiththecrime.P.W.11AnvarhusenShabbirhusen Pathan (Exh.91) neither identified the accused nor has stated anything in any of his statement before the Police about the involvement of this accused and there is no corroborationontherecordandtherefore,hisevidenceis notsufficientanditrequirescorroboration. Itisnotindisputethat,theaccusedistheresidentof Khajuri Maholla, Kada Darwaja, Visnagar. From the evidence of the complainant and witnesses, as discussed above they have only identified the accused and neither attributedtheroletothisaccusednorhisnamehasbeen takenbythewitnessesinthestatementbeforethePolice. Thus, the witnesses are silent about the involvement of this accused. So far as identification of this accused is
// 1050 //
concerned, no doubt witnesses and accused are the residentofsamelocalitytherefore,questionofIdentification Paradedoesnotsurviveanditcanbeinferredthat,they are well known to each other. So far as specific role as attributedbythewitnessesisconcerned,thatisalsonot satisfactorilyestablishedbytheprosecutionside.Therefore, thefactremainsthat,itisnotsafetoholdaccusedguilty on the basis of general allegations. There is no other materialonrecordagainstthepresentaccusedtoshowhis involvementintheallegedoffence.Itwouldbehazardousto base a conviction only on the evidence of general allegations.Itwouldbeappropriatetoacquittheaccused. Even other wise on considering the defence of the accusedasnarratedinF.S.that,hedoesnotknowabout theincident.OnthedateofincidenthewasintheField andonreceivingnewsaboutthecommunalriots,hestayed intheFieldduringthenighthoursisplausibleandgenuine one. [348] AccusedNo.66: PATELHARESHKUMARNAROTTAMDAS (SessionsCaseNo.28/2004) ThisaccusedisidentifiedbeforetheCourtbyP.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66), P.W.5 ZubedabibiMahebubkhanBaloch(Exh.84),P.W.18Saiyed Nazirmiya Kalumiya (Exh.103), P.W.24 Shermahmad
// 1051 //
Dalubhai Sindhi (Exh.132), P.W.25 Mohmad Hanif Ahmedkhan Baloch (Exh.134), P.W.30 Shabbirmiya Hasumiya Belim (Exh.146), P.W.50 Saidabibi Mahmadhanif Sindhi (Exh.302), P.W.52 Faridabanu Ahmedkhan Baloch (Exh.306) and P.W.127 Imrankhan Sabirhusen Pathan (Exh.681) whereas P.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66) has in his statement dated12.05.2008andP.W.18SaiyedNazirmiyaKalumiya (Exh.103)hasinhisstatementdated08.03.2002statedthe involvement of this accused in his statement before Visnagar Police while before S.I.T. they have stated that, theirstatementsarecorrectoneexceptthetimeofincident. WhileasperArrestandRecoveryPanchnama,Panchasare hostilebutDhariya,havingwoodenhandlewasrecovered from this accused on 23.10.2002, which is not shown to anywitnessduringthedepositionofwitnesses.Therefore, noreliancecanbeplacedaboutthesaidMuddamalArticle. Now coming to the deposition of witnesses, P.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66) has not named this accused in his complaint. He is silent in his firsttimedeposition,whileinhissecondtimedepositionhe has identified this accused. P.W.5 Zubedabibi
MahebubkhanBaloch(Exh.84) hasafterdeclaringheras Hostile witness, in her second time deposition she has identified the accused. In her second time cross examination, she has admitted that, she does not
// 1052 //
remember that, she has mentioned the name of this accused in her statement beforePolice or before S.I.T. or deposition before the Court. P.W.18 Saiyed Nazirmiya Kalumiya (Exh.103) has deposed that, this accused was presentinthemob,havingDhariyainhishands,shouted slogans and entered in the Maholla and ransacked the houses and involved in the incident. In his cross examinationhehasdeniedthat,hehasnotmentionedin his Police Statement that, this accused along with other accusedenteredintheMaholla,whileshoutingslogans.In hissecondtimedeposition,hehasstatedthat,thisaccused enteredintheMahollawhileshoutingslogans,alongwith otheraccused. Hehasfurtherdeposedthat,hehadseen theincidentofcuttingandkillingpersonsbyblowofSword andDhariyabyaccusedandotherpersonsfromtheterrace of his house. In hiscrossexamination,thiswitnesshas admitted that, he has not mentioned in the statement beforePoliceorS.I.T.orinthedepositionbeforetheCourt or in the application dated Nil that, he had seen the accused in cutting and killing incident. P.W.24 Shermahmad Dalubhai Sindhi (Exh.132) issilent in his firsttimedepositionabouttheinvolvementofthisaccused, whileinhissecondtimedepositionhehasidentifiedthis accused. P.W.25 Mohmad Hanif Ahmedkhan Baloch (Exh.134) is silent in his first time deposition about the involvement of this accused, while in his second time deposition he has identified this accused. P.W.30
// 1053 //
Shabbirmiya Hasumiya Belim (Exh.146) is silent in his firsttimedepositionabouttheinvolvementofthisaccused, whileinhissecondtimedepositionhehasidentifiedthis accused. He has in his second time crossexamination admitted that, this accused was the Member of Municipality and he is residing in the Dipra Darwaja. P.W.50 Saidabibi Mahmadhanif Sindhi (Exh.302) is silentinherfirsttimedepositionabouttheinvolvementof thisaccused,whileinhersecondtimedepositionshehas identifiedthisaccused. P.W.52FaridabanuAhmedkhan Baloch (Exh.306) is silent in her first time deposition abouttheinvolvementofthisaccused,whileinhersecond timedepositionshehasidentifiedthisaccused. P.W.125 Sabanabibi Anvarhusen Pathan (Exh.678) has deposed that,thisaccusedwaspresentinthemobandinvolvedin the incident and has identified this accused. P.W.127 ImrankhanSabirhusenPathan(Exh.681)hasdeniedthat, hehasnotstatedbeforeS.I.T.aboutthepresenceofthis accusedinthemob. SofarasevidenceP.W.2MahmadIqbalAhmedkhan Baloch(Exh.66)inthisregardisconcerned,asdiscussedin the earlier part of this Judgement, the say of the complainant regarding not recording of facts in the complaint,asperhisnarrationisalreadydiscussed.This accusedisidentifiedbeforetheCourtandhasstatedabout theinvolvementofthisaccusedinhisdepositionbutnot
// 1054 //
namedinthecomplaintandhasnotexplainedaboutnot naming the accused in the Complaint, in his first time deposition.Insuchcircumstances,corroborationrequires. P.W.5ZubedabibiMahebubkhanBaloch(Exh.84)though identifiedtheaccusednotstatedanythinginhisanyofthe statement before thePoliceabout the involvement of this accused,itisonlyafterdeclaringherasHostile,shehas involved the present accused and therefore, her evidence requirescorroboration.P.W.18SaiyedNazirmiyaKalumiya (Exh.103) though identified the accused as well as has stated in his statement before the Police about the involvement of this accused. So far as his say that, this accused entered in the Maholla while shouting slogans, alongwithotheraccusedisbelievablebutsofarasseeing of cutting and killing of persons by blow of Sword and Dhariya by present accused and other persons from the terraceofhishouseisconcerned,hehasadmittedinhis crossexaminationthat,hehasnotmentionedsaidfactsin hisanyofthestatementbeforePoliceorbeforeS.I.T.orin thedepositionbeforetheCourtorintheapplicationbefore theMagistrateandtherefore,hissuchevidencecannotbe solely relied upon, corroboration requires. P.W.24 ShermahmadDalubhaiSindhi(Exh.132)thoughidentified theaccusednotstatedanythinginhisanyofthestatement beforethePoliceabouttheinvolvementofthisaccused,itis onlyinsecondtimedepositionhehasinvolvedthepresent accusedandtherefore,hisevidenceisnotsufficientagainst
// 1055 //
thepresentaccused.P.W.25MohmadHanifAhmedkhan Baloch(Exh.134)thoughidentifiedtheaccusednotstated anythinginhisanyofthestatementbeforethePoliceabout theinvolvementofthisaccused,itisonlyinsecondtime depositionhehasidentifiedtheaccusedandtherefore,in such a circumstances it is quite risky to accept the evidenceofthiswitnessagainstpresentaccused.P.W.30 Shabbirmiya Hasumiya Belim (Exh.146) though identified theaccusednotstatedanythinginhisanyofthestatement beforethePoliceabouttheinvolvementofthisaccuseditis onlyinsecondtimedepositionhehasinvolvedtheaccused andtherefore,insuchacircumstancesitisquiteriskyto accepttheevidenceofthiswitnessagainstpresentaccused. P.W.50SaidabibiMahmadhanifSindhi(Exh.302)though identifiedtheaccusednotstatedanythinginheranyofthe statement before thePoliceabout the involvement of this accused it is only in second time deposition she has involved the accused and therefore, in such a circumstancesitisquiteriskytoaccepttheevidenceofthis witness against present accused. P.W.52 Faridabanu Ahmedkhan Baloch (Exh.306) though identified the accusednotstatedanythinginher anyofthestatement beforethePoliceabouttheinvolvementofthisaccuseditis only in second time deposition she has involved the accusedandtherefore,insuchacircumstancesitisquite riskytoaccepttheevidenceofthiswitnessagainstpresent accused. P.W.125 Sabanabibi Anvarhusen Pathan
// 1056 //
(Exh.678) neither identified the accused nor has stated anythinginanyofhisstatementbeforethePoliceaboutthe involvementofthisaccusedandtherefore,corroborationof herevidenceisnecessary.Thereisnoevidenceagainstthe presentaccusedinthedepositionofP.W.127Imrankhan SabirhusenPathan(Exh.681). Itisnotindisputethat,theaccusedistheresidentof RandalMataMadh,DipraDarwaja.Fromtheevidenceof the complainant and witnesses, as discussed above they haveonlyidentifiedtheaccusedandnotattributedtherole tothisaccused.Butforthefirsttimeon08.03.2002,his name has been taken by the witness in the statement beforethePolice,tillthenthewitnessesare silentabout theinvolvementofthisaccused.Sofarasidentificationof thisaccusedisconcerned,nodoubtwitnessesandaccused are the resident of same locality therefore, question of IdentificationParadedoesnotsurviveanditcanbeinferred that,theyarewellknowntoeachother.Sofarasspecific role as attributed by the witnesses is concerned, that is alsonotsatisfactorilyestablishedbytheprosecutionside. Therefore, the fact 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
// 1057 //
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 established,requiresacquittal. Even other wise on considering the defence of the accusedasnarratedinF.S.that,atthetimeofincidenthe wasCorporatoroftheVisnagarMunicipalityandasheis sociallyandeconomicallyleading,heisfalselyimplicatedin theoffence.hedoesnotknowabouttheincidentandwith politicalgrievanceheisfalselyimplicatedasanaccusedis plausibleandgenuineone. [349] AccusedNo.67: PATELSATISHKUMARPARSHOTTAMDAS(STEMP VENDOR) (SessionsCaseNo.28/2004) ThisaccusedisidentifiedbeforetheCourtbyP.W.2 MahmadIqbalAhmedkhanBaloch(Exh.66),P.W.18Saiyed Nazirmiya Kalumiya (Exh.103), P.W.22 Yusufkhan Muradkhan Pathan (Exh.112), P.W.25 Mohmad Hanif Ahmedkhan Baloch (Exh.134) and P.W.30 Shabbirmiya HasumiyaBelim(Exh.146)whereasP.W.2MahmadIqbal Ahmedkhan Baloch (Exh.66) has in his statement dated 12.05.2008 and P.W.18 Saiyed Nazirmiya Kalumiya (Exh.103)hasinhisstatementdated08.03.2002statedthe involvement of this accused in his statement before
// 1058 //
Visnagar Police while before S.I.T. they have stated that, theirstatementsarecorrectoneexceptthetimeofincident. WhileasperArrestandRecoveryPanchnama,Panchasare hostile but Sword was recovered from this accused on 23.10.2002,whichisnotshowntoanywitnessduringthe deposition of witnesses. Therefore, no reliance can be placedaboutthesaidMuddamalArticle. Now coming to the deposition of witnesses, P.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66) has not named this accused in his complaint. P.W.18 Saiyed Nazirmiya Kalumiya (Exh.103) has deposed that, this accused was present in the mob, having Sword in his hands, shouted slogans and entered in the Maholla and ransacked the houses. In his crossexamination he has deniedthat,hehasnotmentionedinhisPoliceStatement that,thisaccusedalongwithotheraccusedenteredinthe Maholla, while shouting slogans. In his second time deposition,hehasstatedthat,thisaccusedenteredinthe Mahollawhileshoutingslogans,alongwithotheraccused. Hehasfurtherdeposedthat,hehadseentheincidentof cuttingandkillingpersonsbyblowofSwordandDhariya by accused and other persons from the terrace of his house.Inhiscrossexamination,thiswitnesshasadmitted that,hehasnotmentionedinthestatementbeforePolice or S.I.T. or in the deposition before the Court or in the application dated Nil that, he had seen the accused in
// 1059 //
cutting and killing incident. P.W.48 Manubhai Karshanbhai Patel (Exh.228) has admitted in his cross examination that, he has recorded the statement of Nazirmiya Kalumiya and in his statement before him, he has notmentionedthat,thisaccusedwasenteredinthe Maholla, while shouting slogans. P.W.22 Yusufkhan Muradkhan Pathan (Exh.112) is silent in his first time depositionabouttheinvolvementofthisaccused,whilein hissecondtimedepositionhehasdeposedthat,inhisfirst timedepositionhehasmentionedthenamesofthepersons who were involved in the mob who have attacked on 28.02.2002andkilled11personsandinearlierdeposition he has not named some persons and therefore, he has deposed names of somepersonsinhisdepositionandin which he has named this accused. In his second time crossexamination,thiswitnesshasdeniedthat,hehasnot mentioned the name of this accused in the statement beforePoliceorS.I.T.orinthedepositionbeforetheCourt or in the application, preferred before the Magistrate. P.W.175GautamkumarVishnubhaiBarot(Exh.912)has in his crossexamination admitted that, he has recorded the statement of Yusufkhan Muradkhan and in his statement before him, he has not named this accused. P.W.24 Shermahmad Dalubhai Sindhi (Exh.132) has deposedthat,thisaccusedwaspresentinthemob.Inhis second time crossexamination, this witness has denied that,hehasnotmentionedthenameofthisaccusedinthe
// 1060 //
statementbeforePoliceorS.I.T.orinthedepositionbefore theCourtorintheapplicationdatedNil.P.W.25Mohmad HanifAhmedkhanBaloch(Exh.134) issilentinhisfirst timedepositionabouttheinvolvementofthisaccused,whil in his second time deposition he has deposed that, this accused was present in the mob, having Sword in his hands. He has further deposed that, this accused along withotheraccusedhavemurderedBanubibi,Attaullakhan and Amanaullakhan, by Sword blow. In his cross examination he has admitted that, he has stated in the statementbeforeS.I.T.that,thisaccusedalongwithother accused have murdered Banubibi, Attaullakhan and Amanaullakhan, by Sword blow. P.W.175 Gautamkumar Vishnubhai Barot (Exh.912) has in his crossexamination admitted that, he has recorded the statement of this witnessbuthehasnotstatedbeforehimthat,thisaccused washavingSwordinhishands. P.W.30Shabbirmiya HasumiyaBelim(Exh.146) hasinhissecondtimecross examinationadmittedthat,thisaccusedwastheMember of Municipality and he is residing in the Ganji area. P.W.158NazirMahmadSuleman(Exh.812)hasdeposed that,offenceunderSection307oftheI.P.C.wasregistered againstthisaccusedvideI.CR.No.121/2006. SofarasevidenceP.W.2MahmadIqbalAhmedkhan Baloch(Exh.66)inthisregardisconcerned,asdiscussedin the earlier part of this Judgement, the say of the
// 1061 //
complainant regarding not recording of facts in the complaint,asperhisnarrationisalreadydiscussed.This accusedisidentifiedbeforetheCourtandhasstatedabout theinvolvementofthisaccusedinhisdepositionbutnot namedinthecomplaintandhasnotexplainedaboutnot naming the accused in the Complaint, in his first time deposition.Insuchcircumstances,corroborationrequires. P.W.18 Saiyed Nazirmiya Kalumiya (Exh.103) though identified the accused as well as has stated in his statement before thePoliceabout the involvement of this accused.Sofarashissaythat,thisaccusedenteredinthe Mahollawhileshoutingslogans,alongwithotheraccused isbelievablebutsofarasseeingofcuttingandkillingof personsbyblowofSwordandDhariyabypresentaccused and other persons from the terrace of his house is concerned,hehasadmittedinhiscrossexaminationthat, hehasnotmentionedsaidfactsinhisanyofthestatement beforePoliceorbeforeS.I.T.orinthedepositionbeforethe Court or in the application before the Magistrate and therefore,hissuchevidencecannotbesolelyreliedupon, corroboration requires. P.W.22 Yusufkhan Muradkhan Pathan(Exh.112)thoughidentifiedtheaccusednotstated anythinginhisanyofthestatementbeforethePoliceabout theinvolvementofthisaccused.Inhisfirsttimedeposition he has deposed about the involvement of this accused, which is acceptable but in his second time deposition regardingcutting,killingandburningof11personsisnot
// 1062 //
acceptable,asdiscussedearlier.Theexplanationgivenby thiswitnessfornotnamingtheaccusedinfirsttimeisnot satisfactory,ifthewitnesscandeposecutting,killingand burningof11deadbodiesinhisfirsttimedeposition,why he could not name the present accused in his first time depositionorinhisstatementsbeforethePolice.Thisfact itself suggest non disclosing thenameofthisaccusedin earlierpointoftime.Thus,explanationnotsatisfactoryand cannot be accepted. P.W.24 Shermahmad Dalubhai Sindhi (Exh.132) neither identified the accused nor has stated anything in any of his statement before the Police about the involvement of this accused. In the first time deposition he is silent and there is no satisfactory explanationonrecordandtherefore,thereisnosufficient evidence toindulgetheaccusedintheincident.P.W.25 Mohmad Hanif Ahmedkhan Baloch (Exh.134) though identifiedtheaccusedbuthasnotstatedanythinginhis any of the statement before the Police about the involvement of this accused, it is only in second time deposition he has involved the present accused and therefore,hisevidenceisnotsufficientagainstthepresent accused.Sofarashissayaboutthekillingofpersonsis concerned, as discussedhereinabovethiscourthasnot believed the incident of cutting, killing and burning of personsandtherefore,thatevidencehasnoforce.P.W.30 Shabbirmiya Hasumiya Belim (Exh.146) though identified the accused but not stated anything in his any of the
// 1063 //
statement before thePoliceabout the involvement of this accused. He has not stated anything against the present accused in his deposition and therefore, in such a circumstancesitisquiteriskytoaccepttheevidenceofthis witness against present accused. So far as evidence of P.W.158NazirMahmadSuleman(Exh.812)isconcerned,it is not relevant to this case and therefore, it cannot be consideredagainstpresentaccused. Itisnotindisputethat,theaccusedistheresidentof Bhesiya Pole, Visnagar. From the evidence of the complainantandwitnesses,asdiscussedabovetheyhave onlyidentified theaccusedandnotattributedtheroleto this accused. But for the first time on 08.03.2002, his name has been taken by the witness in the statement beforethePolice,tillthenthewitnessesare silentabout theinvolvementofthisaccused.Sofarasidentificationof thisaccusedisconcerned,heretheaccusedisresidingin separate Maholla while witnesses are the resident of Chudivas, Dipra Darwaja and it is not explained by the witnessesthat,howtheyknowthepresentaccused.Inthe present set of circumstances, identification is necessary andthereisgraveirregularityonthepartofInvestigating OfficerM.K.PatelfornotconductingIdentificationParade. Identification Parade of this accused if done during the course of investigation, it would have increased probative value of the evidence of the witness. Here, value become
// 1064 //
minimal.Inthesecircumstancesbenefitisrequiredtobe giventotheaccused. Sofarasspecificroleasattributed bythewitnessesisconcerned,thatisalsonotsatisfactorily established by the prosecution side. Therefore, the fact remainsthat,itisnotsafetoholdaccusedguiltyonthe 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 involvementintheoffenceisestablished,requiresacquittal. Even other wise on considering the defence of the accusedasnarratedinF.S.that,atthetimeofincidenthe wasCorporatoroftheVisnagarMunicipalityandasheis sociallyandeconomicallyleading,heisfalselyimplicatedin theoffence.hedoesnotknowabouttheincidentandwith politicalgrievanceheisfalselyimplicatedasanaccusedis plausibleandgenuineone. [350] AccusedNo.68: PATELPANKAJKUMARKANTILAL (SessionsCaseNo.28/2004) ThisaccusedisidentifiedbeforetheCourtbyP.W.2 MahmadIqbalAhmedkhanBaloch(Exh.66)whereasP.W.18
// 1065 //
SaiyedNazirmiyaKalumiya(Exh.103)hasinhisstatement dated08.03.2002statedtheinvolvementofthisaccusedin his statement before Visnagar Police while before S.I.T. they have stated that, their statements are correct one except the time of incident. While as per Arrest and RecoveryPanchnama,PanchasarehostilebutGlassBottle of White Colour of Kerosene was recovered from this accusedon23.10.2002,whichisnotshowntoanywitness during the depositionofwitnesses.Therefore,noreliance canbeplacedaboutthesaidMuddamalArticle. Now coming to the deposition of witnesses, P.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66) has not named this accused in his complaint. He is silent in his firsttimedeposition,whileinhissecondtimedepositionhe has identified this accused. P.W.18 Saiyed Nazirmiya Kalumiya (Exh.103) has in his first time deposition deposed that, this accused was having Dhariya in his hands present in the mob and involved in the incident. P.W.25MohmadHanifAhmedkhanBaloch(Exh.134)is silentinhisfirsttimedeposition,whileinhissecondtime deposition he has identified this accused. P.W.52 Faridabanu Ahmedkhan Baloch (Exh.306) has deposed that,thisaccusedwaspresentinthemobandinvolvedin theincidentandhishersecondtimedeposition,shehas identifiedthisaccused.
// 1066 //
SofarasevidenceP.W.2MahmadIqbalAhmedkhan Baloch(Exh.66)inthisregardisconcerned,asdiscussedin the earlier part of this Judgement, the say of the complainant regarding not recording of facts in the complaint,asperhisnarrationisalreadydiscussed.This accusedisidentifiedbeforetheCourtandhasstatedabout theinvolvementofthisaccusedinhisdepositionbutnot namedinthecomplaintandhasnotexplainedaboutnot naming the accused in the Complaint, in his first time deposition.Insuchcircumstances,corroborationrequires. P.W.18 Saiyed Nazirmiya Kalumiya (Exh.103) has not identified the accused but has stated in his statement before the Police about the involvement of this accused. Thus,theinvolvementofthisaccusedintheincidenthas no force. P.W.25 Mohmad Hanif Ahmedkhan Baloch (Exh.134)hasneitheridentifiedtheaccusednorhasstated anythinginanyofhisstatementbeforethePoliceaboutthe involvementofthisaccused,onlyinsecondtimedeposition hasidentifiedtheaccusedandthus,thereisnosufficient evidence against present accused. P.W.52 Faridabanu Ahmedkhan Baloch (Exh.306) neither identified the accused nor has statedanything in any of his statement beforethePoliceabouttheinvolvementofthisaccused,itis only in second time deposition involved the accused and therefore, it is difficult to convict the accused by relying solelyuponthisevidence.
// 1067 //
Itisnotindisputethat,theaccusedistheresidentof Indrapuri Society, Opp. Mahesh Petrol Pump, Visnagar. From the evidence of the complainant and witnesses, as discussedabovetheyhaveonlyidentifiedtheaccusedand notattributedtheroletothisaccused.Butforthefirsttime on08.03.2002,hisnamehasbeentakenbythewitnessin thestatementbeforethePolice,tillthenthewitnessesare silent about the involvement of this accused. So far as identification of this accused is concerned, here the accusedisresidinginseparateMahollawhilewitnessesare the resident of Chudivas, Dipra Darwaja and it is not explainedbythewitnessesthat,howtheyknowthepresent accused.Inthepresentsetofcircumstances,identification isnecessaryandthereisgraveirregularityonthepartof Investigating Officer M.K.Patel for not conducting IdentificationParade.IdentificationParadeofthisaccused if done during the course of investigation, it would have increased probative value of the evidence of the witness. Here, value become minimal. In these circumstances benefitisrequiredtobegiventotheaccused. Sofaras specific role as attributed by the witnesses is concerned, thatisalsonotsatisfactorilyestablishedbytheprosecution side.Therefore,thefactremainsthat,itisnotsafetohold accusedguiltyonthebasisofgeneralallegations.Thereis noothermaterialonrecordagainstthepresentaccusedto show his involvement in the alleged offence. It would be hazardous to base a conviction only on the evidence of
// 1068 //
general allegations. It would be appropriate to acquit the accused. Even other wise on considering the defence of the accused as narrated in F.S. that, he is socially and economicallyleadingandtherefore,heisfalselyimplicated intheincidentasanaccusedisplausibleandgenuineone. [351] AccusedNo.69: PATELCHAMANLALALIASCHOKSIRAMCHANDDAS (SessionsCaseNo.28/2004) ThisaccusedisidentifiedbeforetheCourtbyP.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66), P.W.4 Aabidbhai Gulabkhan Sindhi (Exh.71), P.W.18 Saiyed Nazirmiya Kalumiya (Exh.103), P.W.22 Yusufkhan Muradkhan Pathan (Exh.112), P.W.23 Ahmedmiya Hasumiya Belim (Exh.128), P.W.24 Shermahmad Dalubhai Sindhi (Exh.132), P.W.25 Mohmad Hanif Ahmedkhan Baloch (Exh.134), P.W.30 Shabbirmiya Hasumiya Belim (Exh.146) and P.W.52 Faridabanu Ahmedkhan Baloch (Exh.306) whereas P.W.6 Mahmadkhan Badarkhan Baloch (Exh.85) has in his statement dated 10.03.2002, P.W.22 Yusufkhan Muradkhan Pathan (Exh.112) has in his statement dated 08.03.2002, P.W.24 Shermahmad Dalubhai Sindhi (Exh.132)hasinhisstatementdated08.03.2002,P.W.25 Mohmad Hanif Ahmedkhan Baloch (Exh.134) has in his
// 1069 //
statement dated 08.03.2002, P.W.26 Husenkhan Badarkhan Baloch (Exh.137) has in his statement dated 08.03.2002, P.W.29 Hanifabibi Shabbirbhai Pathan (Exh.144)hasinhisstatementdated08.03.2002,P.W.30 Shabbirmiya Hasumiya Belim (Exh.146) has in his statement dated 08.03.2002, P.W.32 Mahmadhanif Dalubhai Sindhi (Exh.150) has in his statement dated 24.05.2008 and P.W.33 Anvarkhan Basirkhan Baloch (Exh.166)hasinhisstatementdated08.03.2002statedthe involvement of this accused in his statement before Visnagar Police while before S.I.T. they have stated that, theirstatementsarecorrectoneexceptthetimeofincident. WhileasperArrestandRecoveryPanchnama,Panchasare hostile but Sword was recovered from this accused on 23.10.2002,whichisnotshowntoanywitnessduringthe deposition of witnesses. Therefore, no reliance can be placedaboutthesaidMuddamalArticle. Now coming to the deposition of witnesses, P.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66) has not named this accused in his complaint. He is silent in his firsttimedeposition,whileinhissecondtimedepositionhe hasidentifiedthisaccused. P.W.4AabidbhaiGulabkhan Sindhi(Exh.71)issilentinhisfirsttimedeposition,while in his second time deposition he has deposed that, this accusedwasinvolvedintheincidentandhasidentifiedthis accused. P.W.5 Zubedabibi Mahebubkhan Baloch
// 1070 //
(Exh.84) hasafterdeclaringherasHostilewitness,inher second time deposition she has identified the accused. P.W.18 Saiyed Nazirmiya Kalumiya (Exh.103) has deposed that, thisaccused was not present in the Court buthewaspresentinthemobandinvolvedintheincident. P.W.22 Yusufkhan Muradkhan Pathan (Exh.112) has deposedthat,thisaccusedwaspresentandinvolvedinthe incidentandhewashavingSwordinhishands. Hehas furtherdeposedthat,hehasseenthisaccusedwhilekilling his two sons Attaullakhan and Amanaullakhan, by this accusedbySword,whileinhissecondtimedepositionhe has identified this accused. P.W.24 Shermahmad DalubhaiSindhi(Exh.132)hasdeposedthat,thisaccused waspresentinthemob.Hehasfurtherdeposedthat,this accused along with other accused have attacked on the personsofMahollaandwasinvolvedinthekillingincident of 11 persons. In his second time deposition he has identified this accused. P.W.25 Mohmad Hanif Ahmedkhan Baloch (Exh.134) has deposed that, this accusedwasleadinginthemobandhewashavingSword in his hands and was involved in the killing incident of alleged deceased persons, by using Sword. In his cross examination he has admittedthat,hehasmentionedin the statement dated 08.03.2002 before Police that, this accused was present in the mob, having Sword in his hands. In his crossexamination he has denied that, though his accused has not murdered Yakubkhan,
// 1071 //
Hanifabibi Aasifkhan and Aabidkhan, he has mentioned thesameinhisstatementbeforePolice.Inhissecondtime deposition, he has identified this accused. P.W.30 Shabbirmiya Hasumiya Belim (Exh.146) is silent in his firsttimedeposition,whileinhissecondtimedepositionhe has deposed that, this accused was present in the mob withSwordandwasinvolvedintheincident.Inhissecond time deposition he has identified this accused. P.W.32 MahmadhanifDalubhaiSindhi(Exh.150) issilentinhis firsttimedeposition,whileinhissecondtimedepositionhe has stated in his crossexamination that, he does not rememberthat,inthestatementdated08.03.2002before Policehehasmentionedthat,thisaccusedwasinthemob having Sword in his hands. P.W.48 Manubhai Karshanbhai Patel (Exh.228) has deposed that,
Husenkhan Badarkhan has stated before him that, this accusedwaspresentinthemobhavingSwordinhishands andwasinvolvedintheincidentandhaskilledtwosonsof Yusufkhan by Sword. P.W.51 Aminabibi Ahmedkhan Baloch (Exh.303) has deposed that, she had seen the accused in the mob. P.W.52 Faridabanu Ahmedkhan Baloch (Exh.306) has deposed that, this accused was present in the mob and was involved in the incident of peltingofstones. Inhersecondtimedeposition,shehas identifiedthisaccused.
// 1072 //
SofarasevidenceP.W.2MahmadIqbalAhmedkhan Baloch(Exh.66)inthisregardisconcerned,asdiscussedin the earlier part of this Judgement, the say of the complainant regarding not recording of facts in the complaint,asperhisnarrationisalreadydiscussed.This accusedisidentifiedbeforetheCourtandhasstatedabout theinvolvementofthisaccusedinhisdepositionbutnot namedinthecomplaintandhasnotexplainedaboutnot naming the accused in the Complaint, in his first time deposition.Insuchcircumstances,corroborationrequires. P.W.4AabidbhaiGulabkhanSindhi(Exh.71)hasidentified aswellas statedinhissecondtimedepositionaboutthe involvement of this accused in the incident. This witness hasalsostatedinhisstatementbeforethePoliceaboutthe involvementofthisaccused.Nothinghasbeenbroughtin crossexaminationfromwhichwecandiscardthesayofthe witness about the involvement of this accused in the incident.P.W.5ZubedabibiMahebubkhanBaloch(Exh.84) neither identified theaccusednor hasstatedanything in any of his statement before the Police about the involvement of this accused and therefore, her evidence requires corroboration, as she is the Hostile witness. P.W.18SaiyedNazirmiyaKalumiya(Exh.103)isconcerned there was no question ofidentification of theaccusedby thewitness,asontherelevantdayevidencewasrecorded intheabsenceofaccused.Consideringtheevidenceofthis witness, corroboration requires. P.W.22 Yusufkhan
// 1073 //
MuradkhanPathan(Exh.112)hasidentifiedandstatedin his statementbeforethePoliceabouttheinvolvementof this accused. Evidence of this witness, involving the present accused is acceptable but incident of cutting, killing and burning of his two sons Attaullakhan and Amanaullakhanisnotbelievedbythiscourtandtherefore, only that part of his evidence is not acceptable. Nothing from crossexamination is brought from which we can discard the earlier part of deposition of this witness. P.W.24 Shermahmad Dalubhai Sindhi (Exh.132) has identified and stated in his statement before the Police about the involvement of this accused. Evidence of this witness, involving the present accused is acceptable but incidentofcutting,killingandburningof11personsisas discussed by this court in the earlier part of this Judgement,notbelievedbythiscourtandtherefore,only that part of his evidence is not acceptable. Nothing has been brought in crossexamination from which we can discard the evidence of this witness. P.W.25 Mohmad Hanif Ahmedkhan Baloch (Exh.134) has identified and stated in his statement before the Police about the involvement of this accused. Evidence of this witness, involvingthepresentaccusedisacceptablebutincidentof cutting, killing and burning of Yakubkhan, Hanifabibi Aasifkhan and Aabidkhan asdiscussedby thiscourtin the earlier part of this Judgement, not believed by this court and therefore,only thatpartofhisevidenceisnot
// 1074 //
acceptable.Nothinghasbeenbroughtincrossexamination from which we can discard the evidence of this witness. P.W.30 Shabbirmiya Hasumiya Belim (Exh.146) has identified and stated in his statement before the Police aboutthe involvementofthisaccusedintheincident.In second time deposition also, he has deposed about the involvement of this accused in the incident. Considering thecorroborationoftheevidenceofthiswitness,withother evidence, it is acceptable. Nothing has been brought in crossexaminationfromwhichwecandiscardtheevidence of this witness. P.W.32 Mahmadhanif Dalubhai Sindhi (Exh.150)hasnotidentifiedtheaccusedbuthasstatedin his statement before the Police about the involvement of this accused. His this evidence can be considered for corroboration purpose only. P.W.51 Aminabibi Ahmedkhan Baloch (Exh.303) has neither identified the accusednorstatedanythinginanyofherstatementbefore the Police about the involvement of this accused and therefore, her say that, she had seen the accusedin the mobissolelynotsufficienttoconcludetheevidenceagainst the accused, other evidence is also required to be considered. P.W.52 Faridabanu Ahmedkhan Baloch (Exh.306) though identified the accused not stated anythinginhisanyofthestatementbeforethePoliceabout theinvolvementofthisaccusedandinthatcircumstances herdepositioninvolvingtheaccusedcanbeconsideredin thecorroborationofotherevidence.Thus,consideringthe
// 1075 //
aboveallthewitnesses,thereissufficientevidenceforthe involvementofaccusedinthecrime. So far as Muddamal article Sword is concerned, witnesses have deposed about the use of Sword, by the accused but no identification of Muddamal Article took placeintheCourtandtherefore,noreliancecanbeplaced ontheevidenceofrecoveryofSword.Therefore,theversion ofwitnesshavingSwordbythisaccusedinthemobcanbe considered for involvement of this accused. Further, the factthat,thisaccusedwaspresentinChudivasinthemob, at the time of occurrence. The witnesses, as discussed abovehavestatedthepresenceofthisaccusedinthemob.
Itisnotindisputethat,theaccusedistheresidentof Khajuri Maholla, Kada Darwaja, Visnagar, meaning thereby, he is the resident of Dipra Darwaja area and witnesses are also resident of Chudivas, Dipra Darwaja, Visnagar. They are known to each other since previously hence evidence of witnesses can safely be accepted as regardstotheinvolvementofthisaccusedandevidenceof witnessesasdiscussedearlierhavingseentheaccusedin the mob cannot bedoubtedatall.Onceitisestablished 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
// 1076 //
accused.Thisaccusedisidentifiedbythewitnessesinthe Court.Therefore,ifnoIdentificationParadetookplace,by theInvestigatingOfficer,thatamountsirregularityonthe partofI.O.Here,inthepresentcaseenteringinChudivas atthetimeofincidentitselfsuggestthecommonobjectof themobaswellasspecificroleattributedtotheaccused. TherewasnoreasontoenterinChudivasatthatoddtime. Therefore by becoming a member of unlawful assembly accused entered in Chudivas and incident of pelting of stones, ransacking and burning of houses, abusing the Muslims and shouting slogans occurred. This fact itself suggestovertactinconnectionwithcommonobjectofthe mob. Meaning thereby accused had participated in furtherance of common object of the mob. Therefore involvementofaccusediswellestablishedfromtheabove circumstances. The basic defence of this accused in his furtherexaminationunderSection313 ofCr.P.C.that,he issociallyandpoliticallyleadingandhewastheMemberof Municipalityandtherefore,hewasfalselyimplicatedinthe incident. He had not gone anywhere and has not seen anything and at the time of incident, he was doing agriculturalworkandhehasfalselybeenimplicatedisnot probabilitysatisfactorilyexplainedandcannotbeaccepted. Further, there is nopreviousenmity withwitnesses,why theywillfalselyimplicatethisaccused.Thereisnoreason to falsely implicate the accused. No one would falsely involveaninnocentperson,keepingasidetherealculprit.
// 1077 //
[352]
AccusedNo.70: PATELMANILALBAJIDAS (SessionsCaseNo.28/2004) ThisaccusedisidentifiedbeforetheCourtbyP.W.18 SaiyedNazirmiyaKalumiya(Exh.103),P.W.23Ahmedmiya Hasumiya Belim (Exh.128), P.W.30 Shabbirmiya Hasumiya Belim (Exh.146) and P.W.31 Aarifkhan Yakubkhan Pathan (Exh.147) whereas P.W.6 Mahmadkhan Badarkhan Baloch (Exh.85) has in his statement dated 10.03.2002 and P.W.22 Yusufkhan Muradkhan Pathan (Exh.112) has in his statement dated 08.03.2002 stated the involvement of thisaccused in his statement before Visnagar Police while before S.I.T. they have stated that, their statements are correct one except the time of incident. While as per Arrest and Recovery Panchnama,PanchasarehostilebutSwordwasrecovered from this accused on 23.10.2002, which is not shown to anywitnessduringthedepositionofwitnesses.Therefore, noreliancecanbeplacedaboutthesaidMuddamalArticle. Now coming to the deposition of witnesses, P.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66) has not named this accused in his complaint. He is silent in his firsttimedeposition,whileinhissecondtimedepositionhe has identified this accused. In his second time cross examinationdeniedthat,hehasnotmentionedthenameof this accused in the Complaint for the killing incident of
// 1078 //
alleged11persons. P.W.18SaiyedNazirmiyaKalumiya (Exh.103)issilentinhisfirsttimedeposition,whileinhis second time deposition he has identified this accused. P.W.22 Yusufkhan Muradkhan Pathan (Exh.112) has deposedthat,thisaccusedwaspresentinthemob,having Sword in his hands. P.W.23 Ahmedmiya Hasumiya Belim(Exh.128)issilentinhisfirsttimedeposition,while inhissecondtimedepositionincrossexaminationhehas admitted that, he does not remember whether he has named this accused for very first time in the statement before S.I.T. P.W.30 Shabbirmiya Hasumiya Belim (Exh.146)issilentinhisfirsttimedeposition,whileinhis second time deposition he has identified this accused. P.W.31AarifkhanYakubkhanPathan(Exh.147)issilent in his first time deposition, while in his second time depositionhehasidentifiedthisaccused. P.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66), P.W.18 Saiyed Nazirmiya Kalumiya (Exh.103), P.W.23 Ahmedmiya Hasumiya Belim (Exh.128), P.W.30 Shabbirmiya Hasumiya Belim (Exh.146) and P.W.31 AarifkhanYakubkhanPathan(Exh.147)aresilentaboutthe involvementofthisaccusedinfirsttimeoftheirdeposition. So far as evidence P.W.2 Mahmad Iqbal Ahmedkhan Baloch(Exh.66)inthisregardisconcerned,asdiscussedin the earlier part of this Judgement, the say of the complainant regarding not recording of facts in the
// 1079 //
complaint,asperhisnarrationisalreadydiscussed.This accusedisidentifiedbeforetheCourtandhasstatedabout theinvolvementofthisaccusedinhisdepositionbutnot namedinthecomplaintandhasnotexplainedaboutnot naming the accused in the Complaint, in his first time deposition.Insuchcircumstances,corroborationrequires. P.W.18 Saiyed Nazirmiya Kalumiya (Exh.103), P.W.30 Shabbirmiya Hasumiya Belim (Exh.146) and P.W.31 AarifkhanYakubkhanPathan(Exh.147)haveidentifiedthe accused while P.W.22 Yusufkhan Muradkhan Pathan (Exh.112)hasinvolvedthepresentaccusedinthemob.In theabsenceofinvolvementofthisaccusedduringtheirfirst timedepositionaswellasintheirstatements.Byrelying upontheversionofP.W.22YusufkhanMuradkhanPathan (Exh.112)solely,itisquiteriskytoaccepttheinvolvement ofthisaccused.Benefitgoestotheaccused. Itisnotindisputethat,theaccusedistheresidentof Opp. Jain Derasar, Dipra Darwaja. From the evidence of the complainant and witnesses, as discussed above they haveonlyidentifiedtheaccusedandnotattributedtherole tothisaccused.Butforthefirsttimeon08.03.2002,his name has been taken by the witness in the statement beforethePolice,tillthenthewitnessesare silentabout theinvolvementofthisaccused.Sofarasidentificationof thisaccusedisconcerned,nodoubtwitnessesandaccused aretheresidentofsamelocalityandtherefore,questionof
// 1080 //
IdentificationParadedoesnotsurviveanditcanbeinferred that,theyarewellknowntoeachother.Sofarasspecific role as attributed by the witnesses is concerned, that is alsonotsatisfactorilyestablishedbytheprosecutionside. Therefore, the fact 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.
Even other wise on considering the defence of the accusedasnarratedinF.S.that,attheplaceofincidenthe hadnotseenanything,hehadnotgonethereandheis retired Principal and Social Worker and therefore, he is falselyimplicatedasanaccusedintheallegedincidentis plausibleandgenuineone. [353] AccusedNo.71: PATELGITABENW/O.BABULALISHVARLAL (SessionsCaseNo.28/2004)
// 1081 //
ThisaccusedisidentifiedbeforetheCourtbyP.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66), P.W.5 ZubedabibiMahebubkhanBaloch(Exh.84),P.W.18Saiyed Nazirmiya Kalumiya (Exh.103), P.W.23 Ahmedmiya Hasumiya Belim (Exh.128), P.W.24 Shermahmad Dalubhai Sindhi (Exh.132), P.W.25 Mohmad Hanif Ahmedkhan Baloch (Exh.134), P.W.30 Shabbirmiya Hasumiya Belim (Exh.146), P.W.50 Saidabibi Mahmadhanif Sindhi (Exh.302) and P.W.52 Faridabanu AhmedkhanBaloch(Exh.306)whereasP.W.5Zubedabibi MahebubkhanBaloch(Exh.84)hasinherstatementdated 10.03.2002 and P.W.29 Hanifabibi Shabbirbhai Pathan (Exh.144)hasinherstatementdated08.03.2002statedthe involvement of this accused in his statement before Visnagar Police while before S.I.T. they have stated that, theirstatementsarecorrectoneexceptthetimeofincident. WhileasperArrestandRecoveryPanchnama,Panchasare hostile but White Colour Tin of Kerosene was recovered from this accused on 23.10.2002, which is not shown to anywitnessduringthedepositionofwitnesses.Therefore, noreliancecanbeplacedaboutthesaidMuddamalArticle. Now coming to the deposition of witnesses, P.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66) has not named this accused in his complaint. He is silent in his firsttimedeposition,whileinhissecondtimedepositionhe has identified this accused. P.W.5 Zubedabibi
// 1082 //
MahebubkhanBaloch(Exh.84) istheHostilewitnessand after declaring her as Hostile witness, she has admitted that, this accused was present and involved in the mob, havingKeroseneTininherhands.Inhercrossexamination she has denied that, she has not mentioned about the presenceofthisaccusedinthemob,havingKeroseneTin, in her statement dated 01.03.2002 before Police. In her secondtimedeposition,shehasdeposedthat,thisaccused along with other accused involved in the mob, having Kerosenetininherhandsandshehasidentifiedpresent accused.P.W.48ManubhaiKarshanbhaiPatel(Exh.228) has admitted in his crossexamination that, he has recorded the statement of this witness and she has not stated the name of this accused before him. P.W.18 SaiyedNazirmiyaKalumiya(Exh.103) hasdeposedthat, this accused was not present in the Court but she was presentinthemob.Inhiscrossexamination,hehasstated that,hehasnotmentionedthenameofthisaccusedinhis statementbeforePolice.Inhissecondtimedeposition,he has identified this accused. P.W.23 Ahmedmiya Hasumiya Belim (Exh.128) is silent in his first time deposition, while in his second time deposition he has identified this accused. P.W.24 Shermahmad Dalubhai Sindhi(Exh.132)issilentinhisfirsttimedeposition,while in his second time deposition he has identified this accused. P.W.25 Mohmad Hanif Ahmedkhan Baloch
// 1083 //
(Exh.134)issilentinhisfirsttimedeposition,whileinhis second time deposition he has identified this accused. P.W.30 Shabbirmiya Hasumiya Belim (Exh.146) is silentinhisfirsttimedeposition,whileinhissecondtime deposition he has deposed that, this accused came with Kerosene Tin in the Maholla and has identified this accused. In his second time crossexamination he has deniedthat,hehasnotstatedinhisstatementbeforepolice abouttheinvolvementofthisaccusedalongwithKerosene Tin. P.W.50SaidabibiMahmadhanifSindhi(Exh.302) has deposedthat,thisaccusedwaspresentandinvolved in the mob. She has deposed that, this accused is not presentinthe Court. Inhersecondtimedepositionshe hasdeposedthat,thepersonsofthemobwereshoutingby name of this accused and were demanding Kerosene Tin fromthisaccusedandshehasidentifiedthisaccused.In her crossexamination she has admitted that, she has statedinthestatementbeforetheofficersoftheS.I.T.that, bringtheKerosenetin,toburnthepersonsShehasalso deniedthat,shehasnotmentionednameofthisaccused anywhereinthestatementbeforeS.I.T.P.W.51Aminabibi Ahmedkhan Baloch (Exh.303) has deposed that, this accused was present and involved in the mob. P.W.52 Faridabanu Ahmedkhan Baloch (Exh.306) has deposed that,thisaccusedwaspresentandinvolvedinthemob.In hercrossexamination,shehasidentifiedthisaccused.
// 1084 //
SofarasevidenceP.W.2MahmadIqbalAhmedkhan Baloch (Exh.66) though identified the accused not stated anythinginhisanyofthestatementbeforethePoliceabout theinvolvementofthisaccused.Hehasnotmentionedthe name of this accused in the complaint. In his first time deposition, he is silent about the involvement of this accusedintheincidenttherefore,hisevidenceagainstthe present accused required corroboration from other evidence. P.W.5 Zubedabibi Mahebubkhan Baloch (Exh.84)hasidentifiedaswellasstatedtheinvolvementof present accused, as she is the Hostile witness, after declaringherasHostileshehassupportedtheinvolvement ofaccusedinthatcircumstances,corroborationfromother evidence requires. P.W.18 Saiyed Nazirmiya Kalumiya (Exh.103)hasnotstatedtheinvolvementofthisaccusedin anyofhisstatement,thoughintheCourtsheisidentified. In second time deposition he has identified the accused, firstimehehasmentionedaboutthepresenceofthreelady accused. Thus, his version is not sufficient to conclude about the involvement of this accused in the crime. Corroboration from other evidence requires. P.W.23 AhmedmiyaHasumiyaBelim(Exh.128)hasalsonotstated abouttheinvolvementofthisaccusedinthecrime.Inthat circumstances also his version before the Court requires corroboration from other evidence.P.W.24Shermahmad DalubhaiSindhi(Exh.132)hasalsonotstatedinanyofhis statement about the involvement of this accused in the
// 1085 //
crime, therefore, his version also requires corroboration fromotherevidence.P.W.25MohmadHanifAhmedkhan Baloch(Exh.134)hasalsonotstatedinanyofhisstatement about the involvement of this accused in the crime, therefore, his version also requires corroboration from other evidence. P.W.30 Shabbirmiya Hasumiya Belim (Exh.146) thoughidentifyingbutnotstatedinanyofhis statement nor first time in his deposition about the involvement of this accused hence his say about the involvement of this accused in second time deposition cannot be considered sufficient to conclude against the accused. P.W.50 Saidabibi Mahmadhanif Sindhi (Exh.302)thoughnotidentifyingfirsttimeasshewasnot presentintheCourtbutstatedinvolvementoftheaccused in the incident but in second time deposition she has identified the accused but not stated in any of her statementabouttheinvolvementofthisaccused,itisonly beforeS.I.T.shehasstatedabouttheinvolvementofthis accused. Therefore, the deposition, involving the present accusedwithTincannotbeconsideredasconclusiveone against the accused. P.W.51 Aminabibi Ahmedkhan Baloch (Exh.303) neither identifying nor stating before Police therefore, her say about the involvement and presenceofthisaccusedinthemobcannotbeconcluded againstthepresentaccused.Thiswitnessisexaminedon the basis of application preferred by the complainant to examinethiswitnesstherefore,thereisnostatementexcept
// 1086 //
before S.I.T. P.W.52 Faridabanu Ahmedkhan Baloch (Exh.306)has identifiedbuthasnotstatedinany ofher statementabouttheinvolvementofpresentaccusedexcept beforeS.I.T.Shehasdeposedfirsttimethat,allthethree ladies were present in the mob but silent about identification.Secondtimeshehasidentifiedtheaccused whileP.W.51AminabibiAhmedkhanBaloch(Exh.303)is examined once only. She is deposing presence of three ladiesinthemobbutsilentaboutidentification.Therefore, noreliancecanbeplacedsolelyandonthatbasisaccused cannotbeheldinvolvedintheincident. Itisnotindisputethat,theaccusedistheresidentof Miya Vas, Dipra Darwaja. From the evidence of the complainantandwitnesses,asdiscussedabovetheyhave onlyidentified theaccusedandnotattributedtheroleto this accused. But for the first time on 08.03.2002, his name has been taken by the witness in the statement beforethePolice,tillthenthewitnessesare silentabout theinvolvementofthisaccused.Sofarasidentificationof thisaccusedisconcerned,nodoubtwitnessesandaccused are the resident of same locality therefore, question of IdentificationParadedoesnotsurviveanditcanbeinferred that,theyarewellknowntoeachother.Sofarasspecific role as attributed by the witnesses is concerned, that is alsonotsatisfactorilyestablishedbytheprosecutionside. Therefore, the fact remains that, it is not safe to hold
// 1087 //
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 established,requiresacquittal. Therefore, the defence of the accused that, she has falsely beeninvolvedinthecrime,sheisinnocentoneis acceptableintheeyeoflaw. [354] AccusedNo.72: PATELMADHUBENW/O.AJITKUMARAMRUTLAL (SessionsCaseNo.28/2004) ThisaccusedisidentifiedbeforetheCourtbyP.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66), P.W.5 ZubedabibiMahebubkhanBaloch(Exh.84),P.W.18Saiyed Nazirmiya Kalumiya (Exh.103), P.W.23 Ahmedmiya Hasumiya Belim (Exh.128), P.W.25 Mohmad Hanif Ahmedkhan Baloch (Exh.134), P.W.30 Shabbirmiya Hasumiya Belim (Exh.146), P.W.50 Saidabibi Mahmadhanif Sindhi (Exh.302) and P.W.52 Faridabanu AhmedkhanBaloch(Exh.306)whereasP.W.5Zubedabibi MahebubkhanBaloch(Exh.84)hasinherstatementdated
// 1088 //
10.03.2002 and P.W.29 Hanifabibi Shabbirbhai Pathan (Exh.144)hasinherstatementdated08.03.2002statedthe involvement of this accused in his statement before Visnagar Police while before S.I.T. they have stated that, theirstatementsarecorrectoneexceptthetimeofincident. WhileasperArrestandRecoveryPanchnama,Panchasare hostilebutPlasticGallonofYellowColourofKerosenewas recovered from this accused on 23.10.2002, which is not showntoanywitnessduringthedepositionofwitnesses. Therefore, no reliance can be placed about the said MuddamalArticle. Now coming to the deposition of witnesses, P.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66) has not named this accused in his complaint. He is silent in his firsttimedeposition,whileinhissecondtimedepositionhe has identified this accused. P.W.5 Zubedabibi
MahebubkhanBaloch(Exh.84) istheHostilewitnessand after declaring her as Hostile witness, she has admitted that, this accused was present and involved in the mob, havingKeroseneTininherhands.Inhercrossexamination she has denied that, she has not mentioned about the presenceofthisaccusedinthemob,havingKeroseneTin, in her statement dated 01.03.2002 before Police. In her secondtimedeposition,shehasdeposedthat,thisaccused along with other accused involved in the mob, having Kerosenetininherhandsandshehasidentifiedpresent
// 1089 //
accused.P.W.48ManubhaiKarshanbhaiPatel(Exh.228) has admitted in his crossexamination that, he has recorded the statement of this witness and she has not stated the name of this accused before him. P.W.18 SaiyedNazirmiyaKalumiya(Exh.103) hasdeposedthat, this accused was not present in the Court but she was presentinthemob.Inhiscrossexamination,hehasstated that,hehasnotmentionedthenameofthisaccusedinhis statementbeforePolice.Inhissecondtimedeposition,he has identified this accused. P.W.23 Ahmedmiya Hasumiya Belim (Exh.128) is silent in his first time deposition, while in his second time deposition he has identified this accused. P.W.24 Shermahmad Dalubhai Sindhi(Exh.132)issilentinhisfirsttimedeposition,while in his second time deposition he has identified this accused. P.W.25 Mohmad Hanif Ahmedkhan Baloch (Exh.134)issilentinhisfirsttimedeposition,whileinhis second time deposition he has identified this accused. P.W.30 Shabbirmiya Hasumiya Belim (Exh.146) is silentinhisfirsttimedeposition,whileinhissecondtime deposition he has deposed that, this accused came with Kerosene Tin in the Maholla and has identified this accused. In his second time crossexamination he has deniedthat,hehasnotstatedinhisstatementbeforepolice abouttheinvolvementofthisaccusedalongwithKerosene Tin. P.W.50SaidabibiMahmadhanifSindhi(Exh.302)
// 1090 //
has deposedthat,thisaccusedwaspresentandinvolved in the mob. She has deposed that, this accused is not presentinthe Court. Inhersecondtimedepositionshe hasdeposedthat,thepersonsofthemobwereshoutingby name of this accused and were demanding Kerosene Tin fromthisaccusedandshehasidentifiedthisaccused.In her crossexamination she has admitted that, she has statedinthestatementbeforetheofficersoftheS.I.T.that, bringtheKerosenetin,toburnthepersonsShehasalso deniedthat,shehasnotmentionednameofthisaccused anywhere in the statement before S.I.T. P.W.52 Faridabanu Ahmedkhan Baloch (Exh.306) has deposed that,thisaccusedwaspresentandinvolvedinthemob.In hercrossexamination,shehasidentifiedthisaccused. SofarasevidenceP.W.2MahmadIqbalAhmedkhan Baloch (Exh.66) though identified the accused not stated anythinginhisanyofthestatementbeforethePoliceabout theinvolvementofthisaccused.Hehasnotmentionedthe name of this accused in the complaint. In his first time deposition, he is silent about the involvement of this accusedintheincidenttherefore,hisevidenceagainstthe present accused required corroboration from other evidence. P.W.5 Zubedabibi Mahebubkhan Baloch (Exh.84)hasidentifiedaswellasstatedtheinvolvementof present accused, as she is the Hostile witness, after declaringherasHostileshehassupportedtheinvolvement
// 1091 //
ofaccusedinthatcircumstances,corroborationfromother evidence requires. P.W.18 Saiyed Nazirmiya Kalumiya (Exh.103)hasnotstatedtheinvolvementofthisaccusedin anyofhisstatement,thoughintheCourtsheisidentified. In second time deposition he has identified the accused, firstimehehasmentionedaboutthepresenceofthreelady accused. Thus, his version is not sufficient to conclude about the involvement of this accused in the crime. Corroboration from other evidence requires. P.W.23 AhmedmiyaHasumiyaBelim(Exh.128)hasalsonotstated abouttheinvolvementofthisaccusedinthecrime.Inthat circumstances also his version before the Court requires corroboration from other evidence.P.W.24Shermahmad DalubhaiSindhi(Exh.132)hasalsonotstatedinanyofhis statement about the involvement of this accused in the crime, therefore, his version also requires corroboration fromotherevidence.P.W.25MohmadHanifAhmedkhan Baloch(Exh.134)hasalsonotstatedinanyofhisstatement about the involvement of this accused in the crime, therefore, his version also requires corroboration from other evidence. P.W.30 Shabbirmiya Hasumiya Belim (Exh.146) thoughidentifyingbutnotstatedinanyofhis statement nor first time in his deposition about the involvement of this accused hence his say about the involvement of this accused in second time deposition cannot be considered sufficient to conclude against the accused. P.W.50 Saidabibi Mahmadhanif Sindhi
// 1092 //
(Exh.302)thoughnotidentifyingfirsttimeasshewasnot presentintheCourtbutstatedinvolvementoftheaccused in the incident but in second time deposition she has identified the accused but not stated in any of her statementabouttheinvolvementofthisaccused,itisonly beforeS.I.T.shehasstatedabouttheinvolvementofthis accused. Therefore, the deposition, involving the present accusedwithTincannotbeconsideredasconclusiveone against the accused. P.W.52 Faridabanu Ahmedkhan Baloch(Exh.306)hasidentifiedbuthasnotstatedinanyof her statement about the involvement of present accused exceptbeforeS.I.T.Shehasdeposedfirsttimethat,allthe three ladies were present in the mob but silent about identification.Secondtimeshehasidentifiedtheaccused. Therefore, no reliance can be placed solely and on that basisaccusedcannotbeheldinvolvedintheincident. Itisnotindisputethat,theaccusedistheresidentofPara, OutsideKadaDarwaja,Visnagar.Fromtheevidenceofthe complainantandwitnesses,asdiscussedabovetheyhave onlyidentified theaccusedandnotattributedtheroleto this accused. But for the first time on 08.03.2002, his name has been taken by the witness in the statement beforethePolice,tillthenthewitnessesare silentabout theinvolvementofthisaccused.Sofarasidentificationof thisaccusedisconcerned,nodoubtwitnessesandaccused are the resident of same locality therefore, question of
// 1093 //
IdentificationParadedoesnotsurviveanditcanbeinferred that,theyarewellknowntoeachother.Sofarasspecific role as attributed by the witnesses is concerned, that is alsonotsatisfactorilyestablishedbytheprosecutionside. Therefore, the fact 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 established,requiresacquittal. Even other wise on considering the defence of the accusedasnarratedinF.S.that,onthedateofincident, shewasattheresidenceofherHusbandatKadaDarwaja andshedoesnotknowabouttheincidentandsheisfalsely implicatedasanaccusedandsheisinnocentisplausible andgenuineone. [355] AccusedNo.73: PATELMANJULABENW/O.RAMESHBHAIMADHAVLAL (SessionsCaseNo.28/2004) ThisaccusedisidentifiedbeforetheCourtbyP.W.2 MahmadIqbalAhmedkhanBaloch(Exh.66),P.W.18Saiyed
// 1094 //
Nazirmiya Kalumiya (Exh.103), P.W.24 Shermahmad Dalubhai Sindhi (Exh.132), P.W.25 Mohmad Hanif Ahmedkhan Baloch (Exh.134), P.W.30 Shabbirmiya Hasumiya Belim (Exh.146), P.W.50 Saidabibi Mahmadhanif Sindhi (Exh.302) and P.W.52 Faridabanu AhmedkhanBaloch(Exh.306)whereasP.W.5Zubedabibi MahebubkhanBaloch(Exh.84)hasinherstatementdated 10.03.2002 and P.W.29 Hanifabibi Shabbirbhai Pathan (Exh.144)hasinherstatementdated08.03.2002statedthe involvement of this accused in his statement before Visnagar Police while before S.I.T. they have stated that, theirstatementsarecorrectoneexceptthetimeofincident. WhileasperArrestandRecoveryPanchnama,Panchasare hostilebutPlasticGallonofWhiteColourofKerosenewas recovered from this accused on 23.10.2002, which is not showntoanywitnessduringthedepositionofwitnesses. Therefore, no reliance can be placed about the said MuddamalArticle. Now coming to the deposition of witnesses, P.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66) has not named this accused in his complaint. He is silent in his firsttimedeposition,whileinhissecondtimedepositionhe has identified this accused. P.W.5 Zubedabibi
MahebubkhanBaloch(Exh.84) istheHostilewitnessand after declaring her as Hostile witness, she has admitted that, this accused was present and involved in the mob,
// 1095 //
havingKeroseneTininherhands.Inhercrossexamination she has denied that, she has not mentioned about the presenceofthisaccusedinthemob,havingKeroseneTin, in her statement dated 01.03.2002 before Police. In her secondtimedeposition,shehasdeposedthat,thisaccused along with other accused involved in the mob, having Kerosenetininherhandsandshehasidentifiedpresent accused.P.W.48ManubhaiKarshanbhaiPatel(Exh.228) has admitted in his crossexamination that, he has recorded the statement of this witness and she has not stated the name of this accused before him. P.W.18 SaiyedNazirmiyaKalumiya(Exh.103) hasdeposedthat, this accused was not present in the Court but she was presentinthemob.Inhiscrossexamination,hehasstated that,hehasnotmentionedthenameofthisaccusedinhis statementbeforePolice.Inhissecondtimedeposition,he has identified this accused. P.W.24 Shermahmad Dalubhai Sindhi (Exh.132) is silent in his first time deposition, while in his second time deposition he has identified this accused. P.W.25 Mohmad Hanif Ahmedkhan Baloch (Exh.134) is silent in his first time deposition, while in his second time deposition he has identified this accused. P.W.30 Shabbirmiya Hasumiya Belim(Exh.146)issilentinhisfirsttimedeposition,while in his second time deposition he has deposed that, this accused came withKeroseneTinintheMahollaandhas
// 1096 //
identified this accused. In his second time cross examinationhehasdeniedthat,hehasnotstatedinhis statement before police about the involvement of this accused along with Kerosene Tin. P.W.50 Saidabibi Mahmadhanif Sindhi (Exh.302) has deposed that, this accused was present and involved in the mob. She has deposedthat,thisaccusedisnotpresentintheCourt.In her second time deposition she has deposed that, the personsofthemobwereshoutingbynameofthisaccused andweredemandingKeroseneTinfromthisaccusedand she has identified thisaccused.Inher crossexamination she has admitted that, she has stated in the statement beforetheofficersoftheS.I.T.that,bringtheKerosenetin, toburnthepersonsShehasalsodeniedthat,shehasnot mentionednameofthisaccusedanywhereinthestatement before S.I.T. P.W.51 Aminabibi Ahmedkhan Baloch (Exh.303)hasdeposedthat,thisaccusedwaspresentand involved in the mob. P.W.52 Faridabanu Ahmedkhan Baloch (Exh.306) has deposed that, this accused was presentandinvolvedinthemob.Inhercrossexamination, shehasidentifiedthisaccused. SofarasevidenceP.W.2MahmadIqbalAhmedkhan Baloch (Exh.66) though identified the accused not stated anythinginhisanyofthestatementbeforethePoliceabout theinvolvementofthisaccused.Hehasnotmentionedthe name of this accused in the complaint. In his first time
// 1097 //
deposition, he is silent about the involvement of this accusedintheincidenttherefore,hisevidenceagainstthe present accused required corroboration from other evidence. P.W.5 Zubedabibi Mahebubkhan Baloch (Exh.84)hasidentifiedaswellasstatedtheinvolvementof present accused, as she is the Hostile witness, after declaringherasHostileshehassupportedtheinvolvement ofaccusedinthatcircumstances,corroborationfromother evidence requires. P.W.18 Saiyed Nazirmiya Kalumiya (Exh.103)hasnotstatedtheinvolvementofthisaccusedin anyofhisstatement,thoughintheCourtsheisidentified. In second time deposition he has identified the accused, firstimehehasmentionedaboutthepresenceofthreelady accused. Thus, his version is not sufficient to conclude about the involvement of this accused in the crime. Corroboration from other evidence requires. P.W.24 Shermahmad Dalubhai Sindhi (Exh.132) has also not statedinanyofhisstatementabouttheinvolvementofthis accusedinthecrime,therefore,hisversion alsorequires corroborationfromotherevidence.P.W.25MohmadHanif AhmedkhanBaloch(Exh.134)hasalsonotstatedinanyof hisstatementabouttheinvolvementofthisaccusedinthe crime, therefore, his version also requires corroboration fromotherevidence.P.W.30ShabbirmiyaHasumiyaBelim (Exh.146) thoughidentifyingbutnotstatedinanyofhis statement nor first time in his deposition about the involvement of this accused hence his say about the
// 1098 //
involvement of this accused in second time deposition cannot be considered sufficient to conclude against the accused. P.W.50 Saidabibi Mahmadhanif Sindhi (Exh.302)thoughnotidentifyingfirsttimeasshewasnot presentintheCourtbutstatedinvolvementoftheaccused in the incident but in second time deposition she has identified the accused but not stated in any of her statementabouttheinvolvementofthisaccused,itisonly beforeS.I.T.shehasstatedabouttheinvolvementofthis accused. Therefore, the deposition, involving the present accusedwithTincannotbeconsideredasconclusiveone against the accused. P.W.51 Aminabibi Ahmedkhan Baloch (Exh.303) neither identifying nor stating before Police therefore, her say about the involvement and presenceofthisaccusedinthemobcannotbeconcluded againstthepresentaccused.Thiswitnessisexaminedon the basis of application preferred by the complainant to examinethiswitnesstherefore,thereisnostatementexcept before S.I.T. P.W.52 Faridabanu Ahmedkhan Baloch (Exh.306)has identifiedbuthasnotstatedinany ofher statementabouttheinvolvementofpresentaccusedexcept beforeS.I.T.Shehasdeposedfirsttimethat,allthethree ladies were present in the mob but silent about identification.Secondtimeshehasidentifiedtheaccused whileP.W.51AminabibiAhmedkhanBaloch(Exh.303)is examined once only. She is deposing presence of three ladiesinthemobbutsilentaboutidentification.Therefore,
// 1099 //
noreliancecanbeplacedsolelyandonthatbasisaccused cannotbeheldinvolvedintheincident. Itisnotindisputethat,theaccusedistheresidentof RandalMataMadh,DipraDarwaja.Fromtheevidenceof the complainant and witnesses, as discussed above they haveonlyidentifiedtheaccusedandnotattributedtherole tothisaccused.Butforthefirsttimeon08.03.2002,his name has been taken by the witness in the statement beforethePolice,tillthenthewitnessesare silentabout theinvolvementofthisaccused.Sofarasidentificationof thisaccusedisconcerned,nodoubtwitnessesandaccused are the resident of same locality therefore, question of IdentificationParadedoesnotsurviveanditcanbeinferred that,theyarewellknowntoeachother.Sofarasspecific role as attributed by the witnesses is concerned, that is alsonotsatisfactorilyestablishedbytheprosecutionside. Therefore, the fact 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 established,requiresacquittal.
// 1100 //
Therefore, the defence of the accused that, she has falsely beeninvolvedinthecrime,sheisinnocentoneis acceptableintheeyeoflaw. [356] AccusedNo.74: PATELDAHYABHAINANALAL (SessionsCaseNo.77/2005) ABATED, ASACCUSEDDIEDDURINGTHEPENDENCYOFTRAIL [357] AccusedNo.75: PATELYOGESHKUMARBABULALKACHARABHAI (SessionsCaseNo.77/2005) This accused is neither identified by any witness beforetheCourtnoranywitnesshasstatedthenameof thisaccusedintheirstatementbeforePolice.Whileasper ArrestandRecoveryPanchnama,Panchasarehostilebut Sword was recovered from this accused on 23.01.2004, whichisnotshowntoanywitnessduringthedepositionof witnesses.Therefore,noreliancecanbeplacedaboutthe saidMuddamalArticle. Now coming to the deposition of witnesses, P.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66) has not named this accused in his complaint. P.W.24 Shermahmad Dalubhai Sindhi (Exh.132) issilent in his
// 1101 //
firsttimedepositionabouttheinvolvementofthisaccused, whileinhissecondtimedepositionhehasidentifiedthis accusedbeforetheCourt. Thisevidenceisnotsufficient abouttheinvolvementofthisaccusedintheincident. Itisnotindisputethat,theaccusedistheresidentof JayJalaramSociety,NearAmbarCinema,Visnagar.From the evidence of the complainant and witnesses, as discussedabovetheyhaveonlyidentifiedtheaccusedand notattributedtheroletothisaccused.Butforthefirsttime on08.03.2002,hisnamehasbeentakenbythewitnessin thestatementbeforethePolice,tillthenthewitnessesare silent about the involvement of this accused. So far as identification of this accused is concerned, here the accusedisresidinginseparateMahollawhilewitnessesare the resident of Chudivas, Dipra Darwaja and it is not explainedbythewitnessesthat,howtheyknowthepresent accused.Inthepresentsetofcircumstances,identification isnecessaryandthereisgraveirregularityonthepartof Investigating Officer M.K.Patel for not conducting IdentificationParade.IdentificationParadeofthisaccused if done during the course of investigation, it would have increased probative value of the evidence of the witness. Here, value become minimal. In these circumstances benefitisrequiredtobegiventotheaccused. Sofaras specific role as attributed by the witnesses is concerned, thatisalsonotsatisfactorilyestablishedbytheprosecution
// 1102 //
side.Therefore,thefactremainsthat,itisnotsafetohold accusedguiltyonthebasisofgeneralallegations.Thereis noothermaterialonrecordagainstthepresentaccusedto show his involvement in the alleged offence. It would be hazardous to base a conviction only on the evidence of general allegations. It would be appropriate to acquit the accused. Therefore, the defence of the accused that, he has falsely been involved in the crime, he is innocent one is acceptableintheeyeoflaw. [358] AccusedNo.76: PATELGANDABHAIMADHAVLALGOKALDAS (SessionsCaseNo.77/2005) ThisaccusedisidentifiedbeforetheCourtbyP.W.25 MohmadHanifAhmedkhanBaloch(Exh.134)andhehasin hisstatementdated08.03.2002statedtheinvolvementof thisaccusedinhisstatementbeforeVisnagarPolicewhile before S.I.T. they have stated that, their statements are correctoneexceptthetimeofincident.WhileasperArrest andRecoveryPanchnama,PanchasarehostilebutSword wasrecoveredfromthisaccusedon23.01.2004,whichis not shown to any witness during the deposition of witnesses.Therefore,noreliancecanbeplacedaboutthe saidMuddamalArticle.
// 1103 //
Now coming to the deposition of witnesses, P.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66) has not named this accused in his complaint. P.W.25 Mohmad Hanif Ahmedkhan Baloch (Exh.134) has deposed that, thisaccusedwaspresentandinvolvedinthemob,having Sword in his hands. In his crossexamination he has admitted that, in hisstatementdated08.03.2002 before Police, he has stated that, this accusedwas present and involvedintheincident.Inhissecondtimedeposition,he has identified this accused. So far as evidence of this witnessisconcerned,inhisstatementaswellasfirsttime depositionandsecondtimedeposition,hehasinvolvedthe presentaccused,whichcanbetrustedandreliedupon. So far as Muddamal article Sword is concerned, witnesses have deposed about the use of Sword, by the accused but no identification of Muddamal Article took placeintheCourtandtherefore,noreliancecanbeplaced ontheevidenceofrecoveryofSword.Therefore,theversion ofwitnesshavingSwordbythisaccusedinthemobcanbe considered for involvement of this accused. Further, the factthat,thisaccusedwaspresentinChudivasinthemob, at the time of occurrence. The witnesses, as discussed abovehavestatedthepresenceofthisaccusedinthemob. Itisnotindisputethat,theaccusedistheresidentof Shravan Sheri, Visnagar, meaning thereby, he is the
// 1104 //
resident of Dipra Darwaja area and witnesses are also resident of Chudivas, Dipra Darwaja, Visnagar. They are known to each other since previously hence evidence of witnesses can safely be accepted as regards to the involvementof thisaccusedandevidenceofwitnessesas discussed earlier having seen the accused in 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 makinganymistakeinthatregarddoesnotarise.Itdoes not possible to hold false implication of accused. This accused is identified by the witnesses in the Court. Therefore, if no Identification Parade took place, by the InvestigatingOfficer,thatamountsirregularityonthepart ofI.O.Here,inthepresentcaseenteringinChudivasatthe time of incident itself suggest the common object of the mobaswellasspecificroleattributedtotheaccused.There was no reason to enter in Chudivas at that odd time. Therefore by becoming a member of unlawful assembly accused entered in Chudivas and incident of pelting of stones, ransacking and burning of houses, abusing the Muslims and shouting slogans occurred. This fact itself suggestovertactinconnectionwithcommonobjectofthe mob. Meaning thereby accused had participated in furtherance of common object of the mob. Therefore involvementofaccusediswellestablishedfromtheabove
// 1105 //
circumstances. The basic defence of this accused in his furtherexaminationunderSection313 ofCr.P.C.that,he issociallyandpoliticallyleadingandhewastheMemberof Municipalityandtherefore,hewasfalselyimplicatedinthe incident. He had not gone anywhere and has not seen anything and at the time of incident, he was doing agriculturalworkandhehasfalselybeenimplicatedisnot probabilitysatisfactorilyexplainedandcannotbeaccepted. Further, there is nopreviousenmity withwitnesses,why theywillfalselyimplicatethisaccused.Thereisnoreason to falsely implicate the accused. No one would falsely involveaninnocentperson,keepingasidetherealculprit. [359] AccusedNo.77: PATELNARENDRABHAIALIASKANJIBHAIRAMNIKLAL @RAMANBHAI (SessionsCaseNo.77/2005) ThisaccusedisidentifiedbeforetheCourtbyP.W.25 Mohmad Hanif Ahmedkhan Baloch (Exh.134) whereas P.W.25MohmadHanifAhmedkhanBaloch(Exh.134)has inhisstatementdated16.02.2004statedtheinvolvementof thisaccusedinhisstatementbeforeVisnagarPolicewhile before S.I.T. they have stated that, their statements are correctoneexceptthetimeofincident.WhileasperArrest andRecoveryPanchnama,PanchasarehostilebutPlastic GallonofGreenColourwasrecoveredfromthisaccusedon 05.03.2004,whichisnotshowntoanywitnessduringthe
// 1106 //
deposition of witnesses. Therefore, no reliance can be placedaboutthesaidMuddamalArticle. Now coming to the deposition of witnesses, P.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66) has not named this accused in his complaint. P.W.25 Mohmad HanifAhmedkhanBaloch(Exh.134) issilentinhisfirst timedeposition,whileinhissecondtimedeposition,hehas identifiedthisaccused. SofarasevidenceP.W.2MahmadIqbalAhmedkhan Baloch (Exh.66) though identified the accused not stated anythinginhisanyofthestatementbeforethePoliceabout theinvolvementofthisaccused.Hehasnotmentionedthe name of this accused in the complaint. While P.W.25 MohmadHanifAhmedkhanBaloch(Exh.134)hasidentified the accused and has stated in his statement dated 16.02.2004 about the involvement of this accused but silentinfirsttimedeposition,hissilenceupto16.02.2004 abouttheinvolvementofthisaccusedintheincidentisnot explained hence, by relying solely upon his evidence, accused cannot be held guilty, some more evidence is requiredtobelievethesayofthiswitness. Itisnotindisputethat,theaccusedistheresidentof Khajuri Maholla, Kada Darwaja, Visnagar. From the evidence of the complainant and witnesses, as discussed
// 1107 //
above they have only identified the accused and not attributedtheroletothisaccused.Butforthefirsttimeon 16.02.2002,hisnamehasbeentakenbythewitnessinthe statement before the Police, till then the witnesses are silent about the involvement of this accused. So far as identification of this accused is concerned, no doubt witnesses and accused are the resident of same locality therefore,questionofIdentificationParadedoesnotsurvive and it can be inferred that, they arewell known to each other.Sofarasspecificroleasattributedbythewitnesses isconcerned,thatisalsonotsatisfactorilyestablishedby theprosecutionside.Therefore,thefactremainsthat,itis 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 toacquittheaccused. Therefore, the defence of the accused that, he has falsely been involved in the crime, he is innocent one is acceptableintheeyeoflaw. [360] AccusedNo.78: PATELBABUBHAIISHVARBHAI (SessionsCaseNo.77/2005) ThisaccusedisidentifiedbeforetheCourtbyP.W.2
// 1108 //
MahmadIqbalAhmedkhanBaloch(Exh.66),P.W.18Saiyed Nazirmiya Kalumiya (Exh.103), P.W.25 Mohmad Hanif Ahmedkhan Baloch (Exh.134), P.W.30 Shabbirmiya Hasumiya Belim (Exh.146), P.W.52 Faridabanu Ahmedkhan Baloch (Exh.306) and P.W.127 Imrankhan Sabirhusen Pathan (Exh.681) whereas no witness has stated the name of this accused in the statement before Policeandnotstatedtheinvolvementofthisaccusedinhis statementbeforeVisnagarPoliceorstatementbeforeS.I.T. WhileasperArrestandRecoveryPanchnama,Panchasare hostile but Sword was recovered from this accused on 17.03.2004,whichisnotshowntoanywitnessduringthe deposition of witnesses. Therefore, no reliance can be placedaboutthesaidMuddamalArticle. Now coming to the deposition of witnesses, P.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66) has not named this accused in his complaint. He is silent in his firsttimedeposition,whileinhissecondtimedepositionhe has identified this accused. P.W.18 Saiyed Nazirmiya Kalumiya (Exh.103) issilentinhisfirsttimedeposition, whileinhissecondtimedepositionhehasidentifiedthis accused. P.W.25 Mohmad Hanif Ahmedkhan Baloch (Exh.134)issilentinhisfirsttimedeposition,whileinhis second time deposition he has identified this accused. P.W.30 Shabbirmiya Hasumiya Belim (Exh.146) is silentinhisfirsttimedeposition,whileinhissecondtime
// 1109 //
deposition he has identified this accused. P.W.52 FaridabanuAhmedkhanBaloch(Exh.306)issilentinhis firsttimedeposition,whileinhissecondtimedepositionhe hasidentifiedthisaccused. SofarasevidenceP.W.2MahmadIqbalAhmedkhan Baloch (Exh.66) though identified the accused not stated anythinginhisanyofthestatementbeforethePoliceabout theinvolvementofthisaccused.Hehasnotmentionedthe name of this accused in the complaint. P.W.18 Saiyed Nazirmiya Kalumiya (Exh.103) though identified the accused not stated anything in his any of the statement beforethePoliceabouttheinvolvementofthisaccused,itis only in second time deposition he has identified this accusedandtherefore,hisevidenceisnotsufficienttoheld guilty the accused. P.W.25 Mohmad Hanif Ahmedkhan Baloch(Exh.134)thoughidentifiedtheaccusednotstated anythinginhisanyofthestatementbeforethePoliceabout theinvolvementofthisaccused,itisonlyinsecondtime depositionhehasidentifiedthisaccusedandtherefore,his evidenceisnotsufficienttoheldguiltytheaccused.P.W.30 ShabbirmiyaHasumiyaBelim(Exh.146)thoughidentified theaccusednotstatedanythinginhisanyofthestatement beforethePoliceabouttheinvolvementofthisaccused,itis only in second time deposition he has identified this accusedandtherefore,hisevidenceisnotsufficienttoheld guilty the accused. P.W.52 Faridabanu Ahmedkhan
// 1110 //
Baloch(Exh.306)thoughidentifiedtheaccusednotstated anythinginhisanyofthestatementbeforethePoliceabout theinvolvementofthisaccused,itisonlyinsecondtime depositionhehasidentifiedthisaccusedandtherefore,his evidenceisnotsufficienttoheldguiltytheaccused.
Itisnotindisputethat,theaccusedistheresidentof RandalMataMadh,DipraDarwaja.Fromtheevidenceof the complainant and witnesses, as discussed above they haveonlyidentifiedtheaccusedandneitherattributedthe roletothisaccusednorhisnamehasbeentakenbythe witness in the statement before the Police. Thus, the witnessesaresilentabouttheinvolvementofthisaccused. So far as identification of this accused is concerned, no doubt witnesses and accused are the resident of same localitytherefore,questionofIdentificationParadedoesnot surviveanditcanbeinferredthat,theyarewellknownto each other. So far as specific role as attributed by the witnesses is concerned, that is also not satisfactorily established by the prosecution side. Therefore, the fact remainsthat,itisnotsafetoholdaccusedguiltyonthe 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
// 1111 //
against the accused it is not possible to hold that, his involvementintheoffenceisestablished,requiresacquittal. Therefore, the defence of the accused that, he has falsely been involved in the crime, he is innocent one is acceptableintheeyeoflaw. [361] AccusedNo.79: PATELRAMANBHAIGIRDHARBHAI (SessionsCaseNo.77/2005) ThisaccusedisidentifiedbeforetheCourtbyP.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66) and P.W.30 Shabbirmiya Hasumiya Belim (Exh.146)whereasP.W.22 Yusufkhan Muradkhan Pathan (Exh.112) has in his statementdated16.02.2004statedtheinvolvementofthis accused in his statement before Visnagar Police while before S.I.T. they have stated that, their statements are correctoneexceptthetimeofincident.WhileasperArrest andRecoveryPanchnama,PanchasarehostilebutPlastic GallonofBlackColourwasrecoveredfromthisaccusedon 11.07.2004,whichisnotshowntoanywitnessduringthe deposition of witnesses. Therefore, no reliance can be placedaboutthesaidMuddamalArticle. Now coming to the deposition of witnesses, P.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66) has not named this accused in his complaint. He is silent in his firsttimedeposition,whileinhissecondtimedepositionhe
// 1112 //
hasidentifiedthisaccused.Inhissecondtimedeposition, duringcrossexaminationhehasdeniedthat,hehasnot mentionedthenameofpresentaccusedinthecomplaint forthemurderof11persons.Hehasfurtheradmittedthat, he does not remember whether he has stated the this accused in his earlier deposition or not. P.W.18 Saiyed Nazirmiya Kalumiya (Exh.103) is silent in his first time deposition, while in his second time deposition he has identified this accused. P.W.30 Shabbirmiya Hasumiya Belim(Exh.146)issilentinhisfirsttimedeposition,while in his second time deposition he has identified this accused. SofarasevidenceP.W.2MahmadIqbalAhmedkhan Baloch (Exh.66) though identified the accused not stated anythinginhisanyofthestatementbeforethePoliceabout theinvolvementofthisaccused.Hehasnotmentionedthe name of this accused in the complaint. P.W.18 Saiyed Nazirmiya Kalumiya (Exh.103) though identified the accused not stated anything in his any of the statement beforethePoliceabouttheinvolvementofthisaccused,itis only in second time deposition he has identified this accusedandtherefore,hisevidenceisnotsufficienttoheld guiltytheaccused.P.W.30ShabbirmiyaHasumiyaBelim (Exh.146)thoughidentifiedtheaccusednotstatedanything in his any of the statement before the Police about the involvement of this accused, it is only in second time
// 1113 //
depositionhehasidentifiedthisaccusedandtherefore,his evidenceisnotsufficienttoheldguiltytheaccused. Itisnotindisputethat,theaccusedistheresidentof Khajuri Maholla, Kada Darwaja, Visnagar. From the evidence of the complainant and witnesses, as discussed above they have only identified the accused and not attributedtheroletothisaccused.Butforthefirsttimeon 16.02.2004,hisnamehasbeentakenbythewitnessinthe statement before the Police, till then the witnesses are silent about the involvement of this accused. So far as identification of this accused is concerned, no doubt witnesses and accused are the resident of same locality therefore,questionofIdentificationParadedoesnotsurvive and it can be inferred that, they arewell known to each other.Sofarasspecificroleasattributedbythewitnesses isconcerned,thatisalsonotsatisfactorilyestablishedby theprosecutionside.Therefore,thefactremainsthat,itis 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 theoffenceisestablished,requiresacquittal.
// 1114 //
Even other wise on considering the defence of the accusedasnarratedinF.S.that,onthedateofincident,he wasdischarginghisresponsibledutiesasManagerofThe MehsanaUrbanCo.Op.BankLtd.Andon28.02.2002he wasatMahesanaandaftercompletinghisservicehours,at 06.00 P.M. he reached at Visnagar at 08.00 P.M. by traveling the in the Tanker of Milk, as the transport facilitiesofS.T.Buswasclosedandthus,thoughhewasnot presentinVisnagaronthedateofincident,hewasfalsely implicated as an accused. In support of his say, he has producedCertificate,issuedbytheGeneralManagerofThe MehsanaUrbanCo.Op.BankLtd.,andMusterRollofthe Bankisplausibleandgenuineone. [362] AccusedNo.80: PATELVISHNUBHAIISHVARBHAI (SessionsCaseNo.143/2008) ThisaccusedisidentifiedbeforetheCourtbyP.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66), P.W.7 Amzadkhan Mahmadkhan Baloch (Exh.86), P.W.25 MohmadHanifAhmedkhanBaloch(Exh.134)andP.W.58 Karishmabanu Yusufkhan Pathan (Exh.502) whereas no witnesshasstatedtheinvolvementofthisaccusedintheir statement.WhileasperArrestandRecoveryPanchnama, noMuddamalarticleisrecoveredfromthisaccused.
// 1115 //
Now coming to the deposition of witnesses, P.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66) has not named this accused in his complaint. He is silent in his firsttimedeposition,whileinhissecondtimedepositionhe has identified this accused. P.W.18 Saiyed Nazirmiya Kalumiya (Exh.103) issilentinhisfirsttimedeposition, whileinhissecondtimedepositionhehasidentifiedthis accused. P.W.22 Yusufkhan Muradkhan Pathan (Exh.112)issilentinhisfirsttimedeposition,whileinhis secondtimedepositionincrossexamination,hehasdenied that, he has not stated the name of this accused in the statementbeforePoliceorbeforeS.I.T.orinthedeposition beforetheCourtorintheapplicationpreferredbeforethe Magistrate. This witness has not stated the name of this accused in his statement before Investigating Officer. P.W.25MohmadHanifAhmedkhanBaloch(Exh.134)is silentinhisfirsttimedeposition,whileinhissecondtime depositionhehasidentifiedthisaccused. P.W.158Nazir MahmadSuleman(Exh.812)hasdeposedthat,oneoffence underSection307wasregisteredagainstthisaccusedvide I.CR.No.231/2008. SofarasevidenceP.W.2MahmadIqbalAhmedkhan Baloch (Exh.66) though identified the accused not stated anythinginhisanyofthestatementbeforethePoliceabout theinvolvementofthisaccused.Hehasnotmentionedthe
// 1116 //
name of this accused in the complaint. P.W.18 Saiyed Nazirmiya Kalumiya (Exh.103) though identified the accused not stated anything in his any of the statement beforethePoliceabouttheinvolvementofthisaccused,itis only in second time deposition he has identified this accusedandtherefore,hisevidenceisnotsufficienttoheld guilty the accused. P.W.22 Yusufkhan Muradkhan Pathan (Exh.112) neither identified the accused nor has stated anything in any of his statement before the Police about the involvement of this accused and therefore, his evidenceisnotsufficienttoheldguiltytheaccusedinthe crime. P.W.25 Mohmad Hanif Ahmedkhan Baloch (Exh.134)thoughidentifiedtheaccusednotstatedanything in his any of the statement before the Police about the involvementofthisaccused,he hassimplyidentifiedthis accused in his second time deposition and therefore, his evidenceisnotsufficienttoconcludethisaccusedwiththe crime. So far as evidence of P.W.158 Nazir Mahmad Suleman(Exh.812)isconcerned,ithasnotforcetoconnect thisaccusedwiththecrime. Itisnotindisputethat,theaccusedistheresidentof RandalMataMadh,DipraDarwaja.Fromtheevidenceof the complainant and witnesses, as discussed above they haveonlyidentifiedtheaccusedandneitherattributedthe roletothisaccusednorhisnamehasbeentakenbythe witness in the statement before the Police. Thus, the
// 1117 //
witnessesaresilentabouttheinvolvementofthisaccused. So far as identification of this accused is concerned, no doubt witnesses and accused are the resident of same localitytherefore,questionofIdentificationParadedoesnot surviveanditcanbeinferredthat,theyarewellknownto each other. So far as specific role as attributed by the witnesses is concerned, that is also not satisfactorily established by the prosecution side. Therefore, the fact remainsthat,itisnotsafetoholdaccusedguiltyonthe 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 involvementintheoffenceisestablished,requiresacquittal. Therefore, the defence of the accused that, he has falsely been involved in the crime, he is innocent one is acceptableintheeyeoflaw. [363] AccusedNo.81: PATELAMITBHAIRAMABHAI (SessionsCaseNo.143/2008) ThisaccusedisidentifiedbeforetheCourtbyP.W.2 MahmadIqbalAhmedkhanBaloch(Exh.66),P.W.18Saiyed
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NazirmiyaKalumiya(Exh.103)andP.W.25MohmadHanif Ahmedkhan Baloch (Exh.134) whereas no witness has statedtheinvolvementofthisaccusedintheirstatement. While as per Arrest and Recovery Panchnama, no Muddamalarticleisrecoveredfromthisaccused. Now coming to the deposition of witnesses, P.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66) has not named this accused in his complaint. He is silent in his firsttimedeposition,whileinhissecondtimedepositionhe has identified this accused. P.W.18 Saiyed Nazirmiya Kalumiya (Exh.103) issilentinhisfirsttimedeposition, whileinhissecondtimedepositionhehasidentifiedthis accused. P.W.25 Mohmad Hanif Ahmedkhan Baloch (Exh.134)issilentinhisfirsttimedeposition,whileinhis second time deposition he has identified this accused. P.W.158NazirMahmadSuleman(Exh.812)hasdeposed that,oneoffenceunderSection307wasregisteredagainst this accused vide I.CR.No.231/2008. P.W.175
Gautamkumar Vishnubhai Barot (Exh.912) has deposed that,nameofthisaccusedwasmentionedbythewitnesses in their statements dated 24.05.2008 as well as 01.06.2008,recordedbythem. SofarasevidenceP.W.2MahmadIqbalAhmedkhan Baloch (Exh.66) though identified the accused not stated anythinginhisanyofthestatementbeforethePoliceabout
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theinvolvementofthisaccused.Hehasnotmentionedthe name of this accused in the complaint. P.W.18 Saiyed Nazirmiya Kalumiya (Exh.103) though identified the accused not stated anything in his any of the statement beforethePoliceabouttheinvolvementofthisaccused,itis only in second time deposition he has identified this accusedandtherefore,hisevidenceisnotsufficienttoheld guilty the accused. P.W.25 Mohmad Hanif Ahmedkhan Baloch(Exh.134)thoughidentifiedtheaccusednotstated anythinginhisanyofthestatementbeforethePoliceabout theinvolvementofthisaccused,he hassimplyidentified thisaccusedinhissecondtimedepositionandtherefore, hisevidenceisnotsufficienttoconcludethisaccusedwith thecrime. SofarasevidenceofP.W.158NazirMahmad Suleman(Exh.812)isconcerned,ithasnotforcetoconnect thisaccusedwiththecrime. Itisnotindisputethat,theaccusedistheresidentof Opp.KarshannagarSociety,KadaRoad,Visnagar.Fromthe evidence of the complainant and witnesses, as discussed above they have only identified the accused and neither attributedtheroletothisaccusednorhisnamehasbeen taken by the witness in the statement before the Police. Thus, the witnesses are silent about the involvement of this accused. So far as identification of this accused is concerned, no doubt witnesses and accused are the residentofsamelocalitytherefore,questionofIdentification
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Paradedoesnotsurviveanditcanbeinferredthat,they are well known to each other. So far as specific role as attributedbythewitnessesisconcerned,thatisalsonot satisfactorilyestablishedbytheprosecutionside.Therefore, thefactremainsthat,itisnotsafetoholdaccusedguilty on the basis of general allegations. There is no other materialonrecordagainstthepresentaccusedtoshowhis involvementintheallegedoffence.Itwouldbehazardousto base a conviction only on the evidence of general allegations.Itwouldbeappropriatetogivebenefitofdoubt andacquittheaccused.Inmyopinionthoughtheirexist strongsuspicion againsttheaccuseditisnotpossibleto hold that, his involvement in the offence is established, requiresacquittal. Therefore, the defence of the accused that, he has falsely been involved in the crime, he is innocent one is acceptableintheeyeoflaw. [364] AccusedNo.82: PATELDIPAKKUMARGANGARAM (SessionsCaseNo.143/2008) ThisaccusedisidentifiedbeforetheCourtbyP.W.1 Fatehkhan Badarkhan Baloch (Exh.61), P.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66) and P.W.25 Mohmad Hanif Ahmedkhan Baloch (Exh.134) whereas no witness has stated the involvement of this accused in their
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statement.WhileasperArrestandRecoveryPanchnama, noMuddamalarticleisrecoveredfromthisaccused. Now coming to the deposition of witnesses, P.W.1 Fatehkhan Badarkhan Baloch (Exh.61) is silent in his firsttimedeposition,whileinhissecondtimedepositionhe has identified this accused. In his crossexamination he hasadmittedthat,inhisanyofthestatement,hehasnot mentionedthat,heknowsthisaccused. P.W.2Mahmad Iqbal Ahmedkhan Baloch (Exh.66) has not named this accused in his complaint. He is silent in his first time deposition, while in his second time deposition he has identified this accused. P.W.25 Mohmad Hanif Ahmedkhan Baloch (Exh.134) is silent in his first time deposition, while in his second time deposition he has identified this accused. P.W.30 Shabbirmiya Hasumiya Belim(Exh.146)issilentinhisfirsttimedeposition,while in his second time deposition he has identified this accused. P.W.175 Gautamkumar Vishnubhai Barot (Exh.912) has deposed that, name of this accused was mentioned by the witnesses in their statements dated 24.05.2008aswellas01.06.2008,recordedbythem. So far as evidence of P.W.1 Fatehkhan Badarkhan Baloch(Exh.61)isconcerned,itisnotsufficienttoconnect theaccusedwithcrime.P.W.2MahmadIqbalAhmedkhan Baloch (Exh.66) though identified the accused not stated
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anythinginhisanyofthestatementbeforethePoliceabout theinvolvementofthisaccused.Hehasnotmentionedthe nameofthisaccusedinthecomplaint.P.W.25Mohmad Hanif Ahmedkhan Baloch (Exh.134) though identified the accused not stated anything in his any of the statement beforethePoliceabouttheinvolvementofthisaccused,he has simply identified this accused in his second time deposition and therefore, his evidence is not sufficient to conclude this accused with the crime. P.W.30 Shabbirmiya Hasumiya Belim (Exh.146) neither identified the accused nor has stated anything in any of his statement before thePoliceabout the involvement of this accused and therefore, his evidence cannot be connected withtheaccused. Itisnotindisputethat,theaccusedistheresidentof Bethak No Madh, Dipra Darwaja, Visnagar. From the evidence of the complainant and witnesses, as discussed above they have only identified the accused and neither attributedtheroletothisaccusednorhisnamehasbeen takenbythewitnessinthestatementbeforethePolice.So farasidentificationofthisaccusedisconcerned,herethe accusedisresidinginseparateMahollawhilewitnessesare the resident of Chudivas, Dipra Darwaja and it is not explainedbythewitnessesthat,howtheyknowthepresent accused.Inthepresentsetofcircumstances,identification isnecessaryandthereisgraveirregularityonthepartof
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Investigating Officer M.K.Patel for not conducting IdentificationParade.IdentificationParadeofthisaccused if done during the course of investigation, it would have increased probative value of the evidence of the witness. Here, value become minimal. In these circumstances benefitisrequiredtobegiventotheaccused. Sofaras specific role as attributed by the witnesses is concerned, thatisalsonotsatisfactorilyestablishedbytheprosecution side.Therefore,thefactremainsthat,itisnotsafetohold 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 established,requiresacquittal. Therefore, the defence of the accused that, he has falsely been involved in the crime, he is innocent one is acceptableintheeyeoflaw. [365] AccusedNo.83: PATELMANUBHAIKARSHANBHAI (SessionsCaseNo.56/2009) Asperprosecutioncase,thisaccusedbeingapublic servantknowinglyfullywelldisobeyedthedirectionofthe
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lawastothewayinwhichheistoconducthimselfassuch publicservantintendingtherebytosave,orknowingitto be likely that he willtherebysave,anypersonfrom legal punishment,orsubjecthimtoalesspunishmentthanthat to which he is liable has committed the crime in discharginghisdutyasPoliceInspectorofVisnagarTown and First Information Report regarding said offence No. 60/2002 was lodged before the accused No.83 by the complainant Mahmad Iqbal Ahmedkhan Baloch and said offence was investigated by the accused No.83 Police Inspector and in the said investigation, he has shown criminal negligence and intentionally not investigated the crimesothatvictimsmaynotgetjusticeandbeingassuch publicservant,chargedwiththepreparationofanyrecord orotherwriting,framesthatrecordorwritinginamanner which he know to be incorrect, with intent to cause, or knowingittobelikelythathewilltherebycause,lossor injurytothepublicortoanyperson,orwithintenthereby tosave,orknowingittobelikelythathewilltherebysave, anypersonfromlegalpunishmentboundaspublicservant to apprehend or lawfully committed to custody, intentionally omits to apprehend such person thereby committedcrimeundersection217,218and222ofI.P.C. The defence of this accused is that, he has not committed any offence, for which he is charged. He has further stated that, on 18.02.2002 he was transferred at
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Visnagar and has joined his duty on 22.02.2002. In supportofhissay,hehasproducedtheCopyofTransfer Order and Report of joining duty is produced. He has furtherstatedthat,afterjoininghisduties,withinsixdays the said incident had taken place. Visnagar Taluka is consisting of 65 Villages and most of villages are having Hindu and Muslim people and that villages are sensitive and it was very difficult for him to aware with the geographicalsituationofallthesevillages.Hehasfurther statedthat,assoonashereceivedtheinformationabout the incident of Dipra Darwaja, he immediately rushed to DipraDarwajaalongwithPoliceforceandarrestedseven personsfromtheplaceofincidentand65Muslimpersons weresavedbyusingforceand10Muslimpersonswhowere trappedinthefirewerealsosavedandhehasshiftedall thevictimsatthesaferplaceandfordischarginghisduties withfullcommitmentandhonestly,theD.S.P.ofMahesana has awarded him with the prize of Rs.1000/ and said documentisproducedinsupportofhissay.Hehasfurther statedthat,during28.02.2002to25.03.2002tocontrolthe communaltense,hehasregistered97CasesunderSection 107and151,77casesunderSec.110and99casesforthe breachofCurfewandthatcaseswereregisteredtocontrol thecommunalriotsandforthat,theD.S.P.ofMahesana hasgivenhimCreditNote,whichisproducedintherecord, in support of his say. He has further stated that, considering the steps taken by him to control the
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communal riots, the D.S.P. of Mahesana has sent Fax MessagetoShriK.Chakravarti,DirectorGeneralofPolice, Gandhinagar, for not transferring him from Visnagar. He hasproducedcopyofsaidFaxMessageinsupportofhis say. He has further stated that, during said tenure 30 offences of communal riots were registered with the VisnagarPoliceStationandalongwithmaintainingtheLaw andOrderhehastodoinvestigationofthoseseriouscases andconsideringtheentirerecordandevidence,nooffence madeagainsthimunderSection302,303,201,120B,147, 148,149,436,427,337,504,506(2),188,217,218,221of I.P.C. and Sec.135 of the B.P.Act. He has further stated that, the Confidential Report of the relevant period was filled by the D.S.P., Mahesana and in that report, in Col.No.5 he has mentioned that, the powers which were assignedtohimwereperfectlyutilizedandinCol.No.8of Special work, he has mentioned that, the incident of Stabbing,registeredwiththeVisnagarPoliceStationwere properlyinvestigatedandrealaccusedwereimplicatedand wasremainedsuccessinstoppingtheoccurrenceofcrime. InsupportofhissayhehasproducedthecopyofsaidC.R. He has further stated that, after his transfer from the VisnagarPoliceStation,PoliceInspectorRajputandPolice Inspector Shri Asari were posted and during their investigationtheyhavenotnotedanythingagainsthimand they have only arrested the accused persons, who were shownabscondingbyhim.Hehasfurtherstatedthat,on
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the date of incident, after some time of incident, Dy.S.P. ShriJadejahasmadevisitationandverifiedthestatements of allwitnesses andhaswrittentheCrimeMemoofsaid caseandinthatdocumentalsohehasnotmentionedany defect. He has produced copy of said Crime Memo, in supportofhiscase.Hehasfurtherstatedthat,aftersome time of incident, the D.S.P., Mahesana Shri Anupamsinh Gehlot had visited the place of incident and he has periodically sent the copies of Case Diary and Progress ReportofsaidCasetohimandthus,hehasnotcommitted anyoffencetoprotectanypersonfromlawfulactionorto create any false record or has not allowed any person to abscondandhehasnotmadeanysuchnoteagainsthimor not asked for any explanation in this respect. He has furtherstatedthat,inrespectofCommunalriotsoccurred at Visnagar, the 16 persons of Muslim community have executed and produced affidavits before the Investigation Tribunal of Hon'ble Justice G.T.Nanavati (Retired) and Hon'ble Justice K.G.Shah (Retired) at Bungalow No.33, Opp. Police Stadium, Shahibaug, Ahmedabad380004, in whichtheyhavespecificallystatedthat,Policehadprovided sufficient protection to them and their community and Police had done good job.Hehasfurther statedthat, he hasmadechargesheetagainst50accusedpersonsandout ofthem31accusedwereshownasabscondingandcopyof said Chargesheetisproducedinsupportofhissay. He has further stated that, as per provisions of Law, as per
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requirement he has demanded remand of the accused persons and he has made note accordingly in the Case DiaryandcopyofsaidCaseDiaryisproducedonrecordin supportofhissayandlastlyhehasstatedthat,hehasnot committedanyoffenceandheisinnocent. In this regard when we peruse the evidence against thepresentaccusedP.W.1FatehkhanBadarkhanBaloch (Exh.61) who is the Hostile witness, has in his cross examination deposed that, he had never seen Police InspectorM.K.Patelthepresentaccused.Itisdeniedby him that, this accused has recorded his statement on 01.03.2002and10.03.2002anditwasverifiedbyDy.S.P. Shri Jadeja. P.W.2 Mahmad Iqbal Ahmedkhan Baloch (Exh.66)hasdeposedthat,thisaccusedwasrecordinghis complaint by asking accused Nos.84 and 85 and that complaintwaswrittenbyhisWriter.Hewaspresentbefore Police Inspector M.K.Patel for lodging complaint. It is admittedbyhimthat,ithashappenedthat,hewascalled byPoliceInspectorM.K.Pateltolodgethecomplaintand hestraightwaywenttotheChamberofPoliceInspector M.K.Patel. In his Chamber, accused Nos.84 and 85 and other Leaders were there. He has deposed that, his complaint was not written as per his say, it was written underpoliticalpressure.Itisdeniedbyhimthat,hehad not seen Prahlad Gosa, Vajirkhan Pathan, Tista Setalvad andTimarjiinthePoliceStation.P.W.3Gulabkhanalias
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Gulubhai Kayamkhan Sindhi (Exh.70) has in his chief examination deposed that, Police Inspector M.K.Patel came. P.W.4AabidbhaiGulabkhanSindhi(Exh.71) has inhissecondtimedepositiondeposedthat,PoliceInspector M.K.Pateldidnotcamethere. Inhiscrossexamination byaccusedNo.83,hehasadmittedthat,hehasnotstated inhisearlierdepositionorinhisearlierstatementbefore S.I.T. or Police that, Police Inspector M.K.Patel did not camethere.Hedoesnotrememberthat,on01.03.2002he has stated before Police Inspector M.K.Patel that, many personsfromthemobwerearrestedbythePolice.Hedoes not remember whether,PoliceInspector M.K.Patelcame there and just to save the members of Chudivas teargas cells were lobbed, firing in the air was resorted. P.W.6 Mahmadkhan Badarkhan Baloch (Exh.85) has in his crossexaminationbyaccusedNo.83hehasdeniedthat,he has not stated before Police Inspector M.K.Patel on 01.03.2002 that, hehasnamedthesevenaccusedinhis statement which were written by Police Inspector M.K.Patel.Itisadmittedbyhimthat,hehadnarratedthe injuries sustained by him, which were written by Police Inspector M.K.Patel. It is denied by him that, on 10.03.2002hehadnamedsixaccused,whichwerewritten by Police Inspector M.K.Patel. P.W.7 Amzadkhan MahmadkhanBaloch(Exh.86)hasinhishissecondtime deposition deposed that, Police Inspector M.K.Patel was not in Police party. In his crossexamination by accused
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No.83itisdeniedthat,hehasnotstatedbeforeS.I.T.that, PoliceInspectorM.K.Patelwasnotpresent.Itisdeniedby him that, his statement was not recorded by Police Inspector M.K.Patel on 01.03.2002 and 10.03.2002. P.W.18SaiyedNazirmiyaKalumiya(Exh.103)hasinhis crossexamination by accused No.83 admitted that, accusedwasnotinthemob.Itisdeniedbyhimthat,on 06.03.2002 M.K.Patel has not drawn Panchnama in Chudivas. He does not remember that on 06.03.2002, Police Inspector M.K.Patel called Sweepers from Municipality. He does not remember whether Police Inspector M.K.Patel has recorded the statement of the personsfromMaholla.Hedoesnotrememberthenamesof accused, named by this witness, were written by Police Inspector M.K.Patel. He does not remember whether, some persons were arrested from the place of offence. P.W.23AhmedmiyaHasumiyaBelim(Exh.128) hasin his second time deposition deposed that, on 06.03.2002 whenhewenttoChudivas,PoliceInspectorM.K.Patelwas there.Inhiscrossexaminationhehasstatedthat,hedoes not remember whether Police Inspector M.K.Patel was presentalongwithotherPolicepersons.Itisdeniedbyhim that,hehasnotstatedbeforeS.I.T.orintheCourtthat, PoliceInspectorM.K.Patelhasnotrecordedhisstatement. It is denied by him that,on 08.03.2002and10.03.2002, Police Inspector M.K.Patel called him for recording his statement. It is deniedbyhimthat,hehasstatedbefore
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Visnagar Police on 08.03.2002 that, incident occurred at about 08.30 P.M. Hedoes notremember whether he has statedbeforeS.I.T.thatincidenthadnotoccurredat08.30 P.M. but it occurred at earlier point of time. P.W.24 Shermahmad Dalubhai Sindhi (Exh.132) has in his second time crossexamination by accused No.83 he has statedthat,hedoesnotrememberwhetherPoliceInspector M.K.Patelhaswritteninhisstatementthat,onthedayof incident he named nine persons in the mob, which were writtenbyPoliceInspectorM.K.Patel.Itisdeniedbyhim that,justtocausedamagetotheimageofVisnagarPolice, hehasnamedninepersonsbeforeS.I.T.P.W.25Mohmad Hanif Ahmedkhan Baloch (Exh.134) has in his second timedepositioninhiscrossexaminationhehasadmitted that, it is true that, Police Inspector M.K.Patel has recordedhisstatementdated08.03.2002and10.03.2002, manyfactswerenotwrittenbyPoliceInspectorM.K.Patel. Itisdeniedbyhimthat,onthedayofincidentwhenPolice came first lathicharge was resorted, thereafter, teargas cells were lobbed, thereafter firing was resorted. It is denied by him that, in his statement dated 08.03.2002 that,soonasPolicecameandannouncedbyMikebutmob was not disbursed hence teargas cells were lobbed, thereafter firing in the air was done and some of the personsfromthemobwerearrested.P.W.30Shabbirmiya Hasumiya Belim (Exh.146) has in his chiefexamination deposedthat,whencomplainantalongwithMahmadHanif
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Dalumiya went to lodge the complaint before Police Inspector M.K.Patel,healsowentintheroom ofPolice InspectorM.K.Patel,hewassittingthere,accusedNos.84 and 85 were there, thereafter he came out, what was happenedintheroomofPoliceInspectorM.K.Patel,heis unable to say. When he reached in Chudivas, F.S.L. Officers, Police Inspector, Visnagar and Panch witnesses were present there. Police Inspector told here there is nothing, when they went Malav Talav, Police Inspector M.K.Patelwaspresent.Itisadmittedbyhiminhiscross examination that, on 06.03.2002 when he was called by F.S.L. Officers, D.S.P., Dy.S.P. and Police Inspector were present. He does not remember whether he has stated beforeVisnagarPolicethat,hewassittingonOtlainPolice StationandcomplainantandMahmadHanifwerelodging complaint in the room of Police Inspector, he also went there,PoliceInspectorM.K.PatelandaccusedNos.84and 85 were present. He does not remember whether he has statedinhisearlierdepositionthat,whenhewassittingon Otla, Mahmad Hanif and Mahmad Iqbal went inside the room of Police Inspector to lodge the complaint. He also went inside there accused Nos.84 and 85 and Police Inspector M.K.Patel were sitting. It is admitted by him that, when he went Dipra Darwaja, Police Inspector M.K.Patel,Dy.S.P.JadejaandtwoPanchaswerepresent.It is denied by him that, PoliceInspector M.K.Patelasked himabouttheincidentandhehadnarratedtheincident
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before him. P.W.32 Mahmadhanif Dalubhai Sindhi (Exh.150) has in his second time deposition stated that, theywenttoP.I.roomwhereaccusedNos.84and85were present, complainant was lodging the complaint, he told aboutthekillingof11persons,accusedNos.84and85told that,whether10diedor20died,takecomplaintaboutriots and Mahmad Iqbal was asked to sign the complaint. No copyofcomplaintwasgiventothemnorcomplainantwas allowed to go throughthe complaint. Itisdeniedby him that, he has not stated before Visnagar Police that, complainantwaslodgingthecomplaint,hetoldaboutthe killing of 11 persons, accused Nos.84 and 85 told that, whether10diedor20died,takecomplaintaboutriotsand MahmadIqbalwasaskedtosignthecomplaint.Nocopyof complaintwasgiventothemnorcomplainantwasallowed to go through. P.W.70 Madhavlal Ranchhoddas Patel (Exh.535), P.W.72 Chiragkumar Sureshbhai Patel (Exh.541), P.W.73 Kantibhai Shivrambhai Patel (Exh.542), P.W.74 Shantaben Bhogilal (Exh.543), P.W.75 Nitaben Jageshkumar Patel (Exh.544) and P.W.108 Savitaben Hareshbhai Patel (Exh.636) have deposed that, Police Inspector M.K.Patel had recorded theirstatements. While defence of the accused side which has been broughtinthedepositionofPolicewitnessesareasunder:
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P.W.12BijendrasinhRampratapsinh(Exh.96) has inhiscrossexaminationbyaccusedNo.83,admittedthat, when they reached Dipra Darwaja, Police Inspector M.K.Patel and their police persons had resorted Lathi chargetodisbursethemob.Asthemobwasnotdisbursed, firing was resorted at the instance of Police Inspector M.K.Patel.Inhiscrossexamination,hehasadmittedthat, atthattimeMamlatdarShriRathodwasalsopresent. P.W.13RameshjiRajuji(Exh.97) hasinhiscross examination by accused No.83 admitted that, before one week Police Inspector M.K.Patel was transferred to Visnagar. On 27.02.2002PoliceInspector M.K.Patel had sentonewirelessmessagetoD.S.P.seekingadditionalforce butadditionalforcewasnotsentbyDy.S.P.Itisadmitted byhimthat,inChudivasburningragwerethrownoverthe housesandPoliceInspectorM.K.Patelhadstartedrescue operation.Itisadmittedbyhimthat,mobwasburningthe housesintheMahollaandthepersonswereinjured.Tear GasShellswerelobbedandtheywereextinguishingthefire inChudivas,D.S.P.andDy.S.P.camethere,firingandtear gas Shells were resorted, complaint of Mahmad Iqbal AhmedkhanBalochandtheywerebusyinrescueoperation atabout04.30A.M.Againatabout07.30A.M.theyhave started their work. Police Inspector M.K.Patel had recorded the statements of witnesses, persons from Municipality were called to remove the debris, Executive
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Magistrate, Finger Print Expert, Dog Squad, F.S.L. Team was called and at Malav Talav also Police Inspector M.K.Patel had taken all necessary steps.On thenight of incident, Police arrangement was arranged, after completionofhisworkatMalavTalav,hehascontinuedhis investigation work, in Chudivas Police arrangement was made,hecametoknowaboutmissingof11persons.How theyreceivedtheinformationaboutmissingof11persons, heisunabletosay.Hewashavingnodetailsaboutmissing of11persons.On22.06.2008hisstatementwasrecorded byShriBarotofS.I.T. P.W.46AnupamsinhJaysinhGehlot(Exh.226)has in hiscrossexaminationbyaccusedNo.83,deposedthat, onthedayofincidenttherewastenseatmosphereinwhole Mahesana District. On 28.02.2002 Visnagar and Taluka andvillageswereburningandtheresponsibilityofLawand OrdersituationinVisnagartownandVillageareawaswith Police Inspector M.K.Patel. It is true that, it was not possibleforonepersontoreacheachandeveryplace.Heis unabletosaythat,inVisnagartowntherewaspoliceforce of102persons.Itisadmittedbyhimthat,PoliceInspector hadaskedaboutmorepoliceforce.About6to7personsof S.R.P.weresenttoVisnagar.Itistruethat,Policeforcewas verylesstocontroltheLawandOrdersituation.Itistrue that,attheplaceofoffencetherewasabigviolentmob.In his crossexamination by accused No.83,he is asked the
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questions what Shri M.K. Patel had done at the time of incident,thosefactsarealreadydeposedbythiswitnessin his chiefexamination, therefore there is no necessity to repeatthesame.Thosefactsonlysuggestthestepstaken byPoliceInspectorM.K.Pateltocontrolthemobaswellas tosavetheinjuredpersons,whichwaspartandparcelof hisduty.Itisadmittedbyhimthat,whengrievanceswere madebeforehimaboutthemissingofpersonsagainPolice hadinquiredintheburnthousesbutnoonewasfoundin those houses. It is admitted by him that, as per his instructions search of missing persons was immediately started by Police Inspector M.K.Patel. It is admitted by himthat,PoliceInspectorM.K.PatelwaspaidRs.1000/ for his work done at Dipra Darwaja and prize was also awardedtohimbythiswitnessforhisgoodwork. P.W.47BachubhaVesaljiJadeja(Exh.227) hasin hiscrossexaminationbyaccusedNo.83admittedthat,on thedayofincident,therewastotal102Staffandtherewas tense atmosphere in the town. Main market is very sensitive,hewasthereinpetrolling,hehadtriedtosave thepersons,thePoliceStaffwasnotinapositiontocontrol thecommunalriots,therefore,additionalstaffwassought andD.S.P.Officeinformedthat,staffislesstherefore,they have to manage with the same staff members. It is admittedbyhimthat,on28.02.2002afternoontherewas tense atmosphere and to control the position Police
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InspectorM.K.Patelalongwithstaffwasinpetrollingand otherstaffwasbusyinMuslimHostelincident.InVillages ofVisnagarTalukaalsotherewastenseatmosphere,they were also busy in Bandobast in those villages also, it is admittedbyhimthat,abigmobabout200personscame atDipraDarwaja,shoutingslogans,beforehereachedat Dipra Darwaja, Police Inspector M.K.Patel was present andhewasbusyinsavingthelifeofpersons.ShriRathod wasalsothere.D.S.P.came,situationinChudivaswasso tense.That,Policestaff,D.S.P.,PoliceInspectorM.K.Patel cannotbesaidsufficientstafftocontrolthesituation.Itis admittedbyhimthat,Lathichargefiringintheair,lobbing ofTeargasShellswereresorted.Itisalsoadmittedbyhim that,thereafter,mobwasdisbursed,theyhavetriedtosave the persons from Chudivas, houses were burning, it is admittedbyhimthat,somepersonswhocameoutfromthe houses of Chudivas were injured, they were sent for treatment,theywereabout30persons,thereafter,Muslims fromChudivaswereshiftedtoGhetiyavastotheirrelatives. Complaint was recorded by Police Inspector M.K.Patel, which was verified by him. It is admitted by him that, VisnagarPoliceStationisneartoChudivas,apersoncan see the flames of Chudivas from Mamlatdar Office and VisnagarPoliceStation,iftheflamesareveryhighorthere issmokeintheair.Hehadnotseenthesmokeintheair from Chudivas at about 04.00 P.M. When he was in Chudivas,noonehadinformedhimaboutthemissingof
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11 persons nor he could know about the missing of 11 persons. Only at the time of verifying the complaint, he couldknowaboutthemissingof11persons.Heisunable tosaythat,hehasverifiedthecomplainton01.03.2002.It isadmittedbyhimthat,atthetimeofoffenceD.S.P.and Executive Magistrate were present. It is also admitted by himthat,onthatday16offencesinVisnagartownand14 offencesinVillageareawereregisteredandtomaintainLaw andOrdersituationwaswithPoliceInspectorM.K.Patel. Itisadmittedbyhimthat,PoliceInspectorM.K.Patelhas discharged his duties with commitment and saved the propertiesandpersonsofminorcommunityandtookthe situationundercontrol. Further,hehasdeposedthat,at the time of incident, he had not seen the M.L.A. Shri Prahladbhai Gosa and Dahyabhai Tribhovandas Patel at theplaceofoffence.HehadnotgonetothePoliceStation on that day. Further, he has deposed that, he has knowledge about the Writ, preferred by Yusufkhan MuradkhanPathanbeforetheHon'bleHighCourt.Hehas admittedthat,theworkofPatelwasappreciatedbyD.S.P. and he was awardedwithPrizeforhiswork.Further,he has admitted that, he came to know that F.S.L. Officers werecalledinChudivasbyPoliceInspectorM.K.Patel.Itis admittedbyhimthat,on06.03.2002,whenF.S.L.Officers came,hewaspresent.Itisalsoadmittedbyhimthat,in Chudivas there was debris, which was removed by the SweepersofVisnagarMunicipality,inthepresenceoftwo
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panchas and Nazirbhai . Police Inspector M.K.Patel has nottoldanypersonorpanchasthat,nothingisrequiredto be done, you may go. In his presence as well as in the presenceofPoliceInspectorM.K.PatelandPanchas,lump of meat, bones and burnt cloths were recovered. It is admittedbyhimthat,wholeinvestigationwasdoneunder his instructions. During the investigation none of the witnesseshavetoldthat,PoliceInspectorM.K.Patelhas notrecordedthestatements,aspertheirsay.Itisfurther, admitted by him that, Police Inspector M.K.Patel has recorded the statements of injured persons. He does not remember whether,PoliceInspectorM.K.Patelcouldnot recordthestatementofsomeinjuredpersonsastheywent in the camp. It is also admitted by him that, Police InspectorM.K.Patelwasinvestigatingmorethanonecase atatime.Itisadmittedbyhimthat,communalriotscheme was prepared by the Police, in which Dipra Darwaja and Chudivas was not covered being peaceful area. It is admittedbyhimthaton28.02.2002andthereafterforone week, there was tense atmosphere in Visnagar town and VillagesandmurderincidentoccurredinSavala,Umtaand Kansa and Police Inspector M.K.Patel was busy to maintainLawandOrdertherealso.Itisadmittedbyhim that, the persons who were missing in Dipra Darwaja, PoliceInspectorM.K.Patelwassearchingthem.Further, hehasdeposedthat,intheNavelihehadseenthedebris. Itwasnotpossibletoremovethosedebrisbyoneortwo
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persons. It is deposed by him that, he has verified the statement of Anvar Husain Sabir Husain, who told him aboutthemissingof11personsandalsotoldsoonasthey will receive the information regarding missing of 11 persons,theywillinformhim.Itisdeniedbyhimthat,in statementdated01.03.2002ofAnvarHusainSabirHusain ithascomeoutaboutthemissingof11persons.Itistrue that,PoliceInspectorM.K.Patelinstructedthepersonsto inform about the missing of persons. Thereafter, Police Inspector M.K.Patel was transferred. S.I.T. Police have arrestedtwoaccused,noMuddamalwasrecoveredbyS.I.T. At the time of drawing of Panchnama of Naveli on 06.03.2002, Nazirmiya Kalumiya was present who had identifiedthebones,remainsandknottedhairs.Afterthe incident on 1st in Chudivas, it was not felt by him that, bones or remains might be lying in the debris. Till he preparedCrimeMemo,hecouldnotfindanynegligenceon thepartofPoliceInspectorM.K.Patel.PoliceInspector M.K.Patel had arrested the accused immediately. On 06.03.2002whenhewenttotheplace,hedoesnotfindany changesattheplace.Itisdeposedbyhimthat,hehasseen theviolentmob.Violencewassohigh.Ifincidentoccurred before 4 to 5 hours, then in that circumstances, it was highlyimpossibleforaninjuredtosurvive. Itisadmitted by him that, some of the witnesses havestated in their statements,ifanymissingpersoncomes,theywillinform.
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P.W.65 Mahendrasinh Bhairavsinh (Exh.518) has inhiscrossexaminationbyaccusedNo.83,admittedthat, whenthey were inpetrolling,itwastheir dutytoprotect andpreservethelifeandpropertyofthepublic.Atthetime ofincident,thereweretwoP.S.I.InVisnagarPoliceStation M.G.BaraiyaandR.D.Khan.Itisadmittedbyhimthat, Visnagartownishavingabout1Lacpublic,outofwhich thereare veryfewMuslimsinthetown.Therearemany Maholla of Muslims. Muslims are having their shops on differentplaces.Itisadmittedbyhimthat,mobwasthere inthetowntargetingtheMuslimPersons.Itisadmittedby him that, Police Inspector M.K.Patel that, they have to protect theMuslimpersons,mobwascausing damageto theshopsatTranDarwajaarea.Itisadmittedbyhimthat, PoliceInspectorM.K.Patelhadtriedtodisbursethemob andalsotriedtoextinguishthefire.Itisalsoadmittedby him that, soon as they came about the attack over the Muslim shops near Station Circle, he Police Inspector M.K.Patelandotherstaffmemberswentthereanddisburse themob.Ittookthreehourstime.Thereafter,theycameto know about fire in Vyapar Bhavan. They went there and disbursedthemob,meanwhileDy.S.P.camethere, Fire brigadewascalled,thereafter,theycametoknowaboutthe attack and fire on Saif Gas Agency therefore, they went there.Itisalsoadmittedbyhimthat,nearBusStandone Muslim Hostel was attacked hence Police Inspector M.K.PatelandPoliceStaffwentthere.Itisadmittedbyhim
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that,therewasbigmob,whocauseddamagetotheHostel andalsobeatenthestudentsoftheHostel. Itisadmitted by him that, he along with Police Inspector M.K.Patel savedthestudentsandshiftedthemtoasaferplace.The Head Constable Dharamsinh Jakshibhai was injured during the rescue operation, Superintendent of Muslim Hostelwaskilledbythemob,deadbodywaslyingthere,in all these rescue work, it took time up to 03.00 P.M. thereafter,theywenttowardsCivilHospital,astheycame to know, two Muslim Persons and one lady were thrown fromtheterraceofHospitalandhencethosedeadbodies wereshiftedtoCivilHospitalforP.M.Thereafter,theywent to market, Executive Magistrate met them and Acid was thrown by the mob and hence the Driver of Executive Magistrate was injured on his eye and nose, Executive MagistratewassavedbythePolice,itwas04.30P.M.Itis admitted by him that, in Visnagar town there was uncontrolledpositionandPoliceInspectorM.K.Patelwas tryingtocontrolthesituation.Itisadmittedbyhimthat,in nearbyvillagestherewasuncontrolleddisturbance.Villages namelySavala,Kansa,Umtawereunderuncontrolledfire. Itisadmittedbyhimthat,itwasadutyofPoliceInspector M.K.Patel to control the situation in the villages. It is admittedbyhimthat,theywentintheUmiyaMataVadi anddisbursethemob.Thereafter,theycametoknowabout themurderofoneHinduPatelinKazivadaandthereafter in the area known asChora,LalDarwaja,Kazivadathey
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took the petrolling and then went to main Bazar and by calling the Fire Fighters, the fire was extinguished, thereafter, Police Inspector M.K.Patel took the vehicle towards Darbar Hotel, where they received the message abouttheincidentofDipraDarwaja.Itisadmittedbyhim that,abigmobwasthrowingburningragsonthehouses and persons inside the houses were screaming for help, houseswereburning,PoliceInspectorM.K.Patelstarted therescueoperation,asthemobwasnotdisbursed,firing was resorted. Mean while Dy.S.P. and D.S.P. came and after firing the mob was disbursed and the persons who were inside the house of Chudivasweretaken out. Itis admittedbyhimthat,toprotectthepersonsandproperties ofMuslims,PoliceInspectorM.K.Patelhastakenallsteps. Persons from Chudivas were taken to Police Station and senttoCivilHospitalfortreatmentandsevenpersons,who werearrestedweresenttocustodyforlawfulaction.Itis admitted by him that, he was with Police Inspector M.K.Patel from morning to night. He is well conversant withtheworkdonebyPoliceInspectorM.K.Patelduring theday.Atthetimeofrecordingthecomplaint,hewaswith Police Inspector M.K.Patel and after recording the complaint, it was signed by the complainant and Police InspectorM.K.PatelandcomplaintwasverifiedbyDy.S.P. andrecordingofcomplaintwascompletedatabout10.00 P.M. It is admitted by him that, in Visnagar town Police Inspector M.K.Patel has strictly ordered for Bandobast.
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Panchnamaofsceneofoffencewasdrawnon01.03.2002. StatementswererecordedbyPoliceInspectorM.K.Patel, whichwereverifiedbyDy..S.P.Itisalsoadmittedbyhim that, persons from Municipality were called for removing thedebris,F.S.L.personswerealsocalled.Itisadmittedby himthat,onnextdayPoliceInspectorM.K.Patelhastried to arrest rest of the accused. Panchnama at Malav Talav was done in the presence of F.S.L. Officers, this witness was also present, thereafter, also Police Inspector M.K.Patel had tried to arrest the accused persons. Statements of minor community were recorded by Police Inspector M.K.Patel,whichwereverifiedbyDy.S.P.Shri Jadeja,PoliceBandobastwasmanagedsothereshouldnot befurtherdamagetothehousesandshopsofMuslims. P.W.83DashrathsinhAmthaji(Exh.572)hasinhis crossexaminationbyaccused No.83bylearnedadvocate ShriB.G.Patel, deposedthat,forwholedayand nighthe waswithPoliceInspectorM.K.Patelinpetrollingandfor the work done by Police Inspector M.K.Patel, at about 09.30A.M.theywereatTranDarwaja,mobwasburning theshopsandcausingthedamageandtheyhaddisbursed the mob. Lokmanya Cycle Repairing, Shop of Sazidbhai Indavalaweredamagedandburnt,thereafter,theywentat StationCircle,therealsomobwascausingdamagetothe shops,mobwasdisbursedbythem,thereafter,theywentto Tran Tower, Panchal Market and there also mob was
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causing the damages and burning the shops, mob was disbursedbythem,Dy.S.P.Jadejawaswiththem,atthe instanceofShriJadeja,curfewwasimposed,atthattime itwas12.30P.M.atabout01.00P.M. theyweretowards Railway side, in Vyapar Bhavan Market shops were damagedandfired.Fireoftheshopswereextinguishedby calling Tanker. Saif Gas Agency was also burnt and they also shift their house, thereafter, on Muslim Hostel mob hadattacked,immediatelytheywentthereandsavedthe students,studentswereshiftedtosaferplace,duringthe rescue operation one constable Dharamsinhbhai Jakshibhaiwasinjured,inthechowkofMuslimHostelone deadbodywaslying,whichwasshiftedtoCivilHospitalfor P.M., thereafter, they again went for petrolling and they came to know about dead bodies of two male and one femalelyingintheHospitalcompound,thosedeadbodies were sent for P.M. It is admitted by him that, mob had attached the vehicle of the Executive Magistrate, by throwingAcidonthedriverofsaidvehicle.PoliceInspector M.K.Patelhassavedthedriverbyusingforcetodisburse the mob, at about 04. 04.30they cametoknow about damagenearUmiyaMataVadi,thereaftertheywentthere. Itisalsoadmittedbythiswitnessthat,shopsnearofficeof Municipalitywerealsodamaged.Itisadmittedbyhimthat, onthatdayabout30caseswereregistered.Insomeofthe cases,PoliceInspectorM.K.Patelhimselfhasinvestigated andhisworkwasappreciatedandaPrizeofRs.1000/was
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awarded to him. This witness has also received prize of Rs.100/andother13persons,whowerewiththemwere alsoawardedwithPrizes.Theywereawardedfortheirwork doneonthedayofincident.Itisadmittedbyhimthat,after the retirement of M.K.Patel, Police Inspector Shri Rajput hasarrestedtheremainingaccusedandchargesheetwas submitted by Police Inspector M.K.Patel against 50 accused. It is admitted by him that, Police Inspector M.K.Patel had instructed them to disburse the mob by Lathicharge,lobbingofteargasShellsandresortingoffire intheAir.Itisalsoadmittedbyhimthat,fromtheplaceof offence, seven accused were arrested and against those seven persons lawful procedure was adopted by Police Inspector M.K.Patel. Complaint was lodged by the complainant, written by Writer Ranjitsinh and signed by complainantaswellasPoliceInspectorM.K.Patel.Atthat time he had not seen M.L.A. Shri Prahladbhai Gosa and DahyabhaiTribhovandasPatel.Itisalsoadmittedbyhim that,on01.03.2002,PoliceInspectorM.K.Patelhaddrawn Panchnama of scene of offence. Statement of witnesses were recorded by Police Inspector M.K.Patel. On 06.03.2002 when the Panchnama was drawn, he was present, debriswereremovedbysweepers,Photographers werepresentandon09.03.2002hewasverymuchpresent withPoliceInspectorM.K.PatelatMalavTalav,atthetime ofdrawingPanchnama.
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P.W.175 Gautamkumar Vishnubhai Barot (Exh.912)InvestigatingOfficer hasdeposedaboutthe defectsinearlierinvestigationbyaccusedNo.83andafter havingdiscussionwiththeTeamofS.I.T.,permissionwas soughttoarrangethepresentaccusedinthetrial.Hehas narratedthedefectsoftheinvestigation,asunder: (1) Inthecomplaintaswellasinthestatementsofthe witnessesnamesofaccusedwerementionedbuthow the complainant and witnesses know them, it was neither mentioned nor Identification Parade was followed. (2) Panchnama dated 06.03.2002, which was in connection with the remains of dead persons, how they were related with that person it was not mentioned. (3) At the time of incident, D.S.P. Shri Gehlot was present, he wastoldbysomeofthewitnessesthat, stillsomepersonsarenottraceablehenceShriGehlot haddirectedM.K.Pateltoinquireaboutthosemissing persons. In his statement dated 01.03.2002 Anvarkhan as well as in his statement dated 02.03.2002 Shabbirkhan have stated about the missing of 11personsbut neither endorsementwas madebyM.K.Patelintheregisteraboutthemissingof
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those persons nor it was mentioned in the Station Diary.Further,on01.03.2002,PanchnamaofSceneof offencewasdrawn,atthattimealsonoinvestigation wascarriedoutinrespectofmissingpersonsfromthe placeofoffence. (4) From the statements of witnesses dated 01.03.2002 and 02.03.2002 it came out about missing of 11 persons,stilltomaintaintheevidenceattheplaceof offencenoPolicepointwasalloted. (5) NoDogSquadorF.S.L.wascalledduring28.02.2002 to05.03.2003. (6) Theremainsoffivedeceasedpersonswererecovered fromChudivasandthatPanchnamaiscontradictory to the Panchnama dated 01.03.2002, which suggest that, indirectly this accused has acted to help the accusedNos.1to82. (7) No videography was done on 06.03.2002 while the Videography was recorded on 09.03.2002, which is not done according to Panchnama. The videography dated02.03.2002showsthepresenceofM.K.Patelat theplaceofoffencebutnoendorsementinthisregard ismadeinthePanchnamaorCaseDiary. (8) No remand was sought for search of the houses to
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recollecttheevidencefromtheaccusedtocollectthe weapons.Itisonlyweaponsproducedbytheaccused arerecovered,assumingthoseareusedinthecrime. (9) Fromthestatementsofwitnessesdated08.03.2002, names of all the accused were declared but Investigating Officer has not made any attempt to arrestalltheaccused.CaseDiaryissilentaboutit. (10) EarlierM.K.PatelwasinvolvedinUnjhaI.CR.No.264/ 2005,fordestroyingtheevidence.Thus,itisdeposed by him that, in spite of the evidence M.K.Patel negligentlyactedinhisduty,inamannerandwith theintentiontohelptheaccusedhenceon16.12.2009 hewasarrestedbyhimandChargesheetagainsthim was preferred on 11.05.2009, after seeking prior permission from the competent authorities under Section197ofCr.P.C.Saidprosecutionpermissionis producedonrecordvideExh.924. Further, itisdeposedbyShriBarotthat,M.K.Patel had recorded the statements of the near relatives of the accusedon12.03.2002afterthedisclosureofthenamesof the accused in the statements dated 08.03.2002. In his crossexamination, he has admitted that, no evidence brought on record during his investigation how the dead bodiesweretakentoMalavTalavandwhichofthevehicle was used for that. In his crossexamination by accused
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No.83ShriBarothasadmittedthat,afterthetransferof M.K.Patel other two to three Investigating Officers have investigated the crime. Shri Rajput and Shri Asari have arrestedmanyaccusedandtheyhavechargesheetedthem and some of the accused were arrested by P.S.I. Lilaji Varvaji,oneaccusedwasarrestedbyP.S.I.Mahendrasinh Rathod. It has come out in his crossexamination that, remandforthreeaccusedweresoughtbythisaccusedbut no Muddamal was recovered from them. In his cross examinationduringhisinvestigationwhathehasdonehas beenasked,whichisadmittedbyShriG.V.Barot,whichis alreadyonrecordtherefore,thereisnonecessitytodiscuss about the procedure, which was adopted by M.K.Patel, duringhisinvestigation.Inhiscrossexaminationaccused has tried to bring on record about the many incidents occurredinthetownonthedayandthatPoliceInspector M.K.Patelwasbusyindealingwiththosecrimesalso.Itis also brought on record that, soon as he received the message,hewenttoChudivasandfiring,teargascellsand lathichargewereresortedandhehasalsoaskedincross examinationaboutthePanchnamadrawninhispresence and that, he has recorded the complaint of complainant and statements of the witnesses. It is admitted by this witness that, in their statements, Fatehkhan Badarkhan Balochandsomeoftheotherwitnesseshavestatedintheir statements that, except change in time of incident, other factsoftheirstatementsarecorrectone.
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It is argued by Special Prosecutor Shri M.K.Brahmbhatt that, witnesses have alleged when the complaintwasrecorded,thesetwopersonsAccusedNos.84 and 85) were sitting in the room of Police Inspector M.K.Patelandcomplaintwasrecordedundertheguidance andsupervisionofthesetwoaccusedpersons.Complaint wasnotrecordedasperthesayofthecomplainant.During the course of trial Police Inspector M.K.Patel accused No.83,PrahladbhaiMohanbhaiGosaaccusedNo.84and Dahyabhai Tribhovanbhai Patel accused No.85 were orderedtobearrangedasanaccusedpersons.Atthetime when accused Nos.84 and 85 were instigating the mob, Mahmadhanif Dalumiya Sindhi was passing through, he saw and heard what was transpiring near the house of Akbarmiya. Thereafter, he went to the Maholla and informed other persons of Chudivas and this instigation resultedintoattackonChudivasandwhilerecordingthe complaint,PoliceInspectorM.K.Patelminimizesthecrime underthedirectguidanceandsupervisionofM.L.A.Shri Prahladbhai Gosa and Dahyabhai Tribhovandas Patel accused Nos.84 and 85, he has not made investigation efficientlyandnaturally.Hehasmadefavouroftheaccused whilemakinginvestigationoftheoffence,withnegligencein discharge of duty of I.O., which amount criminal negligence. Such investigation was carried out in collaboration with the accused persons, particularly with
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theaccusedNos.84and85.Mostofthepanchasusedby I.O.arePatelbycommunity,connectedwiththeaccused, some of the Panchas are accused, facing trial such as RameshbhaiMadhabhaiPatelaccusedNo.53.Thisactof I.O. clearly proves that, he was favouring the accused personsfromtheverybeginning. Further,itisarguedbyShriBrahmbhattthataccused No.83 is Police Inspector M.K.Patel, who is the First InvestigationOfficerinthepresentcasehasbeenjoinedas an accused subsequently. Most of the relatives of the accused are examined as witness but they are not supporting the case of prosecution. They are deliberately taken up as a witness in the present case. P.W.78 Revaben Ranchhodbhai Patel (Exh.557) is sisterinlaw of accused No.6 Revabhai Ranchhodbhai, P.W.77 Bhikhiben Babulal Patel (Exh.551) is the wife of accused No.60 Babulal Parshottamdas Patel and mother of accusedNo.8PatelParimalaliasJethoBabulal,accused No.51PatelDahyabhaiParshottamdasisthebrotherin lawofP.W.77BhikhibenBabulalPatel(Exh.551),P.W.69 Dahiben Kantilal Patel (Exh.534) is the sister of accused No.22PatelJayeshkumarKantilal,P.W.72Chiragkumar SureshbhaiPatel(Exh.541)isthesonofaccusedNo.36 Patel Sureshkumar Jethalal,P.W.74ShantabenBhogilal (Exh.543) is the mother of accused No.19 Patel Anandkumar@BakoBhogilal andaccusedNo.49Patel
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Vijaykumar Bhogilal. P.W.79 Taraben Kacharabhai Patel (Exh.558)isthemotherofaccusedNo.18and21.P.W.85 Kantaben Kantilal Patel (Exh.579), P.W.87 Hasumatiben Vinodkumar Patel (Exh.581), P.W.88 Taraben Kaushikkumar(Exh.582),P.W.101KapilabenNarayanbhai Patel (Exh.622), P.W.108 Savitaben Hareshbhai Patel (Exh.636),P.W.102NitabenRohitkumarPatel(Exh.623), P.W.109 Sushmaben Jitendrakumar Patel (Exh.637), P.W.110KailasbenYogeshkumarPatel(Exh.638),P.W.111 Kapilaben Babubhai (Exh.639), P.W.115 Rameshkumar Madhavlal Patel (Exh.650)are therelatives ofaccused.It waswithintheknowledgeofaccusedNo.83that,noneof thiswitnessisgoingtosupporttheprosecutioncaseeven though he has crossed all limits by recording the statements of theses witnesses and he has recorded the statement of P.W.115 Rameshkumar Madhavlal Patel (Exh.650), who is an accused No.53 here in the present case. Even he has taken one of the accused Patel Rameshkumar Madhavlal as Panch witness in the Panchnamadated01.03.2002andinthatPanchnama no where blood stains are mentioned while in second Panchnama of scene of offence, which was drawn in the presenceofF.S.L.Officeron06.03.2002.Bloodstainswere found.Itshowsdeliberateactofaccused.F.S.L.Reportvide Exh.76 shows presence of blood in Article No.G, H, I/1, I/2, J. Exh.77 Serological report shows Blood GroupA'whileinJbloodgroupisfoundAB.Witness
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who is examined asP.W.49HasmukhlalThakorlalModi (Exh.232)hassupportedthelistpreparedbythewitness. Aspertheevidenceofcomplainantandotherwitnesses,it isprovedthatcomplaintwasnotrecordedproperlybythis accused.Notonlythatcopyofcomplaintwasnotsupplied tothecomplainantandwhiledrawingthePanchnamaon 01.03.2002, materials were not collected by this witness. Further,hewasinformedabouttheoccurrenceofincident but he deliberately not send the Police at the place of occurrenceandtherebyhehasabatedthecrime.Beinga superiorofficeritwastheboundeddutyofthisaccusedto keep peace in the society. In such circumstances, mercy cannot be shown to this accused. Referring to accused Nos.84and85,itisarguedbyShriBrahmbhattthat,both theaccusedwereonkeyposts,complaintwasrecordedby accusedNo.83,asperdirectionsofboththeseaccused,he hasnotrecordedthecomplaintofmurderthoughhewas informed about the incident of murder. Video Cassette, produced vide Exh.899 and 900 supports this fact. Videographywasrecordedafterincidentwasover.Here,isa hostile investigation by the Investigation Officer hence accusedNo.83wasarrestedbytheS.I.T. While it is argued on behalf of accused No.83 at Exh.1307as well asoralsubmissionthat,accusedNo.83 had joined as PoliceInspectorofVisnagaron22.02.2002 and it is onlyafteroneweekincidentoccurredtherefore,
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accused was having introduction with the Visnagar town only for one week. He was having no introduction with accusedNos.1to82.Hewasnotnegligentininvestigation. He has not conspired with other accused. There is no evidence about conspiracy against him. There is no evidence against present accused to indulge him under Section 147, 148, 149. He was on duty, at the time of incident. He went to Chudivas to protect the resident of Chudivas. During the incident, he has not committed offence for attempt of murder of any person. He has not committedanymurder.Hehasnottriedtosavetheother persons from punishment or imprisonment, there is no evidence suggesting breach of Section 217. Being InvestigatingOfficer,hehadtriedtosavethepersonsatthe placeofoffence,atthattimeDy.S.P.ShriJadeja,D.S.P.and ExecutiveMagistratewerepresentandwiththepermission of Executive Magistrate, firing was resorted and seven personswerearrestedbyhim.Thereisnoevidenceagainst himtoprovethat,hehascreatedsuchrecordorwritingto causedamagetothepersonandpropertiesofwitnesses.He hasnotcommittedanyoffencebyputtingfiretothehouses of Chudivas. On the contrary, he had tried to save the persons and propertiesofChudivas.Nooffencehasbeen proved against him for offences committed under section 337ofI.P.C.Hehasnotthreatenedanypersons,hehasnot abusedanyperson,hehasnotabatedanycrime,hehas not suppressed any information nor suppressed any
// 1156 //
Muddamal, on the contrary he has recovered the Muddamal which was taken at the time of drawing Panchnamaon06.03.2002and09.03.2002.Hehascharge sheeted 50 accused and 31 accused were declared as absconder. From theverybeginning,S.I.T.withprejudice mind have acted against the present accused. Till the evidencewasoverforthefirsttimenogrievancewasmade against the present accused. After the span of six years, false fact has beencreatedagainsthim tofalsely indulge him in the offence. Prosecution witnesses have tried to indulgeaccusedNo.83asanaccusedwiththeintentionto indulge accused Nos.84 and 85 in the offence and therefore,factregardingnotrecordingofcomplaint,asper say of complainant has been made. Neither M.L.A. Shri PrahladbhaiGosanorDahyabhaiTribhovandasPatelwere present in the Police Station at the time of recording of complaint.Complaintwasnotwrittenundertheirpressure. Accused Nos.84 and 85 were not present at the place of offence.Therewastenseatmosphereinthecityandmob had caused damagestothepersonandpropertiesofthe Chudivas. He along with other police persons went to Chudivas tosave thepersonsofChudivasandtheywere takentoHospitalandPoliceStationandPoliceBandobast was arranged at the place of offence. D.S.P. and Dy.S.P. were present. Injured persons were taken out from the houses.Dy.S.P.wascontinuouslywithhimandthereafter, witnesseswereshiftedtoasaferplace.D.S.P.ShriGehlot
// 1157 //
had not asked him to find out 11 missing persons. Till D.S.P.wasattheplaceoffence,hewasnotinformedabout themissingof11persons.F.S.L.wasinformedtoremain presentfordrawingPanchnamainChudivasbutF.S.L.was not present on 01.03.2002.Astherewasnosituationfor F.S.L.toreachattheplace,hehasarrestedsevenpersons withtheweapon.Simplyremandwasnotsoughtforthose persons,itcannotbesaidthat,hewasnegligent.Therewas nonecessitytoseekremandforthosepersons.Nazairmiya Kalumiya was having no relation with the deceased persons.Hehadinquiredaboutthe11missingpersonsbut hecouldnotgetanyinformationaboutthose11persons. RameshbhaiMadhabhaiPatelPanchisnottheaccused takenbythepresentaccusedasanaccused,whenhefiled the Chargesheetagainst50persons.Heissubsequently, taken up as an accused by Investigating Officer Shri Rajput.NameofRameshbhaiMadhavlalisnotmentioned inthecomplaintasanaccused.Complainant,forthefirst time, in the Year 20092010 is declaring that, accused No.83 has not heard them properly. The facts which are deposedby the complainant,firsttimeisnarratedinthe complaintalso.Complaintissignedbythecomplainant.It isalsosignedbyhimandverifiedbyDy.S.P.Atthetimeof verification of complaint also, he has not made any complaintfornotproperlyrecordingthecomplaint.Onthe contrary,hehasstatedthat,complaintiswrittenasperhis say. Till 05.11.2011 complainant was having no grievance
// 1158 //
against accused No.83, it is only after six years, he is makinggrievancebeforeS.I.T.Complainanthasnotgotany respectfortruth.Heistellinglie.Heisalsotellingliethat, he had not received the copy of complaint. No new Muddamal has been recovered by S.I.T. The evidence or Muddamal,whichwasrecoveredbyaccusedNo.83,during hisinvestigationispausedbyS.I.T.Duringthedrawingof Panchnama dated 06.03.2002 and 09.03.2002, F.S.L. Officers were present andremainswhichwererecovered were sealed in the presence of Panchas. P.W.18 Saiyed NazirmiyaKalumiya(Exh.103)isalsostatingdifferentlyas per complainant, which is very much clear from the deposition of P.W.49 Hasmukhlal Thakorlal Modi (Exh.232). P.W.30 Shabbirmiya Hasumiya Belim (Exh.146)hasnotdeposedinhisfirsttimedepositionabout the involvement of M.L.A. Shri Prahladbhai Gosa and DahyabhaiTribhovandasPatel.ItisonlyafterS.I.T.camein existence, this witness has involved these two accused. P.W.32MahmadhanifDalubhaiSindhi(Exh.150)hasalso not involved these two accused in his deposition dated 05.04.2003. P.W.21ShabbirkhanIbrahimkhan(Exh.108), P.W.25 Mohmad Hanif Ahmedkhan Baloch (Exh.134) P.W.23AhmedmiyaHasumiyaBelim(Exh.128)andP.W.24 Shermahmad Dalubhai Sindhi (Exh.132) have also not involved M.L.A. Shri Prahladbhai Gosa and Dahyabhai TribhovandasPatelintheirfirsttimedeposition.P.W.65 Mahendrasinh Bhairavsinh (Exh.518), P.W.13 Rameshji
// 1159 //
Rajuji (Exh.97), P.W.12 Bijendrasinh Rampratapsinh (Exh.96), P.W.171 Ranjitsinh Pituji (Exh.865), P.W.83 Dashrathsinh Amthaji (Exh.572), P.W.147 Babubhai MansangbhaiChaudhari(Exh.772),P.W.46Anupamsinh JaysinhGehlot(Exh.226),P.W.47BachubhaVesaljiJadeja (Exh.227) and P.W.45 Kamleshkumar Jethabhai Rathod (Exh.219) have not deposed about the presence of M.L.A. ShriPrahladbhaiGosaandDahyabhaiTribhovandasPatel intheChamberofPoliceInspectornorinChudivas.Thus, theory involving accused Nos.84 and 85 is newly created one, after thought and accused No.83 had taken all due care for protection of persons and properties of minority communityandhadinvestigatedtheoffencebytakingdue care.ThereisnonegligenceonthepartofaccusedNo.83. Heisfalselybeeninvolvedasanaccusedattheinstanceof S.I.T. Consideringtheargumentsonbehalfofboththesides as well as depositions of the witnesses, police witnesses, like D.S.P., Dy.S.P. and other Police witnesses, S.I.T. InvestigatingOfficerShriG.V.Barot,ittranspiresthat,some of the major defects are brought on record during the investigation by S.I.T. and after due consideration permission for prosecution was obtained by the Investigating Officer, which is produced vide Exh.924, whichsupportsthesayofShriBarotthat,afterobtaining permission from the Director General of Police,
// 1160 //
Gandhinagar, present accused has been arranged as an accused and chargesheeted. From the evidence as discussed in earlier part of the Judgement, the following defectsarefoundininvestigation. (1) When the complaint was lodged and statements of thewitnesseswererecorded,namesofaccusedwere disclosed,itwasthedutyofInvestigatingOfficerto askthecomplainantandwitnesses,howtheyknow the accused. Further, no Identification Parade procedure was adopted by Investigating Officer during his investigation, which could have played major effective role during the investigation and in concludingthetrial. (2) Afterthedisclosureofnamesofaccusedpersonson 08.03.2002,hehasrecordedthestatementsoftheir near relatives as witnesses. Naturally, the near relativeswillsupportstheaccused,whichshowsthe intentionofthepresentaccused. (3) InsomeofthedepositionsofPolicewitnesses,ithas been brought on record that, when they were in Chudivas, they saved the lives of persons from Chudivas, about 50 persons were having burn injuriesbutevidencesuggestthat,thereisnoother evidenceshowingburninjurytoanywitness,thereis
// 1161 //
no explanation on the part of Investigating Officer aboutthoseburntinjuredpersons.Ifsomepersons werehavingburninjurieswherearethosepersons, nothinghasbeenbroughtonrecord. (4) When D.S.P. was present at the place of offence, some of the witnessestoldhim that, somepersons are still missing and D.S.P. Shri Gehlot had instructedthepresentaccusedtoinvestigateinthat regardbutStationDiaryorinRegisternothinghas been mentioned about the missing of persons though,itwasmentionedinsomeofthestatements by the witnesses. There is no evidence what investigationwasmadebythepresentaccusedabout the missing of these persons. Panchnama dated 01.03.2002 is silent about it. It is only on 06.03.2002,whenthePanchnamawasdrawninthe presenceofF.S.L.,someremainsandpiecesofbones wererecovered.FromtheF.S.L.Reportithascome outthat,itwasahumanbonebutitwasincharred condition. This position suggest that, during 01.03.2002 to 06.03.2002, this Investigating Officer hasnotmadeanyattemptsforinvestigationregarding this missing persons. If he would have made some attempts, perhaps there may be some different positionmaybeonrecord.
// 1162 //
(5)
It has been brought on record that, names of the accused were disclosed on 08.03.2002 but no attemptsweremadebythisaccusedtoarrestthem. Consideringaboveall,ittranspiresthat,thepresent
accusedhasactedwiththeintentiontosaveorknowingit tobelikelythat,hewilltherebysaveanypersonfromlegal punishmentorsubjecttohimalesspunishmentthenthat towhichheisliabletherefore,thisaccusedhascommitted crimewhiledischarginghisdutiesasPoliceInspector.He has shown criminal negligence and intentionally not investigatedthecrimesothat,victimsmaynotgetjustice, whichwashisboundeddutybeingapublicservant.Sofar as the evidence which has been brought in cross examinationofPolicewitnessesaswellasthedocuments, which are produced on record along with his Further Statements are concerned, when we peruse all those evidence, the defence of the accused is such that, there weremanycrimesonthatdayinVisnagartown,situation wastenseandhewasbusyindealingwithallthosecrimes, connectedwithVisnagarPoliceStation.That,atthemost canbeconsideredwhatactivitieshehaddoneonthatday buthecannotsaygobytothedefectsduringinvestigation inthepresentcrime,onthestrengthofhisworkdoneon thatday.Anotherdefence,whichhasbeentakenbyhimis that, he sought for additional force,as the situation was tenseisconcerned,itisadmittedthat,therewasshortage offorceandsituationwastensebutitisnotgoingtohelp
// 1163 //
thepresentaccusedinrespectofdefectsininvestigationof presentcrime.Anotherdefence,whichhasbeentakenby theaccusedisthat,hewasawardedprizefortheworkdone byhimisconcerned,itcansheltertheseriousdefectsin investigation of the present crime. Considering the whole defence of the present accused, he has tried to bring on record that, he reached at Chudivas, ordered for Lathicharge,lobbingofteargascellsandfiringintheair, Dy.S.P.Jadejawasalsowithhim,healongwithhisteam saved persons from the Maholla and those persons were takentoPoliceStationandthentoCivilHospitalandthen to safer place. Thereafter, he recorded the complaint and statementsofthewitnessesandPanchnamawasdrawnon 01.03.2002anditwasnotpossibletoremovethedebrisby one or two persons. All these acts which he has tried to bringbeforetheCourtcanbesaidtobeapartandparcel ofhisinvestigationandonthestrengthofhisthiswork,he cannot take shelter about the serious defects in his investigationanddutyandhisdefencecannotbeaccepted and prosecution has established that, he has shown criminal negligence and intentionally not investigated the crime so that victims may not get justice or the accused persons be saved from legal punishment or accused persons be subjected to a less punishment then that to whichtheyareliable.Thus,beingapublicservant,hehas committedacrimewhiledischarginghisdutiesandheis liableforthesame.
// 1164 //
[366]
AccusedNo.84: PATELPRAHLADBHAIMOHANBHAIGOSA (SessionsCaseNo.180/2002) & AccusedNo.85: PATELDAHYABHAITRIBHOVANDAS (SessionsCaseNo.180/2002) AsperthecaseofprosecutiontheAccusedNo.84and 85 voluntarily obstructed M.K.Patel in discharging his public function and have also suppressed the riot affray, apprehending the persons charged with or guilty of an offence. Furtherbeingboundbylawtorenderorfurnish assistance to M.K.Patel in execution of his public duty intentionally omitted to give such assistance and thereby abettedtheCrimeandknowingfullywellthatitislikelyto causeinjuryorannoyancetoanyperson,haveusedtheir powers being public servant with an intention to cause injurytothepersonandthepropertyoftheMuslimand thereby abated the crime. Further, they had agreed to causeharmtothepersonandpropertyoftheMuslimby illegalactsandaccordinglysetonfirepropertiesofMuslim, peltedstones,causedinjurytothepersonandpropertiesof Muslims in Chudivas and thereby committed crime of conspiracy. Shri M.K.Brahmbhatt, Special Prosecutor, appearing
// 1165 //
on behalf of the prosecution has argued that, attack on Chudivas could have been materialized only due to integration,instigationandconspiracybyaccusedNos.84 and85undertheirdirectdictatorship.Itisfurtherargued byhimthat,consideringthedepositionsofthewitnesses, both these accused were present at the time of causing damages to the house of Akbarmiya Kalumiya and they wereinstigatingthemobtogotoChudivasandtoburntthe houses in Chudivas. Therefore, it is the say of Shri Brahmbhatt that, both these accused were involved in instigatingandconspiringthecrimeandtheyareequally liable for the offence, which is well established from the depositionsofthewitnesses, whilelearnedadvocateShri G.N.Brahmbhatt,appearingonbehalfofaccusedNo.84and learnedadvocateC.K.Shah,appearingonbehalfofaccused No.85havearguedthat,thesetwoaccusedpersonsarenot involvedintheincident.Theyarefalselybeeninvolvedin thecrime.Theexplanationofthewitnessesregardingnon mentioningofthesetwoaccusedinearlierpointoftimedue tofear,cannotbeacceptedasthecomplainantaswellas witnesseswerevigilant.Theyweremakingapplicationsto seekjusticebeforedifferentauthorities.Thus,fromthevery beginningtheywerefearless. Considering the arguments advanced on behalf of both the sides as well as evidence of both the sides it transpires that, P.W.18 Saiyed Nazirmiya Kalumiya
// 1166 //
(Exh.103) firsttimesilentabouttheinvolvementofthese accused, it is only in second time deposition he has deposedaboutthepresenceofthesetwoaccusednearthe houseofAkbarmiyaKalumiya,instigatingthemobtoburn theChudivas.Hehasnotstatedinhisanyofthestatement beforeVisnagarPoliceorbeforeS.I.T.orintheapplication oranywhereabouttheransackingorburningofthehouse of Akbarmiya Kalumiya and instigation by these two accused by saying why areyouburning one house when thereiswholeMaholla,burnthat,hehasatalkwithPolice Inspector.Sofarasnonmentioningofnamesofthesetwo accusedintheapplicationisconcerned,thiswitnesshas explainedthat,duetofearhehasnotmentionedthenames ofthesetwoaccusedintheapplication.Itisnotthesayof thewitnessthat,hewasunderpressure.Therefore,hehas not mentioned the names of these two accused in the application. P.W.21ShabbirkhanIbrahimkhan(Exh.108) isalsodisclosingtheinvolvementofthesetwoaccusedin his second time deposition. P.W.23 Ahmedmiya Hasumiya Belim (Exh.128) is also taking the names of thesetwoaccusedinhissecondtimedepositionaboutthe instigationbythesetwoaccused.Inearlierstatementsas well as in earlier deposition, he is silent about the involvementofthesetwoaccused.Inapplicationpreferred byhim,hehasnotstatedthenamesofthesetwoaccused aboutthecommissionofanycrime,whenthatapplication was preferred he does not remember, no complaint has
// 1167 //
beenlodgedbythiswitnessabouttheinstigationbythese two accused. P.W.24 Shermahmad Dalubhai Sindhi (Exh.132) is also involving these two accused about the instigationtomobinhissecondtimedeposition. P.W.25 Mohmad Hanif Ahmedkhan Baloch (Exh.134) isalso in hissecondtimedepositionstatingabouttheinvolvementof thisaccusedthat,thesetwoaccusedwereinstigatingthe mobtogotoChudivas. P.W.30ShabbirmiyaHasumiya Belim (Exh.146) is also in second time deposition disclosingthenamesofthisaccusedintheinvolvementof this incident. This witness is deposing that, both these accused were sitting in the Chamber of Police Inspector, when the complainant went to lodge the complaint. Further, complaint was recorded as per say of these two accused and not as per say of complainant. P.W.32 MahmadhanifDalubhaiSindhi(Exh.150)isalsoinvolving theseaccusedinhissecondtimedepositionanddeposing abouttheinterferencebythesetwoaccusedwhilerecording thecomplaintbyPoliceInspectorM.K.Patelandthatcopy ofcomplaintwasneithergivennorcomplaintwasreadover to him. He is admitting that, he has not stated the involvementoftheseaccusedbeforeVisnagarPolice.Heis sayingaboutthelodgingofcomplaintaspersayofthese twoaccused. P.W.44RameshchandraPopatlalSharma (Exh.218) is also involving these accused in second time deposition.WhilePolicewitnesses, P.W.83Dashrathsinh
// 1168 //
Amthaji (Exh.572), P.W.147 Babubhai Mansangbhai Chaudhari (Exh.772) and P.W.171 Ranjitsinh Pituji (Exh.865) have deposedthat, these two accusedweenot present in the Police Station at the time of lodging complaint.Policewitnesseshavenogrievancesagainstthe witnesses.Inthecircumstancesthat,complainantaswell as witnesses were silent up to first time trial about the involvementofthisaccused.Itisonlyinsecondtimetrial someofthewitnesseshaveinvolvedthepresentaccused. Complainant and witnesses were having sufficient opportunity to narrate this fact before any authority but theyaresilent.Itisonlyinsecondtimedepositiontheyare disclosing the involvement of these two accused and the explanation given by the witnesses and complainant in respect of noninvolving the present accused that, they were under fear is concerned, that cannot be accepted under the circumstances when they have narrated the incident of cutting, killing and burning of alleged 11 deceased persons, which fact is more severe than the presenceofthesetwoaccusedinstigatingthemob.Thus, prosecution first time silent about the presence and involvement of these two accused. From the evidence of Policewitnesses,ittranspiresthat,thesetwoaccusedwere neitherpresentinthePoliceStationatthetimeofrecording ofcomplaintnortheywerepresentinChudivas,whenthey reachedinChudivas.Therefore,thepresenceofthesetwo accused in the Police Station at the time of recording of
// 1169 //
complaintisnotestablishedbytheprosecution.Sofaras presenceofthesetwopersonsnearthehouseofAkbarmiya Kalumiya,atthetimeofransackingandburningthehouse and instigation bythesetwopersonstocausedamageto Chudivasisconcerned,firsttimetrialwitnessesaresilent aboutit.Itisonlyduringthecourseofdepositionsofthe witnesses, these two accused are involved. Thus, after a span of nine years the prosecution witnesses are coming withacaseofinstigationbytheseaccusedNos.84and85. So far as evidence regarding Videography is concerned, I have seen the video. From the videography, we cannot concludethat,eitheroftheseaccusedwasstandingnear the house of Akbarmiya Kalumiya and at that time mob wasdamagingandburningthehouseandthesetwowere instigating the mob. From the evidence of P.W.175 GautamkumarVishnubhaiBarot(Exh.912)ithascomeout that, during his investigation, he has found no evidence againstpresenttwoaccused.Whythewitnessesweresilent for about nine years for involving these two accused in instigatingthecrime.Incrossexaminationofthesepolice witnesses nothing has been brought on record to say of police witnesses regarding nonpresence of these two accused either in the Police Station while recording the complaintoratthetimeofincidentofburningofthehouse of Akbarmiya Kalumiya. No other evidence to establish presence of these two accused either in PoliceStation or near the house of Akbarmiya Kalumiya. It is not
// 1170 //
satisfactorilyexplainedanditisquiteriskytoacceptthe involvement of these two accused in instigation in the crime. Allthewitnesseswereknowingthesetwopersons verywellandtherefore,thereisnoquestionofidentification oftheseaccused.Therefore,thefactremainsthat,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 to give benefit of doubt and acquit the accused. In my opinion though their exist strong suspicion against the accused persons it is not possible to hold that, their involvement in the offence is established, requires acquittal. [367] 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,setting on fire the houses and thereby causing damage to the propertiesofMuslimofChudivas,DipraDarwaja,Visnagar on28.02.2002during04.30P.M.to08.30P.M.andthereby committed offence falling under section 143 and 147 of
// 1171 //
I.P.C. Further, those accused have also committed an offencebeingamemberofunlawfulassemblyof200300 personsandinprosecutionofthecommonobjectofsuch assembly,forovertact.FurtheraccusedNos.2,3,4,5,6 and7havecommittedoffencesbyhavingdeadlyweapons likeSword,ironpipes,dhariya,stoneswiththem andin furtherance of common objectofsuchassembly for overt act committed the offence of rioting punishable under Section 148ofI.P.C. andforthattheseaccusedarealso independentlyliableforthesame.Sofarasoffenceunder Section307readwithSection149isconcerned,inorder that a person may be guilty to attempt to murder, the followingtwoingredientsoftheoffencemustbepresent(a) an intention or knowledge of committing murder (b) the doingofanacttowardsit.ForthepurposeofSection307, whatismaterialistheintentionorknowledgeandnotthe consequence of the actual act done for the purpose of carrying out the intention. This section clearly contemplates an act which is done with the intention of causingdeathbutwhichfailstobringabouttheintended consequence on account of the intervention of a cause operating independently of the volition of the agent. To determinewhetheranactfallswithintheambitofSection 307, on the wording of this section, three considerations appeartobeessential(I)thenatureoftheactdone(ii)the intention of knowledge of the agent, and (iii) the circumstancesunderwhichtheactisdone.Hereknowing
// 1172 //
fullywellthatresidentsofChudivaswerepresentintheir housesandtheirpresenceintheirhousesattherelevant timeasdiscussedinearlierpartofJudgementisreliable, trustworthyandgenuineone.Inthatcircumstancesifthe mob had set on fire the houses, it itself suggest the intention and knowledge of the accused was to kill the residentsofChudivas,knowingtheconsequencesoftheir act it is different that, victims were saved by the Police persons,iftheywerenotsavedbyPolice,theywouldhave been burnt alive, which could be the result in murder. Simplythewitnesseshavenotsustainedburninjuries,we cannotconcludethat,theintentionandknowledgeofthe accusedwasnottokillthevictims.Victimshavesustained hurtinjuriesduetopeltingofstonesetc.Further,fromthe evidence of Police persons it has also brought on record that,about40to50personssustainedburninjuriesbut whathashappenedaboutthem,prosecutionissilentandit transpires that, no investigation was carried out by the then Investigating Officer, the present accused No.83 therefore, which is treated as grave defect on the part of investigation. Under above circumstances intention and knowledgeofthemobwastokilltheMuslimsbyburning them is fully established, the method of burning is the easiestwaytokillaperson,sothat,theremaynotremain any evidence abouttheinvolvementoftheaccused.Even from the fact that,accusedfrom themobwereshouting, miyaoe bahar avao, miyaoe ne marri nakho etc. it also
// 1173 //
suggest the intention and knowledge of the accused personswastokillthevictims.Inabovecircumstancesthe sayofaccusedsidethat,consideringtheinjurysustained bythewitnessesatthemostintentionandknowledgeand objectofthemobcanbeconsideredtocausesimpleinjury to the witnesses or to burn the houses. There was no intention or knowledge to kill the persons cannot be acceptedintheeyeoflaw.Thus,accusedhavecommitted offencepunishableunderSection 307readwithSection 149ofI.P.C.Further,theaccusedwhoareheldliablefor theoffencesbyforminganunlawfulassemblyof200300 personsandinfurtheranceofthecommonobjectofsuch assembly voluntarily caused hurt to the victims and thereby committed the offence punishable under section 323and324readwithSection149oftheI.P.C. Sofar as offence falling under Section 427 and 436 read with Section 149ofI.P.C.asallegedisconcerned,toestablish the offence punishable under Section 427 and 436, prosecution has to prove (1) intention or knowledge of likelihoodtocausewrongfullossordamagetothepublicor toanyperson,(2)causingthedestructionofsomeproperty oranychangeinitorinitssituationand(3)suchchange must destroy or diminish its value or utility or affect it injuriously.FurthertoestablishoffenceunderSection436 prosecution has to establish (1) that the accused has committed mischief, (2) that he did so by fire or any explosivesubstance,(3)thattheaccuseddidsowiththe
// 1174 //
intentiontocause(orknewthatwhatitwaslikelytocause) thedestructionofanybuildingand(4)thatsuchbuilding was ordinarily used as place of worship or as a human dwelling or as a place for the custody of property. It is evidentfromtheevidenceofprosecutionsidethat,persons fromthemobofunlawfulassemblyhadcommittedmischief by fire intending thereby to cause the damage to the propertyofMuslimsofChudivas,DipraDarwajaalongwith the destruction of houses, AutoRickshaws and thereby havecommittedoffencefallingunderSection427and436 readwithSection149ofI.P.C.andtheyareliableforthe same. Further, it is proved by the prosecution that, the accused, who are held liable have committed offence for intimidateinsulttheMuslimsbyabusingandthreatening them and thereby committed offence punishable under Section504and506(2)readwithSection149ofI.P.C. Further, they have committed offence by forming an unlawfulassemblyof200300personsandtherebycause hurttothecomplainantandwitnessessoastoendanger human life and thereby committed offence punishable under section 336 read with Section 149 of I.P.C. Further,theaccusedwhowerearmedwithdeadlyweapons have committed breach of notification issued by District Magistrate and thereby committed offence punishable under Section 188 of I.P.C. and Section 135 of the BombayPoliceAct.Asaresultofaforesaiddiscussionitis clear that, the accused whose presence in the unlawful
// 1175 //
assemblyisproved,areliablefortheoffencecommittedby themembersoftheunlawfulassembly.Sofaraschargesin respectofdamagestotheMuslimspropertiesisconcerned, much damages have been caused to the properties of Muslims by burning the houses in Chudivas, Dipra Darwaja as well as by burning the vehicles of Muslims. Burning of houses and vehicles is proved from the Panchnama,mapaswellasfromtheevidenceofwitnesses, police witnesses etc. and for that, the accused who are memberofunlawfulassemblyandhavetakenpartinthe offenceareliableforthesaidoffences. The prosecution has proved the charges against accused No.83 under Section 217 and 218 of I.P.C. while Section222isnotapplicable. Whileprosecutionhasfailedtoestablishthecharges againstaccused,fallingunderSection302readwith149, 201readwithSection149andSection120BofI.P.C. Considering above all I answer Point No.1 in the negative,PointNo.2intheaffirmativeagainstAccused Nos.2,3,4,5,6,7,8,11,15,16,17,19,20,22,25,33,42, 44, 51, 69, and 76 & in the negative againstaccused Nos.9,10,12,13,14,18,21,23,24,26,27,28,29,30,31, 32,34,35,36,37,38,39,40,41,43,45,46,47,48,49,50, 52,53,54,55,56,57,58,59,60,61,62,63,64,65,66,67, 68,70,71,72,73,75,77,78,79,80,81,82,84and85, PointNo.3intheaffirmativeagainstAccusedNos.2,3,
// 1176 //
4,5,6,7,8,11,15,16,17,19,20,22,25,33,42,44,51, 69,and76 &inthenegativeagainstaccusedNos.9,10, 12,13,14,18,21,23,24,26,27,28,29,30,31,32,34,35, 36,37,38,39,40,41,43,45,46,47,48,49,50,52,53,54, 55,56,57,58,59,60,61,62,63,64,65,66,67,68,70,71, 72,73,75,77,78,79,80,81,82,84and85,PointNo.4 intheaffirmativeagainstaccusedNos.2,3,4,5,6and7 &inthenegativeagainstaccusedNos.8,9,10,11,12,13, 14,15,16,17,18,19,20,21,22,23,24,25,26,27,28,29, 30,31,32,33,34,35,36,37,38,39,40,41,42,43,44,45, 46,47,48,49,50,51,52,53,54,55,56,57,58,59,60,61, 62,63,64,65,66,67,68,69,70,71,72,73,75,76,77,78, 79, 80, 81, 82, 83, 84 and 85, Point No.5 in the negative,PointNo.6intheaffirmativeagainstAccused Nos.2,3,4,5,6,7,8,11,15,16,17,19,20,22,25,33,42, 44, 51, 69, and 76 & in the negative againstaccused Nos.9,10,12,13,14,18,21,23,24,26,27,28,29,30,31, 32,34,35,36,37,38,39,40,41,43,45,46,47,48,49,50, 52,53,54,55,56,57,58,59,60,61,62,63,64,65,66,67, 68,70,71,72,73,75,77,78,79,80,81,82,84and85, PointNo.7intheaffirmativeagainstAccusedNos.2,3, 4,5,6,7,8,11,15,16,17,19,20,22,25,33,42,44,51, 69,and76 &inthenegativeagainstaccusedNos.9,10, 12,13,14,18,21,23,24,26,27,28,29,30,31,32,34,35, 36,37,38,39,40,41,43,45,46,47,48,49,50,52,53,54, 55,56,57,58,59,60,61,62,63,64,65,66,67,68,70,71,
// 1177 //
72,73,75,77,78,79,80,81,82,84and85,PointNo.8 intheaffirmativeagainstAccusedNos.2,3,4,5,6,7,8, 11,15,16,17,19,20,22,25,33,42,44,51,69,and76& inthenegative againstaccusedNos.9,10,12,13,14,18, 21,23,24,26,27,28,29,30,31,32,34,35,36,37,38,39, 40,41,43,45,46,47,48,49,50,52,53,54,55,56,57,58, 59,60,61,62,63,64,65,66,67,68,70,71,72,73,75,77, 78, 79, 80, 81, 82, 84 and 85, Point No.9 in the affirmativeagainstAccusedNos.2,3,4,5,6,7,8,11,15, 16,17,19,20,22,25,33,42,44,51,69,and76&inthe negativeagainstaccusedNos.9,10,12,13,14,18,21,23, 24,26,27,28,29,30,31,32,34,35,36,37,38,39,40,41, 43,45,46,47,48,49,50,52,53,54,55,56,57,58,59, 60,61,62,63,64,65,66,67,68,70,71,72,73,75,77,78, 79,80,81,82,84and85,PointNo.10inthenegative, PointNo.11intheaffirmativeagainstAccusedNos.2,3, 4,5,6,7,8,11,15,16,17,19,20,22,25,33,42,44,51, 69,and76 &inthenegative againstaccusedNos.9,10, 12,13,14,18,21,23,24,26,27,28,29,30,31,32,34,35, 36,37,38,39,40,41,43,45,46,47,48,49,50,52,53,54, 55,56,57,58,59,60,61,62,63,64,65,66,67,68,70,71, 72,73,75,77,78,79,80,81,82,84and85,PointNo.12 inthenegative,PointNo.13intheaffirmativeagainst accusedNos.2,3,4,5,6and7&inthenegativeagainst accusedNos.8,9,10,11,12,13,14,15,16,17,18,19,20, 21,22,23,24,25,26,27,28,29,30,31,32,33,34,35,36,
// 1178 //
37,38,39,40,41,42,43,44,45,46,47,48,49,50,51,52, 53,54,55,56,57,58,59,60,61,62,63,64,65,66,67,68, 69,70,71,72,73,75,76,77,78,79,80,81,82,83,84and 85, Point No.14 in the affirmative against accused No.83and PointNo.15inthenegative againstaccused Nos.84&85
POINTNOS.16&17:
[368] Inviewofabovediscussionanddecision,Ipassfollowing finalorder:
::FINALORDER::::
1.
ORDER
Thefollowingaccusedare ACQUITTED forthechargesof offencespunishableunderSection143,147,148,302read withSection149,307readwithSection149,Section323, 324, 325 read with Section 149, Section 436 read with Section149,427readwithSection149,Section336,337 read with Section 149, Section 120B, Section 201 read with Section 149, Section 504, 506(2) read with Section 149, Section 188 of I.P.C. and Section 135(1) of Bombay PoliceAct:
Acc. No. 43
NameofAccused
Age
Address
SESSIONSCASENO.180/2002 PatelAmrutlalNanalal 44 KhajuriMaholla, KadaDarwaja, Visnagar. Address
Acc.
NameofAccused
Age
// 1179 //
No. 45 PatelAmrutbhaiLilachand 62 ShamalSheri, DarbarRoad, Visnagar. Para,Outside KadaDarwaja, Visnagar. DipraDarwaja, Visnagar. 21,Karshannagar Society, Visnagar. BethakNoMadh, DipraDarwaja, Visnagar. KhajuriMaholla, KadaDarwaja, Visnagar. IndrapuriSociety, Opp.MaheshPetrol Pump,Visnagar. 7,JayJalaram Society,Nr.Ambar Cinema,Visnagar. KhajuriMaholla, KadaDarwaja, Visnagar.
46
PatelYogeshkumarVitthalbhai
30
SESSIONSCASENO.28/2004 61 62 PatelNikeshkumarJitendrabhai@ Jitubhai PatelMahendrakumar@Mukari Madhavlal PatelMunnabhaiShantilal 28 50
63
29
65
PatelJigeshkumar@JagoKantilal
29
68
PatelPankajkumarKantilal
31
SESSIONSCASENO.77/2005 75 PatelYogeshkumarBabulal Kacharabhai PatelNarendrabhai@Kanjibhai Ramaniklal@Ramanbhai 42
77
31
2.
The following accused are ACQUITTED BY GIVING BENEFIT OF DOUBT for the charges of offences punishable under Section 143, 147, 148, 302 read with Section149,307readwithSection149,Section323,324, 325readwithSection149,Section436readwithSection
// 1180 //
149,427readwithSection149,Section336,337readwith Section149,Section120B,Section201readwithSection 149,Section504,506(2)readwithSection149,Section188 ofI.P.C.andSection135(1)ofBombayPoliceAct:

Acc. No. 9 NameofAccused Age Address
SESSIONSCASENO.180/2002 PatelJayeshkumar@Bhuriyo Dahyalal PatelChandubhaiKuberdas 28 7B,Arbudanagar Society,M.N.College Road,Visnagar. BethakNoMadh, DipraDarwaja, Visnagar. RandalMataMadh, DipraDarwaja, Visnagar. BethakNoMadh, VachaliOle, DipraDarwaja, Visnagar. BethakNoMadh, Para,DipraDarwaja, Visnagar. RandalMataMadh, DipraDarwaja, Visnagar. RandalMataMadh, DipraDarwaja, Visnagar. KotvaliSheri, KadaDarwaja, Visnagar. Para, KadaDarwaja, Visnagar.
10
35
12
PatelBharatkumar@Pado Narayanbhai PatelRakeshkumar@Rako AkhadiyanDahyalal
28
13
30
14
PatelSatishkumar@Marshal Shantilal PatelNikeshkumr@Niko Kacharabhai PatelHirenkumar@LaloBabulal
25
18
24
21
25
23
PatelNitinkumar@Salman Vishnubhai PatelNileshkumarVishnubhai
28
24
25
// 1181 //
Acc. No. 26
NameofAccused PatelNikeshkumarDahyalal
Age 25
Address KhajuriMaholla, KadaDarwaja, Visnagar. RandalMataMadh, DipraDarwaja, Visnagar. PaheliSheri,Para, KadaDarwaja, Visnagar. PaheliSheri,Para, KadaDarwaja, Visnagar. RandalMataMadh, DipraDarwaja, Visnagar. KhajuriMaholla, KadaDarwaja, Visnagar. Opp.Aashapura Temple,Dipra Darwaja,Visnagar Nr.MahakaliDairy, DipraDarwaja, Visnagar. BethakNoMadh, DipraDarwaja, Visnagar. RandalMataMadh, DipraDarwaja, Visnagar. UbhiSheri, DipraDarwaja, Visnagar. RandalMataMadh, DipraDarwaja, Visnagar.
27
PatelDevanshukumar@Kako Babulal PatelShaileshkumarShivrambhai
20
28
32
29
PatelHemandrakumarAlkeshbhai
20
30
PatelPravinbhaiDahyabhai
25
31
PatelSanjaykumarChimanlalChoksi 20
32
PatelBhavinkumar@BapuAmrutlal 33
34
PatelTarunkumar@LaloGunvantlal 28
35
PatelRohitkumarShantilal
32
36
PatelSureshkumarJethalal
38
37
PatelViralkumar@Badshah Natvarlal PatelRohitkumar@Madho Shankarlal
25
38
33
// 1182 //
Acc. No. 39
NameofAccused PatelMiteshkumar@MelNarandas
Age 25
Address RandalMataMadh, DipraDarwaja, Visnagar. RandalMataMadh, DipraDarwaja, Visnagar. RandalMataMadh, DipraDarwaja, Visnagar. RandalMataMadh, DipraDarwaja, Visnagar. KotvaliSheri,Para, OutsideKada Darwaja,Visnagar. 43,Karshannagar Society,Dipra Darwaja,Visnagar RandalMataMadh, DipraDarwaja, Visnagar. IshvarkrupaSociety, Visnagar. DipraDarwaja, Visnagar. DipraDarwaja, Visnagar. OutSideKada Darwaja, Visnagar. RandalMataMadh, DipraDarwaja, Visnagar.
40
PatelAshokkumar@Khataro Gokaldas PatelNitinkumarDahyalal
24
41
28
47
PatelSurendrakumar@Madho Babulal PatelAlkeshkumarSankalchand
21
48
39
49
PatelVijaykumarBhogilal
32
50
PatelJitubhaiBharatbhai
32
SESSIONSCASENO.28/2004 52 PatelBharatbhaiIshwarbhai 62
53 54 55
PatelRameshkumarMadhavlal PatelJitendrakumar@Jitubhai Shivrambhai@Shivabhai PatelParshottambhaiJoitaram
49 52 54
56
PatelDahyabhaiMadhavlal
51
// 1183 //
Acc. No. 57 58
NameofAccused PatelSankalchandKacharabhai PatelHasmukhbhaiSankalchand
Age 69 41
Address KadaDarwaja, Visnagar. KhajuriMaholla, KadaDarwaja, Visnagar. Nr.Aashapura Temple, DipraDarwaja, Visnagar. RandalMataMadh, DipraDarwaja, Visnagar. ModasiChopata, DipraDarwaja, Visnagar. RandalMataMadh, DipraDarwaja, Visnagar. BhesiyaPole, Visnagar. Opp.JainDerasar, DipraDarwaja, Visnagar. MiyaVas, DipraDarwaja, Visnagar. Para, KadaDarwaja, Visnagar. RandalMataMadh, DipraDarwaja, Visnagar. RandalMataMadh, DipraDarwaja, Visnagar.
59
PatelAmrutbhaiMadhavlal
60
60
PatelBabubhaiParshottamdas
53
64
PatelKamleshkumarRanchhodbhai
22
66
PatelHareshkumarNarottamdas
36
67 70
PatelSatishkumarParshottadas (StampVendor) PatelManilalBajidas
42 60
71
PatelGeetaben W/o.BabulalIshwarlal PatelMadhuben W/o.AjitkumarAmrutlal PatelManjulabenW/o.Rameshbhai Madhavlal
30
72
26
73
46
SESSIONSCASENO.77/2005 78 PatelBabubhaiIshwarbhai 40
// 1184 //
Acc. No. 79
NameofAccused PatelRamanbhaiGirdharbhai
Age 47
Address KhajuriMaholla, KadaDarwaja, Visnagar.
SESSIONSCASENO.143/2008 80 PatelVishnubhaiIshwarbhai 40 RandalMataMadh, DipraDarwaja, Visnagar. Opp.Karshannagar Society,KadaRoad, Visnagar. BethakNoMadh, DipraDarwaja, Visnagar.
81
PatelAmitbhaiRamabhai
25
82
PatelDipakkumarGangaram
37
3.
The following accused are ACQUITTED BY GIVING BENEFIT OF DOUBT for the charges of offences punishable under Section 143, 147, 148, 302 read with Section149,307readwithSection149,Section323,324, 325readwithSection149,Section436readwithSection 149,427readwithSection149,Section336,337readwith Section149,Section120B,Section201readwithSection 149,Section504,506(2)readwithSection149,Section188 andSection182,186and187readwithSection114and 117ofI.P.C.andSection135(1)ofBombayPoliceAct:
Acc. No. 84
NameofAccused
Age
Address
SESSIONSCASENO.180/2002 PatelPrahladbhaiMohanbhaiGosa 54 TownHall, VijayPara, Visnagar.
// 1185 //
Acc. No. 85
NameofAccused PatelDahyabhaiTribhovandas
Age 60
Address A/41,Tirupati Township, DharoiColony Road,Visnagar
3.
However, the above named accused persons who are acquitted,areherebyorderedtoexecutePERSONALBOND of Rs.25,000/ (Rupees twenty five thousand only) with ONESOLVENTSURETYoflikeamount,byEACHONE,to thesatisfactionofthisCourt,tillappealperiodisover,with aconditionthattheyshallnotleavetheCountrywithout permissionofthisCourttilltheappealperiodisover.
4.
The following accused are ACQUITTED BY GIVING BENEFIT OF DOUBT for the charges of offences punishableunderSection302readwithSection149and Section201readwithSection149and120BofI.P.C.while they are HELD GUILTY for the charges of offences punishable under Section 143, 147, 148, 307 read with Section 149, Section 323, 324 read with Section 149, Section336,337readwithSection149,Section427read with Section 149, Section 436 read with Section 149, Section504,506(2)readwithSection149ofIndianPenal CodeandSection135oftheBombayPoliceAct:
// 1186 //
Acc. No. 2 3
NameofAccused
Age
Address
SESSIONSCASENO.180/2002 PatelBipinkumarBabubhai PatelBhikhabhaiNarayandas 23 21 Ganji,GanpatiSheri, Visnagar. BethakNoMadh, DipraDarwaja, Visnagar. BethakNoMadh, DipraDarwaja, Visnagar. BethakNoMadh, DipraDarwaja, Visnagar. RandalMataMadh, DipraDarwaja, Visnagar. DipraDarwaja, Visnagar. RandalMataMadh, DipraDarwaja, Visnagar. VankarVas, DipraDarwaja, Visnagar RandalMataMadh, DipraDarwaja, Visnagar. NearMaleriaOffice DipraDarwaja, Visnagar. RandalMataMadh, DipraDarwaja, Visnagar. RandalMataMadh, DipraDarwaja, Visnagar.
21
PatelRajeshkumarRanchhoddas
27
PatelChimanlalKacharabhai
47
7 8
30 19
11
ParmarAshokkumar@Senting Shankarlal PatelRanjitkumar@LaloRambhai
33
15
33
16
PatelVijaykumar@Bhano Chandrakantbhai
35
17
PatelRagneshkumar@LaloKantilal 25
19
PatelAnandkumar@BakoBhogilal
23
// 1187 //
Acc. No. 20
NameofAccused PatelJayeshkumarBabulal
Age 23
Address RandalMataMadh, DipraDarwaja, Visnagar. RandalMataMadh, DipraDarwaja, Visnagar. KhajuriMaholla, KadaDarwaja, Visnagar. RandalMataMadh, DipraDarwaja, Visnagar. KhajuriMaholla, KadaDarwaja, Visnagar. Para, KadaDarwaja, Visnagar.
22
23
25
PatelYogeshkumar@Choksi@ LuckyChimanlal PatelKaushalkumarRameshbhai
32
33
20
42
PatelJitendrakumarHasmukhabhai 20 Asobiya PatelDasharathkumarShivabhai 27
44
SESSIONSCASENO.28/2004 51 69 PatelDahyabhaiParshottamdas PatelChamanlal@Choksi Ramchanddas 57 62 DipraDarwaja, Visnagar. KhajuriMaholla, KadaDarwaja, Visnagar.
SESSIONSCASENO.77/2005 76 PatelGandabhaiMadhavlalGokaldas 32 ShravanSheri, Visnagar.
4.
The following accused is ACQUITTED for the charges of offences punishable under Section 302readwith Section 149,Section201readwithSection149and120B,Section
// 1188 //
143,147,148,307readwithSection149,Section323,324 readwithSection149,Section336,337readwithSection 149,Section427readwithSection149,Section436read with Section 149, Section 504,506 (2)readwith Section 149andSection222ofIndianPenalCodeandSection135 oftheBombayPoliceActwhileheisHELDGUILTYforan offencepunishableunderSection217and218ofI.P.C.
Acc. No. 83
NameofAccused
Age
Address
SESSIONSCASENO.56/2009 PatelManubhaiKarshanbhai 62 5,TripadaSociety, Kalikund, Dholka.
Convicted Accused shall be heard on the point of punishmentandtheirbailbondsstandcanceled. Pronounced in the open Court on this 30th Day of July,2012,atMahesana. Place:Mahesana. Date:30.07.2012. [Kum.S.C.Srivastava] SessionsJudge DesignatedCourt Mahesana.
// 1189 //
[369]
Heardtheaccusedandalsotheiradvocatesonthepointof quantum of punishment and also heard learned Special Prosecutor Shri M.K.Brahmbhatt, who is assisted by Additional Special Prosecutor Shri S.G.Thakur, appearing on behalf of the Prosecution. I have also heard the arguments advanced by Shri G.N.Brahmbhatt and Shri B.G.Patel,appearingonbehalfoftheaccusedpersons.
[370]
Thiscourthasheardeachaccusedinperson.Mostofthe accused have saidthat,they areinnocent andthey have falselybeenimplicatedintheoffence.Itisthesayofmost oftheaccusedthat,eithertheyareveryyoungpersonsor theyareveryoldagedpersons,thatexceptthemthereisno earningpersonintheirfamily,theyhavelittlechildrenand consideringallthesethingstheyhaveprayedformercy.In additiontothat,accusedNo.2hasprayedformercyonthe groundsthat,hiselderbrotherisphysicallyhandicapped, accused No.2 has prayed for the mercy on the grounds that,heissufferingfromproblemsofurinary,accusedNo.7 has prayed that, his mother is suffering from disease of Cancerandheishavingsmallchildren,accusedNo.11has prayedthat,heislabourclassandpoorperson,accused No.15hasprayedthat,hismotherisblindandheishaving small children and no one is in his family to look after them,accusedNo.17hasprayedthat,hisfatherisnomore and he is having responsibility of entire family, accused No.22 has prayed that, he has five years son, accused
// 1190 //
No.25hasprayedthat,hehimselfandhisfatherbothhave beenheldguiltybuthisCourtandtherefore,hehasprayed formercy,accusedNo.33hasprayedonthegroundsthat, he has two years son and he only earning person in his family, accused No.43 has prayed that, he has five years daughterandsheissufferingfromproblemsofeyesights andeverymonthsheisinneedofmedicaltreatmentfrom CivilHospital,Ahmedabad,accusedNo.44hasprayedthat, heisdischargingliabilitiesofsixfamilymembers,accused No.51hasprayedthat,heissufferingfromtheproblemsof High Blood Pressure, Diabetes and joints, he is old aged person, accused No.69 has prayed that, he and his son bothhavebeenheldguiltybythisCourtandtherefore,has prayedformercy,accusedNo.83hasprayedthat,whatever hehasacteditiswithinthepurviewofhisdutiesandheis 64yearsoldretiredofficertherefore,theyallhaveprayed formercy. [371] I have heard learned advocate Shri G.N.Brahmbhatt, appearingonbehalfoftheaccusedNos.1to82and84has arguedthat,astheHonourableCourthasnotbelievedthe offence under Section 302 and has believed the offence punishableunderSection307readwithSection149,the intentionoftheaccusedwasnottokillthepersonsandit wasspontaneousactduetoGodhrariotseffecttherefore, has prayed for lesser punishment. Considering the fact that, accused are not habitual offenders and the offence occurred in excitement therefore, prayed for minimum
// 1191 //
punishment. While learned advocate Shri B.G.Patel, appearingonbehalfofaccusedNo.83hasarguedthat,he hasactedsincerely,asapartofhisdutybutthesituation was so tense therefore, it was beyond control therefore, prayedformercyandlearnedadvocateShriB.G.Patelhas prayed for benefit of probation. While learned Special ProsecutorShriBrahmbhatthasarguedthat,thecrimeis so heinous that 11 persons were killed and houses were burntinChudivas,itcannotbetakenlightlyandmaximum punishmentshouldbeawardedtotheaccused. [372] Consideringtheargumentsadvancedbyboththesidesas wellasconsideringthemannerinwhichincidentoccurred as well as gravity of offence, this Court has given its thoughtful consideration on the arguments advanced by boththesidesandalsoconsideredthelawlaiddownbythe Hon'bleSupremeCourtofIndiaandHon'bleHighCourtof Gujarat. Though this indeed is one of the aspects of the matter, it cannot be ignored that the accused are being convictedbyvirtueoftheprovisionsofsection149ofthe Code.Theexactroleplayedbyeachaccusedintheentire incidentisnotspecificallyproved. [373] Thefactthat,theaccusedaregivenbenefitofdoubtabout allegedkillingof11personsandconsideringtheintention and object of the accused side for attempt to commit murder,thisCourtisoftheviewthat,bykeepinginmind
// 1192 //
this is a serious crime, which cannot be taken lightly. Considering the penal provisions laid down in all these sections, in my opinion the following sentences will meet the ends of justice. So far as accused No.83 has sought benefitofProbation,consideringthenatureofoffenceand that,hewasapublicservant,benefitofprobationcannot begrantedtotheaccusedNo.83.Sofarasoffenceunder Section307r.w.Section149andSection437r.w.Section 149areconcerned,consideringthegravityofoffenceand the circumstances in which the offence has occurred maximumpunishmenttotheaccusedarerequiredtomeet outtheendofjustice.Intheresult,thefollowingorderis passed:
::ORDER::
1. The accused persons named below are hereby sentenced under Section 235(2) of the Criminal Procedure Code, to undergo the punishment, as mentioned hereunder, for the charges proved against them:
Acc. No. 2 3
NameofAccused
Age
Address
SESSIONSCASENO.180/2002 PatelBipinkumarBabubhai PatelBhikhabhaiNarayandas 23 21 Ganji,GanpatiSheri, Visnagar. BethakNoMadh, DipraDarwaja, Visnagar.
// 1193 //
Acc. No. 4
NameofAccused PatelVipulkumarNaranbhai
Age 21
Address BethakNoMadh, DipraDarwaja, Visnagar. BethakNoMadh, DipraDarwaja, Visnagar. RandalMataMadh, DipraDarwaja, Visnagar. DipraDarwaja, Visnagar. RandalMataMadh, DipraDarwaja, Visnagar. VankarVas, DipraDarwaja, Visnagar RandalMataMadh, DipraDarwaja, Visnagar. NearMaleriaOffice DipraDarwaja, Visnagar. RandalMataMadh, DipraDarwaja, Visnagar. RandalMataMadh, DipraDarwaja, Visnagar. RandalMataMadh, DipraDarwaja, Visnagar. RandalMataMadh, DipraDarwaja, Visnagar.
PatelRajeshkumar Ranchhoddas PatelChimanlalKacharabhai
27
47
7 8
30 19
11
ParmarAshokkumar@Senting 33 Shankarlal PatelRanjitkumar@Lalo Rambhai PatelVijaykumar@Bhano Chandrakantbhai PatelRagneshkumar@Lalo Kantilal PatelAnandkumar@Bako Bhogilal 33
15
16
35
17
25
19
23
20
PatelJayeshkumarBabulal
23
22
23
// 1194 //
25
PatelYogeshkumar@Choksi@ 32 LuckyChimanlal PatelKaushalkumar Rameshbhai PatelJitendrakumar HasmukhabhaiAsobiya PatelDasharathkumar Shivabhai 20
KhajuriMaholla, KadaDarwaja, Visnagar. RandalMataMadh, DipraDarwaja, Visnagar. KhajuriMaholla, KadaDarwaja, Visnagar. Para, KadaDarwaja, Visnagar.
33
42
20
44
27
SESSIONSCASENO.28/2004 51 69 PatelDahyabhai Parshottamdas PatelChamanlal@Choksi Ramchanddas 57 62 DipraDarwaja, Visnagar. KhajuriMaholla, KadaDarwaja, Visnagar.
SESSIONSCASENO.77/2005 76 PatelGandabhaiMadhavlal Gokaldas 32 ShravanSheri, Visnagar.
2.
AlltheaccusedwhosenamesarementionedinPara 1 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.
// 1195 //
3.
AlltheaccusedwhosenamesarementionedinPara 1 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.
4.
Out of the accusedwhosenamesarementionedin Para 1 of this Order, the following accused are convicted fortheoffencepunishableunder Section 148 of the I.P.C. andeach ofthem issentencedto suffer simple imprisonment for 2 (Two) Years, and also to pay a fine of Rs.2000/ (Rupees two thousand only) each, in default, to suffer simple imprisonmentfor4(Four)Months.
Acc. No. 2 3
NameofAccused
Age
Address
SESSIONSCASENO.180/2002 PatelBipinkumarBabubhai PatelBhikhabhaiNarayandas 23 21 Ganji,GanpatiSheri, Visnagar. BethakNoMadh, DipraDarwaja, Visnagar. BethakNoMadh, DipraDarwaja, Visnagar.
21
// 1196 //
Acc. No. 5
NameofAccused PatelRajeshkumar Ranchhoddas PatelChimanlalKacharabhai
Age 27
Address BethakNoMadh, DipraDarwaja, Visnagar. RandalMataMadh, DipraDarwaja, Visnagar. DipraDarwaja, Visnagar.
47
PatelDhirubhaiBhikhabhai
30
5.
AlltheaccusedwhosenamesarementionedinPara 1 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 rigorous imprisonment for LIFE and also to pay a fineofRs.1000/ (Rupeesonethousandonly)each, indefault,tosuffersimpleimprisonmentfor 6(Six) Months.
6.
AlltheaccusedwhosenamesarementionedinPara 1 of this Order are convicted for the offence punishableunder Section323,r.w.Section149 of 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.
// 1197 //
7.
AlltheaccusedwhosenamesarementionedinPara 1 of this Order are convicted for the offence punishableunder Section324,r.w.Section149 of 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.
AlltheaccusedwhosenamesarementionedinPara 1 of this Order are convicted for the offence punishable under Section 427 and 436, r.w. Section 149 of the I.P.C. and each of them is sentencedtosufferrigorousimprisonmentfor LIFE and also to pay a fine of Rs.1000/ (Rupees one thousand only) each, in default, to suffer simple imprisonmentfor6(Six)Months.
9.
AlltheaccusedwhosenamesarementionedinPara 1 of this Order are convicted for the offence punishableunderSection336and337r.w.Section 149 of the I.P.C.and eachofthem issentencedto suffer simple imprisonment for 3 (Three) Months, and also to pay a fine of Rs.250/ (Rupees two hundredfiftyonly)each,indefault,tosuffersimple imprisonmentfor10(Ten)days.
// 1198 //
10.
AlltheaccusedwhosenamesarementionedinPara 1 of this Order are convicted for the offence punishableunder Section504,506(2)r.w.Section 149 of the I.P.C. andeach ofthem issentencedto suffersimpleimprisonmentfor1(One)Yearandalso topayafineofRs.250/ (Rupeestwohundredfifty only)each,indefault,tosuffersimpleimprisonment for15(Fifteen)days.
11.
Noseparateorderregardingpunishmentispassedfor the offence punishable under Section 135 of the BombayPoliceAct.
12.
The following accused is convicted for the offence punishableunderSection217ofI.P.C.henceheis sentencedtosuffersimpleimprisonmentfor1(One) Year,andalsotopayafineofRs.250/(Rupeestwo hundredfiftyonly)each,indefault,tosuffersimple imprisonmentfor15(Fifteen)days.
Acc. No. 83
NameofAccused
Age
Address
// 1199 //
13.
The following accused is convicted for the offence punishableunderSection218ofI.P.C.henceheis sentencedtosuffersimpleimprisonmentfor1(One) Year,andalsotopayafineofRs.250/(Rupeestwo hundredfiftyonly)each,indefault,tosuffersimple imprisonmentfor15(Fifteen)days.
Acc. No. 83
NameofAccused
Age
Address
14. 15.
Allthesubstantivesentences,exceptthesentencesof imprisonmentforlife,shallrunconcurrently. Theabovenamedconvictedaccusedpersonsshallbe entitledtogetbenefitofsetoff,oftheperiodoftheir respective detention as an UnderTrial Prisoner, during the investigation and trial, as provided in Section428oftheCodeofCriminalProcedure.
16.
Thesentencesofimprisonmentforlifeshallrunafter the expiration of the concurrent sentences for imprisonmentforterms.
17.
MuddamalArticleNos.8and9areorderedtobesent totheDistrictMagistrate,Mahesana,foritsdisposal
// 1200 //
accordingtolawandrestofthemuddamalarticles are ordered to be destroyed after appeal period is over. 18. TheaccusedNo.1PatelVishnukumarShivrambhai isJuvenileandtherefore,caseagainsthimisalready sent to the Juvenile Justice Board as per order passedbelowExh.1154whereasaccusedNo.74Patel Dahyabhai Nanalal is died during the pendency of trialandhencecaseagainsthimisabated. 19. OriginalJudgementbekeptwiththerecordsofMain Sessions Case No.180/2002, whereas a copy of the Judgement be kept with the records of remaining eachconsolidatedSessionsCase. 20. CertifiedCopyoftheJudgementbeprovidedtoeach convicted accused person, free of cost, as expeditiouslyaspossible. PronouncedintheopenCourtonthis30thDay ofJuly,2012,atMahesana. Place:Mahesana. Date:30.07.2012. [Kum.S.C.Srivastava] SessionsJudge DesignatedCourt Mahesana.

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// 1 //

Sessions Case Nos.180/2002, 28/2004, 77/2005, 143/2008 & 56/2009.

SessionsCaseNo.180/2002 Filedon Registeredon

SessionsCaseNo.28/2004 Filedon Registeredon

SessionsCaseNo.77/2005 Filedon Registeredon

SessionsCaseNo.143/2008 Filedon Registeredon

Sessions Case Nos.180/2002, 28/2004, 77/2005, 143/2008 & 56/2009.

SessionsCaseNo.56/2009 Filedon Registeredon

Sessions Case Nos.180/2002, 28/2004, 77/2005, 143/2008 & 56/2009.

U.T.P./ OnBail/ Expired

RandalMataMadh, OnBail DipraDarwaja, Visnagar. DipraDarwaja, Visnagar. OnBail

Sessions Case Nos.180/2002, 28/2004, 77/2005, 143/2008 & 56/2009.

U.T.P./ OnBail/ Expired

PatelBharatkumar@Pado Narayanbhai PatelRakeshkumar@Rako AkhadiyanDahyalal

RandalMataMadh, OnBail DipraDarwaja, Visnagar. NearMaleriaOffice DipraDarwaja, Visnagar. OnBail

Sessions Case Nos.180/2002, 28/2004, 77/2005, 143/2008 & 56/2009.

U.T.P./ OnBail/ Expired OnBail

PatelNitinkumar@Salman Vishnubhai PatelNileshkumarVishnubhai

PatelYogeshkumar@Choksi@ LuckyChimanlal PatelNikeshkumarDahyalal

PatelDevanshukumar@Kako Babulal PatelShaileshkumar Shivrambhai PatelHemandrakumar Alkeshbhai PatelPravinbhaiDahyabhai

PatelSanjaykumarChimanlal Choksi PatelBhavinkumar@Bapu Amrutlal

RandalMataMadh, OnBail DipraDarwaja, Visnagar. Nr.MahakaliDairy, DipraDarwaja, Visnagar. OnBail

Sessions Case Nos.180/2002, 28/2004, 77/2005, 143/2008 & 56/2009.

U.T.P./ OnBail/ Expired OnBail

BethakNoMadh, DipraDarwaja, Visnagar.

RandalMataMadh, OnBail DipraDarwaja, Visnagar. UbhiSheri, DipraDarwaja, Visnagar. OnBail

PatelViralkumar@Badshah Natvarlal PatelRohitkumar@Madho Shankarlal PatelMiteshkumar@Mel Narandas PatelAshokkumar@Khataro Gokaldas PatelNitinkumarDahyalal

PatelJitendrakumar HasmukhabhaiAsobiya PatelAmrutlalNanalal

Sessions Case Nos.180/2002, 28/2004, 77/2005, 143/2008 & 56/2009.

U.T.P./ OnBail/ Expired

RandalMataMadh, OnBail DipraDarwaja, Visnagar. KotvaliSheri,Para, OutsideKada Darwaja,Visnagar. OnBail

43,Karshannagar OnBail Society,Dipra Darwaja,Visnagar RandalMataMadh, OnBail DipraDarwaja, Visnagar.

OnBail OnBail OnBail

PatelJitendrakumar@Jitubhai 52 Shivrambhai@Shivabhai PatelParshottambhaiJoitaram 54

RandalMataMadh, OnBail DipraDarwaja, Visnagar. KadaDarwaja, Visnagar. OnBail

Sessions Case Nos.180/2002, 28/2004, 77/2005, 143/2008 & 56/2009.

U.T.P./ OnBail/ Expired OnBail

KhajuriMaholla, KadaDarwaja, Visnagar. Nr.Aashapura Temple, DipraDarwaja, Visnagar.

PatelNikeshkumarJitendrabhai 28 @Jitubhai PatelMahendrakumar@Mukari 50 Madhavlal PatelMunnabhaiShantilal 29

PatelKamleshkumar Ranchhodbhai PatelJigeshkumar@Jago Kantilal

RandalMataMadh, OnBail DipraDarwaja, Visnagar. BhesiyaPole, Visnagar. OnBail

PatelSatishkumarParshottadas (StampVendor) PatelPankajkumarKantilal

IndrapuriSociety, OnBail Opp.MaheshPetrol Pump,Visnagar. KhajuriMaholla, KadaDarwaja, Visnagar. OnBail

Sessions Case Nos.180/2002, 28/2004, 77/2005, 143/2008 & 56/2009.

U.T.P./ OnBail/ Expired OnBail

Opp.JainDerasar, DipraDarwaja, Visnagar. MiyaVas, DipraDarwaja, Visnagar. Para, KadaDarwaja, Visnagar.

PatelGeetaben W/o.BabulalIshwarlal PatelMadhuben W/o.AjitkumarAmrutlal PatelManjulaben W/o.RameshbhaiMadhavlal

RandalMataMadh, OnBail DipraDarwaja, Visnagar.

PatelYogeshkumarBabulal Kacharabhai PatelGandabhaiMadhavlal Gokaldas

PatelNarendrabhai@Kanjibhai 31 Ramaniklal@Ramanbhai PatelBabubhaiIshwarbhai 40

RandalMataMadh, OnBail DipraDarwaja, Visnagar. KhajuriMaholla, KadaDarwaja, Visnagar. OnBail

Sessions Case Nos.180/2002, 28/2004, 77/2005, 143/2008 & 56/2009.

5,TripadaSociety, Kalikund, Dholka.

Sessions Case Nos.180/2002, 28/2004, 77/2005, 143/2008 & 56/2009.

ShriM.K.Brahmbhatt LearnedSpecialProsecutorAppearingonbehalf oftheprosecution ShriS.G.Thakur ShriAyazK.Shaikh LearnedAdditionalProsecutorAppearingon behalfoftheprosecution LearnedAdvocate,appearingonbehalfof Originalcomplainant.

ShriG.N.Brahmbhatt Learnedadvocateappearingonbehalfof accusedNo.1to82andaccusedNo.84. ShriB.G.Patel ShriC.K.Shah Learnedadvocateappearingonbehalfofthe accusedNo.83. Learnedadvocateappearingonbehalfofthe accusedNo.85.

OVER & ABOVE CHARGES, ADDITIONAL CHARGE AGAINSTACCUSEDNO.83:

Sessions Case Nos.180/2002, 28/2004, 77/2005, 143/2008 & 56/2009.

OVER & ABOVE CHARGES, ADDITIONAL CHARGE AGAINSTACCUSEDNOS.84&85:

Sessions Case Nos.180/2002, 28/2004, 77/2005, 143/2008 & 56/2009.

Sessions Case Nos.180/2002, 28/2004, 77/2005, 143/2008 & 56/2009.

Sessions Case Nos.180/2002, 28/2004, 77/2005, 143/2008 & 56/2009.

Sessions Case Nos.180/2002, 28/2004, 77/2005, 143/2008 & 56/2009.

Sessions Case Nos.180/2002, 28/2004, 77/2005, 143/2008 & 56/2009.